National Police Accountability Project

Current Trends in Police
Misconduct Litigation

Thursday, October 16, 2008
Detroit Marriott at the Renaissance Center
Detroit, MI

October 16, 2008
Dear CLE Participant:
National Police
Accountability Project
A Project of the National
Lawyers Guild

Executive Director
Brigitt Keller
Board of Directors:
President
Howard Friedman
Vice President
R. Samuel Paz
Vice President
Michael Haddad
Treasurer
Amanda Masters
Secretary
Michael Avery
John Burris
John Burton
Hugh Davis
Robert Giroux
Janine Hoft
David Robinson
Gregory Samms
Brian Spears
Advisory Board:
Judith Berkan
Peter Berkowitz
Karen Blum
Andrew Clarke
Richard Emery
David Gespass
Ron Hampton
James Harrington
Mary E. Howell
Jonathan C. Moore
Hector Piñeiro
David Rudovsky
Barry Scheck
Carol Sobel
G. Flint Taylor
Ellen Yaroshefsky

Thank you for joining us today. The National Police Accountability Project
(NPAP) has offered CLE seminars since the project’s inception in 1999. As many
times before, we have assembled some of the most experienced faculty for the purpose
of educating lawyers, legal workers and law students in the complex area of Section
1983 litigation. By providing a forum to learn and an opportunity to network, we hope
to embolden you in your efforts on behalf of the victims and to get a step closer to our
goal to protect individuals and communities from law enforcement misconduct and
brutality.
The National Police Accountability Project, a project of the National Lawyers
Guild, is a non-profit organization dedicated to ending police abuse of authority
through coordinated legal action, public education, and support for grassroots and
victims organizations combating law enforcement misconduct.
The NPAP has members nationwide and is steadily growing. The project
offers a variety of services to its members. Our member only listserv has become a
tremendous resource to share legal analysis, litigation strategy and information
regarding expert witnesses and other topics. The Section 1983 Subscription Series,
quarterly updates on critical Section 1983 case law developments, can be accessed by
members and non-members for an additional annual fee; open to everyone we publish
Amicus Briefs. To find out more about our organization please visit our web page at
www.nlg-npap.org.
Police misconduct continues to be a serious legal, social and political problem.
The abuse of Tasers, police misconduct against immigrants, abhorrent conditions in
jails and prisons across the country, and the continuing use of deadly force against
unarmed individuals are only a few of the issues civil rights lawyers are confronted with
regularly. We hope that this seminar will sharpen your legal skills and provide you with
the necessary network to master these challenges.
As always, many people have worked to make this event possible. Our thanks
go to speakers John Burton, Javier Maldonado, David Robinson, Richard Soble and
Roger Smith, and our panelists Michael Avery, Howard Friedman, Julie Hurwitz,
Deborah LaBelle, Julia Sherwin, Mariann Meier Wang and Amos Williams; to our CLE
chair and moderator Michael Haddad, and to our parent organization, the National
Lawyers Guild. Last but not least, what would a CLE seminar be without a coffee
break? Our thanks go to Analytics, Incorporated who generously sponsor our coffee
breaks www.classadmin.com/index.html.
The National Police Accountability Project
Brigitt Keller
Executive Director
14 Beacon Street Suite 701 • Boston, MA 02108 • Tel: (617) 227-6015
Fax: (617) 830 0260 • www.nlg-npap.org • npap@nlg.org

Current Trends in Police Misconduct Litigation
TABLE OF CONTENTS

I. Immigration Issues in Police Misconduct Litigation
Javier Maldonado, Law Office of Javier Maldonado, San Antonio, TX
To sue or not to sue
Keeping your client in the US if s/he sues
Discovery issues
Damages
II. Litigating Taser Cases
John Burton, Law Offices of John Burton, Pasadena, CA
Opening Statement
Plaintiff’s Opposition to Defendant’s Motions in Limine on Experts
Plaintiff’s Memorandum in Opposition to Defendant’s JMOL
Closing Instructions
Plaintiff’s Memorandum in Opposition to Defendant’s Motion for a New Trial
III. Handling Strip Search Cases: Panel Discussion
Howard Friedman, Law Offices of Howard Friedman, Boston, MA
Julia Sherwin, Haddad & Sherwin, Oakland, CA
Marian Meier Wang, Emery, Celli, Brinckerhoff & Abadi LLP, New York, NY
Strip Searches and the Fourth Amendment Rights
of Prisoners
Howard Friedman
Response to Motion to Dismiss
Order re Plaintiff’s Motion for Partial Summary Judgment
Plaintiff’s Proposed Strip Search Policy
Julia Sherwin

IV. Settlement of Police Misconduct Cases with Fee Claims
Richard Soble, Soble Rowe Krichbaum, Ann Arbor, MI
Roger Smith, Garan Lucow, Detroit, MI
Avoiding the Roll of the Dice: Strategies for Settlement
Richard A. Soble and Mary R. Minnet

V. Investigating a Deadly Force Case
David Robinson, David A. Robinson & associates PC, Southfield, MI
Investigating Wrongful Death in Police Shootings
David Robinson
VI. Ask the Experienced Trial Lawyer: Panel Discussion
Michael Avery, Professor, Suffolk University Law School, Boston, MA
Julie Hurwitz, Goodman & Hurwitz, P.C., Detroit, MI
Deborah LaBelle, Law Offices of Deborah LaBelle, Ann Arbor, MI
Amos Williams, Amos E. Williams, P.C., Detroit, MI
Representative Recent Appellate Cases
Michael Avery
Sample Discovery Request
Psychological Evaluation Report (§1983 wrongful conviction case 02/2008)
Jury Consultant Outline of Services (wrongful conviction case 02/2008)
Full set of jury instructions submitted to jury, wrongful conviction case 02/2008
[§1983 False Arrest, Malicious Prosecution, Brady Violation cause of action]
Julie Hurwitz
Ensuring Rights for All: Realizing Human Rights for Prisoners
Deborah LaBelle
Why I Call Defendants First
Amos Williams

About the Faculty
MICHAEL AVERY is a Professor at Suffolk University Law School in Boston. He completed a
three year term as the President of the National Lawyers Guild in October, 2006. A graduate of Yale
College and Yale Law School, he was a trial lawyer for 28 years before joining the Suffolk faculty in
1998. He specialized in constitutional law and civil rights cases, particularly civil actions based on law
enforcement conduct. Among the hundreds of such cases he filed, Prof. Avery was lead counsel for
the plaintiffs in the Cerro Maravilla case, based on the police murder of Puerto Rican independence
activists in 1978. He currently represents plaintiffs in cases stemming from the FBI scandal in
Boston, which involved the imprisonment for three decades of innocent men as a result of FBI
suppression of exculpatory evidence. He is also representing lawyers from the Center for
Constitutional Rights in a suit against President Bush to enjoin warrantless electronic surveillance.
He has argued civil rights cases in the United States Supreme Court and several circuit courts. Prof.
Avery is a co-author of Police Misconduct: Law and Litigation, the leading treatise in the field of law
enforcement misconduct litigation, and has published several articles on police misconduct. He also
co-authored Handbook of Massachusetts Evidence, the leading treatise in that field. He has authored
several articles on civil rights law and evidence. He frequently lectures to both civil rights and police
audiences on constitutional law and civil rights.
Michael Avery, Suffolk University Law School, 120 Tremont Street, Boston, MA 02108
Phone: (617) 573-8551 Email: mavery@suffolk.edu
JOHN BURTON John Burton obtained his undergraduate degree from UCLA in 1976, and
graduated from Hastings College of the Law in 1978, following an externship with California
Supreme Court Justice Stanley Mosk. Mr. Burton is a member of the NPAP Board of Directors.
Mr. Burton was a member of Police Watch: The Police Misconduct Lawyers Referral Service, from
1986 until its dissolution in 2004, and is a past president of its board of directors. He was a professor
of Torts at the University of West Los Angeles from 1981 through 1989. Mr. Burton has focused
his practice on representing victims of police misconduct since 1984. Mr. Burton has provided
leadership to teams comprised of several police misconduct attorneys in three major complex cases.
Mr. Burton was lead counsel for plaintiffs’ attorneys in civil litigation arising from the August 1988
Dalton Avenue raids by the Los Angeles Police Department ($3.5 million recovered), and was vicelead counsel to Hugh Manes in the class action lawsuit against the Los Angeles County Sheriff’s
Department arising from widespread misconduct at the Lynwood Substation ($7.5 million recovered
in addition to compelled institutional changes). Most recently, Mr. Burton served as co-lead counsel
with Barry Litt in the class action cases challenging the systematic over-detention and unnecessary
strip searches of people held in Los Angeles County jails ($27 million recovered and system
changed). Along with co-counsel Peter Williamson of Williamson & Krauss of Woodland Hills,
California, Mr. Burton represented plaintiffs in Heston v. City of Salinas and TASER International, Inc.

On June 9, 2008, the jury returned a $6.2 million verdict against TASER International, the first such
verdict since the company introduced 26-watt electronic control devices (ECDs) in 2000.
John Burton, Law Offices of John Burton, 414 South Marengo Drive, Pasadena, CA 91101
Phone: (626) 449-8300 Email: jb@johnburtonlaw.com
HOWARD FRIEDMAN is the principal in the Law Offices of Howard Friedman P.C., a civil
litigation firm in Boston, Massachusetts. Howard’s practice emphasizes representing plaintiffs in civil
rights cases. He has represented the plaintiffs in five class actions alleging unconstitutional strip
searches at county jails and he has handled about a dozen individual cases alleging unlawful strip
searches in prisons, jails and schools. He is the President of the National Police Accountability
Project of the National Lawyers Guild. He served as chair of the Civil Rights Section of the
Association of Trial Lawyers of America (ATLA) (now the American Association for Justice). He is
a graduate of Northeastern University School of Law and Goddard College.
Howard Friedman, Law Offices of Howard Friedman, 90 Canal Street, 5th Floor, Boston, MA 02114
Phone: (617) 742-4100 Email: hfriedman@civil-rights-law.com
JULIE HURWITZ is in private practice in Detroit, Michigan, a partner in the firm of Goodman &
Hurwitz, P.C., where she and her partner Bill Goodman specialize in civil rights and government
misconduct/§1983 litigation. She is also adjunct professor of law at the University of Detroit/Mercy
School of Law, where she teaches Civil Rights Litigation. From 1990-1993 and again from 19972006, she was the Executive Director of the NLG/Maurice & Jane Sugar Law Center for Economic
and Social Justice [Sugar Law Center] in Detroit. She has successfully tried several civil rights case to
verdict, including police misconduct, prisoner rights, failure to protect and sexual harassment cases,
most recently obtaining a $2.5 million jury verdict, with fellow NPAP practitioner Thomas M.Loeb,
on behalf of two women who had been maliciously prosecuted and wrongfully convicted of an
armed robbery of which they were the victims. She is past president of the Detroit Chapter of the
National Lawyers Guild and a graduate of the University of Michigan Law School.
Julie Hurwitz, Goodman & Hurwitz, 1394 E. Jefferson Avenue, Detroit, MI 48207
Phone: (313) 567-6170 Email: jhurwitz@goodmanhurwitz.com
DEBORAH LABELLE’s in Ann Arbor, Michigan focuses on the human rights of people in
detention. She has been lead counsel in over a dozen class actions that have successfully challenged
policies affecting and treatment of incarcerated men, women and juveniles and their families, arguing
several cases before the US Supreme Court and in international forums. Ms. LaBelle was the first
American to be designated as Human Rights Monitor by Human Rights Watch for her work on
behalf of women prisoners and use of international standards on behalf of those in detention in the
United States. She received the Champion of Justice award from the State Bar of Michigan in 2004,
was the ACLU’s Civil Libertarian of the Year in 2006, and designated as 2008 Trial Lawyer of the
Year by the Public Justice Foundation. Her recent publications include contributions to Human
Rights Case Studies: the world of detention, Human Rights at Home, eds. Cox, Rosenblum, Albisa, Davis,
Soohoo. (Praeger Press 2008); Women at the Margins, Women, the Law, and the Justice System: Neglect,

Violence and Resistance (Haworth Press, 2003) and Balancing Gender Equity for Female Prisoners (Feminist
Studies, Summer 2004). Ms. LaBelle is a Senior Soros Justice Fellow and in addition to her private
practice is project director for the ACLU’s Juvenile Life Without Parole Initiative and author of,
Second Chances: Juveniles serving life without parole in Michigan’s prisons.
Deborah LaBelle, 221 N Main Street, Ste. 300, Ann Arbor, MI 48104
Phone: (734) 996-5620 Email: deblabelle@aol.com
JAVIER MALDONADO is an attorney in private practice whose work focuses on civil litigation,
primarily in immigration and employment discrimination, civil rights, wage and hour and other
complex litigation in both federal and state courts. Mr. Maldonado is the former Executive Director
of the Lawyers’ Committee for Civil Rights under Law of Texas (“Texas Lawyers’ Committee”), a
nonprofit legal organization dedicated to protecting and defending the rights of immigrants and
refugees. He previously served as a Trial Attorney with the Equal Employment Opportunity
Commission and as a Staff Attorney and Skadden Fellow with the Mexican American Legal Defense
and Educational Fund (MALDEF). Mr. Maldonado is a graduate of Columbia College and
Columbia University School of Law. Following law school, Mr. Maldonado clerked for U.S. District
Judge George P. Kazen in the Southern District of Texas. In 2006, Mr. Maldonado was awarded the
LexisNexis Matthew Bender Daniel Levy Memorial Award for Outstanding Achievement in
Immigration Law. Mr. Maldonado was born in Matamoros, Tamaulipas, Mexico and lives today in
San Antonio, Texas with his wife and three children.
Javier Maldonado, Law Office of Javier N. Maldonado, 110 Broadway, Ste. 510, San Antonio, TX
78212; Phone: (210) 277-1603 Email: jmaldonado.law@gmail.com
DAVID A. ROBINSON is a graduate of Wayne State University and Detroit College of Law and
has practiced law for over 22 years. Before starting his legal practice, he served the Detroit Police
Department for thirteen years, both as an officer of the law and an officer of the court, and
frequently defended officers involved in civil litigation. As a part of his responsibilities, he taught
the legal section to recruits in the Detroit Metropolitan Police Academy. During these years, he also
served the Wayne State University Criminal Justice Department as an instructor in Criminal Law and
Evidence. At the end of his tenure he served as legal advisor to the Department. In his legal
practice, Mr. Robinson has litigated numerous cases against municipalities involving civil rights
violations resulting from police misconduct. As a result of his personal history, experience, and area
of practice, he has a unique insight to both municipal liability and governmental immunity, and has
been instrumental in the improvement of community relations for various institutions by identifying
areas of concern and addressing them through the creation and implementation of sound policies in
order to ensure and maintain a relationship of mutual respect, trust and confidence between the
community and its leaders. David Robinson serves on the executive boards of both the NPAP and
the Legal Redress Committee for the NAACP. Previously, he has been on the boards of the
Michigan Association for Justice and the National Lawyers Guild. He is a frequent CLE lecturer
and has addressed the members of the coalitions against police brutality for Detroit and Pontiac.

David A. Robinson, David A. Robinson & Associates., PC, 28145 Greenfield Road, Ste. 100,
Southfield, MI, 48076; Phone: (248) 423-7234 Email: darjd@earthlink.net
JULIA SHERWIN is an AV rated attorney and a partner in Haddad & Sherwin, in Oakland,
California. She primarily represents Plaintiffs in civil right matters, including First Amendment,
wrongful death, police misconduct, sexual harassment, and racial discrimination. Ms. Sherwin has
successfully tried and settled numerous cases in federal and state courts, for example:
• $4.35 million present value [$10.9 million structured] medical malpractice settlement for
failure to diagnose a serious cardiac condition in a 9-year-old boy;
• California’s first mandatory training program in public schools to combat discrimination and
harassment against gay and lesbian students and teachers, followed by an emotional distress
damages verdict of $500,000 and ultimately a $1.1 million settlement for a teacher who was
disciplined for protecting gay and lesbian student;
• sweeping police crowd control policy changes and substantial damages settlements for six
peace demonstrators who were injured by the Oakland police at the Port of Oakland on
April 7, 2003;
• the first jury verdict in the country for a public entity’s deliberately indifferent failure to train
its employees about language-based discrimination;
• lead counsel on a case of first impression nationally to recognize the First Amendment rights
of Administrative Law Judges to make decisions free of outside pressure (Perry v. McGinnis,
209 F.3d 597 (6th Cir. 2000).
Ms. Sherwin is listed as a Northern California Super Lawyer in Civil Rights/First Amendment for
2006 and 2008. She is immediate past president of the Alameda Contra Costa Lawyers.
Julia Sherwin, Haddad & Sherwin, 505 Seventeenth Street, Oakland, CA 94612
Phone: (510) 452-5500 Email: haddad.sherwin@sbcglobal.net
ROGER A. SMITH A shareholder and managing attorney of the Troy office with the law firm of
Garan Lucow Miller, P.C., Roger A. Smith has been an attorney covering a broad spectrum of
governmental and municipal law, product liability, construction as well as personal injury law since
1977. Mr. Smith is the coauthor of the publication, the Michigan Tort Reform (1995) and was the
recipient of 2003 Respected Advocate Award bestowed by The Michigan Trial Lawyers Association.
He is a two-time nominee (2002 and 2003) for the State Bar of Michigan John W. Cummiskey
Award recognizing the pro bono contributions of a Michigan attorney. He has been selected by his
peers as a 2008 “Best Lawyer in America” for his work in personal injury law and as a “Super
Lawyer” (2006, 2007 and 2008) for his achievements in government, cities and municipalities law.
Mr. Smith is a member of the State Bar of Michigan, American Bar Association (past), the Defense
Research Institute, Michigan Defense Trial Counsel, and the Association of Defense Trial Counsel,
among others. He serves as President of the Advisory Council of the Salvation Army William Booth
Legal Aid Clinic and was an inaugural Master of the Bench of the Oakland County Inn of Court. He
is a Case Evaluator in both Wayne County and Oakland County Circuit Court. He also served as a
Court Appointed Facilitator in Oakland County. Mr. Smith received his law degree from Wayne
State University (1977).

Roger Smith, Garan Lucow Miller PC, 1000 Woodbridge Street, Detroit, MI 48207
Phone: (313) 446-1530 Email: rsmith@garanlucow.com
RICHARD A. SOBLE of Soble Rowe Krichbaum, LLP, Ann Arbor, MI, practices in the area of
complex civil litigation. He serves by judicial appointment on the Washtenaw County Mediation
Committee and is frequently requested by both attorneys and judges to serve as an arbitrator or
mediator/facilitator. Having handled over 500 such cases, Mr. Soble shares his experience in
alternative dispute resolution as a board member for the ICLE Mediation Advisory group. He has
published and been invited to lecture on trial practice, negotiation skills, and alternative dispute
resolution by the Michigan Trial Lawyers, ICLE, the National Lawyers Guild and the University of
Michigan and Wayne State University law schools. Mr. Soble is also a Fellow of the State Bar of
Michigan, serving on the Legal Services Grant Committee and is past executive vice-president of the
National Lawyers Guild.
Richard Soble, Soble Rowe Krichbaum, LLP, 221 N. Main St., Ste. 200, Ann Arbor, MI 48104;
Phone: (734) 996-5600 Email: dick@srkllp.com
MARIANN MEIER WANG is a partner with Emery Celli Brinckerhoff & Abady LLP ("ECBA").
She has litigated a variety of civil rights matters, both individual cases and class actions, and has
focused particularly on fighting discrimination and police abuse, and protecting detainees' and
prisoners' rights as well as reproductive rights. At ECBA, she has litigated police abuse cases,
prisoners' rights cases, First Amendment retaliation claims, employment discrimination and fair
housing cases, labor and wage claims, and commercial cases including trademark infringement and
contract cases. Two of the class actions she has litigated concerned strip search practices -- McBean
v. City of New York, an ongoing case with hundreds of thousands of class members unlawfully strip
searched by New York City's Department of Corrections pursuant to a policy that the City had
declared in court had stopped years before, and Tyson v. City of New York, a class of 60,000
individuals strip searched by the New York Police Department. Prior to joining ECBA, she litigated
federal and state constitutional challenges to restrictions on reproductive rights with the ACLU and
was a litigation associate with Paul, Weiss, Rifkind, Wharton & Garrison. She has also litigated
international human rights cases for a law group in the UK called Interights, where she directed the
free speech and equality programs. She is a former law clerk to the Hon. Sterling Johnson, Jr. in
E.D.N.Y., and a graduate of Columbia University’s School of Law and Harvard College.
Mariann Meier Wang, Emery Celli Brinckerhoff & Abady, 75 Rockefeller Plaza, 20th Floor, New
York, NY 10019; Phone: (212) 763-5000 Email: mwang@ecbalaw.com
AMOS E. WILLIAMS has been a practicing attorney in Detroit, Michigan since 1986. He started
his legal career as a solo practitioner after graduating from Detroit College of Law. He was later
joined by his wife, Carole F. Youngblood, in Williams & Youngblood, P.C. In 1994 Carole
Youngblood was elected Wayne County Circuit Judge. Amos has practiced extensively in the field
of police misconduct and civil rights and he has litigated countless cases in both the state and federal

courts. He has been a frequent instructor of trial advocacy and litigation skills for the Institute of
Continuing Legal Education. Prior to becoming a lawyer, in 1985 he retired as a lieutenant from the
Detroit Police Department where he served for 17 years. During his career as a police officer, he
completed his undergraduate degree at Wayne State University and earned a B.S. in criminal justice.
He also graduated from the F.B.I. National Academy in 1980. As a paratrooper in the Army’s 101st
Airborne Division he served in Viet Nam as a forward observer in 1967 and 1968. He was awarded,
among others, the combat infantrymen’s badge, 3 purple hearts, a bronze star, a bronze star for
valor. In 2006, he won the Democratic Party’s nomination for Michigan Attorney General and
although he failed to unseat the incumbent in the general election he amassed more than 1,600,000
votes. Since the election he has returned to private practice and he remains active in progressive
causes.
Amos Williams, 1115 Ford Building, Suite 1115, 615 Griswold Street, Detroit, MI 48226
Phone: (313) 963-5222 Email: aewpc@aol.com
Moderator: MICHAEL J. HADDAD is an AV rated attorney and a partner in Haddad & Sherwin,
in Oakland, California. The majority of his practice is related to representing plaintiffs in police
misconduct and other civil rights litigation, including wrongful police shootings, wrongful death,
excessive force, and municipal liability. Mr. Haddad has successfully tried and handled numerous
police misconduct and civil rights cases in federal and state courts, including a $1.2 million verdict in
the Eastern District of California for the wrongful death shooting of a mentally ill man, a $3.5
million settlement for the family of a police officer killed by “friendly fire,” and several injunctive
relief settlements to improve police department policies and procedures. Mr. Haddad also currently
serves as Vice-President of the National Police Accountability Project (NPAP), and is a panel
attorney for Bay Area Police Watch (BAPW). Previously, Mr. Haddad was a partner in the firm of
Goodman, Eden, Millender & Bedrosian, in Detroit, Michigan. He graduated from the University
of Michigan Law School in 1991.
Michael Haddad, Haddad & Sherwin, 505 Seventeenth Street, Oakland, CA 94612
Phone: (510) 452-5500 Email: haddad.sherwin@sbcglobal.net

I. Immigration Issues in Police Misconduct Litigation
____________________________________________________
Materials:
To sue or not to sue?
Keeping client in the US if s/he sues
Discovery issues
Damages

Presenter:
Javier Maldonado, Law Office of Javier N. Maldonado, San Antonio, TX

National Police Accountability Project
October 16, 2008

Immigration Issues in Police
Misconduct Litigation
Javier N. Maldonado
110 Broadway St., Ste. 510
San Antonio, TX
(210) 277-1603
jmaldonado.law@gmail.com

To Sue or Not to Sue?
• As an initial matter, there is no question that noncitizens, or
aliens, who lack lawful immigration status in the US have a
constitutional right to sue for civil rights violations in US
courts. See e.g., Lynch v. Cannatella, 810 F.2d 1363 (5th Cir.
1987); Bolanos v. Riley, 509 F.2d 1023 (2nd Cir. 1975).
• Undocumented clients face the potential of being reported to
the Dep’t of Homeland Security (DHS).

• Retaliatory reporting may be separately actionable if it can be
proven that it was done for illegal purposes. E.g. Sure-Tan,
Inc. v. NLRB, 104 S.Ct. 2803 (1984)(employer illegally
retaliated against workers by reporting them to INS because of
union activities).

• But, retaliatory reporting will not stop DHS from
initiating removal/deportation proceedings. See
Velasquez-Tabir v. INS, 127 F.3d 456 (5th Cir.
1997)(INS could use evidence of noncitizen’s
immigration status to initiate removal proceedings
even if obtained through employer’s reporting in
violation of NLRA); Montero v. INS, 124 F.3d
381 (2nd Cir. 1997).
• Indeed, federal law expressly limits
federal/state/local laws from restricting public
entities from sharing information regarding the
immigration status of noncitizens. 8 U.S.C.
1373(c) and 1644.

• Immigrant clients with criminal offenses face
unique problems.
• For example, any person with an “aggravated
felony” is subject to mandatory detention by
DHS pending removal proceedings. Aggravated
felonies can be many things including a theft
offense with a one year sentence of probation,
aggravated assault with a one year sentence of
probation, indecency with a minor, or offenses
involving delivery of drugs. Immigration law
severely restricts the relief from removal that is
available to aggravated felons.

• Even relatively “minor” offenses can subject a
potential immigrant plaintiff to serious
consequences such as mandatory detention
and/or no relief from removal, for example
misdemeanor possession of marijuana.
• Consult with an immigration attorney because
the consequences of certain criminal offenses
can have particularly serious problems for
client.

• Proceeding under fictitious name may be an option but
the standard for proceeding as Doe is high.
– Use of fictitious names runs afoul of public’s common
law right of access to judicial proceedings. Nixon v.
Warner Comms. Inc., 98 S.Ct. 1306 (1978).
– FRCP 10(a) requires that every complaint “include the
names of the parties.”
– But, fictitious names will be allowed in the unusual
case or where exceptional circumstances exist such
that nondisclosure is necessary to protect the plaintiff
from “injury, harassment, ridicule, or personal
embarrassment.” Does I thru XXIII v. Advance Textile
Corp., 214 F.3d 1058 (9th Cir. 2000).

• To proceed anonymously:
– You must seek leave of court.
– Review your circuit law for particular standard
justifying the use of pseudonyms:
• Does I thru XXIII v. Advance Textile Corp., 214 F.3d
1058 (9th Cir. 2000).
• Doe v. Blue Cross & Blue Shield United of Wis., 112
F.3d 869 (7th Cir. 1997).
• James v. Jacobson, 6 F.3d 233 (4th Cir. 1993).
• Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981).

– Note there are differences among the circuits in the
standards for proceeding under a fictitious name.

Keeping Client In The US
If S/he Sues
• No provision in federal law that expressly allows
for noncitizens to remain in the US pending civil
rights proceedings.

• Is client eligible to obtain LPR status or relief
from removal?
• If client was victim of a particular crime (such as
rape, domestic violence, felonious assault, etc.),
client can seek a U visa and obtain permission to
remain in US with right to work. 8 U.S.C. §
1101(a)(15).

• Request deferred action from DHS. Such relief is
not in the statute. It is an act of discretion where
case is given lower priority and so noncitizen is
not placed in proceedings. Considerations are: (1)
likelihood of removing alien; (2) presence of
sympathetic factors; (3) possibility for negative
publicity; and, (4) whether noncitizen is a
member of a class of deportable noncitizens
whose removal has been given high priority (e.g.,
sex offenders).

• Contact client’s consulate and see whether it can
help. But be careful about approaching consulate
if client expresses fear about returning to his
country or about his country’s government.

• If client departs U.S. after he is deposed, it will be
very difficult to proceed simply with deposition
testimony.
• In Garcia-Martinez v. City and County of Denver,
392 F.3d 1187 (10th Cir. 2004), Tenth Circuit
affirmed district court’s dismissal of civil rights
action where plaintiff left the US because he feared
getting arrested for illegally reentering the US. At
trial, the district court refused to admit the plaintiff’s
deposition testimony because his reasons for not
appearing did not constitute “unavailability” as that
term is used in FRCP 32(a)(3) and FRE 804(b)(1).

Discovery Issues
• Plaintiffs’ attorneys should oppose discovery on client’s
immigration status.
• This will include limiting discovery about the plaintiff’s: (1)
birthplace; (2) primary education; (3) primary language; and
(4) birthplaces of parents.
• Generally, a plaintiff’s immigration status is not relevant to the
question of liability but rather goes to the issue of damages and
only as it concerns certain statutes such as the NLRA. Rivera
v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004)(Title VII case);
Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002) (FLSA
case); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499
(W.D.Mich. 2005)(FLSA and AWPA).

• Defendants employ Hoffman Plastics Compounds, Inc. v.
NLRB, 122 S.Ct. 1275 (2002) to discover the plaintiff’s status.
That case limited the NLRB and courts from awarding
backpay for NLRA violations to undocumented workers for
years of work not performed.
• But outside the labor context, the limitations on the recovery
of damages may not be applicable and thus discovery of a
plaintiff’s status may not be relevant and discoverable. See
Madeira v. Affordable Housing Foundation, Inc., 469 F.3d
219 (2nd 2006)(in state negligence action, plaintiff’s
undocumented status was not a bar to recovery for lost US
wages even if he was illegally in the US); but see Veliz v.
Rental Service Corp. USA, Inc., 313 F.Supp.2d 1317
(M.D.Fla. 2003)(in wrongful death action, survivors had no
right to recovery of lost support insofar as it encompassed lost
US wages).

• Attorneys must also fight discovery of use of
false SSNs as such information can lead to
serious federal criminal consequences.
• In the FLSA context, courts have been willing
to bar discovery of an immigrant plaintiff’s
social security numbers. Flores v. Amigon, 233
F.Supp.2d 462 (E.D.N.Y. 2002) (FLSA case);
Galaviz-Zamora v. Brady Farms, Inc., 230
F.R.D. 499 (W.D.Mich. 2005)(FLSA and
AWPA).

Damages
• Under federal law, documented immigrants are eligible for
compensatory and punitive damages with some caveats.
• Backwages: undocumented immigrants are eligible to recover
wages for work they performed.
• Future lost wages (or lost earning capacity): this is a
problematic issue because of Hoffman Plastic Compounds,
Inc. Plaintiffs must argue that absent evidence that plaintiff
faced likely removal/deportation or had plans to return
voluntarily, US wages is proper measure for lost earning
capacity. Otherwise, lost earnings may be limited to wages in
home country.

• But note, courts have held that a defendant’s claim
that a plaintiff’s lost earnings capacity is limited by
IRCA and/or Hoffman Plastic Compounds, Inc. is an
affirmative defense that must be raised in the
pleadings. If the defendant fails to raise the defense,
it is waived. See Contreras v. KV Trucking, Inc.,
2007 WL 2777518 (E.D.Tex. Sept. 21, 2007).

• Although there is no caselaw, there is nothing in
federal law that bars a plaintiff from recovering
mental pain and anguish damages as well as punitive
damages.

II. Litigating Taser Cases
__________________________________________________
Materials:
Opening Statement
Plaintiff’s Opposition to Defendant’s Motions in Limine on Experts
Plaintiff’s Memorandum in Opposition to Defendant’s JMOL
Closing Instructions
Plaintiff’s Memorandum in Opposition to Defendant’s Motion for a New Trial

Presenter:
John Burton, Law Offices of John Burton, Pasadena, CA

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
5
6
7
8

BETTY LOU HESTON,
PLAINTIFF,
V.
CITY OF SALINAS, ET
AL.,

9
10

DEFENDANTS.
_______________________

)
)
)
)
)
)
)
)
)
)
)

C-05-03658-JW
MAY 14, 2008
VOLUME 1
PAGES 138 - 399

11
12

THE PROCEEDINGS WERE HELD BEFORE

13

THE HONORABLE UNITED STATES DISTRICT

14

JUDGE JAMES WARE

15

A P P E A R A N C E S:

16

FOR THE PLAINTIFF:

17

THE LAW OFFICES OF JOHN BURTON
BY: JOHN BURTON
414 SOUTH MARENGO AVENUE
PASADENA, CALIFORNIA 91101

18
19
20

WILLIAMSON & KRAUSS
BY: PETER M. WILLIAMSON
18801 VENTURA BOULEVARD
SUITE 206
TARZANA, CALIFORNIA 91356

21
22

(APPEARANCES CONTINUED ON THE NEXT PAGE.)

23
24
25

OFFICIAL COURT REPORTERS:IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074
JOANMARIE TORREANO, CSR CRR
CERTIFICATE NUMBER 6504
138

U.S. COURT REPORTERS

1
2

A P P E A R A N C E S: (CONT'D)

3
FOR THE DEFENDANTS:
4
5
6

MANNING & MARDER
BY: MILDRED K. O'LINN
TIMOTHY J. KRAL
15TH FLOOR AT 801 TOWER
801 SOUTH FIGUEROA STREET
LOS ANGELES, CALIFORNIA
90017

7
8
9

TASER INTERNATIONAL
BY: MICHAEL BRAVE
17800 N. 85TH STREET
SCOTTSDALE, ARIZONA 85255

10
11
12

LAW OFFICES OF VINCENT P.
HURLEY
BY: VINCENT P. HURLEY
38 SEASCAPE VILLAGE
APTOS, CALIFORNIA 95003

13
14
15
16

CITY OF SALINAS
OFFICE OF THE CITY ATTORNEY
BY: SUSAN J. MATCHAM
200 LINCOLN AVENUE
SALINAS, CALIFORNIA 93901

17
18
19
20
21
22
23
24
25

139

U.S. COURT REPORTERS

1

INDEX OF PROCEEDINGS

2
PLAINTIFF'S OPENING STATEMENT P. 151
3
DEFENDANT TASER'S OPENING STATEMENT P. 207
4
DEFENDANT CITY OF SALINAS'S OPENING STATEMENT P. 182
5
6
FOR THE PLAINTIFF:
7
CRAIG FAIRBANKS

AS-ON CROSS-EXAM P. 229
(RESUMED)
P. 299
AS-ON DIRECT EXAM P. 357

CLIFFORD SATREE

DIRECT EXAM P. 254
CROSS-EXAM P. 263
CROSS-EXAM P. 297

8
9
10
11
12
13
14
15
16
17

IDENT.

EVIDENCE

18
19

110

234

235

20

101-C

260

21

206

292

22

128

348

23
24
25

140

U.S. COURT REPORTERS

1

SAN JOSE, CALIFORNIA

2

MAY 14, 2008

P R O C E E D I N G S

3
4
5

(WHEREUPON, THE PROCEEDINGS IN THIS
MATTER WERE HELD OUT OF THE PRESENCE OF THE JURY:)

6
7

THE COURT:
SEATED.

8
9
10
11

GOOD MORNING, PLEASE BE

ARE WE READY TO COMMENCE?
MR. BURTON:

THE PLAINTIFF IS READY, YOUR

MR. HURLEY:

READY FOR THE DEFENDANT CITY

HONOR.

OF SALINAS, YOUR HONOR.

12

MS. O'LINN:

13

THE COURT:

14

(WHEREUPON, THE FOLLOWING PROCEEDINGS

15

READY, YOUR HONOR.
ALL RIGHT.

SUMMON THE JURY.

WERE HELD IN THE PRESENCE OF THE JURY:)

16
17

THE COURT:

VERY WELL.

LADIES AND

18

GENTLEMEN OF THE JURY, I SEE YOU'RE BEING GIVEN

19

COPIES OF THESE INSTRUCTIONS.

20

BEFORE I BEGINNING TO READ THEM, THAT IT IS MY

21

PRACTICE TO GIVE YOU THE LEGAL INSTRUCTIONS IN

22

WRITING SO THAT YOU CAN FOLLOW ALONG WITH THEM.

23

AND SO BOTH WITH RESPECT TO THESE OPENING

24

INSTRUCTIONS AND LATER ON WITH THE CLOSING

25

INSTRUCTIONS ON THE LAW, YOU WILL HAVE THOSE IN

AND I SHOULD COMMENT

141

U.S. COURT REPORTERS

1
2

WRITING.
I WANT TO TAKE A FEW MINUTES TO TELL YOU

3

SOMETHING ABOUT YOUR DUTIES AS JURORS AND TO GIVE

4

YOU SOME INSTRUCTIONS.

5

THE TRIAL WHEN I FIND IT APPROPRIATE, I WILL GIVE

6

YOU ADDITIONAL INSTRUCTIONS.

7
8
9

DURING VARIOUS POINTS IN

ALL OF THE INSTRUCTIONS WHICH I GIVE TO
YOU ARE IMPORTANT.

YOU MUST FOLLOW ALL OF THEM.

AS YOU LEARNED DURING THE JURY SELECTION

10

PROCESS, THIS IS A CIVIL CASE INVOLVING THE DEATH

11

OF ROBERT C. HESTON.

12

HESTON, AND MISTY KASTNER, THE EXECUTOR OF ROBERT

13

C. HESTON'S ESTATE, THE PLAINTIFFS IN THIS CASE,

14

HAVE FILED A LAWSUIT AGAINST THE CITY OF SALINAS

15

POLICE DEPARTMENT AND INDIVIDUAL OFFICERS MICHAEL

16

DOMINICI, JAMES GODWIN, LEK LIVINGSTON, AND JUAN

17

RUIZ, THE DEFENDANTS.

18

BETTY LOU HESTON, ROBERT H.

THE PLAINTIFFS CLAIM THAT THE OFFICER

19

DEFENDANTS SUBJECTED ROBERT C. HESTON TO EXCESSIVE

20

FORCE WITH A TASER M26 ELECTRONIC CONTROL DEVICE

21

CALLED AN ECD IN VIOLATION OF ROBERT C. HESTON'S

22

FOURTH AMENDMENT RIGHTS AND DEPRIVED PLAINTIFFS

23

BETTY LOU HESTON AND ROBERT H. HESTON OF THEIR DUE

24

PROCESS RIGHTS TO FAMILIAL RELATIONS IN VIOLATION

25

OF THE 14TH AMENDMENT.
142

U.S. COURT REPORTERS

1

PLAINTIFFS HAVE ALSO BROUGHT SUIT AGAINST

2

TASER INTERNATIONAL, INC.

PLAINTIFFS CLAIM THAT

3

DEFENDANT TASER, NUMBER ONE, NEGLIGENTLY

4

MANUFACTURED THE TASER M26 ECD'S; TWO, FAILED TO

5

PROVIDE ADEQUATE WARNINGS THAT REPEATED

6

APPLICATIONS OF ITS ELECTRICAL CURRENT AND

7

DEPLOYMENT AND USE OF A TASER CAN CAUSE CARDIAC

8

ARREST, ESPECIALLY ON PERSONS WHO ARE IN AN

9

AGITATED OR EXCITED PHYSICAL STATE; AND THREE, IS

10

STRICTLY LIABLE FOR FAILURE TO PROVIDE ADEQUATE

11

WARNINGS.

12

NOW, IN EVERY LEGAL DISPUTE, THERE ARE

13

TWO KINDS OF QUESTIONS.

14

QUESTIONS ARE QUESTIONS OF FACT.

15

MANY LAWSUITS THERE ARE A DISPUTE BETWEEN THE

16

PARTIES OVER WHETHER OR NOT A PARTICULAR EVENT

17

ACTUALLY TOOK PLACE.

18

THE FIRST KIND OF
FOR EXAMPLE, IN

UNDER OUR SYSTEM A JURY WOULD BE

19

IMPANELED TO LISTEN TO THE EVIDENCE AND BASED ON

20

THAT EVIDENCE THE JURY WOULD DECIDE WHETHER OR NOT

21

THE DISPUTED EVENT TOOK PLACE OR NOT.

22

AS JURORS IN THIS CASE, YOUR FIRST DUTY

23

IS TO LISTEN TO THE EVIDENCE AND MAKE A DECISION

24

ABOUT WHAT HAPPENED.

25

WHAT THE PLAINTIFFS CLAIM TOOK PLACE WILL BE

THERE MIGHT BE INSTANCES WHEN

143

U.S. COURT REPORTERS

1

DIFFERENT THAN WHAT THE DEFENDANTS CLAIM TOOK

2

PLACE.

3

PLAINTIFFS CLAIM TOOK PLACE, WILL BE THE SAME AS

4

WHAT THE DEFENDANTS CLAIM TOOK PLACE.

5

LISTEN TO THE EVIDENCE AND BASED ON THAT EVIDENCE

6

MAKE YOUR DECISION ABOUT WHAT TOOK PLACE.

7

WORDS, YOU MUST DECIDE THE FACTS OF THE CASE.

8

AND YOU ALONE ARE THE JUDGES OF THE FACTS.

9

THERE MIGHT BE INSTANCES WHEN WHAT THE

YOU MUST

IN OTHER
YOU

THE SECOND KIND OF QUESTIONS INVOLVED IN

10

LEGAL DISPUTES ARE CALLED QUESTIONS OF LAW.

AN

11

EXAMPLE OF A QUESTION OF LAW IS: "WHAT IS THE

12

STANDARD WHICH MUST BE USED TO DECIDE IF A POLICE

13

OFFICER'S ACTIONS WERE EXCESSIVE?"

14

IN OUR LEGAL SYSTEM THE JUDGE IS

15

RESPONSIBLE FOR DECIDING QUESTIONS OF LAW.

16

DUE COURSE, AND WHAT WE CALL "JURY INSTRUCTIONS," I

17

WILL TELL YOU THE LAW WHICH APPLIES TO THIS CASE.

18

THE FINAL STEP IN THE PROCESS IS CALLED

AND IN

19

THE VERDICT.

BASED ON YOUR DECISION ON THE FACTS

20

AND APPLYING THE LAW WHICH I WILL GIVE TO YOU, YOU

21

WILL BE ASKED TO DECIDE IN FAVOR OF THE PLAINTIFFS

22

OR THE DEFENDANTS.

23

EVIDENCE, DECIDE WHAT THE FACTS ARE, AND THEN APPLY

24

THOSE FACTS TO THE LAW WHICH I WILL GIVE TO YOU.

25

AND THAT IS HOW YOU WILL REACH YOUR VERDICT.

THEREFORE, YOU WILL HEAR THE

IN
144

U.S. COURT REPORTERS

1

DOING SO, YOU MUST FOLLOW THAT LAW WHETHER YOU

2

AGREE WITH IT OR NOT.

3

THE EVIDENCE WILL CONSIST OF THE

4

TESTIMONY OF WITNESSES, DOCUMENTS AND OTHER THINGS

5

RECEIVED INTO EVIDENCE AS EXHIBITS AND ANY FACTS ON

6

WHICH THE LAWYERS AGREE OR ON WHICH I INSTRUCT YOU

7

TO ACCEPT.

8
9

IN A LAWSUIT SUCH AS THIS, THE LAW
PROVIDES THAT A PARTY IS ENTITLED TO A VERDICT IN

10

ITS FAVOR ONLY IF THAT PARTY PRESENTS A SUFFICIENT

11

AMOUNT OF EVIDENCE.

12

PROOF.

13

WE CALL THIS THE BURDEN OF

IN THIS CASE YOU WILL HEAR ABOUT

14

PREPONDERANCE OF THE EVIDENCE.

15

THE BURDEN OF PROVING A CLAIM BY A PREPONDERANCE OF

16

THE EVIDENCE, THAT MEANS THAT THE PARTY HAS TO

17

PRODUCE EVIDENCE WHICH, CONSIDERED IN LIGHT OF ALL

18

OF THE FACTS, LEADS YOU TO BELIEVE THAT WHAT THAT

19

PARTY CLAIMS IS MORE LIKELY TRUE THAN NOT.

20

WHEN A PARTY HAS

NOW, DURING THE TRIAL YOU WILL HEAR

21

EVIDENCE FROM BOTH SIDES.

IF YOU WERE TO PUT THE

22

EVIDENCE ON OPPOSITE SIDES OF THE SCALES, THE PARTY

23

WITH THE BURDEN TO PROVE A MATTER BY A

24

PREPONDERANCE OF THE EVIDENCE WOULD HAVE TO MAKE

25

THE SCALES TIP SLIGHTLY ON THAT PARTY'S SIDE.

IF
145

U.S. COURT REPORTERS

1

THAT PARTY FAILS TO MEET THIS BURDEN, THE VERDICT

2

MUST BE FOR THE OPPOSING PARTY.

3

NOW, SOME OF YOU MIGHT HAVE HEARD THE

4

TERM OF "PROOF BEYOND A REASONABLE DOUBT."

5

A STRICTER STANDARD, THAT IS, IT ONLY APPLIES TO A

6

CRIMINAL CASE AND IT REQUIRES MORE PROOF THAN A

7

PREPONDERANCE OF THE EVIDENCE.

8

DOUBT STANDARD DOES NOT APPLY TO A CIVIL CASE AND

9

YOU SHOULD, THEREFORE, PUT IT OUT OF YOUR MINDS.

10

THAT'S

THE REASONABLE

NOW, THE FOLLOWING THINGS ARE NOT

11

EVIDENCE AND YOU MUST NOT CONSIDER THEM AS EVIDENCE

12

IN DECIDING THE FACTS OF THIS CASE:

13
14

19

2.

QUESTIONS AND OBJECTIONS OF THE

3.

TESTIMONY THAT I INSTRUCT YOU TO

4.

ANYTHING THAT YOU MIGHT HAVE SEEN OR

ATTORNEYS.

17
18

STATEMENTS AND ARGUMENTS OF THE

ATTORNEYS.

15
16

1.

DISREGARD.

20

HEARD WHEN THE COURT IS NOT IN SESSION, EVEN IF

21

WHAT YOU SEE OR HEAR IS DONE OR SAID BY ONE OF THE

22

PARTIES OR ARE BY ONE OF THE WITNESSES.

23

EVIDENCE MAY BE DIRECT OR CIRCUMSTANTIAL.

24

DIRECT EVIDENCE IS TESTIMONY BY A WITNESS ABOUT

25

WHAT THAT WITNESS PERSONALLY SAW, HEARD, OR DID.
146

U.S. COURT REPORTERS

1

CIRCUMSTANTIAL EVIDENCE IS INDIRECT

2

EVIDENCE; THAT IS, IT IS PROOF OF ONE OR MORE FACTS

3

FROM WHICH ONE CAN FIND ANOTHER FACT.

4

YOU ARE TO CONSIDER BOTH DIRECT AND

5

CIRCUMSTANTIAL EVIDENCE.

6

GIVE EQUAL WEIGHT TO BOTH, BUT IT IS FOR YOU TO

7

DECIDE HOW MUCH WEIGHT TO GIVE TO ANY EVIDENCE.

8
9

THE LAW PERMITS YOU TO

THERE ARE RULES OF EVIDENCE WHICH CONTROL
WHAT CAN BE RECEIVED INTO EVIDENCE.

WHEN A LAWYER

10

ASKS A QUESTION OR OFFERS AN EXHIBIT INTO EVIDENCE,

11

AND THE LAWYER ON THE OTHER SIDE THINKS IT IS NOT

12

PERMITTED BY THE RULES OF EVIDENCE, THAT LAWYER MAY

13

OBJECT.

14
15

IF I OVERRULE THE OBJECTION, THE QUESTION
MAY BE ANSWERED OR THE EXHIBIT MAY BE RECEIVED.

16

IF I SUSTAIN THE OBJECTION, THE QUESTION

17

CANNOT BE ANSWERED AND THE EXHIBIT CANNOT BE

18

RECEIVED.

19

AND WHENEVER I SUSTAIN AN OBJECTION TO A

20

QUESTION, YOU MUST IGNORE THE QUESTION AND MUST NOT

21

GUESS WHAT THE ANSWER WOULD HAVE BEEN.

22

SOMETIMES I MIGHT ORDER THAT EVIDENCE BE

23

STRICKEN FROM THE RECORD AND THAT YOU DISREGARD IT.

24

THAT MEANS THAT WHEN YOU ARE DECIDING THE CASE, YOU

25

MUST NOT CONSIDER THE EVIDENCE WHICH I TOLD YOU TO
147

U.S. COURT REPORTERS

1

DISREGARD.

2
3

I WILL NOW SAY A FEW WORDS ABOUT YOUR
CONDUCT AS JURORS.

4

FIRST, DO NOT TALK TO EACH OTHER OR WITH

5

ANYONE ELSE ABOUT THIS CASE OR ABOUT ANYONE WHO HAS

6

ANYTHING TO DO WITH IT UNTIL THE END OF THE CASE

7

WHEN YOU GO TO THE JURY ROOM TO DECIDE ON YOUR

8

VERDICT.

9

"ANYONE ELSE" INCLUDES MEMBERS OF YOUR

10

FAMILY AND YOUR FRIENDS.

11

YOU ARE A JUROR, BUT DON'T TELL THEM ANYTHING ABOUT

12

THE CASE UNTIL AFTER YOU HAVE BEEN DISCHARGED BY

13

ME;

14

YOU MAY TELL THEM THAT

SECOND, DO NOT LET ANYONE TALK TO YOU

15

ABOUT THE CASE OR ABOUT ANYONE WHO HAS ANYTHING TO

16

DO WITH IT.

17

PLEASE REPORT IT TO ME IMMEDIATELY;

18

IF ANYONE SHOULD TRY TO TALK TO YOU,

THIRD, DO NOT READ ANY NEWS ARTICLES

19

ABOUT THE CASE OR LISTEN TO ANY RADIO OR TELEVISION

20

RECORD REPORTS ABOUT THE CASE;

21

FOURTH, DO NOT DO ANY RESEARCH SUCH AS

22

CONSULTING ANY DICTIONARIES OR OTHER REFERENCE

23

MATERIALS, AND DO NOT MAKE ANY INVESTIGATION ABOUT

24

THE CASE ON YOUR OWN;

25

FIFTH, IF YOU NEED TO COMMUNICATE WITH
148

U.S. COURT REPORTERS

1

ME, SIMPLY GIVE A SIGNED NOTE TO MS. GARCIA OUR

2

COURTROOM DEPUTY CLERK OR TO ONE OF OUR COURT

3

REPORTERS, WE'RE BLESSED TO HAVE TWO ACTUALLY

4

INVOLVED IN THIS CASE OR TO ME;

5

AND SIX, DO NOT MAKE UP YOUR MIND ABOUT

6

WHAT THE VERDICT SHOULD BE UNTIL AFTER YOU HAVE

7

GONE TO THE JURY ROOM TO DECIDE THE CASE AND YOU

8

AND YOUR FELLOW JURORS HAVE DISCUSSED THE EVIDENCE.

9

KEEP AN OPEN MIND UNTIL THEN.

10

NOW, I SEE YOU HAVE STENO PADS SO IF YOU

11

WISH YOU MAY TAKE NOTES TO HELP YOU REMEMBER WHAT

12

WITNESSES SAY.

13

IF YOU DO TAKE NOTES, PLEASE KEEP THEM TO

14

YOURSELF UNTIL YOU AND YOUR FELLOW JURORS GO TO THE

15

JURY ROOM TO DECIDE THE CASE.

16

DO NOT LET NOTE-TAKING DISTRACT YOU SO

17

THAT YOU DO NOT HEAR OTHER ANSWERS BY OTHER

18

WITNESSES.

19
20
21

WHEN YOU LEAVE AT NIGHT, YOUR NOTES
SHOULD BE LEFT IN THE JURY ROOM.
IF YOU DO NOT TAKE NOTES, YOU SHOULD RELY

22

ON YOUR OWN MEMORY OF WHAT WAS SAID AND NOT BE

23

OVERLY INFLUENCED BY THE NOTES OF OTHER JURORS.

24

NOW, IF YOU NEED TO SPEAK WITH ME, AS I

25

SAY, ABOUT ANYTHING, SIMPLY USE YOUR NOTE PADS TO
149

U.S. COURT REPORTERS

1

GIVE A NOTE TO THE CLERK OF COURT, TO THE COURT

2

REPORTER, OR TO ME.

3

YOU MAY ALSO USE YOUR NOTE PAD TO LET US

4

KNOW IF YOU'RE HAVING DIFFICULTY HEARING OR

5

UNDERSTANDING A PARTICULAR PART OF THE CASE.

6

THE POLICY OF THE COURT IS TO NOT PERMIT

7

JURORS TO ASK QUESTIONS OF WITNESSES, HOWEVER, IF

8

THERE IS SOME ASPECT OF THE CASE WHICH YOU FIND

9

CONFUSING, PLEASE WRITE A NOTE TO ME AND I WILL

10

BRING IT TO THE ATTENTION OF THE ATTORNEYS.

11

NOW, I HAVE ESTABLISHED A SCHEDULE FOR

12

HOW MUCH TIME EACH PARTY WILL BE ALLOTTED FOR THE

13

TRIAL OF THE CASE.

14

ALLOTTED TIME AS THAT SIDE SEES FIT, AS LONG AS THE

15

ALLOTTED TIME IS NOT EXCEEDED.

EACH SIDE MAY USE THEIR

16

I WILL CONTROL THOSE MATTERS.

17

IT TO YOU BECAUSE I WANT TO GIVE YOU MY ASSURANCE

18

THAT I WILL MAKE CERTAIN THAT WE ARE EFFICIENTLY

19

USING THE TIME WHEN YOU ARE PRESENT.

20
21

I MENTION

SOMETIMES SHORT DELAYS ARE UNAVOIDABLE.
I WILL KEEP YOU ADVISED OF OUR SCHEDULE.

22

THE TIMING STARTS WITH THE OPENING

23

STATEMENT.

I WILL ALLOW EACH SIDE TO MAKE AN

24

OPENING STATEMENT.

25

EVIDENCE.

AN OPENING STATEMENT IS NOT

IT IS SIMPLY AN OUTLINE TO HELP YOU
150

U.S. COURT REPORTERS

1

UNDERSTAND WHAT THAT PARTY EXPECTS THE EVIDENCE

2

WILL SHOW.

3

I SHOULD ALSO COMMENT THAT IN MY

4

COURTROOM MINORITY RULES.

WE HAVE SCHEDULED

5

BREAKS, BUT IF ANY ONE OF YOU SHOULD NEED A BREAK

6

BEFORE OUR SCHEDULED BREAK, ALL YOU HAVE TO DO IS

7

TO RAISE MY HAND AND GET MY ATTENTION, AND I MAKE

8

THE SAME ADMONITION TO THE LAWYERS INVOLVED IN THE

9

CASE SO THAT WE'RE ALL COMFORTABLE AND WE CAN TAKE

10

A FIVE-MINUTE BREAK.

11

MIDWAY BETWEEN OUR SESSIONS BUT SOMETIMES THAT'S

12

NOT TO YOUR CONVENIENCE.

13

NEED A BREAK.

14

VERY WELL.

I TRY TO SCHEDULE A BREAK

JUST LET ME KNOW IF YOU

AT THIS POINT THE COURT WILL

15

CALL ON COUNSEL FOR PLAINTIFF FOR OPENING

16

STATEMENT.

17

MR. BURTON:

18

(WHEREUPON, COUNSEL FOR THE PLAINTIFF

19
20

THANK YOU, YOUR HONOR.

GAVE HIS OPENING STATEMENT.)
MR. BURTON:

GOOD MORNING, FOLKS.

AGAIN,

21

THANK YOU FOR BEING HERE AND PUTTING UP WITH THE

22

JURY SELECTION.

23

DURING 2003 THE CITY OF SALINAS POLICE

24

DEPARTMENT EQUIPPED ITS OFFICERS WITH A RELATIVELY

25

NEW DEVICE, A TASER M26.

IT'S REFERRED TO AS AN
151

U.S. COURT REPORTERS

1
2
3

ECD OR ELECTRICAL CONTROL DEVICE.
THESE DEVICES WERE PURCHASED FROM THE
DEFENDANT TASER INTERNATIONAL.

4

THESE ARE MARKETED -- THEY WERE DESIGNED

5

AND THEY'RE SOLD AS A NONLETHAL ALTERNATIVE TO USE

6

TO CONTROL PEOPLE WHO ARE OUT OF CONTROL, WHO ARE

7

IRRATIONAL, FOR WHATEVER REASON, WHO ARE NOT

8

RESPONSIVE TO VERBAL COMMANDS BUT WHO DON'T NEED TO

9

BE STOPPED WITH A FIREARM.

10

THIS CASE IS ABOUT THE MANUFACTURER'S

11

RESPONSIBILITY, THAT'S TASER'S RESPONSIBILITY TO

12

TEST THE DEVICE BEFORE IT'S PUT ON THE MARKET TO

13

MAKE SURE THAT IT'S SAFE FOR HOW IT MIGHT BE USED

14

AND ALSO TO WARN ABOUT DANGERS THAT MIGHT ARISE

15

FROM ITS USE.

16

EXCESSIVE USE OF THE DEVICE; THAT IS, TOO MUCH

17

ELECTRICITY BEING USED.

18

AND THESE DANGERS ARISE FROM THE

THIS CASE IS ALSO ABOUT THE

19

RESPONSIBILITY OF A POLICE DEPARTMENT, IN THIS CASE

20

THE CITY OF SALINAS POLICE DEPARTMENT, TO MAKE SURE

21

ITS OFFICERS ARE PROPERLY TRAINED IN USING DEVICES

22

LIKE THE TASER AND ALSO THAT THEIR USE OF THE

23

DEVICE IS PROPERLY MONITORED SO THAT MISUSE CAN BE

24

IDENTIFIED AND CORRECTED BEFORE IT CAUSES HARM.

25

THIS CASE IS ALSO ABOUT THE DUTY OF
152

U.S. COURT REPORTERS

1

SUPERVISORS WHO ARE ON THE SCENE, WHO ARE IN

2

CONTROL OF OFFICERS TO MAKE SURE THAT THEIR

3

SUBORDINATES ACT APPROPRIATELY.

4

LINE OFFICERS THEMSELVES AND FOLLOWING THE

5

GUIDELINES THAT THEY HAVE BEEN TRAINED TO FOLLOW

6

AND THE RULES OF LAW THAT GOVERN THEIR CONDUCT.

7

AND IT'S ABOUT THE

THE EVIDENCE IN THIS CASE WILL SHOW THAT

8

ALL OF THESE DEFENDANTS FAILED TO MAKE AND MEET

9

THESE RESPONSIBILITIES, AND THEREFORE, WE'RE GOING

10

TO BE ASKING YOU AT THE END OF THE TRIAL TO FIND

11

THEM RESPONSIBLE FOR THE DEATH OF ROBERT C. HESTON.

12

ON FEBRUARY 19TH, 2005, ROBERT H.

13

HESTON, THE GENTLEMAN TO MY LEFT, AND HIS WIFE,

14

BETTY HESTON, CALLED 911 FOR HELP WITH THEIR SON.

15

HE WAS OBVIOUSLY AGITATED AND DELUSIONAL.

16

AND AS YOU'LL HEAR, THIS IS NOT THE FIRST TIME THAT

17

HE HAD BEEN IN THIS KIND OF A CONDITION.

18

HE HAD HAD A SERIES OF PROBLEMS BECAUSE OF HIS OWN

19

HISTORY OF ADDICTION TO METHAMPHETAMINE.

20

HAD PERIODS OF SOBRIETY FOLLOWED BY PERIODS OF

21

RELAPSE.

22

BECOME IRRATIONAL AND DELUSIONAL IN THE PAST.

23

IN FACT,

HE HAD

HE WOULD HAVE INCIDENTS WHERE HE WOULD

ON THIS DAY THEY SAW HIM ACTING STRANGELY

24

AND THEY KNEW THE SIGNS AND THEY CALLED THE POLICE

25

FOR HELP.
153

U.S. COURT REPORTERS

1

ROBERT C. HESTON WAS EXACTLY THE KIND OF

2

PERSON THAT THIS TASER WAS DESIGNED TO HELP, TO

3

TAKE INTO CUSTODY SAFELY SO THAT HE COULD GET THE

4

TREATMENT THAT HE NEEDED FOR HIS CONDITION, WHICH

5

AT THIS POINT WAS A MEDICAL PROBLEM AS WELL AS TO

6

SECURE SAFELY THIS OUT-OF-CONTROL INDIVIDUAL AND

7

PRESERVE PUBLIC ORDER.

8

THESE SALINAS POLICE OFFICER DEFENDANTS,

9

AND THAT'S SERGEANT DOMINICI, WHO WAS THE SERGEANT

10

IN CHARGE OF THE OPERATION AT THE HOUSE, AND THERE

11

WAS A SECOND SERGEANT RUIZ WHO CAME DURING THE

12

INCIDENT, AND THEN TWO OTHER OFFICERS WHO FIRED

13

THEIR TASERS, OFFICERS LIVINGSTON AND GODWIN.

14

WERE SENT TO HELP THE HESTONS WITH THIS PROBLEM.

15

THEY

INSTEAD OF ONLY FIRING ONE OF THEIR

16

TASERS ONE TIME, WHICH WOULD HAVE KNOCKED

17

MR. HESTON DOWN AND ALLOWED HIM TO BE HANDCUFFED

18

SAFELY, THEY FIRED THREE TASERS.

19

JUST DISCHARGING EACH ONE TIME, THESE THREE TASERS

20

WERE DISCHARGED A TOTAL OF 25 TIMES, 25 TIMES INTO

21

AN INDIVIDUAL WHO WAS LYING HELPLESSLY ON HIS

22

PARENTS' LIVING ROOM FLOOR.

23
24
25

AND INSTEAD OF

THEY STOPPED ONLY WHEN MR. HESTON TURNED
PURPLE AND WENT LIMP.
THE REASON THAT HE BECAME LIMP AND
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UNRESPONSIVE WAS THAT HE HAD SUFFERED A CARDIAC

2

ARREST, HIS HEART HAD STOPPED BEATING.

3

PARAMEDICS WERE CALLED.

THEY GOT THERE.

4

THEY WORKED ON HIM, ATROPINE, CHEST COMPRESSIONS.

5

THEY GOT HIS HEART RESTARTED AGAIN, BUT IT HAD BEEN

6

STOPPED FOR OVER TEN MINUTES.

7

FRAME WAS DENIED THE OXYGEN, THE BLOOD NECESSARY TO

8

KEEP THE TISSUE ALIVE, AND HE SUFFERED MASSIVE

9

BRAIN DAMAGE.

10

AND DURING THAT TIME

HE WAS TAKEN TO THE HOSPITAL, LA

11

NATIVIDAD MEDIAL CENTER.

12

SUPPORT AND WAS KEPT ALIVE FOR 24 HOURS, BUT ON

13

FEBRUARY 19TH HE WAS DISCONNECTED AND HE PASSED

14

AWAY.

15

HE WAS HOOKED UP TO LIFE

NOW, LET ME TELL YOU A LITTLE MORE

16

DETAIL ABOUT THIS DEVICE, THE TASER.

17

EVERYBODY CAN SEE IT ON THE SCREEN RIGHT THERE.

18

GREAT.

19

AS YOU CAN SEE, IT LOOKS LIKE A PISTOL

20

BUT IT IS NOT A FIREARM.

21

INVOLVED.

22

AND HOPEFULLY

THERE IS NO GUN POWDER

INSTEAD OF HAVING A BULLET COME OUT OF

23

THE BARREL, THERE'S A CARTRIDGE THAT CLIPS ONTO THE

24

END OF THE BARREL AND THIS CARTRIDGE CAN BE CLIPPED

25

ON AND OFF VERY EASILY.
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THERE'S A WAY THAT IT CAN BE USED WITH

2

THE CARTRIDGE OUT, BUT THAT'S NOT OF CONCERN IN

3

THIS CASE.

4

CARTRIDGES MOUNTED.

5

THESE TASERS WERE FIRED WITH THE

AND AS YOU CAN SEE FROM THIS SLIDE, THE

6

CARTRIDGE FIRES THESE TWO PROBES.

7

TO 20-FOOT WIRES, AND AT THE END OF THE PROBE ARE

8

THESE DARTS.

9

ARE STRAIGHT LITTLE MINI HARPOONS THAT ARE BARBED.

10

THEY'RE ATTACHED

THEY'RE SORT OF LIKE FISH HOOKS THAT

AND THEY STICK INTO THE TARGET, EITHER

11

INTO THE SKIN OR INTO THE CLOTHING.

12

TWO DARTS CONNECT WITH THE TARGET OR ARE ABLE TO

13

COMPLETE A CIRCUIT AND PERFECT CONNECTIONS ARE NOT

14

REQUIRED FOR THAT, JUST ENOUGH ELECTRICITY TO

15

TRAVEL, THEN THERE'S A FIVE-SECOND CYCLE OF

16

ELECTRICITY INTO THE HUMAN BEING OR WHOEVER THE

17

TARGET IT.

18

AND ONE THESE

AND THIS IS A VERY PARTICULAR KIND OF

19

ELECTRICITY YOU'LL HEAR A LOT ABOUT.

20

LITTLE TINY PULSES AT A RATE OF 20 PER SECOND.

21

IT'S IN

THESE PULSES DO NOT ELECTROCUTE A PERSON

22

LIKE LET'S SAY AN ELECTRIC CHAIR AND STOP THEIR

23

HEART.

24
25

WHAT THESE PULSES DO IS THAT THEY
OVERRIDE THE ELECTRICAL SYSTEM THAT WE ALL HAVE IN
156

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OUR BODIES WHERE THE BRAIN SENDS ELECTRICAL

2

IMPULSES TO THE MUSCLE AND TELLS THEM TO CONTRACT.

3

THESE PULSES TELL THE MUSCLES IN THE BODY

4

TO CONTRACT.

AND SO THE PERSON, WHILE THE TASER

5

CYCLE IS GOING THROUGH THEM, GOES THROUGH

6

INVOLUNTARY MUSCLE CONTRACTIONS.

7

GENERALLY TO MAKE THE PERSON RIGID AND FALL DOWN,

8

ESSENTIALLY PARALYZE MOMENTARILY AND UNABLE TO

9

CONTROL HIS OWN MOVEMENTS.

THE EFFECT IS

10

THE TASER WORKS AS FOLLOWED:

11

TRIGGER IS PULLED THESE DARTS GO OUT AND CONNECT

12

AND THERE'S AN AUTOMATIC CYCLE OF FIVE SECONDS.

13

WHEN THE

THERE'S THE DEVICE TO STOP IT SHORT OF

14

THE FIVE SECONDS, BUT THAT WAS NOT USED IN THIS

15

CASE.

16

ONCE THE DARTS ARE IMPLANTED, THE TRIGGER

17

CAN BE PULLED A SECOND TIME OR A THIRD TIME OR A

18

FOURTH TIME, EACH TIME DELIVERING A NEW FIVE-SECOND

19

CYCLE.

20

THE TRIGGER CAN ALSO BE HELD DOWN AND IT

21

WILL CONTINUE TO DELIVER ELECTRICITY UNTIL THE

22

TRIGGER IS RELEASED BEYOND THE FIVE-SECOND BUILT-IN

23

LIMIT.

24

THE TASER HAS A VERY SIGNIFICANT FEATURE

25

TO HOLD OFFICERS ACCOUNTABLE FOR OVERUSE OR MISUSE
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AND THIS FEATURE IS CALLED A DATAPORT.

AND THE

2

DATAPORT IS GOING TO HAVE A HUGE ROLE IN THE

3

EVIDENCE THAT YOU'RE GOING TO HEAR IN THIS CASE.

4

THE DATAPORT HAS SOME SORT OF PLUG AND

5

YOU CAN PLUG IT RIGHT INTO YOUR P.C.

THERE'S A

6

CHIP THAT RECORDS EACH TRIGGER PULL WITH THE TIME

7

STAMP BUILT INTO THE DEVICE ITSELF SO THAT WHEN THE

8

DATAPORT INFORMATION IS DOWNLOADED ONTO THE P.C.,

9

THE POLICE DEPARTMENT CAN GET A LINE-BY-LINE

10

INDICATION EXACTLY WHEN IT WAS FIRED DURING AN

11

INCIDENT.

12

AND THAT'S HOW WE KNOW THAT THESE THREE

13

TASERS, SERGEANT RUIZ, OFFICER LIVINGSTON AND

14

OFFICER GODWIN WERE FIRED 25 TIMES BECAUSE IT'S IN

15

THE DATAPORT.

16

WHEN THE DEVICE IS HELD DOWN, AS YOU'LL

17

SEE FROM THE TESTIMONY, THE DATAPORT RECORDS THESE

18

SERIES OF TRIGGER PULLS EXACTLY FIVE SECONDS APART.

19

SO IF ONE WERE TO PULL THE TRIGGER

20

EXACTLY FIVE SECONDS APART, THEY WOULD BE THE SAME

21

PATTERN AS IF ONE HELD IT DOWN AND IT CYCLED FOR 10

22

OR 15 SECONDS OR MORE.

23

CASE.

24
25

AND YOU'LL SEE THAT IN THIS

TASERS CAN BE DEADLY WHEN THEY'RE CYCLED
TOO MANY TIMES INTO A HUMAN BEING, ESPECIALLY
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SOMEONE WHO, LIKE MR. HESTON, IS IN AN EXCITED OR

2

AGITATED STATE.

3

THE OFFICERS KNEW THAT ROBERT HESTON WAS

4

IN A DELIRIOUS AND AGITATED STATE AND THAT'S WHY

5

THEY WERE CALLED.

6

AND THEIR OWN DEPARTMENT TRAINED THEM TO

7

RECOGNIZE THIS AS A HEALTH PROBLEM AND TO CALL

8

PARAMEDICS TO HELP THEM DEAL WITH IT.

9

VIOLATED THAT POLICY, THAT TRAINING, BY

10

THEY

ENCOUNTERING MR. HESTON WITHOUT THE PARAMEDICS.

11

RATHER THAN HELP MR. HESTON GET SAFELY

12

INTO CUSTODY SO THAT HE COULD BE TREATED AND

13

PUNISHED IF APPROPRIATE, BECAUSE CERTAINLY

14

INJECTION OF METHAMPHETAMINE IS A CRIME, INSTEAD OF

15

DOING THAT THEY CYCLED THEIR TASERS 25 TIMES AND HE

16

DIED.

17

PLAINTIFF'S EXPERT WITNESS ON THE EFFECT

18

OF THE TASER IS DR. MARK MEYERS.

19

CERTIFIED CARDIOLOGIST FROM SOUTHERN CALIFORNIA,

20

AND HE HAS A SPECIALTY IN WHAT IS CALLED

21

ELECTROPHYSIOLOGY.

22

HE'S A BOARD

THERE ARE TWO KINDS OF CARDIOLOGISTS,

23

THERE ARE CARDIOLOGISTS CONCERNED WITH THE

24

STRUCTURE OF THE HEART AND KEEPING THE ARTERY CLEAN

25

AND FLOWING AND THEY'RE THE ONES THAT DO
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ANGIOPLASTIES AND CORONARY ARTERY BYPASS GRAFTS AND

2

THOSE SORTS OF THINGS.

3

PLUMBERS.

4

YOU CAN THINK OF THEM AS

AND THEN THERE'S A WHOLE OTHER KIND OF

5

CARDIOLOGIST THAT IS CONCERNED WITH ONLY THE

6

ELECTRICAL SYSTEM THAT CONTROLS THE PUMPING OF THE

7

HEART SO THAT THE BLOOD GOES THROUGH THE BODY AND

8

PROFUSES THE TISSUES AND KEEPS US ALIVE.

9

LIKE ELECTRICIANS.

10
11

THEY'RE

THOSE ARE CALLED

ELECTROPHYSIOLOGISTS.
AND TASER HAS DESIGNATED AN

12

ELECTROPHYSIOLOGIST WHO WILL ALSO BE TESTIFYING ON

13

THESE ISSUES AND HIS NAME IS DOCTOR RICHARD LUCERI.

14

AND YOU'LL SEE THAT DR. LUCERI AND DR. MEYERS'

15

OPINIONS MATCH MORE THAN THEY DIVERGE IN THIS CASE.

16

AND THEY'RE THE IMPORTANT MEDICAL

17

EXPERTS, BECAUSE THE QUESTION THAT YOU'RE GOING TO

18

BE ASKED TO DECIDE IS WHAT CAUSED THIS CARDIAC

19

ARREST, WHAT CAUSED ROBERT HESTON'S HEART TO STOP

20

BEATING ON FEBRUARY 19TH.

21

DR. MEYERS WILL EXPLAIN TO YOU THAT WHEN

22

MUSCLES CONTRACT, WHEN WE CONTRACT OUR MUSCLES

23

THERE'S A WASTE PRODUCT PRODUCED.

24

WE DRIVE OUR CARS THERE IS AUTOMOBILE EXHAUST, IT'S

25

A WASTE PRODUCE OF MUSCLE CONTRACTIONS AND IT'S

IT'S LIKE WHEN

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U.S. COURT REPORTERS

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CALLED LACTIC ACID OR LACTIC ACID BUILDUP.

2

AND WE HAVE ALL EXERCISED AND WE ALL FELT

3

THE BURN OR THE SORENESS THE NEXT DAY.

4

LACTIC ACID.

5
6

THAT'S

AND WHEN THE TASERS CONTRACT THE MUSCLES,
THAT ALSO PRODUCES LACTIC ACID.

7

WHEN LACTIC ACID IS PRODUCED, IT GOES IN

8

THE BLOODSTREAM AND THAT'S HOW IT'S ELIMINATED FROM

9

THE BODY.

THE BLOOD THEN FLOWS THROUGH THE LUNGS

10

AND BREATHING IS THE PROCESS THAT NEUTRALIZES THE

11

LACTIC ACID.

12

IF SOMEONE EXERCISES TOO HARD, FASTER

13

THAN THE BODY CAN COMPENSATE FOR IT AND THAT'S

14

CALLED ANAEROBIC EXERCISE, THE BLOOD ACID IN THE

15

SAME BUILDS UP.

16

WHEN THE BLOOD ACID BUILDS UP, THE

17

MEASURE OF THE BLOOD ACID, WHICH IS CALLED PH,

18

DROPS.

19

BLOOD ACID GOES UP, PH DROPS.
NOW, VIGOROUS EXERCISE WILL LOWER A

20

PERSON'S PH.

IT ONLY BECOMES DANGEROUS IF IT DROPS

21

TOO FAR, TOO FAST.

22

TOO FAST, THAT ALONE STOPS THE HEART.

23

CONDITION OF ELEVATED BLOOD ACID, WHICH IS MEASURED

24

AS LOWER PH, IS CALLED ACIDOSIS.

25

HEARING A LOT ABOUT ACIDOSIS IN THIS CASE.

BUT IF THE PH DROPS TOO FAR,
THIS

AND YOU'LL BE

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2

AND THE SOURCE OF THE ACIDOSIS IS THE
LACTIC ACID PRODUCED BY THE MUSCLE CONTRACTIONS.

3

PEOPLE DON'T NORMALLY EXERCISE THEMSELVES

4

INTO CARDIAC ARREST FROM ACIDOSIS.

IT ACTUALLY

5

HAPPENS, OCCASIONALLY PEOPLE WILL DROP DEAD DURING

6

A MARATHON OR A TRIATHLON OR SOMETHING, IT ACTUALLY

7

DOES HAPPEN BUT IT'S VERY, VERY RARE AND THE REASON

8

IS IS SIMPLY THAT THE BODY HAS MECHANISMS THAT TELL

9

US, HEY, YOU'RE GETTING FATIGUED, YOU'RE WORKING

10

TOO HARD, WE HYPERVENTILATE, WE SLOW DOWN, WE SIT,

11

WE REST, WE ALLOW OUR BLOOD ACID TO RETURN TO

12

NORMAL.

13

WHEN SOMEONE IS HOOKED UP TO A TASER AND

14

THE TASER IS TELLING THE BLOOD, THE MUSCLES TO

15

CONTRACT OVER AND OVER AGAIN, THE BRAIN IS NO

16

LONGER IN CONTROL.

17

EQUATION AND THE BLOOD ACID CAN BE RAISED, THE SAME

18

WAY SAYING THAT THE PH CAN BE LOWERED TO CRITICAL

19

LEVELS AND UNDER CIRCUMSTANCES WHERE THE PERSON IS

20

IN EXCRUCIATING PAIN FROM THE TASER AND UNDER A

21

GREAT DEAL OF STRESS BECAUSE OF THE OVERALL

22

SITUATION AND THAT IS THE RECIPE FOR CARDIAC

23

ARREST.

24
25

THAT RECUPERATION IS OUT OF THE

NOW, BEFORE SELLING THIS NEW REP -- THIS
TASER M26, TASER INTERNATIONAL TESTED IT ON PIGS.
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BUT THEY ONLY TESTED IT TO SEE WHETHER OR NOT THE

2

ELECTRICAL CURRENT WAS STRONG ENOUGH TO STOP THE

3

HEART.

WHAT IS CALLED ELECTROCUTION.

4

AND IT WASN'T.

THE -- FROM TASER'S POINT

5

OF VIEW THOSE -- THOSE PIG EXPERIMENTS WERE QUITE

6

SUCCESSFUL.

7

SAFE BECAUSE THE CURRENT WAS SIMPLY NOT STRONG

8

ENOUGH TO GO IN THROUGH ALL THE TISSUES, THE

9

MUSCLE, INTO THE HEART AND THEN KNOCK THE HEART OUT

AND THEY PROMOTED THEIR DEVICE AS VERY

10

OF IT'S NORMAL ELECTRICAL RHYTHM IN SOME DEADLY

11

ALTERNATIVE RHYTHM.

12

BUT TASER, AS YOU'LL HEAR TODAY, DID NOT

13

TEST THE EFFECT OF LONGER DURATION EXPOSURES,

14

ESPECIALLY ON THE ACID LEVEL OF THESE PIGS.

15

TASER DID NOT WARN, WHEN IT BEGAN SELLING

16

THIS DEVICE TO SALINAS AND OTHER POLICE

17

DEPARTMENTS, WATCH OUT FOR REPEATED EXPOSURES

18

BECAUSE PEOPLE MIGHT BECOME TOO ACIDOTIC AND DIE.

19

BEGINNING IN 2003, THE U.S. MILITARY

20

BEGAN STUDYING THE TASER.

IT VOICED CONCERN OVER

21

WHETHER TOO MANY, TOO LONG EXPOSURES WOULD CREATE

22

ACIDOSIS.

23

YOU'LL HEAR A LOT ABOUT DR. JAUCHIM IN THIS CASE --

24

CONDUCTED AN EXPERIMENT.

25

AND PUT THEM UNDER ANESTHESIA BECAUSE THE

A DOCTOR NAMED JAMES JAUCHIM -- AND

HE TOOK A NUMBER OF PIGS

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CRUELTY-TO-ANIMAL PEOPLE DEMANDED THAT AND MEASURED

2

THE EFFECT OF WHAT DIFFERENT TASER DOSAGES WERE ON

3

THE PH LEVEL AND THE LACTIC ACID PRODUCTION OF

4

THESE ANIMALS.

5

AND WHAT HE DETERMINED, AND WHAT YOU'LL

6

SEE IN THE CASE GRAPHICALLY PRESENTED TO YOU, IS

7

THAT THE MORE SOMEONE IS SHOCKED WITH A TASER, OR

8

IN THIS CASE AN ANESTHETIZED PIG, THE MORE THE

9

LACTIC ACID IS DISTRIBUTED IN THE BLOODSTREAM, THE

10
11

HIGHER THE LACTIC ACID, THE LOWER THE PH.
ONE SHOCK, ALTHOUGH IT CREATES A

12

STATISTICALLY SIGNIFICANT CHANGE IN LACTATE, DOES

13

NOT CREATE ANYTHING NEAR A DANGER OR A CLINICALLY

14

SIGNIFICANT CHANGE.

15
16
17

THREE, A MORE PROFOUND CHANGE, BUT STILL
WITHIN THE REALM OF SAFETY.
BUT 18, 18 DOSES, WHICH IS ABOUT

18

TWO-THIRDS OF WHAT MR. HESTON RECEIVED, PUT THESE

19

PIGS RIGHT INTO THE DANGER ZONE WHERE CARDIAC

20

ARREST FROM ACIDOSIS IS LIKELY.

21

WHEN WORD OF DR. JAUCHIM'S STUDY GOT TO

22

TASER INTERNATIONAL AND TO ITS CEO PATRICK SMITH,

23

WHO IS PRESENT IN COURT AND WE WILL BE PLAYING YOU

24

AN EXCERPT FROM HIS DEPOSITION LATER TODAY.

25

THEY FOUND OUT ABOUT DR. JAUCHIM'S STUDY, THIS WAS

WHEN

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SOMETIME IN 2004, THEY DECIDED THEY BETTER FINALLY

2

WARN THEIR CUSTOMERS, THESE POLICE DEPARTMENTS,

3

ABOUT THE DANGER OF EXTENDED DURATION OF TASER

4

APPLICATIONS.

5

THEY ISSUED A WARNING, BUT IT WAS BURIED

6

AS SLIDE 108 IN A 1 -- LET ME GET THE RIGHT NUMBER

7

HERE -- AND 174 POWER POINT PRESENTATION MAILED OUT

8

SOMETIME BETWEEN JANUARY 2004 AND JANUARY 2005.

9

THE SALINAS POLICE OFFICERS INVOLVED IN

10

THIS INCIDENT NEVER SAW THIS WARNING.

IT WAS NEVER

11

RELAYED FROM TASER THROUGH THE SALINAS POLICE

12

DEPARTMENT TO THEM.

13

WERE UNAWARE OF ANY HEALTH RISK ASSOCIATED WITH

14

THEIR 25 TASINGS OF MR. HESTON.

THEY ALL WILL TESTIFY THEY

15

NOW, LET ME TELL YOU WHAT HAPPENED IN

16

THIS INCIDENT IN A LITTLE MORE DETAIL, WHAT THE

17

PLAINTIFFS SAY THE EVIDENCE WILL SHOW.

18

GOING TO BE SOME CONFLICTS IN THE EVIDENCE.

19

AND THERE'S

ON THIS DAY, FEBRUARY 19TH, THE

20

PLAINTIFFS ARE WORRIED ABOUT THEIR SON.

HE'S ONLY

21

BEEN OUT OF PRISON LESS THAN A MONTH.

22

DOING WELL.

23

HIS CONCRETE BUSINESS.

24

PROGRAMS AND ALL OF A SUDDEN HE'S ACTING VERY

25

STRANGE AND IRRATIONAL.

HE'S BEEN

HE'S BEEN WORKING WITH HIS FATHER IN
HE'S BEEN ATTENDING

HE THINKS THERE'S SOMEBODY
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IN THE ATTIC WITH A GUN THREATENING THE FAMILY.

2

HE'S AGITATED.

3
4

THEY HAVE BEEN THROUGH THIS BEFORE, THEY
KNOW WHAT THIS MEANS.

5

HE HAS RELAPSED.

THEY CALL THE POLICE DEPARTMENT.

SEND

6

OVER SOMEONE TO HELP.

7

CURT KASTNER, THEIR SON-IN-LAW, THAT'S MISTY'S

8

HUSBAND, COMES OVER TO HELP, AND A FRIEND NAMED

9

CLIFF SATREE COMES OVER TO HELP.

10

OFFICERS ARE DISPATCHED.

THE OFFICERS COME, THEY TALK TO THE

11

FATHER, THEY TALK TO THE SON.

12

OFFICERS ABOUT SOMEONE IN THE ATTIC WITH A GUN

13

THREATENING THE FAMILY.

14

THE SON TELLS THE

THE OFFICERS BELIEVE THAT HE'S -- HE'S ON

15

DRUGS.

16

IRRATIONAL, BUT THEY DECIDE TO TAKE NO ACTION AND

17

THEY LEAVE.

18

THEY LEAVE.

19

THEY CONCEDE HE'S DELUSIONAL AND

THEY'RE THERE FOR 10, 15 MINUTES AND

NOT FIVE MINUTES AFTER THEY LEFT THE SON

20

BECOMES EXTREMELY AGITATED AND EXCITED.

HE BEGINS

21

POUNDING ON THE CEILING.

22

BEGINS THROWING THINGS OUT OF THE DOOR.

23

HIS FATHER DOWN.

24

CALLED 911.

25

CALLS 911 AGAIN, "YOU HAVE TO COME BACK RIGHT

HE'S OPENING THE DOOR AND
HE KNOCKS

911 IS CALLED AGAIN, HIS FATHER

YOU'LL HEAR THE CALL.

CURT KASTNER

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AWAY," AND HE CALLS AND HE'S OUT OF CONTROL AND

2

CLIFFORD SATREE CALLED 911.

3

AND THE THING ABOUT CLIFFORD SATREE'S 911

4

CALL, WHICH YOU'LL HEAR PLAYED TODAY, IS THAT HE

5

STAYS ON THE LINE AND DOES A PLAY-BY-PLAY OF

6

EXACTLY WHAT HAPPENED NEXT AND SO YOU'LL BE ABLE TO

7

HEAR IN REALTIME EXACTLY HOW THESE EVENTS UNFOLDED.

8
9

OFFICER DOMINICI, SERGEANT DOMINICI AND
SERGEANT FAIRBANKS ARE THE FIRST TO RETURN.

10

THEY SEE MR. HESTON AT THE DOOR.

THAT'S

11

THE SON, THROWING THINGS OUT.

IN FACT, HE THROWS

12

SOMETHING, A PIECE OF WOOD, MOLDING, WHATEVER IT

13

WAS, AND IT HITS SERGEANT DOMINICI IN THE CENTER OF

14

HIS BULLET PROOF VEST AND IT BOUNCES OFF.

15

DOMINICI IS NOT INJURED.

SERGEANT

16

HE FIRES HIS TASER AT MR. HESTON.

17

SERGEANT DOMINICI HAS HAD LESS THAN

18

TWO HOURS OF TASER TRAINING AND HAS NEVER FIRED THE

19

PROBES BEFORE, EVEN AT A TARGET.

20

ONE OF THE PROBES MISSES AND GOES IN THE

21

DOOR JAM.

22

TASER HAS NO EFFECT OTHER THAN TO FURTHER AGITATE

23

ROBERT HESTON.

24
25

SO THERE'S NO COMPLETED CIRCUIT.

THE

SERGEANT -- OFFICER FAIRBANKS FIRES ONLY
A FEW SECONDS AFTER SERGEANT DOMINICI'S
167

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UNSUCCESSFUL FIRING, BUT HIS IS UNSUCCESSFUL, TOO.

2

HE'S STANDING NEAR THE MAXIMUM RANGE OF

3

THE TASER.

REMEMBER, THE WIRES ARE ONLY 21 FEET,

4

LESS THAN THE DISTANCE FROM ME TO YOU.

5

AS -- AS MR. HESTON FALLS BACKWARD FROM

6

THE TASER, THE WIRES BREAK OR THE DARTS COME OUT,

7

THE DEVICE LOSES ITS EFFECT.

8

AND YOU'LL HEAR CLIFFORD SATREE SAY HE'S PULLING A

9

DART OUT.

10

HE WAS ACTUALLY ABLE TO PULL A DART OUT

BECAUSE HE WASN'T GETTING ANY CURRENT.

11
12

AND HE'S TASED AGAIN.

SERGEANT RUIZ RETURNS ALONG WITH OFFICER
LIVINGSTON AND OFFICER PAREDEZ.

13

RUIZ TRIES TO ENGAGE ROBERT HESTON IN

14

SOME CONVERSATION.

15

CALM HIM DOWN.

16

THE ATTIC WITH THE GUN.

17

"HEY, MAN, WHAT IS GOING ON?"

HE'S STILL TALKING ABOUT THE GUY IN
STILL.

SERGEANT RUIZ FIRES HIS TASER.

AT THE

18

SAME TIME -- AND EVERY WITNESS WHO COMES IN WILL

19

SAY IT'S VIRTUALLY SIMULTANEOUS -- OFFICER

20

LIVINGSTON FIRES HIS TASER, EVEN THOUGH THE

21

TRAINING FOR THE CITY OF SALINAS IS THAT ONLY ONE

22

DEVICE SHOULD BE USED AT A TIME AND THE SECOND

23

SHOULD BE USED ONLY IF THE FIRST IS UNSUCCESSFUL AS

24

BACKUP.

25

MR. HESTON STUMBLES BACKWARDS FROM THE
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1

EFFECT OF THE TASER.

2

LIVINGSTON FOLLOW HIM INSIDE OF THE HOUSE.

3

WANT TO KEEP HIM IN VIEW.

4

WIRE SLACK SO THAT THEY DON'T BREAK OR COME OUT SO

5

THAT THE TASERS WILL HAVE THEIR EFFECT.

6

SERGEANT RUIZ AND OFFICER
THEY

THEY WANT TO KEEP THE

THEY CYCLE THE DEVICES OVER AND OVER

7

AGAIN.

8

HEAD ON A COFFEE TABLE.

9

MR. HESTON GOES TO THE FLOOR.

HE HITS HIS

OFFICER PAREDEZ COMES IN RIGHT BEHIND

10

THEM AND BEHIND OFFICER PAREDEZ IS OFFICER

11

FAIRBANKS, WHO CLEARS THE WAY, THE GRANDFATHER

12

CLOCK THAT MR. HESTON HAD KNOCKED DOWN AND THEY SEE

13

MR. HESTON ALREADY ON THE FLOOR.

14

JUST A FEW SECONDS AFTER THE FIRING.

THE ESTIMATE IS

15

HE'S ON THE FLOOR PRONE, FACE DOWN, WITH

16

HIS ARMS SORT OF CURLED UNDERNEATH HIM, A POSITION

17

THAT IS CAUSED BY THE CYCLING OF THE TASERS.

18

ON THE GROUND.

19

THEIR TASERS.

20
21

HE'S

THE OFFICERS CONTINUE TO CYCLE

OFFICER LIVINGSTON IS HOLDING THE TRIGGER
DOWN.

22

ANOTHER OFFICER COMES IN THE ROOM,

23

OFFICER GODWIN.

HE FIRES HIS TASER INTO MR. HESTON

24

SO THAT NOW MR. HESTON IS HOOKED UP TO THREE

25

TASERS.

SERGEANT RUIZ'S DATAPORT SHOWS SIX
169

U.S. COURT REPORTERS

1

DIFFERENT FIVE SECOND TRIGGER PULLS.

2
3

OFFICER GODWIN'S SHOWS SIX DIFFERENT
TRIGGER PULLS.

4

OFFICER LIVINGSTON'S SHOWS 13 FIVE-SECOND

5

BURSTS.

6

FIVE SECONDS OF TASER SHOTS ALL SQUEEZED INTO A

7

PERIOD OF ABOUT FIVE SECONDS, ALMOST ALL OF WHICH

8

WAS AFTER HE WAS LYING ON THE FLOOR.

9

THAT'S A TOTAL OF TWO MINUTES AND

ON HIS RIGHT ARM IS OFFICER FAIRBANKS

10

WAITING FOR THE TASER TO STOP SO HE COULD BE

11

HANDCUFFED AND ON HIS LEFT ARM IS OFFICER PAREDEZ,

12

WAITING FOR THE TASER TO STOP SO HE COULD BE

13

HANDCUFFED.

14

AT HIS HEAD IS SERGEANT DOMINICI.

15

ANOTHER OFFICER COMES IN THE ROOM, THIS

16

IS THE SEVENTH OFFICER NOW, TIM SIMPSON.

17

AT THIS POINT OFFICER GODWIN THINKS MAYBE

18

HIS TASER IS NOT WORKING RIGHT AND TAKES THE

19

CARTRIDGE OUT, PUTS IN A NEW ONE, SHOOTS MR. HESTON

20

IN THE BACK, THIS IS THE SIXTH TIME, AND AS SOON AS

21

THAT FIVE-SECOND CYCLE ENDS, THERE ARE NO MORE

22

TASER CYCLING, MR. HESTON IS TURNING BLUE, HE'S

23

LIMP.

24
25

THEY PUT HIM IN HANDCUFFS.
OFFICER FAIRBANKS IMMEDIATELY CALLS FOR

AN AMBULANCE.

THEY ROLL HIM OVER.

OFFICER PAREDEZ
170

U.S. COURT REPORTERS

1

CHECKS HIS CAROTID PULSE AND FINDS NOTHING.

2

CHECKS HIS BREATHING, FINDS NOTHING.

3
4

HE

THEY DON'T TAKE MR. HESTON OUT OF HIS
HANDCUFFS.

5

OFFICER SIMPSON, WHO PUT HIM IN THE

6

HANDCUFFS, IS TOLD TO GET HIS CAMERA AND START

7

TAKING PICTURES.

8

THE PARAMEDICS ARRIVE.

9

TIME HE IS TAKEN OUT OF HANDCUFFS AND THEY'RE ABLE

10

MR. HESTON IS LEFT IN HANDCUFFS.
THEY WORK ON HIM.

BY THIS

TO START HIS HEART AGAIN, BUT IT'S TOO LATE.

11

TOMORROW YOU WILL HEAR FROM A DOCTOR

12

NAMED TERRY HADDIX.

13

FORENSIC PATHOLOGIST AT STANFORD.

14

AUTOPSIES.

15

AUTOPSY FOR MONTEREY COUNTY FOR ITS CORONER'S

16

OFFICE TO DETERMINE WHY ROBERT HESTON DIED.

17

SHE IS A STAFF PHYSICIAN, A
SHE DOES

AND SHE'S THE DOCTOR WHO DID THE

NOW, HIS ACTUAL CAUSE OF DEATH WHICH

18

OCCURS 30 HOURS LATER, IS FAIRLY SIMPLE.

19

MASSIVE ORGAN FAILURE THAT FLOWED FROM BEING BRAIN

20

DEAD FOR 30 HOURS.

21

CAUSE OF DEATH BUT THE CAUSE OF THE CARDIAC ARREST

22

THAT OCCURRED ON FEBRUARY 19TH.

23

IT'S THE

THE REAL ISSUE HERE IS NOT THE

AND DR. HADDIX, WHO IS THE ONLY

24

INDEPENDENT MEDICAL EXPERT YOU'RE GOING TO HEAR IN

25

THIS CASE, NOT BROUGHT IN BY EITHER SIDE TO RENDER
171

U.S. COURT REPORTERS

1

OPINIONS, DID WHAT FORENSIC PATHOLOGISTS, MEDICAL

2

EXAMINERS DO.

3

SHE AUTOPSIED THE BODY, LOOKED AT WHAT

4

EVIDENCE THERE WAS THERE.

5

SHE COULD ABOUT WHAT HAPPENED IN THE TIME RIGHT

6

BEFORE HE DIED, AND SHE ALSO WENT TO GREAT LENGTH

7

TO LEARN ABOUT THE TASER AND ITS EFFECTS.

8

ACTUALLY CORRESPONDED WITH TASER INTERNATIONAL AND

9

LOOKED AT THE ARTICLES THAT SHE WAS REFERRED TO.

10

SHE FOUND OUT AS MUCH AS

SHE

AND SHE CONCLUDED THAT THE REPEATED TASER

11

DISCHARGES ON A PERSON WHO IS IN AN AGITATED STATE

12

ON METHAMPHETAMINE CAUSED THIS DEATH.

13

SHE LOOKED AT THE TOXICOLOGY REPORTS,

14

WHICH ARE THE LEVELS OF FOREIGN CHEMICALS IN THE

15

BODY.

16

.01, SO .08 IS THE LEGAL LIMIT FOR DRIVING.

17

ALMOST NOTHING.

18

LITER, .64 METHAMPHETAMINE IN HIS SYSTEM AND THAT

19

WHAT APPEARS TO BE RESPONSIBLE FOR THIS ERRATIC

20

BIZARRE BEHAVIOR THAT BROUGHT THE POLICE THERE.

21

HE HAD JUST A TRACE OF ALCOHOL, WHICH IS
SO

HE DID HAVE .64 MILLILITERS PER

NOW, AS I MENTIONED TO YOU BEFORE,

22

DR. MEYERS, THE PLAINTIFF'S CARDIOLOGY EXPERT, WILL

23

EXPLAIN TO YOU WHY IT WAS THE REPEATED TASER

24

APPLICATIONS THAT CAUSED THIS CARDIAC ARREST,

25

THROUGH THE METABOLIC CHANGES, THROUGH THE CHANGES
172

U.S. COURT REPORTERS

1

IN THE BLOOD ACID THAT WERE CAUSED BY THE REPEATED

2

MUSCLE CONTRACTIONS.

3

YOU WILL HEAR THAT DR. MEYERS BASES HIS

4

CONCLUSIONS ON DR. JAUCHIM'S STUDY FOR THE U.S.

5

MILITARY AND WHAT IT SHOWS ABOUT PH CHANGES CAUSED

6

BY THE REPEATED TASER APPLICATIONS, WHICH IS JUST

7

REALLY COMMON SENSE.

8
9

THROUGHOUT THE TRIAL YOU WILL HEAR SOME
ALTERNATIVE HYPOTHESES AND ALTERNATIVE THEORIES,

10

ALTERNATIVE SUGGESTIONS AS TO WHAT CAUSED THIS

11

CARDIAC ARREST.

12

NONE OF THEM APPLIED TO THIS CASE.

13

DR. MEYERS WILL EXPLAIN TO YOU WHY

THE FIRST IS THAT THERE WAS SOME

14

PREEXISTING HEART CONDITION THAT WAS DISCOVERED IN

15

MR. HESTON DURING THE AUTOPSY.

16

ENLARGED HEART.

17

REMEMBER, TASER'S CARDIOLOGISTS, AGREED THAT THIS

18

IS NOT AN UNUSUAL CONDITION FOR A 40-YEAR OLD

19

AMERICAN, AND THAT IT IN NO WAY EXPLAINS THIS

20

DEATH.

21

HE HAD A MILDLY

DR. MEYERS AND DR. LUCERI,

IN FACT, DR. LUCERI, AND THIS IS TASER'S

22

EXPERT, SAID THAT ATTRIBUTING THIS DEATH, THIS

23

CARDIAC ARREST TO THE ENLARGED HEART IS, AND I

24

QUOTE, "NONSENSE."

25

THE SECOND IS THAT MR. HESTON DIED OF A
173

U.S. COURT REPORTERS

1

METHAMPHETAMINE OVERDOSE; HE JUST TOOK TOO MUCH

2

METHAMPHETAMINE AND THAT STOPPED HIS HEART.

3

CAN HAPPEN; HOWEVER, AS BOTH DR. MEYERS AND

4

DR. LUCERI, TASER'S EXPERT, WILL EXPLAIN TO YOU,

5

WHEN THAT HAPPENS THERE'S A DIFFERENT MECHANISM,

6

THERE'S A DIFFERENT KIND OF HEART ARRYTHMIA THAN

7

WHAT WAS PRESENT IN THIS CASE.

8
9

THAT

AND I'LL WAIT UNTIL THE DOCTORS ARE UP
THERE SO I DON'T MESS UP, BUT IT'S LIKE THE

10

DIFFERENCE BETWEEN VENTRICULAR FIBRILLATION AND

11

ASYSTOLE, WHICH COMES OUT AS COMPLETELY DIFFERENT

12

KINDS OF LINES ON THOSE GRAPH PAPERS THEY HOOK UP

13

TO PEOPLE'S HEARTS TO SEE HOW THEY'RE BEATING.

14

THE THIRD HYPOTHESIS IS THAT MR. HESTON

15

DIED FROM SOMETHING THAT THE DEFENSE EXPERT IS LIKE

16

TO CALL EXCITED DELIRIUM SYNDROME; THAT HE

17

BASICALLY EXERCISED HIMSELF TO DEATH BECAUSE OF THE

18

EFFECTS OF THE METHAMPHETAMINE.

19

NOW, THIS IS A VERY CONTROVERSIAL AND NEW

20

THEORY ABOUT CAUSE OF DEATH.

21

TOO FAR INTO IT NOW, BUT IT'S WHAT IS CALLED A

22

DIAGNOSIS OF EXCLUSION.

23

I DON'T WANT TO GO

IN OTHER WORDS, ONE CAN ATTRIBUTE DEATH

24

TO EXCITED DELIRIUM SYNDROME, ACCORDING TO CERTAIN

25

PROPONENTS OF THE THEORY, ONLY WHEN THERE ARE NO
174

U.S. COURT REPORTERS

1
2

ALTERNATIVE EXPLANATIONS.
FOR EXAMPLE, IF YOU HAVE SOMEBODY WHO IS

3

IN AN EXCITED AND AGITATED STATE AND HAVE SOME

4

METHAMPHETAMINE IN THEIR SYSTEM, AND THEY'RE DEAD,

5

AND THEY HAVE A BULLET WOUND IN THEIR HEAD, YOU

6

DON'T SAY THAT THAT'S EXCITED DELIRIUM SYNDROME.

7

SIMILARLY, IF SOMEBODY HAS BEEN TASED 25

8

TIMES AND IS SEVERELY ACIDOTIC AND GOES INTO

9

CARDIAC ARREST, YOU DON'T SAY THAT THAT IS EXCITED

10

DELIRIUM SYNDROME.

11

OTHER EXPLANATION.

12

IT'S ONLY WHEN THERE IS NO

MR. AND MRS. HESTON ARE SUING TASER

13

INTERNATIONAL BECAUSE THEY DIDN'T DO THEIR RESEARCH

14

BEFORE THEY MARKETED THEIR PRODUCT AND THEN EVEN

15

AFTER THEY FOUND OUT, THEY DIDN'T DO WHAT THEY WERE

16

SUPPOSED TO DO TO MAKE SURE THE WARNING GOT OUT.

17

THEY'RE SUING THE POLICE OFFICERS BECAUSE

18

THEY SHOULD NOT HAVE TASED MR. HESTON AFTER HE WAS

19

KNOCKED TO THE FLOOR.

20

THE PLAINTIFFS WILL BRING IN AN EXPERT TO

21

EXPLAIN THAT TO YOU.

HIS NAME IS ERNEST BURWELL.

22

HE TRAINED, BEFORE HIS RETIREMENT, LOS ANGELES

23

COUNTY SHERIFF'S DEPUTIES IN THE USE OF THE TASER

24

DURING SORT OF THE FIRST FOUR YEARS OF THE

25

IMPLEMENTATION OF THIS STILL RELATIVELY NEW DEVICE.
175

U.S. COURT REPORTERS

1

AND MR. BURWELL WILL TELL YOU -- BUT,

2

AGAIN, IT'S JUST COMMON SENSE -- THAT ONCE THE

3

PERSON IS KNOCKED TO THE GROUND AND THE DEVICE HAS

4

DONE ITS JOB OF ALLOWING A SAFE TAKE-DOWN FROM A

5

DISTANCE, THE OTHER OFFICER IS PRESENT, AND THERE

6

WERE OTHER OFFICERS PRESENT IN THIS CASE, SHOULD

7

MOVE IN AND HANDCUFF THE PERSON, QUICKLY AND

8

SAFELY; THAT CONTINUING TO SHOCK THE PERSON ONCE

9

HE'S DOWN IS ACTUALLY COUNTERPRODUCTIVE BECAUSE --

10

BECAUSE IT MAKES THE MUSCLES RIGID AND MUCH MORE

11

DIFFICULT TO PLACE BEHIND THE BACK INTO HANDCUFFING

12

POSITION.

13

BEING SHOCKED WITH A TASER, YOU'LL HEAR,

14

IS EXTREMELY PAINFUL.

15

SO ANY INDIVIDUAL UNNECESSARY CYCLING OF A TASER,

16

IF IT IS UNNECESSARY FOR A LAW ENFORCEMENT

17

OBJECTIVE OR A PUBLIC SAFETY OBJECTIVE, IT IS

18

EXCESSIVE FORCE.

19

IT IS A USE OF FORCE.

NOW, DURING THE TRIAL THE DEFENDANTS WILL

20

CLAIM THAT THEY DID NOT KNOW THAT THESE EXTRA

21

CYCLES WILL KILL ANYBODY.

22

DOESN'T MATTER.

23

AND

MAYBE THAT'S TRUE.

IT

THE LAW HOLDS PEOPLE RESPONSIBLE FOR THE

24

CONSEQUENCES OF EXCESSIVE FORCE, WHETHER THEY

25

INTENDED IT TO BE DEADLY OR NOT.
176

U.S. COURT REPORTERS

1

MR. HURLEY:

2

THE COURT:

OBJECTION.

LEGAL ARGUMENT.

YES, MEMBERS OF THE JURY, I

3

ALLOW THIS TIME FOR THE PARTIES TO TALK ABOUT WHAT

4

THE EVIDENCE WILL SHOW, AND I WILL INSTRUCT YOU ON

5

THE LAW AND I'LL ASK YOU TO CONFINE YOUR COMMENTS

6

TO WHAT YOU BELIEVE THE EVIDENCE WILL SHOW AND WAIT

7

UNTIL LATER TO MAKE ARGUMENT ABOUT THE LAW.

8

MR. BURTON:

THANK YOU, YOUR HONOR.

9

SERGEANT DOMINICI DID NOT USE HIS TASER

10

AFTER MR. HESTON WAS ON THE LIVING ROOM FLOOR.

11

HE'S NOT RESPONSIBLE IN THE SAME WAY; HOWEVER, HE

12

WAS IN CHARGE OF THIS OPERATION AND YOU WILL HEAR

13

FROM A SECOND EXPERT IN POLICE PRACTICES FROM

14

PLAINTIFF, A RETIRED LIEUTENANT FROM THE LOS

15

ANGELES COUNTY SHERIFF'S DEPARTMENT NAMED ROGER

16

CLARK, WHO ONCE LEAD A VERY ELITE UNIT WHICH

17

ARRESTED DANGEROUS CRIMINALS.

18

AND LIEUTENANT CLARK WILL EXPLAIN TO YOU

19

HOW IMPORTANT IT IS FOR THE COMMANDER IN A TACTICAL

20

SITUATION TO EXERCISE CONTROL TO MAKE SURE THAT

21

EACH OF HIS SUBORDINATES UNDERSTAND WHAT HIS ROLE

22

IS TO BE OR WHAT HER ROLE IS TO BE AND TO EXECUTE

23

THAT PLAN AND TO STOP SUBORDINATES IF THEY BEGIN

24

DOING THINGS THAT ARE COUNTERPRODUCTIVE, SUCH AS

25

USING EXCESSIVE TASER SHOCKS.
177

U.S. COURT REPORTERS

1

FINALLY, PLAINTIFFS ARE ASKING THAT THE

2

CITY OF SALINAS POLICE DEPARTMENT BE HELD

3

RESPONSIBLE BECAUSE IT CHOSE NOT TO BUY THE

4

SOFTWARE, $150, TO DOWNLOAD THE DATAPORT DATA.

5

PRIOR TO THIS INCIDENT THE CITY OF

6

SALINAS POLICE DEPARTMENT, YOU'LL SEE FROM THE

7

EVIDENCE, DID NOT CHECK THE TASERS OF OFFICERS

8

AFTER AN INCIDENT TO FIND OUT HOW MANY TIMES THE

9

DEVICE HAD BEEN FIRED TO SEE WHETHER OR NOT WHAT

10

THE OFFICERS REPORTED ACTUALLY MATCHED WHAT

11

HAPPENS.

12

IN THIS CASE THEY HAD TO GO GET THE

13

SOFTWARE BECAUSE NOW THEY HAD A DEATH ON THEIR

14

HANDS AND THEY FOUND THAT THE OFFICERS REPORTED FAR

15

FEWER TRIGGER PULLS THAN THE DATAPORT RECOVERED.

16

HAD THEY GOTTEN THIS $150 SOFTWARE WITH

17

THEIR ORIGINAL ORDER, SET THE CLOCKS ON THE

18

DATAPORTS CORRECTLY AND MONITORED OFFICERS AFTER

19

THEY USED IT, IT WOULD HAVE BEEN AWARE OF THE

20

PROBLEM WITH THE EXCESSIVE TRIGGER PULLS AND BEEN

21

ABLE TO CORRECT FOR IT.

22

THE EVIDENCE WILL ALSO SHOW THAT THE CITY

23

OF SALINAS DID NOT REVIEW THE TASER TRAINING THAT

24

WAS DISSEMINATED TO THEM WITH THE WARNING OF THE

25

EXTENDED DURATIONS.
178

U.S. COURT REPORTERS

1

LET ME JUST CONCLUDE BY TELLING YOU ABOUT

2

THE DECEDENT IN THIS CASE, ROBERT HESTON.

3

UP IN SALINAS.

4

ALMOST.

5

HIGH SCHOOL AND WON AN AWARD AS THE MOST

6

OUTSTANDING FOOTBALL PLAYER IN THE CITY.

HE GREW

HE LIVED THERE HIS ENTIRE LIFE

HE ACTUALLY WAS AN OUTSTANDING ATHLETE IN

7

HE WENT TO FRESNO STATE TO PURSUE

8

FOOTBALL BUT COLLEGE DIDN'T AGREE WITH HIM.

9

LEFT SCHOOL AND WENT TO WORK AT HIS FATHER'S CEMENT

10
11

HE

BUSINESS.
BY THE TIME HE WAS IN HIS MID TWENTIES,

12

HIS FAMILY BECAME AWARE THAT HE HAD THIS SEVERE

13

SUBSTANCE ABUSE PROBLEM AND THERE WAS A FAMILY

14

HISTORY OF SUBSTANCE ABUSE.

15

BY ALL ACCOUNTS THAT YOU'LL HEAR, THERE

16

WERE TWO ROBERT HESTONS.

WHEN HE WAS CLEAN AND

17

SOBER, AS HE WAS FOR MANY SIGNIFICANT STRETCHES, HE

18

WENT THROUGH REHABILITATION MANY TIMES, HE WAS THE

19

WORLD'S NICEST GUY.

20

HIS FATHER WILL TELL YOU HOW THEY LOVED

21

TO FISH TOGETHER, WORK SIDE-BY-SIDE IN THE CEMENT

22

BUSINESS, GO TO CHURCH ON SUNDAYS AND THEN THE

23

MEN'S BREAKFAST AFTERWARDS.

24
25

IT JUST -- FRIENDS LOVED HIM.

HE WAS THE

KIND OF GUY THAT WOULD GIVE YOU THE SHIRT OFF OF
179

U.S. COURT REPORTERS

1

HIS BACK.

2

AND THEN HE WOULD GET INVOLVED WITH THIS

3

DRUG AND YOU'LL HEAR ABOUT -- ABOUT ALL OF THE

4

STRUGGLES THAT THE FAMILY HAD WITH THAT.

5

THIS WAS NOT THE FIRST TIME THAT THIS

6

HAPPENED.

THERE WAS AN INCIDENT AT A HOTEL.

7

WAS AN INCIDENT WHERE HE WAS BITTEN BY A POLICE

8

DOG.

9

WAS ANOTHER INCIDENT WHERE HE WAS ACTUALLY THROWING

HE WAS ACTUALLY TASED ANOTHER TIME.

THERE

THERE

10

STUFF OUT OF HIS PARENTS' HOUSE.

11

INCIDENT WHERE HE GOT INTO A PHYSICAL ALTERCATION

12

WITH HIS MOTHER WHERE SHE KICKED HIM IN THE GROIN

13

AND WHERE HE RETALIATED AGAINST HER AND PUNCHED HER

14

AND GAVE HER A BLACK EYE.

15

THERE WAS EVEN AN

BUT YOU WILL ALSO HEAR THE POSITIVE TIMES

16

HE HAD WITH HIS FAMILY, THE TIME WITH HIS NIECES

17

AND THE PIE BAKING CONTEST WITH HIS FATHER, THE

18

HOLIDAYS, THE FACT THAT THE FAMILY NEVER EVER GAVE

19

UP ON HIM AND HE NEVER GAVE UP.

20

STRUGGLING TO FIND THE PATH TO SOBRIETY.

21

HE WAS STILL

HE WAS A VERY RELIGIOUS PERSON.

HE WENT

22

12-STEP PROGRAMS AND SO ONE OF OUR LAST WITNESSES

23

NEXT WEEK WILL BE A DOCTOR NAMED NATHAN LAVID.

24

NATHAN LAVID IS A PSYCHIATRIST AND HE TREATED

25

SPECIAL ADDICTIONS.

AND

180

U.S. COURT REPORTERS

1

AND HE DID A PSYCHIATRIC AUTOPSY OF

2

ROBERT HESTON WHERE HE TALKED TO THE FAMILY AND

3

REVIEWED MEDICAL RECORDS, AND HE'LL EXPLAIN TO YOU

4

WHY ROBERT HESTON WAS A GOOD CANDIDATE FOR ULTIMATE

5

RECOVERY.

6

THERE ARE SOME PEOPLE WHO ARE HOPELESS.

7

THERE ARE OTHER PEOPLE WHO TRY AND TRY AND TRY OVER

8

AND OVER AGAIN TO DEFEAT THIS THING AND HE WAS IN

9

THAT SECOND CATEGORY WITH THE MATURITY OF AGE, WITH

10

THE SUPPORT OF HIS FAMILY, WITH THE RIGHT SORTS OF

11

INTERVENTION FROM HIS CHURCH, FROM 12-STEP

12

PROGRAMS, WITH MEDICAL AND -- AND INTERVENTION THAT

13

IS -- THAT IS BECOMING MORE AND MORE COMMONPLACE,

14

ROBERT HESTON MAY WELL HAVE REALIZED REDEMPTION AS

15

MANY DO, BUT THAT'S NOT GOING TO HAPPEN BECAUSE HE

16

PASSED AWAY.

17

BE ASKING YOU TO AWARD AN APPROPRIATE AMOUNT OF

18

MONEY DAMAGES.

19
20
21

AND SO AT THE END OF THE CASE WE'LL

THANK YOU VERY MUCH.

THANK YOU, YOUR

HONOR.
THE COURT:

UNLESS YOU LET ME KNOW

22

OTHERWISE, I'LL GO AHEAD AND WE'LL HEAR ONE OF THE

23

OTHER ARGUMENTS AND OPENING STATEMENTS AND THEN

24

WE'LL TAKE A BREAK AT THAT POINT.

25

VERY WELL.

I'LL CALL ON DEFENSE COUNSEL
181

U.S. COURT REPORTERS

1

MR. HURLEY.

2

MR. HURLEY:

THANK YOU, YOUR HONOR.

3

(WHEREUPON, COUNSEL FOR THE DEFENDANT,

4

CITY OF SALINAS AND INDIVIDUAL DEFENDANTS, GAVE HIS

5

OPENING STATEMENT.)

6

MR. HURLEY:

GOOD MORNING.

7

AS I TOLD YOU DURING JURY SELECTION, I

8

REPRESENT THE CITY OF SALINAS POLICE DEPARTMENT.

9

AND I KNOW I MENTIONED THEM BEFORE, BUT I WOULD

10

LIKE TO BRIEFLY INTRODUCE THE DEFENDANTS AGAIN TO

11

YOU.

12

FIRST OF ALL, CLOSEST TO THE WALL IS

13

DEPUTY CHIEF CASSIE MCSORLEY.

14

DEFENDANT IN THIS CASE BUT SHE'S A REPRESENTATIVE

15

OF THE POLICE DEPARTMENT.

16

SHE'S NOT A

NEXT IS COMMANDER JUAN RUIZ, WHO IS NOW A

17

COMMANDER AND AT THE TIME OF THIS INCIDENT WAS A

18

SERGEANT IN THE SALINAS POLICE DEPARTMENT AND HE

19

HAS APPROXIMATELY 28 YEARS IN POLICE WORK.

20
21
22

NEXT IS OFFICER LEK LIVINGSTON, WHO IS A
POLICE OFFICER WITH THE SALINAS POLICE.
NEXT IS SERGEANT MICHAEL DOMINICI.

HE IS

23

A SERGEANT WITH AGAIN ABOUT 28 YEARS IN THE POLICE

24

DEPARTMENT.

25

ON THIS DAY.

AND HE WAS THE SERGEANT AT THE SCENE

182

U.S. COURT REPORTERS

1

AND NEXT IS OFFICER JAMES GODWIN.

HE IS

2

A SALINAS POLICE DEPARTMENT POLICE OFFICER AND IS A

3

DEFENDANT IN THIS CASE.

4

WHAT IS GOING TO BE TALKED ABOUT

5

THROUGHOUT THIS TRIAL, AT LEAST A LITTLE BIT, IS A

6

PERIOD OF TIME OF ABOUT THREE MINUTES.

7

THREE MINUTES THAT THIS ENCOUNTER TOOK PLACE,

8

ENDING WITH ROBERT C. HESTON ON THE FLOOR.

9

THAT IS THE

LET ME GO THROUGH BRIEFLY WHAT EVIDENCE

10

YOU WILL HEAR ABOUT THIS THREE-MINUTE ENCOUNTER.

11

AND YOU'VE HEARD THAT THERE WERE TWO CALLS, BUT

12

I'LL START WITH THE SECOND CALL.

13

THE OFFICERS WERE CALLED AND TOLD THAT

14

ROBERT C. HESTON HAD ASSAULTED HIS FATHER.

15

THAT REPORT CAME FROM HIS FATHER AND FROM CLIFFORD

16

SATREE.

17

AND

SERGEANT DOMINICI AND OFFICER CRAIG

18

FAIRBANKS, WHO SHOULD TESTIFY TODAY, WERE THE FIRST

19

TO RESPOND TO THE SCENE.

20

HOUSE PREVIOUSLY AND THEY WERE A FEW BLOCKS AWAY.

21

THEY HAD BOTH BEEN AT THE

IT TOOK THEM ABOUT TWO MINUTES TO RESPOND

22

TO THE CALL.

SERGEANT DOMINICI FIRST, THE FIRST

23

ONE ON THE SCENE ABOUT A BLOCK SHORT AND STOPPED.

24

THEN DROVE FATHER DOWN THE STREET PASSED THE HOUSE

25

AND SAW OBJECTS FLYING OUT OF THE HOUSE.
183

U.S. COURT REPORTERS

1

AS HE PULLED UP TO THE HOUSE HE SAW THE

2

SON, WHO IS 40 YEARS OLD, ROBERT C. HESTON,

3

DRAGGING HIS FATHER ACROSS THE FLOOR BACKWARDS BY

4

ONE ARM AND DRAGGED HIM ACROSS THE FLOOR OUT OF

5

SIGHT.

6
7

SERGEANT DOMINICI AND MR. HESTON AT THE
TIME SAID THAT HE WEIGHED ABOUT 350 POUNDS.

8
9

SERGEANT DOMINICI KNEW THAT ROBERT C.
HESTON, THE SON, WAS A VERY STRONG MAN.

HE HAD

10

JUST GOTTEN OUT OF PRISON AND HAVING SEEN HIM AT

11

THE FIRST CALL, HE KNEW THAT HE HAD BEEN WORKING

12

OUT.

AND HE APPEARED TO BE A STRONG MAN.

13

NOW, AS SERGEANT DOMINICI THEN PULLED UP,

14

HAVING SEEN THE FATHER THEN BE DRAGGED OUT OF

15

SIGHT, SERGEANT DOMINICI STARTED ON FOOT UP THE

16

PATHWAY TO THE HOUSE.

17

WHEN SERGEANT DOMINICI GOT TO THE -- ONTO

18

THE FRONT PATH OF THE HOUSE AND WAS APPROACHING THE

19

FRONT DOOR, ROBERT C. HESTON CAME OUT THROUGH THE

20

FRONT DOOR.

21

THAT ROBERT THE -- THE SON, WAS CONTINUING TO STAY

22

IN THE HOUSE BUT BLOCK, BE THAT BARRIER TO GET INTO

23

THE HOUSE.

24
25

AND THROUGHOUT THIS EVENT YOU'LL SEE

AND FROM PAST EXPERIENCE ROBERT C. HESTON
KNEW THAT THE POLICE WOULD BARRICADE THE HOUSE AND
184

U.S. COURT REPORTERS

1

DO CERTAIN THINGS.

2

THEY'RE GOING TO BARRICADE THE HOUSE, THEY'RE GOING

3

TO DO THESE THINGS, BECAUSE HE KNEW IT HAD HAPPENED

4

BEFORE.

5

AND HE EVEN TALKED ABOUT

BUT SERGEANT DOMINICI, AS HE APPROACHED

6

THE FRONT DOOR, IS TALKING TO HESTON, TRYING TO

7

MAKE CONTACT WITH HIM.

8
9

AT THAT POINT ROBERT C. HESTON THREW THIS
PIECE OF WOOD WHICH WILL BE IN THE TRIAL AS

10

EXHIBIT 249.

11

EITHER CAME FROM THE SHATTERED GRANDFATHER CLOCK OR

12

FROM THE SHATTERED HOME ENTERTAINMENT CENTER BUT

13

IT'S A PIECE FROM ONE OF THOSE PIECES OF FURNITURE,

14

AND HE THROW IT AT SERGEANT DOMINICI, JABBING

15

STYLE, STRIKING IT IN THE CHEST OF SERGEANT

16

DOMINICI RIGHT HERE.

17

HE THREW THIS PIECE OF WOOD.

IT KNOCKED HIM BACK.

18

HE REMAINED STANDING.

19

VEST.

20

IT

HE YELLED OUT BUT

IT KNOCKED HIS BULLET PROOF

OFFICER FAIRBANKS WAS MOVING ALONG THE

21

FRONT OF THE HOUSE AND MOVING AT A DIFFERENT ANGLE

22

AND SAW THAT OCCUR.

23

ROBERT C. HESTON RETURNED BACK INSIDE OF

24

THE HOUSE, THE SON.

AND AT THIS POINT NEITHER

25

OFFICER FAIRBANKS NOR SERGEANT DOMINICI KNEW WHERE
185

U.S. COURT REPORTERS

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THE FATHER WAS.

2

AND WHAT WE KNOW NOW IS THAT WE GOT UP

3

AND THE FATHER HAD GOTTEN BACK TO A CORNER BY THE

4

LIVING ROOM HALLWAY.

5

THAT HE WANTED THE POLICE TO GET HIS SON OUT OF THE

6

HOUSE, BUT HE DIDN'T WANT TO BE NEAR IT AND

7

EVENTUALLY, SO THAT HE WOULDN'T GET INVOLVED, HE

8

WENT DOWN THE HALLWAY AND WENT BACK AROUND TO THE

9

KITCHEN AND WAS THEN OUT OF SIGHT.

10

AND THE FATHER HAS TESTIFIED

AFTER ROBERT C. HESTON CAME BACK OUT THE

11

FRONT DOOR AGAIN, AND SERGEANT DOMINICI WAS NOT

12

ABLE TO MAKE ANY KIND OF COMMUNICATION CONTACT WITH

13

HIM, TRYING TO TALK TO HIM, ALL HE SAW WAS A GLASSY

14

STARE THAT DID NOT FOCUS ON ANYONE, AND DEBRIS

15

OUTSIDE OF THE HOUSE.

16

SERGEANT DOMINICI THEN DEPLOYED HIS

17

TASER.

HE MISSED WITH ONE PROBE.

HE HAD ACTUALLY

18

DEPLOYED HIS TASER ONCE BEFORE AND ALSO MISSED.

19

BOTH TIMES HE WAS TRYING TO SHOOT THIS THING AT A

20

MOVING TARGET.

21

NOT A PERFECT DEVICE.

22

MOVING TARGET, IT'S HARD TO HIT.

23

WITH ONE PROBE.

THE TASER, LIKE ANYTHING ELSE, IS
IF YOU'RE SHOOTING AT A
AND HE MISSED

24

HESTON THOUGH, DID YELL OUT, BACKED UP A

25

LITTLE BIT INTO THE HOUSE, CAME BACK OUT OF THE -186

U.S. COURT REPORTERS

1

OR CAME BACK INTO A POINT THAT -- THAT OFFICER

2

FAIRBANKS THEN FIRED HIS TASER.

3

FAIRBANKS IS PRETTY SURE THAT HE GOT IT BUT HESTON

4

BACKED UP, REMAINED STANDING, DID NOT FALL DOWN, AS

5

THE OFFICERS SEE IN THEIR TRAINING AND AS SEEN IN

6

MANY OTHERS EVENTS WHERE OFFICERS FALL DOWN.

7

AND OFFICER

HE SEEMED TO BE PULLING OUT PROBES AND

8

CLIFFORD WILL TELL YOU ABOUT SEEING PROBES AND HAVE

9

HIM SWIPE DOWN PROBES, AS WILL OFFICER FAIRBANKS.

10

HESTON BACKED UP INTO THE HOUSE AGAIN.

11

SERGEANT DOMINICI CALLED FOR MORE OFFICERS TO COME

12

INTO THE SCENE AND HE ASKED FOR WHAT IS AN INCREASE

13

TO CODE 3, WHICH MEANS RED LIGHTS AND SIGNS AND HE

14

ASKED FOR OTHER OFFICERS TO BRING OTHER TASERS

15

BECAUSE THE TASER HOLDS ONE CARTRIDGE AND NORMALLY

16

OFFICERS DON'T CARRY MULTIPLE CARTRIDGES.

17

THE TASERS ARE SOMEWHAT LARGE, CARRIED ON

18

A BELT OR CARRIED WITH TOO MANY DEVICES, BUT I'M

19

HOLDING UP A CARTRIDGE WHICH WILL BE MARKED AS 203.

20

SO THEY DON'T USUALLY CARRY MORE THAN ONE.

21

SO NOBODY COULD RELOAD AT THIS POINT.

22

THERE WAS NO OTHER WEAPON TO USE EXCEPT A BATON,

23

PEPPER SPRAY, WHICH IS AN IRRITANT SPRAY, OR A GUN.

24
25

THEY THEN WAITED FOR ABOUT A MINUTE
WHILE -- WHILE ROBERT C. HESTON WENT ON WHAT WAS
187

U.S. COURT REPORTERS

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DESCRIBED AS A RAMPAGE INSIDE OF THE HOUSE, OUTSIDE

2

OF THE HOUSE, OBJECTS FLYING OUT OF THE HOUSE.

3
4

NEITHER FAIRBANKS NOR DOMINICI KNOW WHAT
IS GOING ON.

5

AT A POINT THAT FAIRBANKS CAN LOOK

6

THROUGH THE FRONT DOOR -- OR EXCUSE ME, THE FRONT

7

WINDOW.

8

PART HAD BEEN SHATTERED, ONE PANE OF THE WINDOW HAD

9

BEEN SHATTERED WHEN HESTON SHOVED HIS FIST THROUGH

10
11

WHICH, BY THE WAY, THE FRONT WINDOW IN

THE WINDOW BEFORE THE POLICE ARRIVED.
YOU'LL SEE PHOTOGRAPHS OF BLOOD SPATTERS

12

ON THE CEILING AND THE WALLS AS BLOOD IS

13

SPATTERING.

14

WAS KNOCKED EITHER WITH A TOOL OR A FIST BY

15

KNOCKING THE CEILING.

16
17

YOU'LL SEE A HOLE IN THE CEILING.

SO THIS RAMPAGE GOES ON WHILE THEY'RE
WAITING FOR MORE OFFICERS.

18

SERGEANT JUAN RUIZ ARRIVES.

19

NEXT TO SERGEANT DOMINICI AND THEY TRY TO BRIEF

20

WHAT HAS HAPPENED.

21

ON A PERSON.

23

AND IT HIT ME.

25

HE COMES UP

RUIZ KNOWS THAT THERE'S BEEN AN ASSAULT

22

24

IT

DOMINICI TELLS HIM HE THREW THE STICK

RUIZ ALSO KNEW THAT HE WAS ASSAULTIVE
TOWARDS POLICE OFFICERS BECAUSE WHEN RUIZ TURNED TO
188

U.S. COURT REPORTERS

1

WALK UP THE STAIRS -- OR EXCUSE ME, TO WALK UP THE

2

PATH, ROBERT C. HESTON FROM THE FRONT DOOR OF THE

3

HOUSE THREW THIS GRANDFATHER CLOCK WEIGHT AT

4

SERGEANT RUIZ.

5

NOW, YOU'LL HEAR THE PLAINTIFFS SAY THAT

6

THIS IS A HARMLESS ACT.

7

THAT -- THAT ROBERT C. HESTON LOOKED HIM STRAIGHT

8

IN THE EYE WHEN HE THREW THIS CLOCK WEIGHT.

9

THIS CLOCK WEIGHT FLEW THE DISTANCE FROM ME TO

10

13

THIS CLOCK WEIGHT WEIGHS ALMOST
12 POUNDS.

IT IS A HEAVY OBJECT.
ROBERT C. HESTON THREW THREE OF THESE

14

DURING THE RAMPAGE, ALL SHATTERED FROM THE

15

GRANDFATHER CLOCK.

16

AND

ABOUT THAT WALL BEHIND YOU.

11
12

SERGEANT RUIZ WILL TESTIFY

SERGEANT -- OFFICER FAIRBANKS WILL TELL

17

YOU THAT WHEN HE LOOKED IN THROUGH THE FRONT

18

WINDOW, HE SAW HESTON DOWN ON THE FLOOR SMASHING,

19

MAKING POUNDING FIST MOVES.

20

FAIRBANKS AT THAT POINT THOUGHT IT WAS

21

THE FATHER ON THE FLOOR GETTING PUNCHED.

FAIRBANKS

22

DREW HIS GUN.

HE THOUGHT AT THIS POINT I'M GOING

23

TO SHOOT HIM.

BUT THAT WENT AWAY.

24

IT TURNS OUT THAT WHAT HE WAS SMASHING ON WAS

25

APPARENTLY MORE OF THE GRANDFATHER CLOCK OR MORE OF

HE HELD OFF AND

189

U.S. COURT REPORTERS

1

A PIECE OF FURNITURE.

2

NOW WE GET TO COMMANDER OR SERGEANT RUIZ

3

AT THE TIME COMING UP AND OFFICER LIVINGSTON COMING

4

UP AND STANDING TO THE RIGHT OF SERGEANT RUIZ.

5

THEY TRIED TO BRIEF BUT HESTON KEEPS COMING OUT.

6

SERGEANT RUIZ'S TACTIC OVER THE YEARS HAS

7

ALWAYS BEEN TALK, TRY TO TALK.

SO HE TRIES TO TALK

8

TO DISTRACT, TO ASK QUESTIONS JUST TO GET HESTON TO

9

COMMUNICATE, BUT HE WON'T COMMUNICATE.

HE STILL IS

10

COMING OUT, STILL BLOCKING ACCESS TO THE DOOR,

11

STILL BLOCKING THE POLICE'S WAY IN THE FRONT DOOR.

12

SERGEANT RUIZ PULLS OUT AND DEPLOYS HIS

13

TASER, OFFICER LIVINGSTON ALSO DEPLOYS HIS TASER.

14

YOU'LL SEE THAT FROM THE TRAINING THAT OFFICERS

15

DEPLOY, MULTIPLE TASERS IN HIGH RISK.

16

WERE TRAINED THAT THEY COULD AND SHOULD DEPLOY

17

TASERS IN HIGH-RISK SITUATIONS.

18

BECAUSE IT IS SO COMMON FOR THE WIRES TO BREAK OR

19

TO COME OUT OR FOR SOMETHING TO GO WRONG.

20

NOT A PERFECT DEVICE.

21

AND THEY

TWO TASERS,

THIS IS

WHEN RUIZ AND LIVINGSTON'S PROBES, THEY

22

THINK, HIT --

ANOTHER THING THAT DOES NOT COME IN

23

THE TRAINING VIDEOS BUT THEY ARE WARNED ABOUT

24

DURING TRAINING, HE DIDN'T GO DOWN.

25

STANDING.

HE STAYED

190

U.S. COURT REPORTERS

1

CLIFFORD SATREE WILL TESTIFY THAT HE

2

STAYED STANDING AND WAS STILL PULLING OUT THOSE

3

PROBES, STILL WAVING AT THOSE WIRES.

4

TESTIMONY THAT HE WAS STILL MOVING HIS ARMS.

5

YOU'LL HEAR

ROBERT C. HESTON BACKED INTO AND TURNED

6

INTO THE HOUSE AS HE WAS BEING HIT WITH THE TASERS

7

BY SERGEANT RUIZ AND LIVINGSTON.

8

BACK IN TOWARDS THE HOUSE AS OFFICER GODWIN IS

9

ARRIVING.

AND HE TURNED

HE STILL IS UP AND STILL MOVING BACK

10

INTO THE HOUSE AND IN ORDER TO MOVE BACK INTO THE

11

HOUSE HE HAS TO STEP OVER DEBRIS IN THE HOUSE.

12

SO HE IS STILL FUNCTIONING, ALTHOUGH

13

SERGEANT RUIZ -- HE'S GOING TO GET FIVE OR SIX

14

RANKS FROM ME -- AS SERGEANT RUIZ IS WALKING IN, HE

15

SEES HESTON IN WHAT IS DESCRIBED AS A FRANKENSTEIN

16

WALK, WHICH INDICATES THAT THERE MAY BE A PARTIAL

17

HIT, THAT IT IS SLOWING HIM DOWN.

18
19
20

SO HE'S STILL MOVING, STILL MOVING HIS
HANDS AND ARMS.

THEY FOLLOW HIM INTO THE HOUSE.

OFFICER GODWIN, WHO HAS COME UP, GETS

21

INSIDE OF THE HOUSE AND HE -- HESTON JUNIOR IS

22

STILL MOVING.

23

THE WHOLE POINT OF THIS IS TO CONTROL HIM

24

BECAUSE HE IS, WHAT THEY HAVE BEEN TRAINED, IN A

25

STATE OF EXCITED DELIRIUM.
191

U.S. COURT REPORTERS

1

WHEN A PERSON IS IN A STATE OF EXCITED

2

DELIRIUM THAT THEY CANNOT PUT WEIGHT ON THE

3

SUSPECTS, THEY CANNOT PUT KNEES ON THE SUSPECT AND

4

THEY CANNOT PUT KNEES ON HIM TO CONTAIN HIM.

5

SO THEY KNOW THEY CANNOT PUT ANY WEIGHT

6

ON THIS GUY, AND THEY'RE NOT TRAINED IN THE

7

ALTERNATIVE.

8
9
10
11

THEY'RE TOLD YOU CANNOT DO THIS.

SO GODWIN FIRES THE THIRD TASER OF THE
SECOND, ACTUALLY THE FIFTH TASER BUT IT'S THE THIRD
TASER OF THE GROUP OF RUIZ, LIVINGSTON AND GODWIN.
AND WHAT YOU WILL HEAR IS THAT WHEN

12

GODWIN DEPLOYS, HESTON GOES DOWN.

13

LIVINGSTON'S TASER HAD NOT TAKEN HIM DOWN.

14

DEPLOYED, AND HE DOES GO DOWN.

15

SO RUIZ AND
GODWIN

AND YOU'LL HEAR A DESCRIPTION THAT HE

16

GOES DOWN ONTO A COUCH, HITS HIS HEAD ON A TABLE,

17

ROLLS, SOMEHOW, ON HIS OWN, ONTO HIS STOMACH,

18

EITHER BY MOMENTUM OR ON HIS OWN WILL, BUT ENDS UP

19

ON HIS STOMACH.

20

HIS ARMS ARE UNDERNEATH HIM IN WHAT

21

OFFICERS CALLED OR WHAT THEY SOMETIMES ARE TRAINED

22

IS CALLED TURTLE HOLDING.

23

WHERE THE OFFICERS CANNOT GET THE PERSON'S ARMS OUT

24

BY JUST LOCKING HIS WRISTS UNDERNEATH HIM.

25

AND THAT'S A POSITION

ONCE HE IS DOWN, THE NEXT OFFICER,
192

U.S. COURT REPORTERS

1

SERGEANT DOMINICI, GOES IN THE DOOR.

2

OFFICER TO THE DOOR IS OFFICER FAIRBANKS.

3

THE NEXT

FAIRBANKS SEES THAT THE OFFICERS HAVE HAD

4

TO STEP THROUGH AND OVER THE GRANDFATHER CLOCK AND

5

THE OTHER DEBRIS.

6

FAIRBANKS GRABS THE GRANDFATHER CLOCK AND

7

THERE'S A LOGJAM THAT SOME DESCRIBED AT THE FRONT

8

DOOR.

YOU'LL SEE FAIRBANKS ABOUT 65.

9

BUT AS HE GRABS THE CLOCK PAREDEZ IS

10

BEHIND FAIRBANKS AND YOU'LL HEAR WHEN FAIRBANKS

11

SEES HIM DRAG THE CLOCK OUT TO THE FRONT DOOR, AT

12

LEAST TO THE FRONT PORCH, HE GOES IN AND PAREDEZ

13

GOES IN.

14

ROBERT HESTON'S LEFT ARM AS HE'S FACE DOWN.

PAREDEZ GOES AROUND TO THE LEFT TO -- TO

15

FAIRBANKS GOES TO THE RIGHT BUT HE CAN'T

16

GET TO THE ARM BECAUSE -- BECAUSE ROBERT HESTON IS

17

TOO CLOSE TO THE COUCH AND SOME FURNITURE.

18

SO FAIRBANKS PUSHES THE COUCH OUT OF THE

19

WAY AND THROWS THE COFFEE TABLE UP ON THE COUCH OR

20

AT LEAST OUT OF THE WAY.

21

START TRYING TO CONTROL ROBERT HESTON'S ARMS.

AND FAIRBANKS AND PAREDEZ

22

PAREDEZ AND FAIRBANKS WILL TELL YOU THAT

23

WHAT THEY FELT IN ROBERT C. HESTON WAS THAT HE WAS

24

WILLFULLY TURTLING OR HOLDING HIS ARMS SO THAT THEY

25

COULD NOT GET HIM UNDER CONTROL.
193

U.S. COURT REPORTERS

1

HE WAS LAYING ON THE FLOOR IN THE LIVING

2

ROOM WHERE THE WINDOW GLASS AND THE GLASS FROM THE

3

CLOCK WERE SHATTERED -- WAS SHATTERED AND LAYING

4

ALL ABOUT THE FLOOR.

5

BEEN CUT BY THE WINDOW GLASS WHILE HE WAS LAYING ON

6

THE FLOOR.

7

IN FACT, HE MAY HIMSELF HAVE

THAT'S ROBERT C. HESTON.
AND WHEN PAREDEZ WENT UP TO TRY TO GET

8

HIM, PAREDEZ FELT A LIVE WIRE.

9

TESTIMONY IS THAT IF THE OFFICER FEELS THE WIRE,

10

SOME OF THE

THERE'S NOT A GOOD CONNECTION.

11

PAREDEZ TRIES TO GET HESTON'S BICEPS WITH

12

BOTH HANDS AND PULL THEM OUT, BUT HE CAN'T PULL

13

THEM OUT AND HE KEEPS PULLING AND PULLING.

14

FAIRBANKS TRIES TO PULL AND HE KEEPS PULLING AND

15

THE POINT OF THAT IS THAT GET HIS ARMS UNDER

16

CONTROL, BECAUSE ALL THE OFFICERS WILL TESTIFY THAT

17

THE TRAINING IS GET THE ARMS UNDER CONTROL.

18

THE HANDS.

19

SUSPECT'S HANDS.

SEE

YOU'RE GOING TO BE HURT BY THE

20

THE SUSPECT HAS A WEAPON AND IS GOING TO

21

HAVE IT IN HIS HANDS AND THAT INCLUDES GLASS, THAT

22

INCLUDES PIECES OF FURNITURE AND THAT INCLUDES

23

GRANDFATHER CLOCK WEIGHTS, AND NOT JUST GUNS AND

24

KNIVES.

25

THEY'RE ALL FOCUSED ON DOING IS GETTING THE ARMS

SO IT'S SEE THE HANDS.

AND THAT'S WHAT

194

U.S. COURT REPORTERS

1
2

UNDER CONTROL.
AND THAT COULD JUST MEAN GETTING THE ARMS

3

OUT AND GETTING THEM INTO WRIST LOCKS, BUT THEY

4

CAN'T DO IT.

5

THEY'RE UNABLE TO DO IT.

NOW, WHILE THIS IS GOING ON, JUST AFTER

6

HESTON WENT DOWN, SERGEANT RUIZ SEES AT THE END OF

7

HIS TASER -- THIS IS A TASER DEVICE.

8

CARTRIDGE GOES AT THE -- AT THE POINT END OF THE

9

TASER DEVICE.

10

THERE'S THE

WHEN THERE IS A BAD CONNECTION FREQUENTLY

11

AN OFFICER WILL SEE ARCING AND SPARKING AT THE END

12

OF THE DEVICE.

13

CONNECTION.

14

IT MEANS THAT THERE'S A BAD

SERGEANT RUIZ SAW ARCING AND SPARKING AT

15

THE END OF THE DEVICE AND TOLD EVERYONE MY WIRES

16

ARE BROKEN, MINE IS NOT WORKING.

17

PERSON WHO IS STILL FIGHTING AND LIVINGSTON IS

18

SAYING MINE IS NOT WORKING.

19

EITHER PULLING THE TRIGGER OR TRYING TO PULL THE

20

TRIGGER AND SAYING MINE IS NOT WORKING.

21
22
23

LIVINGSTON SEES A

AND LIVINGSTON IS

GODWIN HEARS THE LOUD CLICKEDY CLACK
NOISE OF WHAT HE SAYS IT MEANS IT'S NOT WORKING.
BECAUSE THEIR TRAINING IS THAT IF YOU'RE

24

HEARING THIS CLICKEDY CLACKING NOISE THERE'S MORE

25

OF A CHANCE YOUR DEVICE IS NOT WORKING.

HE HEARS
195

U.S. COURT REPORTERS

1

THAT AND HE TAKES HIS CARTRIDGE OUT ALTOGETHER, AS

2

RUIZ HAS ALREADY TAKEN HIS CARTRIDGE OUT.

3

THEY'RE STILL STRUGGLING IN THIS PERIOD

4

OF TIME THAT IS GOING ON NOW FOR ABOUT 30,

5

40 SECONDS, THEY'RE STILL STRUGGLING.

6

RUIZ THEN SAYS I CAN DRY STUN HIM

7

BECAUSE -- AND THEN I'LL TELL YOU A LITTLE BIT

8

ABOUT A DRY STUN.

9

A DRY STUN MEANS I CAN TOUCH THE END OF

10

THIS DEVICE ON HIS LEG AND IT WILL CAUSE HIM PAIN

11

AND IT WILL MAKE HIM STOP, BUT IT WON'T CONTROL

12

HIM.

13

RUIZ SAYS I CAN DRY STUN HIM.

SIMPSON,

14

OFFICER SIMPSON HAS NOW COME IN THE HOUSE.

15

HAS TAKEN HIS CARTRIDGE OFF.

16

PULLING WITH PAREDEZ ON HESTON'S LEFT ARM.

17

NOW HAVE TWO OFFICERS PULLING ON THE LEFT ARM.

18

NEITHER OF THOSE TWO OFFICERS CAN GET HIS LEFT ARM

19

OUT AND IT IS VERY DIFFICULT TO DO IF SOMEBODY

20

LOCKS UP.

21

GODWIN

SIMPSON STARTS
SO YOU

SIMPSON SAYS TO GODWIN, TASE HIM AGAIN.

22

WE CANNOT GET HIS ARMS OUT.

23

THIS IS ABOUT THE 50 TO ONE-MINUTE MARK ON THE

24

FLOOR.

25

TASE HIM AGAIN.

AND

WHEN RUIZ SAYS ALMOST SIMULTANEOUSLY I
196

U.S. COURT REPORTERS

1

CAN DRY STUN HIM, GODWIN SAYS, I'LL TASE HIM AND

2

DOES.

3

CONTROL.

4

A WEAPON.

5

THE PURPOSE OF THAT IS IT KEEPS HIM UNDER
HE CAN'T ROLL OVER, HE CAN'T COME UP WITH
THAT'S THE TRAINING OF THE OFFICERS.
ONCE GODWIN TASES HIM, THEY FEEL A

6

RELAXATION.

7

BECAUSE RUIZ WAS HOLDING HIS LEGS DOWN.

8

FELT WHEN THE TASER WAS NOT OPERATING AND HIS

9

MUSCLES WOULD RELAX AND HE WOULD CONTINUE TO FIGHT.

10

RUIZ HAD FELT THE RELAXATION BEFORE
RUIZ HAD

THE OTHER OFFICERS HAD FELT IT WHEN THEY

11

WERE PULLING AND THE TASERS HAD STOPPED AND HE

12

STILL WASN'T LETTING GO.

13

INDEPENDENTLY SAID THE TASERS WERE NOT OPERATING.

14

ALL OF THE OFFICERS

AND YOU'LL HEAR MR. SATREE TALK ABOUT HOW

15

HE HAD BEEN PULLING OUT THE WIRES AND MOVING HIS

16

ARMS BEFORE HE WENT DOWN ON THE GROUND.

17

YOU'LL HEAR THAT -- THAT ACCORDING TO THE

18

PLAINTIFF'S THEORY THERE IS THIS THING CALLED

19

TETANY, MAKES IT IMPOSSIBLE FOR ANY HUMAN BEING TO

20

MOVE THE MUSCLES OF ANOTHER HUMAN BEING WHO IS

21

BEING AFFECTED BY A TASER.

22

YOU'LL ALSO HEAR TESTIMONY THAT THE

23

OFFICERS ARE TRAINED TO HANDCUFF WHILE THE TASER

24

OPERATING, GET HIS ARMS OUT AND GET HIM UNDER

25

CONTROL AND DO THINGS WHILE THE TASER IS OPERATING
197

U.S. COURT REPORTERS

1

BECAUSE THAT IS WHAT IS CALLED THE WINDOW OF

2

OPPORTUNITY.

3
4

SO THAT'S WHAT HAS HAPPENED IN THAT THREE
MINUTES.

5

THERE'S TALK THAT THERE SHOULD HAVE BEEN

6

AN AMBULANCE CALL AND, IN FACT, INDEPENDENT OF THIS

7

AN AMBULANCE HAD BEEN CALLED BY MR. SATREE.

8

WHEN SERGEANT DOMINICI FIRST WALKED UP TO

9

SEE WHAT WAS GOING ON AND WAS HIT IN THE CHEST WITH

10

THIS STICK, SERGEANT DOMINICI WILL TELL YOU THAT

11

THAT WAS NOT THE TIME FOR ME TO BE CALLING AN

12

AMBULANCE.

13

SITUATION THAT IS GOING ON.

IT WAS TIME FOR ME TO PROTECT THE

14

THAT COVERS THE THREE MINUTES.

15

GOING BACK TO THE FIRST CALL.

WHAT THE

16

OFFICERS KNEW FROM THE FIRST CALL WAS THAT

17

MR. HESTON HAD CALLED AND SAID GET MY SON OUT OF

18

THE HOUSE, HE'S ON DRUGS.

19

MR. HESTON WILL TESTIFY THAT WHEN HE CAME

20

HOME FROM SHOPPING WITH HIS WIFE, HIS SON WAS

21

INCOHERENT, STARING.

22

TIMES, HE KNEW THERE WAS GOING TO BE VIOLENCE, HIS

23

WIFE KNEW THERE WAS GOING TO BE VIOLENCE.

24

WENT AND SAT IN THE BEDROOM.

25

SHE HAS SAID SHE HAD GOTTEN ANGRY BEFORE.

HE HAD SEEN IT BEFORE MANY

HIS WIFE

BUT SHE WAS ANGRY AND
AND WHEN
198

U.S. COURT REPORTERS

1

SHE GOT ANGRY AT HIM BEFORE SHE STRUCK OUT AND KICK

2

HIM, AND HIS RESPONSE TO THAT WAS TO BLACKEN OUT

3

HER EYES BY A PUNCH TO HIS MOTHER'S FACE.

4

SO SHE WENT TO SIT IN THE BEDROOM.

SHE

5

SAW HIM IN THE WATER HEATER ROOM AND TAKING A BOOK

6

OUT AND TAKING THERMOSTAT COVERS OFF THE WALLS.

7

AND HER HUSBAND SAID LEAVE, GO.

8
9

SO BETTY LEFT AND DROVE TO HER DAUGHTER'S
HOUSE, THAT'S MISTY AND CURT KASTNER.

10

MR. HESTON REMAINED BEHIND, AGAIN BECAUSE

11

HE KNEW THERE WAS GOING TO BE VIOLENCE AND I'M SURE

12

HE WILL TELL YOU HE WAS GOING TO TRY AND FIGURE OUT

13

SOME WAY TO KEEP THIS -- TO GET HIS SON OUT OF THE

14

HOUSE BUT NOT LEAVE.

15

MR. SATREE HAD ARRIVED ON THE FIRST CALL

16

BECAUSE MR. HESTON CALLED AND SAID COME OVER AND

17

GET ROBERT AND GET HIM OUT OF MY HOUSE.

18

CURT KASTNER DROVE TO THE FIRST CALL

19

BECAUSE BETTY HESTON HAD GONE TO THE KASTNER HOME

20

AND SAID WE NEED TO GET ROBERT OUT OF THE HOUSE AND

21

POLICE ARE THERE AND ROBERT IS ON DRUGS AGAIN.

22

AND EVERYONE KNEW VIOLENCE WAS COMING.

23

THEY WILL ALL TESTIFY THEY KNEW FROM PAST

24

EXPERIENCE THERE WAS GOING TO BE VIOLENCE.

25

THE PLAINTIFFS AT THE FIRST CALL SAID
199

U.S. COURT REPORTERS

1

THERE'S NOT GOING TO BE VIOLENCE.

2

MATTER.

3

HE'S A PAROLEE.

4

PAROLE OFFICER AND VIOLATE HIS PAROLE.

5

SATURDAY.

6

OFFICER.

7

THIS IS A FAMILY

HE'S IN A HOME -- HE'S IN HIS OWN HOME.
WE'LL SEE IF WE CAN CALL HIS
IT'S A

NOBODY CAN GET A HOLD OF HIS PAROLE

THEY HAD TO GET AUTHORIZATION FROM A

8

PAROLE OFFICER TO ARREST HIM FOR VIOLATION OF

9

PAROLE IF THEY DIDN'T HAVE A CRIME.

SMASHING UP

10

HIS HOUSE, WHICH IT WAS HIS HOUSE BEFORE HIS

11

PARENTS LET HIM LIVE THERE IS NOT A VIOLATION OF

12

THE LAW.

13

EVICT HIM AND GET A RESTRAINING ORDER AND THERE'S A

14

LOT OF CIVIL ACTION YOU CAN TAKE, AND SIMPLY CALL

15

US BACK BUT THIS IS A FAMILY PROBLEM AS IT SITS

16

HERE RIGHT NOW BECAUSE THERE'S BEEN NO VIOLENCE

17

COMMITTED UPON ANYONE, HE'S STIRRING UP YOUR HOUSE

18

AND HIS HOUSE.

19

SO THEY SAID TO MR. HESTON, YOU SHOULD

AND THE OFFICER STAYS FOR 15 OR

20

20 MINUTES AND ADVISED MR. HESTON ABOUT CIVIL

21

REMEDIES AND TRIED TO TALK TO THE SON AND AT THAT

22

POINT STARTED TO LEAVE AND WENT BACK TO THEIR CARS

23

AND ACCORDING TO CLIFFORD SATREE, MR. HESTON SAID

24

GO TELL THE POLICE TO LEAVE, I DON'T WANT THEM

25

AROUND.
200

U.S. COURT REPORTERS

1

ACCORDING TO CLIFFORD SATREE, THEY DIDN'T

2

WANT THE POLICE AROUND BECAUSE THEY FELT THE POLICE

3

WOULD AGITATE HESTON IF THEY WERE NOT GOING TO GET

4

HIM OUT OF THE HOUSE FOR MR. SATREE.

5

SO THEY'RE GOING BACK TO THEIR GUYS AND

6

THEY'RE SITTING THERE WATCHING WHAT IS GOING ON AND

7

LEFT AND SAID WE WANT YOU TO LEAVE.

8
9

ON THE OTHER HAND, CURT KASTNER WHO IS A
LITTLE FARTHER UP THE STREET WHO HAD NEVER COME

10

DOWN TO THIS INCIDENT, HE HAD STAYED BACK, TOLD THE

11

OFFICERS DON'T LEAVE AND SO THERE'S GOING TO BE

12

TROUBLE IF YOU LEAVE.

13

BUT THE RESIDENT OF THE HOME HAD TOLD THE

14

OFFICERS, I DON'T WANT YOU HERE, LEAVE.

15

LEFT.

16

SO THEY

AND AS IT TURNS OUT, TWO OFFICERS STOPPED

17

ABOUT, ABOUT SIX OR EIGHT BLOCKS AWAY IN A PARKING

18

LOT TO TALK AND THEY WERE NEARBY WHEN THE SECOND

19

CALL CAME IN ABOUT THREE OR FOUR MINUTES LATER,

20

MAYBE FIVE MINUTES TOTAL.

21
22

SO THAT'S WHAT HAPPENED ON THE FIRST
CALL.

23

AND THE REASON THAT EVERYONE KNEW THERE

24

WAS GOING TO BE VIOLENCE, YOU HAVE ALREADY HEARD

25

ABOUT.
201

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1

THE HOUSE -- ANOTHER HOUSE WHERE THE

2

HESTON FAMILY HAD LIVED HAD BEEN BARRICADED BY THE

3

POLICE.

4

THEIR DAUGHTER'S HOUSE.

5

SATREE THE SCARS FROM THE DOG BITE.

6

VISITED HIM IN THE HOSPITAL AFTER THE POLICE DOG

7

BITE WHEN THE POLICE HAD SENT IN A DOG TO GET HIM

8

OUT OF THE HOUSE.

9

THEY -- MR. AND MRS. HESTON HAD RUN OUT TO
ROBERT HESTON HAD SHOWN
THEY HAD

THEY HAD SEEN PREVIOUS INCIDENTS WHERE

10

THE HOUSE HAD BEEN TRASHED AND THINGS HAD BEEN

11

THROWN OUT OF THE HOUSE.

12

PROCESS WAS NOW ROLLING DOWNHILL ON THAT DAY.

13

THEY KNEW ALL OF THAT

AND ALL THE POLICE COULD DO WAS INTERVENE

14

AND IN A CRIMINAL ACT.

15

PARAMEDICS.

16

ALL THEY COULD DO IS INTERVENE IN A CRIMINAL ACT.

17

AND THEY WILL TESTIFY, WE HAVE TIME TO CALL SOME

18

OTHER SERVICE, WE CAN DO THAT, BUT WHEN THERE IS A

19

VIOLENCE ON THE FATHER, TEARING UP OF THE HOUSE AND

20

A PAROLEE COMMITTING CRIMES, OUR JOB IS TO PROTECT

21

THE FATHER AND APPREHEND THE PAROLEE AND THAT'S

22

WHAT THEY TRIED TO DO.

23

THE POLICE ARE NOT

THE POLICE ARE NOT SOCIAL WORKERS.

AND YOU WILL HEAR ABOUT THIS NONLETHAL,

24

LESS LETHAL AND YOU'LL HEAR EXPERTS TALK ABOUT

25

ALTERNATIVES.

AND THE QUESTION PRESENTED THAT THE
202

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1

EXPERTS WILL TESTIFY ABOUT IS WHAT WERE THE

2

ALTERNATIVES IN THIS CIRCUMSTANCE FOR THE PERSON OF

3

GREAT STRENGTH, STRENGTH INCREASED BY EXTREME

4

METHAMPHETAMINE CONDITION, ALSO INCREASED BY MANY

5

YEARS OF METHAMPHETAMINE ABUSE AND YOU HAVE ALREADY

6

HEARD IT'S IN THE 15- TO 20-YEAR RANGE, WHEN A

7

PERSON IS THIS CRAZY, WHAT ARE THE ALTERNATIVES?

8

YOU DON'T WANT TO SHOOT HIM.

9

GOING TO BREAK BONES.

10

THE BATON IS ONLY

IT'S NOT GOING TO CAUSE

CONTROL BECAUSE THE PERSON FEELS NO PAIN.

11

YOU'LL SEE HOW MANY INJURIES HE HAD

12

INFLICTED ON HIMSELF THAT DAY OR HAD ON HIS BODY.

13

THE PERSON DOESN'T FEEL PAIN.

SO THE

14

BATON IS ONLY GOING TO BREAK BONES.

15

TO STOP HIM.

16

NOT GOING TO WORK IN A ROOM AND SHOOTING IS IS OUT.

17

AND SITTING ON HIM, JUMPING ON HIM, SWARMING HIM,

18

AS ONE PERSON SAID THEY SHOULD HAVE DONE, SWARMING

19

HIM IS ALL PROHIBITED BECAUSE HE'S IN EXCITED

20

DELIRIUM.

21

IT'S NOT GOING

PEPPER SPRAY IN A CONFINED SPACE IS

SO THE BIG QUESTION IS WHAT ARE THE

22

ALTERNATIVES THAT THE EXPERTS SAY SHOULD HAVE BEEN

23

DONE?

24

COMES -- THE CONTRARY EVIDENCE THAT COMES OUT IN

25

TESTIMONY.

AND THAT WILL BE SOME OF THE EVIDENCE THAT

203

U.S. COURT REPORTERS

1

FINALLY ABOUT TRAINING AND SUPERVISION,

2

YOU'LL SEE THAT THE POLICE CHIEF DECIDED TO GO WITH

3

TASER DEVICES IN MID-2003 BECAUSE OF THE PROBLEM OF

4

PEOPLE DYING THAT WERE ON METHAMPHETAMINE OR IN

5

EXCITED DELIRIUM.

6

THERE WERE INCIDENTS WHERE THEY WERE

7

CHASED AND AT THE END OF THE CHASE THEY JUST DIED

8

FROM EXERTION AND METHAMPHETAMINE.

9

AND SO IS THERE SOME WAY TO BRING PEOPLE

10

UNDER CONTROL IN A WAY THAT, THAT DOES NOT CAUSE OR

11

BE INVOLVED IN THEIR DEATH?

12

STUDY, THEY DECIDED WE'LL PURCHASE THE TASERS

13

BECAUSE THEY'RE EITHER NONLETHAL OR LESS LETHAL

14

DEPENDING ON WHEN THEY WERE MARKETED.

15

AND AFTER A LOT OF

AFTER THE STUDYING WAS DONE, THEY WERE

16

ISSUED TO THE POLICE DEPARTMENT AND THE CHIEF HAD

17

STATISTICS MAINTAINED ON TASER USE INJURIES AND SO

18

ON.

19

AND TEN DAYS PRIOR TO THIS EVENT --

20

MR. BURTON:

YOUR HONOR, WE OBJECT TO,

21

TO -- I HAVE DISCUSSED THIS WITH MR. HURLEY.

22

NOT SURE EXACTLY WHERE HE IS GOING, BUT I THOUGHT

23

WE HAD AN AGREEMENT.

24

THE COURT:

25

I'M

WELL, I'M NOT SURE WHAT

YOU'RE REFERRING TO ACTUALLY, BUT -204

U.S. COURT REPORTERS

1
2

MR. BURTON:

IT'S RELEVANT TO OTHER

INCIDENTS.

3

THE COURT:

I PRESUME THAT HE'S CONFINING

4

HIMSELF TO WHAT THE EVIDENCE WILL SHOW, AND HE'S AT

5

THIS POINT DESCRIBING SOME STUDY THAT WAS DONE?

6

MR. BURTON:

7

THE COURT:

RIGHT.
MEMBERS OF THE JURY,

8

SOMETIMES THE EVIDENCE DOES NOT DEVELOP AS THE

9

LAWYERS SAY IN THEIR OPENING STATEMENT, THAT'S WHY

10

IT'S NOT EVIDENCE, BUT I'LL PERMIT COUNSEL TO

11

COMPLETE HIS RECITATION OF WHAT THE EVIDENCE WILL

12

SHOW.

13

GO AHEAD, COUNSEL.

14

MR. HURLEY:

TEN DAYS PRIOR TO THIS EVENT

15

THE CHIEF HAD LOOKED AT FORCE STATISTICS.

16

POLICE DEPARTMENT IN SALINAS MONITORS ALL FORCE.

17

IN EACH CASE A SERGEANT HAS TO

18

INVESTIGATE USE OF FORCE.

19

WITH WITNESSES AND SO ON IDENTIFIED.

20

A COMMANDER LEVEL AND THEN A CAPTAIN LEVEL.

21

ALSO GOES TO THE CHIEF.

22

OF FORCES ARE REVIEWED.

23

THE

A REPORT HAS TO BE DONE
THAT GOES TO
THAT

AND EVERY ONE OF THESE USE

STATISTICS ARE KEPT ON USE OF FORCE AND

24

ONLY TEN DAYS PRIOR TO THAT THE CHIEF HAD REVIEWED

25

THE PREVIOUS ANNUAL REPORT FOR WHICH HE HAD ALSO
205

U.S. COURT REPORTERS

1

RECEIVED PERIODIC REPORTS.

2

SO YOU'LL SEE THAT THE POLICE DEPARTMENT

3

WAS ACTIVELY SUPERVISING OFFICERS ON USE OF FORCE.

4

YOU'LL ALSO HEAR ABOUT THE DATAPORT AND YOU'LL HERE

5

FROM THE SALINAS POLICE OFFICERS THAT THE OFFICERS

6

WERE TRAINED ABOUT THE DATAPORT, ABOUT THE ABILITY

7

TO MONITOR IT.

8

BUT THE DATAPORT IS NOT THE KEY TO THE

9

USE OF INVESTIGATING FORCE AND THAT'S TALKING TO

10
11

PEOPLE ON THE FORCE THAT WAS USED AND THE OFFICERS.
THERE'S NO PANACEA.

THERE IS NO SAVING

12

GRACE IN THE DATA PORT IN A TASER.

13

POLICE WORK AND INTERNAL AFFAIRS.

14

INVESTIGATING WHAT HAPPENED.

15

IT'S STILL
IT'S STILL

THAT'S THE SUPERVISION PIECE.

YOU'LL SEE

16

ABOUT THE TRAINING PIECE, BUT I WILL TELL YOU, YOU

17

WILL SEE THE SALINAS TRAINING AND YOU WILL HEAR

18

FROM THE SALINAS ABOUT OFFICERS' TRAINING ON THE

19

USES; THAT IT'S NOT A MEDICAL HAZARD TO USE A TASER

20

DEVICE AND WHAT TO DO ON A TASER DEVICE THAT HAS

21

BEEN -- AND THAT'S AN ISSUE -- I'M NOT GOING TO GET

22

INTO SCIENCE THROUGHOUT THIS TRIAL, BUT I'LL LEAVE

23

IT TO OTHER PEOPLE ON THE SCIENCE.

24
25

BUT THE EVIDENCE THAT THE SALINAS POLICE
DEPARTMENT AND THE OFFICERS INTEND TO PUT ON IS
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U.S. COURT REPORTERS

1

WHAT HAPPENED IN THIS EVENT, HOW WERE THEY TRAINED,

2

AND HOW WERE THEY SUPERVISED.

3

EVIDENCE IS REGARDING THE SALINAS POLICE

4

DEPARTMENT.

5

THANK YOU VERY MUCH.

6

THE COURT:

THAT'S WHAT THE

VERY WELL.

MEMBERS OF THE

7

JURY, AS I INDICATED, LET'S TAKE A BREAK AT THIS

8

POINT.

9

BACK IN ABOUT TEN MINUTES.

IT'S ABOUT QUARTER TO THE HOUR.

WE'LL COME

10

(WHEREUPON, A RECESS WAS TAKEN.)

11

(WHEREUPON, THE PROCEEDINGS IN THIS

12

MATTER WERE HELD OUT OF THE PRESENCE OF THE JURY:)

13

THE COURT:

14

MR. BURTON:

YES, YOUR HONOR.

15

MS. O'LINN:

YES.

16

THE COURT:

17

(WHEREUPON, THE FOLLOWING PROCEEDINGS

18

READY TO RESUME?

VERY WELL.

SUMMON THE JURY.

WERE HELD IN THE PRESENCE OF THE JURY:)

19

THE COURT:

PLEASE BE SEATED.

20

VERY WELL.

AT THIS POINT THE COURT WILL

21

CALL ON DEFENSE COUNSEL FOR TASER INTERNATIONAL FOR

22

ANY OPENING STATEMENT.

23

MS. O'LINN:

24

(WHEREUPON, COUNSEL FOR DEFENDANT TASER

25

THANK YOU, YOUR HONOR.

INTERNATIONAL GAVE HER OPENING STATEMENT.)
207

U.S. COURT REPORTERS

1

MS. O'LINN:

GOOD MORNING, LADIES AND

2

GENTLEMEN OF THE JURY.

3

AND I REPRESENT THE DEFENDANT TASER INTERNATIONAL

4

IN THIS CASE.

5

MY NAME IS MILDRED O'LINN,

RICK SMITH, THE CEO OF TASER

6

INTERNATIONAL, IS WITH US HERE TODAY, PURPLE SHIRT,

7

PURPLE TIE AND YOU DIDN'T MEET HIM BEFORE SO I

8

WANTED TO MAKE SURE I INTRODUCE HIM.

9

THE PLAINTIFFS' CLAIMS AGAINST MY CLIENT

10

DEAL WITH PRODUCT LIABILITY AND STRICT LIABILITY

11

BASED ON A CAUSATION ISSUE OVERALL.

12

THAT THAT DEVICE MANUFACTURED BY MY CLIENT, M26

13

TASER, CAUSED THE DEATH OF MR. HESTON.

14

THEY CLAIM

NOW, THEREIN LIES THE FIRST PROBLEM.

THE

15

OVERALL BOTTOM LINE IS THAT THERE SIMPLY IS NOT

16

GOING TO BE A SCINTILLA OF MEDICAL, SCIENTIFIC OR

17

ELECTRICAL ENGINEERING EVIDENCE PRESENTED IN THIS

18

CASE WITH ANY CREDIBLE BASIS TO SUPPORT A THEORY

19

THAT THIS DEVICE -- AND AS PLAINTIFF'S COUNSEL HAS

20

STATED TO YOU, THE TINY AMOUNT OF ELECTRICITY THAT

21

COMES OUT OF IT THAT GOES INTO THE BODY CAUSED THE

22

DEATH OF THIS EXTREMELY VIOLENT INDIVIDUAL ON

23

FEBRUARY 19TH, 2005.

24

EVIDENCE.

25

IT SIMPLY IS NOT SUPPORTED IN

THE FACT IS IS THAT WHEN THE EVIDENCE IS
208

U.S. COURT REPORTERS

1

PRESENTED TO YOU IN THIS MATTER, YOU WILL HEAR FROM

2

ONE OF THE MOST RENOWNED EXPERTS ON THE USE OF THE

3

TASERS ON HUMAN BODIES.

4

CERTIFIED EMERGENCY ROOM PHYSICIAN.

5

MORE RESEARCH AND TESTING WITH THE TASER DEVICES

6

THAN ANY OTHER DOCTOR IN THE WORLD.

7

JEFFRY HO IS A BOARD
HE HAS DONE

AND QUITE FRANKLY, LADIES AND GENTLEMEN,

8

THE EVIDENCE AS IT'S PRESENTED IN THIS CASE THAT WE

9

WILL PRESENT TO YOU WILL ESTABLISH THAT THIS DEVICE

10

IS LIKELY THE MOST TESTED AND RESEARCHED DEVICE

11

THAT ANY PEACE OFFICER CARRIES IN THE ENTIRE WORLD.

12

AND IT IS CHANGING THE FORCE OF LAW ENFORCEMENT AND

13

IT HAS OVER THE PERIOD OF TIME THAT IT HAS BEEN

14

DEPLOYED IN THE FIELD.

15

LIVES ARE BEING SAVED.

AS A MATTER OF

16

FACT, THAT'S TASER'S MOTTO, "SAVING LIVES EVERY

17

DAY."

18

THE FACT THAT THIS DEVICE IS AVAILABLE TO

19

THOSE PEACE OFFICERS MEANS THEY DON'T HAVE TO SHOOT

20

PEOPLE LIKE MR. HESTON AND ON MANY OCCASIONS ACROSS

21

THE WORLD THAT WOULD BE THEIR ONLY ALTERNATIVE IF

22

THEY DID NOT HAVE THIS DEVICE.

23

AND LIKEWISE THE EVIDENCE IN THIS CASE

24

WILL SHOW THAT THE OVERALL STATE-OF-THE-ART DEVICE

25

TASER, THE BENEFIT TO SOCIETY IS EVEN BEYOND THAT
209

U.S. COURT REPORTERS

1

IN THE PROTECTION IT PROVIDES TO CITIZENS WHEN

2

OFFICERS ARE CALLED TO THE SCENE TO DEAL WITH

3

VIOLENT INDIVIDUALS, AND THE BENEFIT AGAIN THAT IT

4

PROVIDES TO THOSE INDIVIDUALS THAT ARE COMMITTING

5

THOSE VIOLENT ACTS THAT ARE DANGEROUS, BECAUSE

6

THEY'RE TAKEN INTO CUSTODY WITHOUT TRAUMATIC INJURY

7

FROM BATONS OR BEING HELD DOWN ON THE FLOOR.

8
9

AS CO-DEFENSE COUNSEL MENTIONED TO YOU,
OFFICERS ARE TRAINED IN OTHER PROGRAMS NOT RELATED

10

TO THE TASER, BUT IN OTHER PROGRAMS THEY'RE TRAINED

11

THAT OFFICERS PILING ON TOP OF PEOPLE ON THE FLOOR

12

FOR YEARS IT'S BEEN CONSIDERED A CONCERN THAT WE

13

WOULD SUFFOCATE THEM, THAT THEY WOULD NOT BE ABLE

14

TO BREATHE.

15

TRAINING FOR THEM TO DO THAT.

16

SO IT WAS FORBIDDEN THROUGH THEIR

SO THIS IS THE STATE-OF-THE-ART

17

ALTERNATIVE FOR THEM, AND IT IS HIGHLY EFFECTIVE.

18

EVEN THOUGH IT'S NOT PERFECT.

19

JUST FOR YOUR COMFORT, LET ME POINT OUT

20

THAT THE DOUBLE A -- EIGHT DOUBLE A BATTERIES THAT

21

THIS DEVICE RUNS ON.

22

CENTER.

23

NOT IN THE DEVICE AND CAPABLE OF FIRING AT THIS

24

MOMENT SO EVERYONE IS COMFORTABLE WITH THAT.

25

IT'S NOT AN ELECTRICAL POWER

IT'S EIGHT DOUBLE A BATTERIES.

ALL RIGHT.

THEY'RE

YOU HAVE HEARD EXTENDED
210

U.S. COURT REPORTERS

1

PRESENTATION ABOUT THAT THREE MINUTES.

2

MINUTES OF TIME IS WHAT WE WILL BE DISCUSSING OVER

3

THE PERIOD OF THIS TRIAL, IN ADDITION ALL OF THE

4

RESEARCH AND DEVELOPMENT OF THIS DEVICE.

5

THREE

THE FACT IS THAT MR. HESTON, THE

6

DECEDENT, WAS AN EXTREMELY VIOLENT INDIVIDUAL.

7

WAS ACTING BIZARRELY.

8

DANGEROUS TO HIS FAMILY AND TO OTHERS, INCLUDING

9

THE PEACE OFFICERS THAT ARRIVED ON THE SCENE WHO

10

HE WAS DESTRUCTIVE.

HE

HE WAS

ATTEMPTED TO BRING HIM UNDER CONTROL.

11

HE WEIGHED 219 POUNDS.

HE WAS 40 YEARS

12

OLD.

13

APPROXIMATELY 5-FOOT-10 ON THAT DAY.

14

HE WAS LIVING WITH HIS FAMILY.

HE WAS

AND WHEN YOU CONSIDER -- CONSIDER THE

15

ALTERNATIVES AVAILABLE TO PEACE OFFICERS WHEN THEY

16

ARRIVE ON SUCH A SCENE, AND -- AND THE OPPORTUNITY

17

FOR THEM TO USE A DEVICE SUCH AS THIS, YOU HAVE TO

18

UNDERSTAND THE TRAINING THAT THEY RECEIVE COMES

19

FROM THEIR DEPARTMENT, BUT TASER PROVIDING SOME OF

20

THE BEST TRAINING PROGRAMS THAT ARE PUT OUT THERE

21

FOR LAW ENFORCEMENT IN ANY WEAPON SYSTEM IN THE

22

WORLD.

23

AND THE SALINAS POLICE DEPARTMENT TAKES

24

THAT TRAINING PROGRAM AND MAKES IT THEIR OWN.

25

TASER PROVIDES THOSE TRAINING MATERIALS, POWER
211

U.S. COURT REPORTERS

1

POINT PRESENTATIONS, OWNER AND INSTRUCTOR MANUALS

2

FOR THEM TO USE, BUT TASER DOES NOT DICTATE POLICY

3

OR -- OR TRAINING PRACTICES TO AGENCIES ACROSS THE

4

COUNTRY.

5

THEY JUST CAN'T DO THAT.

THAT'S NOT

6

THEIR POSITION.

7

PROVIDE THOSE MATERIALS AS SUPPORT MATERIALS, BUT

8

LEGALLY THEY CAN'T DICTATE.

9

INFORMATION ABOUT THEIR PRODUCT AND ITS USES.

10

THEY ARE A MANUFACTURER.

THEY

THEY DO PROVIDE

NOW, QUITE FRANKLY, YOU HAVE HEARD SOME

11

INFORMATION ABOUT -- ABOUT RESEARCH INDICATING

12

CONCERN ABOUT REPEATED OR PROLONGED DEPLOYMENTS.

13

THE FACT IS THAT THERE IS -- THERE IS ABSOLUTELY NO

14

CREDIBLE EVIDENCE TO ESTABLISH THAT IN HUMAN BEINGS

15

THE -- THE ACIDOSIS ISSUE OCCURS WHEN WE DEPLOY THE

16

TASER ON A HUMAN BEING.

17

NOW, THERE'S A PIG STUDY THAT MR. BURTON

18

MENTIONED, AND THAT WAS DONE BY A MAN NAMED JAUCHIM

19

AND ANOTHER ONE DONE BY DENNIS.

20

YOU SPREAD OUT A PIG -- I MEAN, ANIMAL LOVERS

21

FORGIVE ME, IT'S SCIENTIFIC RESEARCH AND IT'S WHAT

22

THE FACTS AND THE EVIDENCE WILL PRESENT HERE.

23

AND, IN FACT, WHEN

WHEN YOU SPREAD OUT A PIG ON A TABLE TO

24

DO RESEARCH, AND IT'S NOT A NATURAL POSITION FOR

25

THEM TO BE PLACED ON THEIR BACK WITH THEIR ARMS AND
212

U.S. COURT REPORTERS

1

LEGS EXTENDED, AND YOU DON'T PUT THEM ON A

2

VENTILATOR, AND YOU PUT THIS ELECTRICAL CHARGE INTO

3

THEM, THEY DON'T BREATHE.

4

METABOLIC ACIDOSIS -- PARDON ME, RESPIRATORY

5

ACIDOSIS THAT DEVELOPS IN THEIR BODY.

6

AND THEY HAVE THIS

AND, IN FACT, HUMANS DON'T REACT IN THE

7

SAME WAY.

AND HUMANS, ACCORDING TO STUDIES IN

8

PARTICULAR DONE BY DR. HO, ACTUALLY BREATHE MORE

9

WHEN SUBJECTED TO -- TO THIS TYPE OF -- IN FACT,

10

THAT ALLOWS THEM TO CLEAR THE ACIDOSIS OUT OF THEIR

11

BODY.

WE CLEAR THE ACIDOSIS OUT OF OUR BODY.

12

SO THE FACT IS THAT WHEN YOU'RE DEALING

13

WITH SOMEONE ON METH WHO IS GOING TO BE BIZARRE,

14

DESTRUCTIVE, VIOLENT INDIVIDUAL THAT THE PEACE

15

OFFICERS EVEN DREW HIS GUN AT ONE POINT THINKING HE

16

WOULD HAVE TO USE IT, IN FACT, THIS IS THE BEST

17

OPTION AVAILABLE IN A POLICE OFFICER'S WORST

18

NIGHTMARE SCENARIO.

19

SITUATION?

20

WHAT ARE THEY TO DO IN THAT

EXCITED DELIRIUM, AS COUNSEL MENTIONED,

21

IS A CONDITION THAT HAS BEEN WELL-KNOWN TO LAW

22

ENFORCEMENT THROUGHOUT DECADES.

23

WHEN YOU OBSERVE AN INDIVIDUAL, FOR EXAMPLE, ON

24

SOME TYPE OF A STIMULANT LIKE PCP, COCAINE,

25

METHAMPHETAMINE, TYPICALLY THEY'RE HYPER AGITATED,

IT IS A CONDITION

213

U.S. COURT REPORTERS

1

MANY TIMES THEY'RE HOT AND SWEATY AND THE OFFICERS

2

ARE TRYING TO DEAL WITH THEM AND GET THEM UNDER

3

CONTROL.

4

DOCTORS ACROSS THE COUNTRY WOULD TELL YOU

5

THAT THE BEST OPPORTUNITY FOR THAT INDIVIDUAL IN

6

THAT DOWNWARD SPIRAL IS -- IS TO QUICKLY AND

7

EFFECTIVELY BRING HIM UNDER CONTROL AND GET HIM

8

EMERGENCY MEDICAL CARE.

9

THE QUICKER THAT WE CAN GET MR. HESTON IN

10

THE CARE OF MEDICAL PROFESSIONALS, THE BETTER

11

CHANCE HE HAS BECAUSE OF THAT PROCESS, THE CHEMICAL

12

PROCESS THAT IS HAPPENING IN HIS BODY.

13
14
15

NOW, THE FACT IS THAT ALL OF THAT
ACIDOSIS IS THE RESULT OF PHYSICAL EXERTION.
NOW, MR. BURTON MENTIONED 25 DISCHARGES

16

BY THESE OFFICERS.

17

WE HELD HIM DOWN OR WE JUST KEPT -- OR WE HAD HIM

18

DOWN ON THE GROUND AND WE KEPT PULLING THE TRIGGER

19

OVER AND OVER AGAIN.

20

IT SOUNDS LIKE ELECTROCUTION.

WELL, THE FACT IS QUITE OBVIOUS.

21

MR. HESTON JUST GOT OUT OF PRISON, BY THE WAY.

22

THEY TRAIN IN PRISON TO REMOVE TASER WIRES FROM THE

23

BODY, SWIPE THE HANDS AND BREAK THE WIRES.

24

NOT JUMPER CABLES.

25

THAT'S A WIRE (INDICATING.)

THEY'RE

THEY'RE THIN LITTLE WIRES.
THAT'S ONE OF THE
214

U.S. COURT REPORTERS

1

PROBES.

2

THERE'S TWO OF THEM.

THEY SHOOT OUT FROM

3

THE DEVICE INTO THE BODY AND YOU HAVE TO HAVE GOOD

4

CONTACT, TWO POINTS OF CONTACT FOR THE ELECTRICAL

5

CIRCUIT TO BE COMPLETED.

6
7

IF YOU DON'T HAVE TWO POINTS OF CONTACT,
THERE'S NO ELECTRICITY GOING INTO THE BODY.

8
9

LADIES AND GENTLEMEN, WE KNOW WHEN THERE
IS GOOD CONTACT FROM THIS DEVICE PEOPLE GO DOWN.

10
11

WHEN THIS DEVICE WAS FIRST DEVELOPED
THERE HAD BEEN A PRIOR DEVICE IN EXISTENCE.

12

THAT WAS A STUN GUN.

AND -- AND A NASA

13

SCIENTIST NAMED JOHN COVER DEVELOPED THAT IN THE

14

70'S.

15

ENFORCEMENT IN THE WORLD AND IN PARTICULAR IN THE

16

UNITED STATES, AND IT HAD SOME SUCCESS OUT IN THE

17

FIELD BUT IT WAS A PAIN COMPLIANCE DEVICE.

AND THAT DEVICE WAS MARKETED TO LAW

18

IT DIDN'T HAVE THE SAME ELECTRICAL WAVE

19

FORM, WAVEFORM THAT MR. SMITH PATENTED, AND IT

20

DIDN'T GET THE SAME RESULT.

21

NEUROMUSCULAR REACTIONS IN THE BODY AND THROUGH THE

22

MUSCLES.

23

IT DIDN'T CAUSE

SO GUYS STILL FOUGHT THROUGH THE PAIN.
SO WHEN YOU ARE TALKING ABOUT PEOPLE WHO

24

ARE MENTALLY UNSTABLE OR THEY'RE ON DRUGS OF ABUSE,

25

STIMULANTS IN PARTICULAR, THEY OVERRIDE THAT PAIN.
215

U.S. COURT REPORTERS

1

THEIR BRAIN DOESN'T ACTUALLY KNOW THEY'RE IN PAIN

2

AND STOP.

3

THEY JUST PLOW THROUGH IT.
SO WHEN RICK SMITH HAD THIS EXPERIENCE

4

WHERE A COUPLE OF HIS FRIENDS WERE KILLED AS A

5

RESULT OF A ROAD RAGE INCIDENT AND THIS MAN THEY

6

HAD A ROAD RAGE WITH TOOK A GUN OUT OF HIS GLOVE

7

BOX AND SHOT INDIVIDUALS THAT RICK SMITH KNEW, HE

8

ACTUALLY, WITH HIS BACKGROUND IN NEUROBIOLOGY, THEN

9

WENT AND SAID THERE'S GOT TO BE A BETTER WAY.

10

CAN'T WE SET OUR TASERS ON STUN OR SOMETHING.

11

THERE'S GOT TO BE A WAY OF BRINGING VIOLENT PEOPLE

12

UNDER CONTROL OTHER THAN THE GUNS IN THE UNITED

13

STATES.

14

HE REALLY WAS DRIVEN BY THAT.
AND THAT LEAD HIM TO FIND JACK COVER AND

15

DEVELOP AN ELECTRICAL WAY FOR HIM THAT HE HOLDS THE

16

PATENT ON THAT HAS SUCCESSFULLY CHANGED THE FACE OF

17

DEALING WITH VIOLENT INDIVIDUALS IN LAW ENFORCEMENT

18

IN THIS COUNTRY AND THROUGHOUT THE WORLD.

19

THE FACT IS THAT WHEN THESE, WHEN THESE

20

TWO LITTLE PROBES ACTUALLY HAVE GOOD CONTACT, THE

21

ELECTRICITY THAT IS GENERATED AND GOES INTO THE

22

BODY IS VERY SMALL, FOUR MILLIAMPS, 4,000 TIMES

23

LESS OF WHAT COMES OUT OF YOUR BATHROOM WALL SOCKET

24

THAT TRIPS THAT G.F.I., TINY PULSES OF ELECTRICITY.

25

WHEN THESE PROBES HAVE GOOD CONTACT, WE
216

U.S. COURT REPORTERS

1

KNOW PEOPLE GO DOWN.

2

DIDN'T HAPPEN.

3

THE TRIGGER 25 TIMES, THAT'S LIKE A BASEBALL BATTER

4

BEING IN THE BOX AND THE PITCHES ARE COMING AND

5

HE'S SWINGING AND HE'S SWINGING AND HE'S SWINGING,

6

BUT JUST BECAUSE HE'S SWINGING, NO EFFECT ON THAT

7

BALL, RIGHT?

8

BE CONTACT, TWO POINTS OF CONTACT HERE FOR THE

9

ELECTRICITY TO EFFECT THE BODY.

10

THEY STOP FIGHTING.

THAT

AND THAT MEANS THE OFFICERS PULLING

HE HAS TO MAKE CONTACT.

THERE HAS TO

AND CONVERSELY, IF WE HAVE GOT A MAN THAT

11

IS WITHSTANDING 25 HITS, 25 DEPLOYMENTS FROM A

12

TASER, WHAT WERE THESE OFFICERS SUPPOSED TO DO IF

13

THAT WAS EVEN TRUE, IF -- IF HE WAS SUPERMAN ENOUGH

14

TO OVERCOME 25 ACTUAL DEPLOYMENTS?

15

SOLUTION IS OBVIOUS.

16

YOU KNOW, THE

IT'S A FIREARM SITUATION.

THERE'S SOMETHING YOU HAVE TO UNDERSTAND

17

ABOUT ELECTRICITY.

18

CONTACT HERE THAT ARE ABSOLUTELY ESSENTIALLY,

19

ELECTRICITY DOES NOT BUILD UP IN THE BODY LIKE

20

POISON.

21

CUMULATIVE.

22

IT DOESN'T.

BESIDES THE TWO POINTS OF

IT DOESN'T ADD -- IT'S NOT

IF IT DOESN'T INJURE YOU WHEN IT FIRST

23

GOES IN, THAT ELECTRICITY IS GONE AND THEN THE NEXT

24

ELECTRICITY COMES IN, YOU KNOW, IF THERE'S ACTUAL

25

CONTACT, IT'S NOT CUMULATIVE.

IT'S NOT LIKE TAKING
217

U.S. COURT REPORTERS

1

ONE TYLENOL AFTER ANOTHER AND YOU TAKE AN ENTIRE

2

BOTTLE OF TYLENOL AND YOU GET SICK, EVEN THOUGH

3

IT'S MEDICINE.

4

ELECTRICITY IS NOT CUMULATIVE.

5

YOU HEARD ABOUT CORONER REPORT.

VERY

6

INTERESTING THERE WERE THREE CORONER REPORTS IN

7

THIS CASE AND YOU DIDN'T HEAR THAT UNTIL RIGHT THIS

8

MINUTE.

9

AND THERE WERE THREE CORONER REPORTS

10

BECAUSE OF A DISAGREEMENT WITH HOW THE OPINIONS

11

WERE EXPRESSED AS FAR AS, QUOTE, "THE MEDICAL CAUSE

12

OF DEATH," THE OPINIONS THAT WERE EXPRESSED IN THE

13

FIRST REPORT.

14

THE SECOND REPORT WAS DONE BY DR. HAIN,

15

WHO WAS THE MEDICAL EXAMINER, THE CORONER OF THE

16

COUNTY.

17

DR. HADDIX, THE ONE THAT DID THE ORIGINAL

18

REPORT, WAS THE CORONER, THE MEDICAL EXAMINER WHILE

19

HAIN WAS ON VACATION FOR THIS PARTICULAR WEEK OR

20

TWO.

21

REPORT.

22

SO HAIN COMES BACK AND HE DOES ANOTHER

AND THEN THERE WAS A THIRD MEDICAL

23

EXAMINER HIRED TO DO ANOTHER REPORT, AND ALL OF

24

THEM FOUND THAT MR. HESTON DIED AS A RESULT OF --

25

OF METHAMPHETAMINE AND AN AGITATED STATE.
218

U.S. COURT REPORTERS

1

NOW, SOME PEOPLE CALL THAT EXCITED

2

DELIRIUM, SOME PEOPLE CALL IT AGITATED DELIRIUM.

3

THE FACT IS THERE'S NO DOUBT THAT THIS MAN WAS

4

AGITATED AND EXCITED THAT DAY.

5

PRETTY CLEAR.

I THINK THAT'S

6

THE FACT IS THAT ALL OF THE THREE REPORTS

7

INDICATE THAT THERE'S THIS RELATIONSHIP BETWEEN THE

8

POLICE STRUGGLE AND THE USE OF TASER AS -- AS A

9

CONTRIBUTORY CAUSE.

IT MEANS IT'S TEMPORAL.

IT'S

10

HAPPENING AT THE SAME TIME OR IMMEDIATELY BEFORE HE

11

DIES YOU HAVE THIS INTERACTION WITH THE POLICE, THE

12

POLICE STRUGGLE, AND THE USE OF TASER.

13

THAT DOES NOT MEAN THAT THAT TINY BIT OF

14

ELECTRICITY WAS ACTUALLY THE THING THAT PUSHED HIM

15

OVER THE EDGE OR CAUSED HIM TO HAVE THAT ACIDOSIS.

16
17

WHAT CAUSES ACIDOSIS?

THE CHAIN OF EVENTS THAT CAUSE ACIDOSIS.

18
19

LET'S TALK ABOUT

OKAY.

HOW ABOUT THE METHAMPHETAMINE IN

MR. HESTON'S BODY?

20

MR. HESTON HAS THAT STIMULANT IN HIS

21

BODY.

WE HAVE NO CLARITY OR CERTAINTY ON THE

22

EXERTION THAT HAPPENED BEFORE THE POLICE ARE EVEN

23

CALLED, BUT WE HAVE SOME PICTURE BECAUSE THIS

24

FAMILY WAS ACTUALLY FEARFUL ENOUGH TO -- TO, YOU

25

KNOW, HAVE MRS. HESTON LEAVES AND MR. HESTON CALLS
219

U.S. COURT REPORTERS

1

THE POLICE TO COME TO HIS HOUSE TO DEAL WITH HIS

2

SON.

3

AND AS YOU HEARD FROM MR. HURLEY, THERE'S

4

A VARIETY OF CIRCUMSTANCES THAT HAPPENED THERE.

5

POLICE OFFICERS ARE UNABLE TO ARREST HIM FOR WHAT

6

HAS HAPPENED AT THE HOUSE AT THAT MOMENT.

7

HAVE TO BE CAREFUL, OTHERWISE THEY GET SUED.

8

THEY

AND SO THEY GO DOWN THE STREET AND A

9

COUPLE OF THEM WAIT IN THE AREA AND IN A VERY

10

QUICK, SHORT TIME, THEY'RE HEADED BACK TO THE

11

HOUSE.

12

AND THE PICTURE OF VIOLENCE THAT OCCURS,

13

THAT'S ACIDOSIS RUN RAMPANT.

14

PHYSICAL EXERTION.

15

ACIDOSIS IS CAUSED BY

THEN WE HAVE THE ACTUAL ENCOUNTER THAT

16

HAPPENS WHILE THE POLICE OFFICERS ARE TRYING TO

17

CONTROL MR. HESTON, AGAIN ACIDOSIS DUMPING INTO THE

18

BODY.

19

THE FACT IS THAT THIS LONG-TERM CHRONIC

20

DRUG ABUSE OF MR. HESTON'S INTERFERES WITH HIS BODY

21

TO DEAL WITH THAT ACIDOSIS AS WELL.

22

IS NOT AS EFFICIENT IN DEALING WITH THE ACIDOSIS

23

AND, THEREFORE, IT'S GOING TO CAUSE HIM THAT

24

CARDIAC ARREST, ULTIMATELY.

25

AND HE -- HE

LADIES AND GENTLEMEN, HISTORICALLY, PEACE
220

U.S. COURT REPORTERS

1

OFFICERS ACROSS THE WORLD HAVE HAD TO DEAL WITH

2

THESE TYPES OF INDIVIDUALS AND WHETHER THEY SHOW UP

3

AND USE K9'S, THEY USE BATONS, THEY SHOWING

4

SOMEBODY OUT TO GET THEM UNDER CONTROL, THEY HOLD

5

THEM DOWN, THEY USE PEPPER SPRAY.

6

ULTIMATELY MANY OF THEM DIE IN CONFRONTATION.

7

PARTICULAR, THE LONGER THE CONFRONTATION GOES ON,

8

THE GREATER THE RISK.

9

WAY TYPICALLY TO GET THEM UNDER CONTROL QUICKLY IS

10
11

THIS DEVICE.

STILL,
IN

AND THE ULTIMATE EFFICIENT

THAT'S THEIR BEST HOPE.

NOW, UNDERSTAND THAT METABOLIC ACIDOSIS

12

OR RESPIRATORY ACIDOSIS IS GOING TO HAPPEN TO

13

MR. HESTON.

14

BATTLE WITH THE POLICE OFFICERS HIS BUILD UP OF THE

15

ACIDOSIS IN HIS BODY IS COMPROMISED OR HE'S UNABLE

16

TO DEAL WITH IT BECAUSE OF HIS HISTORY OF DRUG

17

ABUSE AND ULTIMATELY THOSE POLICE OFFICERS GET HIM

18

UNDER CONTROL, THEY GET HIM MEDICAL ATTENTION AS

19

QUICKLY AS POSSIBLE.

20

IN THIS INSTANCE WHILE HE'S IN THIS

AND BY THE WAY, WHEN THEY DO CPR, CPR

21

CAUSES ADDITIONAL ACIDOSIS IN THE BODY.

SO THERE'S

22

LOTS OF FACTORS HERE THAT CONTRIBUTE TO MR. HESTON

23

METABOLIC ISSUES, BUT THE FACT IS THAT THERE IS NO

24

MEDICAL EVIDENCE TO SUPPORT PLAINTIFF'S ARGUMENT,

25

NO EVIDENCE THAT WILL BE PRESENTED HERE THAT THE
221

U.S. COURT REPORTERS

1

TASER CAUSES ANY SIGNIFICANT ACIDOSIS INCREASE IN

2

THE BODY.

3

LET ME JUST TOUCH BASE ON HOW THE TASER

4

WORKS HERE FROM THE VARIOUS POINTS THAT YOU HAVE

5

HEARD ABOUT.

6

CAN HOOK IT INTO A COMPUTER SO YOU CAN DOWNLOAD

7

THIS.

8
9

THE DATAPORT IS IN THE BACK SO YOU

THE DATAPORT MAKES THIS AN EXTREMELY
UNIQUE DEVICE.

THIS IS ONE OF THE ONLY WEAPON

10

SYSTEMS IN THE WORLD THAT ACTUALLY REGISTERS HOW

11

MANY TIMES THE TRIGGER IS PULLED.

12

LIKEWISE, ANOTHER UNIQUE PART OF THIS

13

DEVICE IS THIS LITTLE CARTRIDGE.

14

GOING TO BE ABLE TO GET THIS OFF RIGHT HERE WITHOUT

15

PROBABLY BREAKING A NAIL AND BEING DRAMATIC.

16

THERE'S A GLASS DOOR ON THE FRONT OF THIS

17

CARTRIDGE.

18

OF IT.

19
20

I DON'T THINK I'M

THIS IS ACTUALLY A CASE OVER THE FRONT

THE GLASS DOORS GO OVER THIS SPACE HERE
WHERE THE PROBES ARE LOCATED INSIDE.

21

BLESS YOU.

22

WHEN THE TRIGGER IS PULLED ON THE M26, IT

23

REGISTERS ONE TRIGGER PULL ON THE DATAPORT, IT GOES

24

FOR FIVE SECONDS.

25

FIVE SECONDS, BECAUSE DURING THE DEVELOPMENT OF THE

THERE'S A REASON IT GOES FOR

222

U.S. COURT REPORTERS

1

TECHNOLOGY IT WAS DESCRIBED THAT OFFICERS WOULD

2

PULL THE TRIGGER AND NOT HOLD IT DOWN.

3

IT'S MUSCLE MEMORY FROM THE WAY THEY SHOOT A GUN OR

4

BECAUSE THEY WERE INVOLVED IN A VIOLENT

5

CONFRONTATION, THEY WOULD LET GO OF THE TRIGGER.

6

WHETHER

SO WHEN THEY PULL IT ONCE IT GOES FOR

7

FIVE SECONDS, WHICH WAS FOUND TO BE AN EFFECTIVE

8

DURATION OF THE DEPLOYMENT.

9

IF THEY HOLD DOWN ON THE TRIGGER, IT

10

CYCLES TO ANOTHER FIVE, ANOTHER FIVE, AND EVERY

11

TIME IT REGISTERS IN THE DATAPORT.

12

AGAIN, LADIES AND GENTLEMEN, THAT MEANS

13

THAT THERE'S BEEN A TRIGGER PULL.

14

THAT THERE'S ACTUALLY BEEN AN EFFECTIVE CONTACT

15

AND DEPLOYMENT ON THE BODY OF THE INDIVIDUAL.

16

IT DOESN'T MEAN

WHEN THE TRIGGER IS PULLED THE TWO PROBES

17

COME OUT ON THESE THIN LITTLE WIRES AT AN ANGLE.

18

THEY SHOOT OUT AND THEY SPREAD ON THE BODY YOU HAVE

19

A SPREAD OF CONTACT.

20
21
22

AND THEN THERE'S NEURO MUSCLE
INCAPACITATION BETWEEN THOSE TWO POINTS.
NOW, WHAT DOES THAT MEAN?

THE BRAIN

23

SENDS MESSAGES TO YOUR MUSCLES WHEN YOU WANT YOUR

24

MUSCLES TO DO THINGS.

25

AND WHEN YOUR BRAIN IS SENDING THAT
223

U.S. COURT REPORTERS

1

MESSAGE, WHEN THE TASER IS ACTIVATED AND THERE'S

2

ACTUAL GOOD CONTACT, IT'S LIKE A THIRD PARTY GOT ON

3

A TELEPHONE CALL WITH YOU AND SOMEONE ELSE AND THE

4

THIRD PARTY GOT IN THERE AND THEY JUST STARTED

5

SCREAMING AND YELLING SO YOU TWO COULDN'T HEAR EACH

6

OTHER.

7

SO YOUR BRAIN AND MUSCLES CAN'T

8

COMMUNICATE WHEN THE TASER IS DEPLOYED AND

9

ACTIVATED WITH CONTACT.

10

SO IT INTERFERES WITH THAT

MUSCLE CONTROL, IT LOCKS IT UP.

11

THE OTHER THING ABOUT THIS, WHEN THE

12

TRIGGER IS PULLED AND THE CARTRIDGE BLASTER IS

13

PULLED OFF, ONE OF THE UNIQUE THINGS ABOUT THIS

14

DEVICE IS THAT -- IS THAT THERE IS THESE LITTLE,

15

THEY'RE CALL A.F.I.D., ANTI-FELON IDENTIFICATION

16

AND THEY'RE LIKE CONFETTI.

17

SPRINKLE EVERYWHERE AND THEY CONTAIN THE SERIAL

18

NUMBER OF THE INDIVIDUAL CARTRIDGES.

19

TELL WHO FIRED WHICH CARTRIDGE BY THE A.F.I.DS

20

LAYING ON THE GROUND.

21

THEY BLOW OUT AND

SO YOU CAN

AND YOU PRETTY MUCH HAVE TO HAVE A PRETTY

22

GOOD VACUUM TO GET THEM ALL UP.

IT'S DIFFICULT TO

23

CLEAN UP A CRIME SCENE SO TO SPEAK, BUT THAT'S

24

ANOTHER UNIQUE FEATURE OF THIS DEVICE THAT WE'RE

25

ABLE TO TRACK WHICH CARTRIDGE WAS ACTUALLY USED IN
224

U.S. COURT REPORTERS

1

AN INCIDENT.

2

TECHNOLOGY THAT GOES WITH THE DEVICE.

3

THOUGHT OUT.

4

IT'S PRETTY NIFTY, ALL OF THE LITTLE
IT'S WELL

AS PLAINTIFF'S COUNSEL STATED, IT WAS THE

5

PERFECT DEVICE FOR USE WITH MR. HESTON.

6

ACTUALLY THE -- THE TYPE OF INDIVIDUAL THAT THIS

7

WAS DESIGNED TO BE USED WITH.

8
9

HE'S

I'M JUST CHECKING MY NOTES TO MAKE SURE I
DON'T MISS ANYTHING.

I'M TRYING NOT TO REPEAT

10

THINGS THAT HAVE BEEN SAID BY THE OTHER COUNSEL AS

11

FAR AS THE WAY THINGS WORK, BECAUSE THERE'S REALLY

12

NO NEED, WHERE THINGS WERE ACCURATELY STATED TO

13

YOU, AS FAR AS THE WAY THE EVIDENCE WILL BE

14

PRESENTED.

15

I DO WANT TO EMPHASIZE SOMETHING.

16

SILENCE IS GOLDEN IS A RULE THAT OFFICERS DURING

17

TRAINING ARE TAUGHT WITH REGARD TO THE DEPLOYMENT

18

OF THIS DEVICE.

19

WHAT DOES THAT MEAN?

WHEN YOU PULL THE

20

TRIGGER ON A TASER, M26, IF YOU HEAR LOUD ARCING OR

21

YOU SEE SPARKING AT THE END OF THE DEVICE, HEAR IT,

22

IT MEANS YOU DON'T HAVE A GOOD CONTACT

23

(INDICATING.)

24

CLICKING, CLICK, CLICK, CLICK, CLICK, CLICK, BUT

25

NOT A "GRRREUI" AND I DON'T KNOW HOW THE COURT

SILENCE IS GOLDEN.

YOU'LL HEAR A

225

U.S. COURT REPORTERS

1

REPORTER IS GOING TO PUT THAT DOWN ON THE RECORD.

2

MY APOLOGIES (INDICATING.)

3

BUT THAT LOUD CRACKLING SOUND TELLS THE

4

OFFICERS YOU DON'T HAVE GOOD CONTACT WITH THESE

5

GUYS.

6

THE DOOR FRAME.

7

VIOLENT CONFRONTATIONS BECAUSE THIS IS NOT THE MOST

8

ACCURATE DEVICE TO FIRE, QUITE FRANKLY, AS TWO

9

PROBES FLYING IN DIFFERENT DIRECTIONS HAVE TO MAKE

10
11

EITHER THE WIRE HAS BEEN BROKEN OR YOU HIT
THOSE KIND OF THINGS HAPPEN DURING

GOOD CONTACT.
THE 50,000 VOLTS -- BY THE WAY, YOU

12

PROBABLY HEARD, 50,000 VOLTS.

13

DRAMATIC NUMBER THAT THE MEDIA THROWS OUT THERE.

14

VOLTS.

THAT'S KIND OF THE

WHEN YOU'RE TALKING ABOUT

15

ELECTRICITY, IT'S THE AMPERAGE THAT YOU'RE

16

CONCERNED ABOUT.

17

THE HOSE TO PUSH THE ELECTRICITY THROUGH.

18

THE TASER M26 THE IMPORTANCE OF THAT VOLTAGE IS

19

THAT WE HAVE TO CARRY A TINY LITTLE BIT OF

20

ELECTRICITY THROUGH WHATEVER CLOTHING AN INDIVIDUAL

21

HAS ON TO GET IT INTO THEIR BODY FOR THAT TINY BIT

22

OF ELECTRICITY TO HAVE THE EFFECT WE NEED TO

23

PREVENT THE VIOLENCE THAT IS COMING FROM THEM.

24
25

THE VOLTS IS JUST THE PRESSURE IN
AND WITH

AND WHAT HAPPENS IS THAT THE 50,000 VOLTS
JUST PUSHES THAT ELECTRICITY THROUGH THE WIRES,
226

U.S. COURT REPORTERS

1

THROUGH THE PROBES, THROUGH THE BODY AND A TINY

2

AMOUNT OF ELECTRICITY GOES INTO THE BODY.

3

LADIES AND GENTLEMEN, IN CONCLUSION, I

4

WOULD LIKE TO SHARE THAT AGAIN THIS DEVICE HAS BEEN

5

RESEARCHED BY PROBABLY EVERY MAJOR RESEARCH AGENCY

6

IN EVERY COUNTRY IN THE WORLD BECAUSE OF THE NUMBER

7

OF PLACES IT'S BEEN DEPLOYED AND THERE HAS BEEN NO

8

CREDIBLE EVIDENCE THAT IS FOUND, THE NEED TO TAKE

9

THESE THOUSANDS AND THOUSANDS DEVICES THAT ARE OUT

10

THERE OFF OF THE STREETS OF EVERY MAJOR CITY IN THE

11

UNITED STATES.

12

CERTAINLY IS THE STATE-OF-THE-ART DEVICE,

13

IS -- IS HAVING AN IMPACT THAT HAS BEEN PUT OUT

14

THERE BECAUSE IT HAS BEEN SO WELL RESEARCHED AND

15

THE FACT THAT ONE INDIVIDUAL, DR. MEYERS, MIGHT

16

COME IN HERE AND TELL YOU HE HAS A DIFFERENT

17

OPINION, THAT EVIDENCE IS SIMPLY NOT CREDIBLE IN

18

REFLECTION WITH THE AMOUNT OF RESEARCH AND EVIDENCE

19

TO THE CONTRARY THAT EXISTS.

20

I APPRECIATE YOUR ATTENTION AND AT THE

21

END OF THIS TRIAL WE'LL ASK YOU FOR A DEFENSE

22

VERDICT IN FAVOR OF MY CLIENT TASER INTERNATIONAL.

23

THANK YOU.

24

THE COURT:

25

VERY WELL.

AT THIS POINT THE

COURT WILL CALL ON PLAINTIFF TO CALL PLAINTIFF'S
227

U.S. COURT REPORTERS

1

FIRST WITNESS.

2
3

MR. WILLIAMSON:

YOUR HONOR, AT THIS TIME

THE PLAINTIFF WOULD CALL CRAIG FAIRBANKS.

4

YOUR HONOR, I JUST NOTICED THAT MY

5

COMPUTER SHUT OFF SO IF I COULD HAVE A MOMENT TO

6

GET IT BACK ON LINE.

7

THE COURT:

8

MR. WILLIAMSON:

10

THE COURT:

11

THE WITNESS:

12

THE COURT:
SIR.

14
15

I PRESUME THE

SOMEONE IS GETTING MR. FAIRBANKS.

9

13

CERTAINLY.

YES.

MR. FAIRBANKS?
YES.
COME FORWARD AND BE SWORN,

COME ALL OF THE WAY UP HERE, SIR.
THE CLERK:

PLEASE RAISE YOUR RIGHT

HAND.

16

CRAIG FAIRBANKS,

17

BEING CALLED AS AN ADVERSE WITNESS ON BEHALF OF THE

18

PLAINTIFFS', HAVING BEEN FIRST DULY SWORN, WAS

19

EXAMINED AND TESTIFIED AS FOLLOWS:

20

THE WITNESS:

21

THE CLERK:

PLEASE BE SEATED.

22

THE COURT:

I GUESS IT'S FAIRBANKS.

23
24
25

I DO.

I

WAS CALLING YOU BEARBANKS.
THE CLERK:

COULD YOU STATE YOUR FULL

NAME AND SPELL YOUR LAST NAME FOR THE RECORD?
228

U.S. COURT REPORTERS

1
2

THE WITNESS:

IT'S CRAIG FAIRBANKS.

SPELLING OF THE LAST IS F-A-I-R-B-A-N-K-S.

3

THE COURT:

4

MR. WILLIAMSON:

5

YOU MAY INQUIRE.
THANK YOU, YOUR HONOR.

AS-ON CROSS-EXAMINATION

6

BY MR. WILLIAMSON:

7

Q

8

FAIRBANKS.

9

A

GOOD MORNING.

10

Q

AS I UNDERSTAND IT, YOU'RE CURRENTLY EMPLOYED

11

BY THE SALINAS POLICE DEPARTMENT; IS THAT CORRECT?

12

A

THAT'S CORRECT.

13

Q

AND YOU WERE FIRST SWORN IN AS A POLICE

14

OFFICER IN OCTOBER OF 2000; CORRECT?

15

A

THAT'S CORRECT.

16

Q

AND WOULD IT BE CORRECT TO SAY THAT AFTER YOU

17

COMPLETED YOUR ACADEMY TRAINING YOU WORKED THE

18

FIRST TWO YEARS ON PATROL?

19

A

ROUGHLY TWO, TWO AND A HALF.

20

Q

AND AFTER THAT APPROXIMATELY TWO, TWO AND A

21

HALF YEARS YOU WERE A SCHOOL RESOURCE OFFICER;

22

CORRECT?

23

A

CORRECT.

24

Q

AND ABOUT HOW MANY YEARS DID YOU SPEND AS A

25

RESOURCE OFFICER?

GOOD MORNING EVERYONE.

GOOD MORNING, OFFICER

229

U.S. COURT REPORTERS

1

A

ABOUT TWO, TWO TO TWO AND A HALF.

2

Q

AND AS I UNDERSTAND IT, AFTER YOU WERE A

3

SCHOOL RESOURCE OFFICER YOU THEN WENT BACK ON

4

PATROL?

5

A

CORRECT.

6

Q

AND ARE YOU STILL SERVING IN THAT CAPACITY AS

7

PATROL OFFICER AT THE PRESENT TIME?

8

A

YES, I AM.

9

Q

BY THE WAY, BEFORE WE GET FURTHER, YOU'RE

10

OBVIOUSLY -- ESPECIALLY FOR SOMEONE LIKE ME -- A

11

VERY TALL MAN.

12

A

6-FOOT-9.

13

Q

AND AT THE TIME OF THIS INCIDENT BACK IN

14

FEBRUARY OF 2005, HOW MUCH DID YOU WEIGH

15

APPROXIMATELY?

16

A

I WOULD SAY PROBABLY ABOUT 255, 260.

17

Q

OKAY.

18

TASER TRAINING INSTRUCTOR; IS THAT CORRECT?

19

A

THAT'S CORRECT.

20

Q

AND AS I UNDERSTAND IT FURTHER, THE REASON YOU

21

WERE ASKED SPECIFICALLY TO BECOME A TASER

22

INSTRUCTOR WAS THAT YOU WERE ALREADY A DEFENSIVE

23

TACTICS INSTRUCTOR; IS THAT CORRECT?

24

A

CORRECT.

25

Q

WHEN DID YOU FIRST BECOME A TASER TRAINING

HOW TALL ARE YOU?

NOW, AS I UNDERSTAND IT, YOU ARE A

230

U.S. COURT REPORTERS

1

INSTRUCTOR?

2

A

3

DON'T HAVE AN EXACT DATE.

4

Q

5

BEFORE THIS INCIDENT; CORRECT?

6

A

ROUGHLY, YES.

7

Q

AND NOW, IN ORDER TO BECOME A TASER TRAINING

8

INSTRUCTOR, AS I UNDERSTAND IT, YOU PARTICIPATE IN

9

ABOUT 20 HOURS OF SPECIALIZED TASER TRAINING; IS

I BELIEVE IT WAS MID YEAR 2004 I THINK.

OKAY.

I

THAT WOULD HAVE BEEN LESS THAN A YEAR

10

THAT RIGHT?

11

A

THAT'S CORRECT.

12

Q

AND THE TRAINING THAT YOU RECEIVE TO BECOME A

13

TASER TRAINING INSTRUCTOR WAS GIVEN BY TASER

14

INTERNATIONAL; IS THAT RIGHT?

15

A

YES.

16

Q

UM, WHERE DID YOU RECEIVE THE TRAINING,

17

APPROXIMATELY THE 20 HOURS OF TRAINING TO BECOME A

18

TASER TRAINING INSTRUCTOR -- EXCUSE ME, INSTRUCTOR?

19

THAT'S KIND OF A TONGUE TWISTER, YOUR

20

HONOR.

21

A

IN STOCKTON, CALIFORNIA.

22

Q

AND AS I UNDERSTAND IT, THAT CONSISTED OF

23

TWO DAYS OF INSTRUCTION; IS THAT RIGHT?

24

A

THAT'S CORRECT.

25

Q

NOW, WOULD IT BE FAIR TO SAY THAT
231

U.S. COURT REPORTERS

1

APPROXIMATELY AT THE TIME THAT YOU RECEIVED THE

2

INSTRUCTION TO BECOME A TASER TRAINING INSTRUCTOR,

3

THAT THAT WAS ABOUT THE SAME TIME THAT YOUR

4

DEPARTMENT IS -- THE SALINAS POLICE DEPARTMENT WAS

5

BEGINNING TO INTRODUCE THE USE OF TASERS IN THE

6

DEPARTMENT?

7

A

IS THAT WHY I WAS SENT?

8

Q

RIGHT.

9

A

YES.

10

Q

AND CAN YOU GENERALLY DESCRIBE TO US WHAT THE

11

20-HOUR TRAINING INSTRUCTOR COURSE CONSISTED OF?

12

A

13

WITH -- WITH AN OVERVIEW OF -- OF THE SCHEMATICS OF

14

THE TASER, THE -- HOW IT'S USED, WHAT IT'S CAPABLE

15

OF DOING, WHAT IT'S NOT CAPABLE OF DOING, A NUMBER

16

OF DIFFERENT SCENARIO-BASED DISCUSSIONS, VIDEOS

17

SHOWING ACTUAL USES AND A PRACTICAL USAGE AND

18

EXPERIENCING IT PERSONALLY.

19

Q

GENERALLY IT WAS A POWER POINT PRESENTATION

LET ME JUST STOP YOU THERE.

20

IN TERMS OF PRACTICAL USAGE, YOU'RE

21

TALKING ABOUT YOU HAD A CHANCE TO FIRE THE DEVICE?

22

A

RIGHT.

23

Q

AND DID YOU FIRE IT AT A TARGET?

24

A

YES.

25

Q

AND YOU ALSO MENTIONED -- WELL, BEFORE WE GET
232

U.S. COURT REPORTERS

1

TO THE ACTUAL BEING SUBJECTED TO THE TASER, PART OF

2

THIS WAS -- WAS A LECTURE; CORRECT?

3

A

YEAH.

4

Q

AND YOU MENTIONED YOU GOT TO SEE A POWER POINT

5

PRESENTATION?

6

A

CORRECT.

7

Q

RIGHT.

8

FAIRBANKS, THAT THE PARTICULAR VERSION OF TRAINING

9

THAT YOU RECEIVE FROM TASER INTERNATIONAL WAS

OKAY.

NOW, ISN'T IT TRUE, OFFICER

10

VERSION 8?

11

A

I HAVE LEARNED SINCE, YES.

12

Q

YOU HAVE LEARNED SINCE?

13

A

YEAH.

14

Q

YOU DIDN'T KNOW THAT AT THE TIME?

15

A

IT WAS -- THERE ARE SUBSEQUENT VERSIONS THAT

16

ARE AVAILABLE NOW AND ON THE WEEKENDS BY TASER SO

17

THE INFORMATION --

18

Q

19

THE TRAINING YOU SPECIFICALLY RECEIVED WAS

20

VERSION 8?

21

A

THAT'S CORRECT.

22

Q

OKAY.

BUT YOUR UNDERSTANDING, AS YOU SIT HERE TODAY,

23

YOUR HONOR, MAY I HAVE A MOMENT, PLEASE?

24

(PAUSE IN PROCEEDINGS.)

25

BY MR. WILLIAMSON:
233

U.S. COURT REPORTERS

1

Q

2

FAIRBANKS, HAVE YOU HAD A CHANCE TO REVIEW VERSION

3

8 OF THE POWER POINT PRESENTATION THAT YOU GOT?

4

A

I REVIEWED VERSION 8, YES.

5

Q

AND I WANT TO SHOW YOU WHAT I WANT MARKED AS

6

8.

7
8

PRIOR TO COMING HERE TO TESTIFY, OFFICER

MR. WILLIAMSON:

THIS IS EXHIBIT, FOR

IDENTIFICATION, YOUR HONOR, 110, YOUR HONOR.

9

(WHEREUPON, PLAINTIFFS' EXHIBIT NUMBER 110

10

WAS MARKED FOR IDENTIFICATION.)

11

BY MR. WILLIAMSON:

12

Q

13

SCREEN IN FRONT OF YOU.

14

PAGE OF THE POWER POINT THAT SAYS TASER

15

INTERNATIONAL, INC., ADVANCED TASER M26 VERSION 8.0

16

RELEASED OCTOBER 2002?

17

A

18
19

FIRST OF ALL, OFFICER FAIRBANKS, YOU HAVE A
DO YOU RECOGNIZE THE TITLE

THIS IS NOT ON.
THE COURT:

AH.

SOMETIMES I HAVE TO

RESET MINE.

20

THE WITNESS:

21

THE COURT:

YEAH, IT'S ON.
SO IS 110 GOING TO BE IN

22

EVIDENCE BY -- ARE YOU OFFERING IT BECAUSE YOU'RE

23

DISPLAYING IT NOW?

24

YOU'RE GOING TO DISPLAY IT THERE'S NO OBJECTION TO

25

IT COMING INTO EVIDENCE AND BEING DISPLAYED.

BECAUSE I WANT TO MAKE SURE IF

234

U.S. COURT REPORTERS

1

MR. WILLIAMSON:

YOUR HONOR, I BELIEVE

2

THERE HAS BEEN AGREEMENT THAT THIS IS ADMISSIBLE

3

EVIDENCE AND WE DO PLAN TO ADMIT IT.

4

POWER POINT SLIDES AND THE FORM TEXT OF THE HARD

5

COPY.

6

THE COURT:

WE HAVE THE

I JUST WANT TO MAKE SURE

7

THAT'S THE PROTOCOL THAT YOU'RE FOLLOWING.

8

PUT IT UP ON THE MONITOR I'LL ASSUME FROM YOUR

9

PREVIOUS DISCUSSIONS THAT YOU KNOW IT IS IN

10

IF YOU

EVIDENCE.

11

SO 110 IS IN EVIDENCE.

12

(WHEREUPON, PLAINTIFFS' EXHIBIT NUMBER 110

13

HAVING BEEN PREVIOUSLY MARKED FOR

14

IDENTIFICATION, WAS ADMITTED INTO

15

EVIDENCE.)

16

BY MR. WILLIAMSON:

17

Q

18

FAIRBANKS, DO YOU RECOGNIZE THE TITLE PAGE?

19

A

YES, I DO.

20

Q

I WOULD LIKE TO BEGIN TO SHOW YOU SOME SLIDES

21

FROM THE PRESENTATION AND I'D LIKE TO ASK YOU A

22

SERIES OF QUESTIONS ABOUT THAT.

23

NOW THAT IT'S ON THE SCREEN, OFFICER

FIRST OF ALL, WE HAVE HEARD A LOT ABOUT

24

THE TASER IN OPENING STATEMENT, BUT NOW THIS IS THE

25

EVIDENCE PORTION OF THE CASE.

IF YOU COULD TAKE US
235

U.S. COURT REPORTERS

1

THROUGH THE TASER M26 OF MINE?

2

A

3

SETTING TO FAMILIARIZE A STUDENT OR A FELLOW

4

OFFICER I AM TRAINING WITH THE BASIC TERMINOLOGY OF

5

THE UNIT.

6

Q

7

OF THE DEVICE?

8

A

9

THIS PHOTOGRAPH WOULD BE USED IN A POWER POINT

OKAY.

CAN YOU DESCRIBE SOME OF THE FEATURES

AS FAR AS DETAIL?
THE COURT:

10

I'M GETTING CONFUSED.

ARE YOU ASKING HIM TO TELL US WHAT HE

11

TRAINS OR ARE YOU ASKING HIM TO JUST DESCRIBE THE

12

DEVICE FOR OUR EDIFICATION?

13

BY MR. WILLIAMSON:

14

Q

15

DESCRIBE, YOU KNOW, THE ASPECTS OF THE DEVICE?

16

WELL, BASED ON HIS TRAINING, COULD YOU

THE COURT:

SO, MEMBERS OF THE JURY, AS I

17

UNDERSTAND IT, HE'S NOT BEING ASKED TO TAKE US

18

THROUGH THE TRAINING HE DOES OF OTHER OFFICERS OR

19

OF HIS OWN TRAINING.

20

UPON HIS TRAINING, TO DESCRIBE THE DEVICE TO US.

HE'S JUST BEING ASKED, BASED

21

YOU MAY PROCEED.

22

THE WITNESS:

OKAY.

POINTING OUT THE

23

DIFFERENT NOTED PORTIONS OR PIECES BEING THE SAFETY

24

I WOULD HAVE THIS IN MY HAND, SO I WOULD DESCRIBE

25

HOW THE SAFETY WORKS AND HOW SUBSEQUENTLY TURNING
236

U.S. COURT REPORTERS

1

OFF THE SAFETY WOULD -- WOULD LIGHT THE LASER

2

SETTING.

3

CARTRIDGE AND DETACHING THE CARTRIDGE AND ON THE

4

FRONT HERE IS THE AIR CARTRIDGE AND THE FIXED

5

SIGHTING THAT IS ALONG THE TOP RAIL.

6

DESCRIBE THE TRIGGER PULL AND THE

THE COLOR KIT, BEING MANY DIFFERENT COLOR

7

KITS AVAILABLE.

THIS PARTICULAR VERSION IS THE ONE

8

THAT WE HAVE.

9

BY MR. WILLIAMSON:

10

Q

LET ME STOP YOU THERE IF I COULD.

DO YOU

11

UNDERSTAND THE PURPOSE OF WHY THERE IS THIS KIND OF

12

NEON YELLOW ON THE DEVICE?

13

A

TO DISTINGUISH IT FROM A FIREARM.

14

Q

OKAY.

15

AIMING DEVICE; CORRECT?

16

A

CORRECT.

17

Q

ALL RIGHT.

18

YOU WHEN YOU'RE ABOUT TO FIRE THE WEAPON THAT YOU

19

CAN USE A LASER TO TARGET?

20

A

TO AIM.

21

Q

OKAY.

22

FIREARM; CORRECT?

23

A

24

THE ACTION ON THE TRIGGER IS VERY MUCH DIFFERENT.

25

Q

NOW, YOU MENTIONED THAT IT HAS A LASER

SO THAT'S TO HELP YOU AND ASSIST

AND IT HAS A TRIGGER SIMILAR TO A

I WOULD SAY BY DESIGN, YES, THE -- THE PULL OR

OKAY.

NOW, AS A TASER TRAINING INSTRUCTOR,
237

U.S. COURT REPORTERS

1

YOU ACTUALLY TEACH OTHER SALINAS POLICE OFFICERS

2

HOW TO USE A TASER; CORRECT?

3

A

THAT'S CORRECT.

4

Q

AND YOU'RE TAUGHT TO TRAIN OR YOU TRAIN YOUR

5

FELLOW OFFICERS AT THE SALINAS POLICE DEPARTMENT TO

6

FIRE THE TASER AT CENTER MASS; CORRECT?

7

A

CORRECT.

8

Q

COULD YOU DESCRIBE WHAT THAT MEANS?

9

CENTER MASS?

WHAT IS

10

A

CENTER MASS WOULD BE ESSENTIALLY THE LARGEST

11

PORTION OF THE UPPER TORSO, TYPICALLY AROUND THE

12

STERNUM.

13

Q

14

TO FIRE AT CENTER MASS?

15

A

16

TARGETING AREA, TO PREVENT MISSING AS WE WANT TO

17

INVOLVE MORE OF THE MUSCLE MASS OF THE SUSPECT, THE

18

PERSON WE'RE DEALING WITH WITH THE USE OF A TASER

19

TO GET A -- EXCUSE ME -- A MORE IDEAL EFFECT.

20

Q

21

DEFINITIONS.

22

A

UH-HUH.

23

Q

NOW, AS YOU UNDERSTAND IT, AS YOU SIT HERE

24

TODAY AS A TRAINING INSTRUCTOR, WERE YOU TAUGHT

25

SPECIFICALLY THAT -- THAT THE TASER CAUSES MUSCLES

AND IS THERE A PARTICULAR REASON WHY YOU TRAIN

WELL, OTHER THAN IT BEING THE BIGGEST

OKAY.

LET ME SHOW YOU THE NEXT SLIDE ENTITLED

238

U.S. COURT REPORTERS

1

TO TIGHTEN AND CRAMP?

2

A

CONTRACT AS IT WERE.

3

Q

AND YOU WERE TOLD OR YOU WERE TAUGHT THAT --

4

THAT THE TASER DISRUPTS THE BRAIN'S ABILITY TO

5

VOLUNTARILY CONTROL THE MUSCLES; IS THAT CORRECT?

6

A

THAT'S CORRECT.

7

Q

AND THAT'S ESSENTIALLY WHAT IS DEPICTED IN

8

THIS SLIDE; CORRECT?

9

A

CORRECT.

10

Q

THAT CONCEPT.

11

LET ME MOVE ONTO THE NEXT SLIDE.

THIS

12

SLIDE EXPLAINS WHY IT WORKS.

13

REMEMBER AS FAR AS YOUR TRAINING AS WHY IT WORKS?

14

A

15

WAY OF DESCRIBING IT.

16

AND WHAT DO YOU

USING ANALOGIES HAS BECOME THE MOST EFFICIENT

THERE IS IN SOME TASER LITERATURE I HAVE

17

USED IT IS THE -- THE ANALOGY IS USED IN SIMPLE

18

CONVERSATION TO THE BRAIN BEING ONE PARTY IN THE

19

CONVERSATION AND YOU PUT THE MUSCLES AS THE OTHER

20

PARTY AND THEN YOU PUT A THIRD PARTY THAT STARTS

21

YELLING ON THE LINE.

22

COMMUNICATE ANYMORE.

23

YOU'RE NOT ABLE TO

WHEN THE PERSON STOPS YELLING, YOUR BRAIN

24

IS ABLE TO COMMUNICATE.

THAT AND -- AND YOUR BRAIN

25

WILL -- WILL COMMUNICATE WITH YOUR MUSCLES AND A
239

U.S. COURT REPORTERS

1

SERIES OF X'S AND O'S.

2

FOR EXAMPLE, THE TASER, THE "T" WAVES

3

THAT ARE INTRODUCED TO DISRUPT THE CENTRAL NERVOUS

4

SYSTEM THROW THE REST OF THE ALPHABET IN THERE SO

5

IT GETS CONFUSED.

6

Q

7

ESSENTIALLY THE YELLING PARTY ON THE LINE?

8

A

THE THIRD PARTY, YES.

9

Q

AND WHY DON'T YOU TAKE A LOOK AT THIS NEXT

SO AS I UNDERSTAND YOUR ANALOGY, THE TASER IS

10

SLIDE.

11

AFFECTS BOTH THE SENSORY AND MOTOR SYSTEMS?

12

A

YES.

13

Q

AND WHAT DO YOU UNDERSTAND THAT TO MEAN?

14

A

THE -- WELL, THE SENSORY NERVOUS SYSTEM IS --

15

IS, I WOULD SAY, ALMOST A SUPER EFFICIENT NERVE

16

SETS THAT TELL YOU THAT YOU'RE COLD, SOMETHING IS

17

PAIN.

18

WERE YOU TAUGHT THAT THE TASER DEVICE

SO THE SENSORY NERVOUS SYSTEM, YOU KNOW,

19

PAIN COMPLIANCE.

20

POKED, YOU WOULD -- YOU WOULD -- YOUR BODY WOULD

21

COMMUNICATE AND YOUR BRAIN, THAT'S YOUR SENSORY

22

SYSTEM.

23

IF YOU WERE TO BE PINCHED OR

THE MOTOR NERVOUS SYSTEM, THE OTHER

24

PORTION OF THE CENTRAL NERVOUS SYSTEM IS THAT WHICH

25

YOUR BRAIN COMMUNICATES WITH YOUR MUSCLES.

SO A
240

U.S. COURT REPORTERS

1

SENSORY NERVOUS SYSTEM, USING ANOTHER ANALOGY IF I

2

MAY.

3

SYSTEM TELLS YOU TO MOVE AWAY, YOUR MOTOR NERVOUS

4

SYSTEM ACTUALLY MOVES YOU AWAY.

5

Q

6

THE CONCEPT OF PAIN COMPLIANCE AND I'LL DO THAT IN

7

A SECOND.

8

THAT THERE WAS A DIFFERENCE BETWEEN THE TRAINING

9

AND YOUR EARLIER VERSIONS OF BASICALLY THE STUN

YOU TOUCH A HOT STOVE, YOUR SENSORY NERVOUS

OKAY.

LET ME SHOW YOU -- I WANT TO GET INTO

BUT WERE YOU TAUGHT IN YOUR TRAINING

10

GUN?

11

A

YEAH.

12

Q

AND WHAT WERE THE PRIMARY DIFFERENCES BETWEEN

13

THE TWO?

14

A

15

COMPLIANCE AND AFFECT THE SENSORY NERVOUS SYSTEM.

16

Q

17

COULD.

THE STUN GUNS WOULD ACT PRIMARILY ON PAIN

OKAY.

18

LET ME GO ONTO THE NEXT SLIDE, IF I

THIS GOES BACK TO WHAT YOU WERE

19

TESTIFYING EARLIER ABOUT THE TWO TYPES OF SYSTEMS

20

IN OUR BODY, THE CENTRAL NERVOUS SYSTEM, THE

21

SENSORY NERVOUS SYSTEM AND THE MOTOR NERVOUS

22

SYSTEM; CORRECT?

23

A

CORRECT.

24

Q

OKAY.

25

COMPLIANCE.

NOW, YOU STARTED TO TALK ABOUT PAIN
HOW DO YOU DEFINE THAT TERM?

WHAT
241

U.S. COURT REPORTERS

1

DOES PAIN COMPLIANCE MEAN?

2

A

3

COMPLIANCE OF A COMBATIVE OR -- OR RESISTANT

4

INDIVIDUAL BY INTRODUCING A METHOD OF PAIN.

5

Q

6

TASER IS NOT -- AT LEAST IN ITS PROBE MODE WHERE

7

THE PROBES FIRE, THAT IT'S NOT A PAIN COMPLIANCE

8

DEVICE?

9

A

PAIN COMPLIANCE, USING A METHOD TO -- TO GAIN

OKAY.

AND WAS IT YOUR UNDERSTANDING THAT THE

SO WE WERE TOLD THAT IT WASN'T A PAIN

10

COMPLIANCE DEVICE?

11

Q

RIGHT.

12

A

THAT'S CORRECT.

13

Q

IN OTHER WORDS, LET ME BE CLEAR ABOUT THIS.

14

THERE ARE TWO TYPES OF WAYS TO USE THE DEVICE, ONE

15

IS IN PROBE MODE --

16

A

UH-HUH.

17

Q

-- WHERE YOU FIRE THE PROBES.

18

ONE WE HAVE HEARD IN OPENING STATEMENT IS THE DRY

19

STUN MODE WHERE YOU ACTUALLY CONNECT OR CONTACT THE

20

BODY WITH THE DEVICE ITSELF?

21

A

RIGHT.

22

Q

NOW, LET'S FOCUS ON THE PROBE MODE FOR A

23

SECOND.

24

A

OKAY.

25

Q

DO YOU UNDERSTAND MY QUESTION IN THE PROBE

AND THE OTHER

242

U.S. COURT REPORTERS

1

MODE THAT YOU ARE TAUGHT THAT IT WAS NOT A PAIN

2

COMPLIANCE DEVICE?

3

A

THAT'S CORRECT.

4

Q

NOW, THE DIFFERENCE BETWEEN A PAIN COMPLIANCE

5

DEVICE AND A DEVICE SUCH AS THE TASER M26 THAT

6

OVERRIDES THE SENSORY OF MOTOR NERVOUS SYSTEMS IS

7

THAT IT'S MORE EFFECTIVE ON PEOPLE, FOR EXAMPLE,

8

WHO ARE ON DRUGS; CORRECT?

9

A

YES.

10

Q

AND THE REASON FOR THAT IS, WOULD YOU AGREE,

11

THAT PEOPLE WHO ARE ON DRUGS THAT ARE SIMPLY

12

AFFECTED BY SOME OTHER KIND OF DEVICE, NOT A TASER,

13

CAN FIGHT THROUGH THE PAIN?

14

A

TYPICALLY, YES, I WOULD SAY THAT'S CORRECT.

15

Q

BUT BECAUSE THE TASER OVERRIDES THE BRAIN'S

16

ABILITY TO CONTROL THE MUSCLES, THAT IT ACTUALLY

17

WORKS GREAT ON SOMEONE WHO IS ON DRUGS BECAUSE THEY

18

HAVE NO ABILITY TO FIGHT THROUGH THE PAIN; RIGHT?

19

A

THAT'S CORRECT.

20

Q

AND, ISN'T IT TRUE, OFFICER FAIRBANKS, THAT

21

WHEN YOU RECEIVED YOUR TRAINING AT THE TASER

22

SCHOOL, YOU WERE SPECIFICALLY TAUGHT THAT PEOPLE ON

23

DRUGS CANNOT WITHSTAND THE ELECTRICAL EFFECTS OF

24

THE TASER, TRUE?

25

A

TRUE.
243

U.S. COURT REPORTERS

1

Q

AND, IN FACT, ISN'T IT TRUE, SIR, THAT PEOPLE

2

UNDER THE INFLUENCE OF DRUGS RESPOND TO TASER

3

ELECTRICAL DISCHARGES EXACTLY THE SAME WAY THAT

4

PEOPLE WHO ARE NOT ON DRUGS?

5

A

I WOULD SAY THAT'S CORRECT, YEAH.

6

Q

AND, IN FACT, OFFICER FAIRBANKS, THAT'S ONE OF

7

THE MAIN BENEFITS OF THE TASER, ISN'T IT, THAT IT

8

AFFECTS ALL PEOPLE THE SAME, UNLIKE, FOR EXAMPLE,

9

PEPPER SPRAY, WHERE YOU MIGHT USE PEPPER SPRAY ON

10

SOMEONE WHO IS UNDER THE INFLUENCE OF DRUGS AND

11

THEY MIGHT BE ABLE TO CONTINUE TO FIGHT OR DO

12

WHATEVER THEY'RE DOING?

13

A

ARE YOU ASKING IS THAT WHY IT IS SO VALUABLE?

14
15

THE COURT:

I THINK HE ASKED ARE YOU

ASKING.

16

MR. WILLIAMSON:

17

THE WITNESS:

RIGHT.

IS THAT IT?

18

BY MR. WILLIAMSON:

19

Q

20

VALUABLE BECAUSE IT IS A VERY, VERY EFFECTIVE TOOL

21

TO USE WITH PEOPLE WHO ARE ON DRUGS?

22

A

YES.

23

Q

AND YOU WERE TAUGHT THAT; RIGHT?

24

A

YES.

25

Q

LET ME MOVE ONTO THE NEXT SLIDE.

WELL, LET ME PUT IT THIS WAY:

IS IT SO

YOU
244

U.S. COURT REPORTERS

1

RECOGNIZE THIS SLIDE, RIGHT, OFFICER FAIRBANKS?

2

A

YEAH.

3

Q

AND THIS DESCRIBES THE WAY THE DARTS COME OUT

4

OF THE DEVICE AND IT DESCRIBES SPECIFICALLY THE

5

SPREAD PATTERN; RIGHT?

6

A

RIGHT.

7

Q

AND THIS SHOWS THE RULE OF THUMB BEING

8

ONE FOOT OF SPREAD FOR EVERY SEVEN FEET DISTANCE

9

FOR THE PERSON THAT YOU'RE FIRING AT; RIGHT?

10

A

RIGHT.

11

Q

AND SO I ASSUME IT'S OBVIOUS THE FURTHER YOU

12

ARE AWAY FROM THE PERSON, THE WIDER THE SPREAD?

13

A

CORRECT.

14

Q

AND THE CLOSER YOU ARE, CONVERSELY, THE CLOSER

15

YOU ARE TO THE SPREAD?

16

A

RIGHT.

17

Q

NOW, YOU MENTIONED EARLIER THAT AS PART OF

18

YOUR TASER TRAINING YOU ACTUALLY WERE SUBJECTED,

19

YOURSELF, TO A TASER DISCHARGE; IS THAT CORRECT?

20

A

THAT'S CORRECT.

21

Q

AND, IN FACT, DURING THE TWO TEN-HOUR TRAINING

22

SESSIONS, YOU ACTUALLY WERE TASED TWICE DURING THAT

23

CLASS?

24

A

YEAH.

25

Q

NOW, DO YOU RECALL WHEN YOU WERE SUBJECTED TO
245

U.S. COURT REPORTERS

1

THIS TASER DISCHARGE, WHETHER THE PROBES WERE SHOT

2

AT YOU OR WERE THEY ATTACHED SOMEHOW TO YOUR BODY?

3

A

THEY WERE ATTACHED.

4

Q

AND AS I UNDERSTAND ON ONE OF THE OCCASIONS

5

THAT YOU WERE -- THAT YOU WERE SUBJECTED TO A TASER

6

DISCHARGE DURING YOUR TASER INSTRUCTOR CLASS, THAT

7

ONE OF THE PROBES WAS PLACED CLOSE TO YOUR FOOT?

8

A

CORRECT.

9

Q

AND SO THAT PROBE WASN'T ATTACHED TO YOUR

10

BODY; RIGHT?

11

A

CORRECT.

12

Q

AND ONE WAS -- THE SECOND PROBE WAS ATTACHED

13

TO YOUR BODY; RIGHT?

14

A

RIGHT.

15

Q

AND CAN YOU EXPLAIN WHAT THE PURPOSE OF THAT

16

EXERCISE WAS?

17

A

18

INSTRUCTOR, WAS TO SHOW THE CLASS OR -- OR THAT --

19

THAT THE -- THE ELECTRICAL CURRENT LEADS THE PROBE,

20

OR I BELIEVE IT WAS AN ALLIGATOR CLIP AT THIS TIME,

21

AND ACTUALLY JUMPS INTO YOUR BODY.

22

TO BE A SEGUE INTO ANOTHER SLIDE.

23

THE PURPOSE OF THAT, WITH THAT PARTICULAR

IT DOESN'T HAVE

I DON'T KNOW IF IT'S ON HERE.

IT SHOWS

24

THAT THE ELECTRICAL ENERGY CAN PASS THROUGH I

25

BELIEVE IT'S AN INCH AND A HALF OF CLOTHING OR
246

U.S. COURT REPORTERS

1

SOMETHING ELSE THAT MIGHT BE IN THE WAY OF A DIRECT

2

HIT BY THE PROBE.

3

Q

4

PROBE WAS ATTACHED.

5

A

IT WAS MY LEFT SHOULDER.

6

Q

AND THEN THE SECOND ONE WAS ATTACHED -- DO YOU

7

REMEMBER A COUPLE INCHES FROM YOUR FOOT?

8

A

9

MY RIGHT HEEL.

OKAY.

WHEN YOU UNDERWENT THAT EXERCISE, ONE
WAS IT ATTACHED TO YOUR BACK?

I BELIEVE IT WAS NO MORE THAN AN INCH BEHIND

10

Q

11

TERM ARCING?

12

A

YES.

13

Q

AND WHAT DOES THAT MEAN AND JUST IN LAY

14

LANGUAGE IF YOU CAN?

15

A

16

ANALOGY BASED ON IT.

17

OKAY.

AND -- AND ARE YOU FAMILIAR WITH THE

INSTEAD OF USING THAT WORD I WILL EXPLAIN THE

SEEING THE BLUE LIGHT ARC OR LIGHT FROM

18

THE END OF THE ALLIGATOR CLIP INTO THE BODY.

19

Q

20

DEVICE GENERATES A PEAK OF 50,000 TO FORCE THE

21

ENERGY FROM THE PROBE THAT IS AN INCH OR TWO AWAY

22

FROM YOUR FOOT THAT IT HAS THE POWER TO JUMP FROM

23

THAT POSITION INTO YOUR BODY AND THAT'S THE ARCING?

24
25

AND DO YOU UNDERSTAND WHY THE REASON THE

DO YOU UNDERSTAND THAT?
A

I UNDERSTAND THAT.

I HAVE NEVER BEEN PROVIDED
247

U.S. COURT REPORTERS

1

WITH THAT INFORMATION.

2

Q

3

INSTANCE WHEN YOU WERE SUBJECTED TO THE TASER

4

DISCHARGE WITH THE DART NEAR YOUR FOOT.

5

FELT THE EFFECTS OF THE TASER, DIDN'T YOU?

6

A

YES.

7

Q

AND, IN FACT, YOU WERE TAUGHT THAT THE TASER

8

COULD STILL BE EFFECTIVE WHEN IT IS NOT ATTACHED TO

9

A PERSON'S BODY; RIGHT?

OKAY.

NOW, LET'S GO BACK TO THE SPECIFIC

YOU STILL

10

A

YES.

11

Q

YOU MENTIONED A VIDEO ON HERE AND ACTUALLY

12

THAT'S THE NEXT SLIDE.

HOLD ON A SECOND.

13

TO SHOW YOU THE SLIDE.

BEFORE WE RUN THE VIDEO, DO

14

YOU RECOGNIZE THE SLIDE FROM YOUR TRAINING?

15

A

I DO.

16

Q

AND OKAY.

17

PLEASE?

18
19
20
21

MR. BURTON, COULD YOU RUN THAT,

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN
COURT, OFF THE RECORD.)
MR. WILLIAMSON:

WE DON'T HAVE THE SOUND.

WE'LL HAVE THAT SET UP THIS AFTERNOON.

22

THE COURT:

23

MR. WILLIAMSON:

24

THE COURT:

25

I WANT

IS IT ON ON HERE?
I'M SORRY.

I SEE, YOU'RE NOT HOOKED UP

INTO THE SPEAKERS.
248

U.S. COURT REPORTERS

1
2

MR. BURTON:

WE HAVE AN AUDIO ISSUE.

THERE'S SOUND WITH THIS.

3

MR. WILLIAMSON:

NO, WE'RE NOT HOOKED UP,

4

YOUR HONOR.

5

DO THAT SO I DON'T KNOW WHY.

6
7

MR. BURTON:

WE'LL REPLAY IT AFTER THE

LUNCH BREAK.

8
9

FOR SOME REASON WE DIDN'T SEE WIRES TO

MR. WILLIAMSON:
Q

IF WE COULD DO THAT.

THE PURPOSE OF THIS PARTICULAR VIDEO, AND I'LL

10

SHOW IT AGAIN IN JUST A SECOND.

THIS WAS TO

11

DEMONSTRATE WHAT WE HAVE JUST BEEN DISCUSSING; THAT

12

THE TASER, WHICH IS ATTACHED TO SOME CLOTHING AND

13

APPEARS TO BE, YOU KNOW, IT SAYS TWO AND A HALF

14

CUMULATIVE INCHES, AND THERE'S A PIECE OF MEAT AND

15

THAT'S TO SIMULATE A PERSON'S BODY; IS THAT

16

CORRECT?

17

A

YES.

18

Q

AND THE SPECIFIC PURPOSE OF THIS VIDEO IS TO

19

SHOW THAT WHEN A DART IS NOT ATTACHED OR A PROBE IS

20

NOT ATTACHED TO A PERSON, IT CAN STILL GENERATE

21

ENOUGH POWER TO -- TO PIERCE THE CLOTHING AND ENTER

22

THE PERSON'S BODY; CORRECT?

23

A

CORRECT.

24

Q

NOW, BASED ON YOUR OWN EXPERIENCE BEING

25

SUBJECTED TO A TASER DISCHARGE IN CLASS, WITH TWO
249

U.S. COURT REPORTERS

1

WIRES ATTACHED TO YOU, DO YOU THINK THAT YOU COULD

2

HAVE PULLED THE TASER DARTS OUT WHILE YOU WERE

3

EXPERIENCING MUSCLE CONTRACTIONS?

4

A

5

EXPERIENCES.

6

Q

7

WHEN YOU ONLY HAD ONE PROBE ATTACHED.

8

THAT YOU WOULD HAVE BEEN ABLE TO PULL OUT THE PROBE

9

THEN?

I DON'T BELIEVE SO.

THAT'S IN MY PARTICULAR

AND WHAT ABOUT YOUR EXPERIENCE IN THE CLASS
DO YOU THINK

10

A

11

EVEN THOUGH THERE WAS A CYCLE.

12

Q

13

IS KIND OF WHAT WE COVERED, THE 50,000 AND THE LOW

14

AMPERAGE.

15

ELECTRICIAN OR AN ELECTRICAL EXPERT BUT YOU

16

GENERALLY UNDERSTOOD THE OUTPUT OF THE DEVICE?

17

A

YES.

18

Q

NOW, I WANT TO SHOW YOU THE NEXT SLIDE.

19

IS A VIDEO CLIP AND I AM GOING TO RUN IT IN JUST A

20

SECOND, BUT DURING THE COURSE OF YOUR EXPERIENCE IN

21

CLASS BEING SUBJECTED TO A TASER DISCHARGE, WE HAVE

22

TALKED ABOUT MUSCLE CONTRACTIONS.

23

I FEEL LIKE I WAS ABLE TO MOVE A LITTLE MORE,

OKAY.

LET ME SHOW YOU THE NEXT SLIDE.

THIS

YOU'RE NOT BEING CALLED HERE AS AN

THIS

DID YOU FEEL THAT SENSE OF YOUR MUSCLES

24

CONTRACTING WHILE YOU WERE GOING THROUGH THE

25

EXPERIENCE?
250

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND ONE THING I FORGOT TO ASK YOU EARLIER, HOW

3

MANY SECONDS WERE YOU SUBJECTED TO -- LET'S FIRST

4

OF ALL START WHEN THE TWO PROBES WERE ATTACHED TO

5

YOU.

6

A

IT WAS APPROXIMATELY TWO AND A HALF SECONDS.

7

Q

SO YOU WEREN'T SUBJECTED TO A FULL FIVE-SECOND

8

DISCHARGE?

9

A

WELL, WITH THE SECOND, YES.

10

Q

I'M SORRY?

11

A

WITH THE SECOND, YES.

12

FIVE SECONDS WERE DIVIDED INTO

13

TWO-AND-A-HALF-MINUTE INCREMENTS.

14

Q

15

DIFFERENT WAY.

16

IT WAS ALMOST AS IF MY

THAT WAS A POOR QUESTION.

LET ME ASK IT A

YOU WERE NOT SUBJECTED TO A FULL

17

FIVE SECONDS AT ONE TIME.

18

BETWEEN TWO DIFFERENT EXPERIENCES; IS THAT CORRECT?

19

A

THAT'S CORRECT.

20

Q

I WANT YOU TO -- TO SPECIFICALLY FOCUS ON THE

21

CALVES OF THIS PARTICULAR GENTLEMAN WHO IS BEING

22

SUBJECTED TO A FIVE-SECOND DISCHARGE BY TWO

23

DIFFERENT DEVICES.

24

VIDEO I'M GOING TO ASK YOU A QUESTION ABOUT IT.

25

OKAY.

THEY WERE DIVIDED

AND AFTER WE RUN THE

YOUR HONOR, I SEE THE HOUR, AND GIVEN THE
251

U.S. COURT REPORTERS

1

AUDIO, WHICH I WOULD LIKE TO HAVE PLAYED, WOULD

2

THIS BE A GOOD TIME TO BREAK?

3
4
5

THE COURT:

CERTAINLY.

IT'S NOON AND

WE'LL COME BACK AT 1:00 O'CLOCK.
(WHEREUPON, THE LUNCH RECESS WAS TAKEN.)

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

252

U.S. COURT REPORTERS

1

AFTERNOON SESSION

2
3
4
5

THE COURT:

PLEASE BE SEATED.

MEMBERS OF

6

THE JURY, APPARENTLY WE NEED TO CALL A WITNESS OUT

7

OF ORDER, SO WE'RE GOING TO INTERRUPT THE TESTIMONY

8

OF THE WITNESS ON THE STAND NOW AND TAKE SOMEONE

9

OUT OF ORDER AND SO MR. FAIRBANKS WILL BE BACK WITH

10

US AT ANOTHER TIME TO FINISH HIS TESTIMONY.

11

WHO ARE WE CALLING?

12

MR. BURTON:

13
14
15
16
17
18

THANK YOU, YOUR HONOR.

PLAINTIFFS ARE CALLING CLIFFORD SATREE.
THE COURT:

COME ALL OF THE WAY UP,

MR. SATREE, AND BE SWORN.
THE CLERK:

COME FORWARD, SIR.

CLIFFORD SATREE,
BEING CALLED AS A WITNESS ON BEHALF OF THE

19

PLAINTIFFS, HAVING BEEN FIRST DULY SWORN, WAS

20

EXAMINED AND TESTIFIED AS FOLLOWS:

21

THE WITNESS:

22

THE CLERK:

YES.
PLEASE BE SEATED.

CAN YOU

23

PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST

24

NAME FOR THE RECORD?

25

THE

THE WITNESS:

CLIFFORD NORMAN SATREE THE
253

U.S. COURT REPORTERS

1

THIRD, S-A-T-R-E-E, SATREE.

2

DIRECT EXAMINATION

3

BY MR. BURTON:

4

Q

GOOD AFTERNOON, MR. SATREE.

5

A

GOOD AFTERNOON.

6

Q

AND YOU'RE APPEARING HERE TODAY PURSUANT TO

7

SUBPOENA?

8

A

YEAH.

9

Q

AND YOU KNEW THE DECEDENT IN THIS CASE, ROBERT

10

C. HESTON; IS THAT CORRECT?

11

A

YES.

12

Q

AND WHAT DID YOU CALL HIM?

13

A

BOBBY.

14

Q

AND WHEN DID YOU MEET BOBBY?

15

A

I MET HIM AT SUN STREET IN REHAB.

16

Q

AND DO YOU KNOW ABOUT WHEN THAT WAS?

17

A

I CAN'T RECOLLECT.

18

Q

OKAY.

19

SAME TIME?

20

A

21

ENVIRONMENT.

22

Q

AND DO YOU KNOW HOW LONG THAT LASTED?

23

A

SIX MONTHS, MAYBE.

24

Q

AND WHAT -- HE, AS FAR AS YOU COULD TELL WAS

25

CLEAN AND SOBER DURING THAT PERIOD?

WERE YOU BOTH IN REHABILITATION AT THE

YEAH, WE WERE ROOMMATES IN A CLEAN AND SOBER

254

U.S. COURT REPORTERS

1

A

YEAH.

2

Q

AND COULD YOU JUST DESCRIBE WHAT YOUR

3

IMPRESSION OF HIM WAS DURING THAT PERIOD OF TIME?

4

A

5

HE WOULD GO OUT ON A LIMB FOR JUST ABOUT ANYBODY.

6

Q

WAS HE WORKING, AS FAR AS YOU KNEW?

7

A

YEAH, I WAS WORKING WITH HIM FOR HIS FATHER.

8

Q

AND WHAT WERE YOU DOING?

9

A

CONCRETE WORK.

10

Q

AND WAS THAT IN SALINAS?

11

A

MOSTLY.

12

Q

AND THE SURROUNDING AREA?

13

A

YEAH.

14

Q

OKAY.

15

TOO?

16

A

YEAH.

17

Q

AND DID YOU SEE HIS INTERACTION WITH HIS

18

FAMILY?

19

A

UH-HUH.

20

Q

AND YOU HAVE TO SAY YES OR NO.

21

A

YES.

22

Q

FOR THE COURT REPORTER.

HE WAS A GREAT GUY.

23

HE WAS A GOOD FRIEND AND

AND SO DID YOU GET TO KNOW HIS FAMILY,

AND AT SOME POINT DID YOU LEARN THAT --

24

THAT HE -- HE FELL OFF THE WAGON SO TO SPEAK?

25

A

YEAH.
255

U.S. COURT REPORTERS

1

Q

AND WHAT WAS YOUR UNDERSTANDING OF WHAT

2

HAPPENED?

3

A

I REALLY HAVE NO IDEA.

4

Q

BUT YOU KNEW HE WOUND UP BEING INCARCERATED?

5

A

YEAH.

6

Q

AND THEN WAS THERE A TIME THAT YOU LEARNED HE

7

GOT OUT OF PRISON?

8

A

YES.

9

Q

SO YOU STARTED WORKING WITH HIM AGAIN WHEN HE

YES.

I WAS WORKING WITH HIM.

10

GOT OUT OF PRISON?

11

A

YEAH.

12

Q

AND -- AND, UM, WHAT WAS YOUR IMPRESSION OF

13

HIM AT THAT TIME?

14

IMPRESSION BEFORE?

15

A

NO, JUST THE SAME OLD BOBBY.

16

Q

AND DID THERE COME A TIME WHEN YOU WERE ASKED

17

TO COME TO HIS HOUSE?

18

A

YEAH.

19

Q

AND BECAUSE THERE WAS SOME KIND OF PROBLEM?

20

A

YEAH, HIS FATHER CALLED ME AND ASKED ME TO

21

COME AND HELP HIM.

22

Q

AND -- AND WHAT DID HIS FATHER TELL YOU?

23

A

JUST THAT HE WAS ACTING STRANGE AND COULD I

24

COME OVER.

25

Q

WAS IT ANY DIFFERENT THAN YOUR

AND -- AND WHAT DID YOU DO AFTER YOU GOT THIS
256

U.S. COURT REPORTERS

1

CALL?

2

A

3

HIM DOWN.

4

Q

5

OFFICERS THERE ALREADY?

6

A

YES.

7

Q

AND -- AND WHAT DID -- CAN YOU JUST TELL THE

8

JURY WHAT YOU SAW RIGHT WHEN YOU GOT THERE?

9

A

10

I GOT A RIDE OVER THERE AND TRIED TO HELP CALM

SO WHEN YOU GOT THERE, WERE THERE POLICE

JUST COP CARS SURROUNDING THE AREA, A COUPLE

ON THE LAWN.

11
12

THE COURT:

A COUPLE OF CARS ON THE LAWN

OR --

13

THE WITNESS:

POLICE OFFICERS.

14

BY MR. BURTON:

15

Q

OKAY.

16

A

YES, I DID.

17

Q

AND WHAT WAS HE DOING?

18

A

HE WAS A LITTLE BIT ANTSY AND HE WAS SAYING

19

THAT THERE WAS SOMEONE IN THE ATTIC WITH A GUN AND

20

HE WAS LIKE TRYING TO PROTECT HIS FATHER AND HE WAS

21

KIND OF GOING BOTH WAYS AT THAT POINT.

22

Q

23

MEAN BY "GOING BOTH WAYS"?

24

A

25

WAS GOING ON.

OKAY.

DID YOU SEE BOBBY?

AND CAN YOU KIND OF EXPLAIN WHAT YOU

WELL, HE -- HE REALLY COULDN'T UNDERSTAND WHAT
HE WAS JUST TRYING TO HELP HIS DAD
257

U.S. COURT REPORTERS

1

BUT -- BUT FROM WHAT I DON'T KNOW.

2

Q

3

STILL THERE?

4

A

YEAH.

5

Q

OKAY.

6

A

YES, THEY DID.

7

Q

AND THERE WASN'T ANY KIND OF ALTERCATION OR

8

INCIDENT BEFORE THEY LEFT, WAS THERE?

9

A

NO.

10

Q

AND THEN WHAT HAPPENED AFTER THE POLICE

11

OFFICERS LEFT?

12

A

13

PUSHED THE GRANDFATHER CLOCK OVER.

14

Q

HE PUSHED THE GRANDFATHER CLOCK OVER?

15

A

YEAH.

16

Q

AND THEN WHAT HAPPENED AFTER HE PUSHED THE

17

GRANDFATHER CLOCK OVER?

18

A

19

WHATEVER IT IS THAT HE WAS PROTECTING HIM FROM.

20

Q

21

YOU CAME TO THAT CONCLUSION?

22

A

23

SAY, ME AND EXPLAINING ABOUT THE ATTIC ALSO.

24

Q

DID HE SEEM TO BE IRRATIONAL?

25

A

AT TIMES.

AND THIS WAS WHILE THE POLICE OFFICERS WERE

AND DID THE POLICE OFFICERS LEAVE?

HE GOT AGITATED AND PUSHED HIS FATHER DOWN AND

HE TRIED TO PROTECT HIS DAD FROM -- FROM

AND WHY DON'T YOU TELL US WHAT YOU SAW AND WHY

HE WAS JUST LIKE BETWEEN HIS FATHER AND LIKE,

258

U.S. COURT REPORTERS

1

Q

AND DID HE SEEM AGITATED?

2

A

YES.

3

Q

AND THEN WHAT HAPPENED NEXT?

4

A

THE POLICE OFFICERS CONVERGED ON THE HOUSE

5

AND --

6

Q

THEY CAME BACK?

7

A

YEAH.

8

Q

AND BEFORE THEY CAME BACK, DID YOU DO ANYTHING

9

TO SUMMON THEM?

10

A

YES, I CALLED THEM BACK.

11

Q

SO YOU CALLED 911?

12

A

YEAH.

13

Q

AND WAS THAT ON A CELL PHONE OR A PORTABLE --

14

A

ON MY CELL PHONE.

15

Q

ON YOUR CELL PHONE.

16

THAT YOU WERE CALLING 911?

17

A

YES.

18

Q

AND WHEN YOU CALLED 911, DID YOU STAY ON THE

19

LINE?

20

A

YES.

21

Q

AND DURING THIS CALL ON 911, DID YOU TRY TO

22

ACCURATELY TELL THE DISPATCHER OR WHOEVER WAS ON

23

THE OTHER SIDE OF THE CALL EXACTLY WHAT YOU WERE

24

SEEING?

25

A

SO YOU HAD A CELL PHONE

YES.
259

U.S. COURT REPORTERS

1

MR. BURTON:

YOUR HONOR, AT THIS TIME WE

2

WOULD ASK TO PLAY, AND I BELIEVE THIS IS OKAY WITH

3

THE DEFENSE, EXHIBIT 101-C, WHICH IS THE ENTIRE 911

4

CALL.

5

AND WHILE IT'S PLAYING, I'LL BE SHOWING A

6

TRANSCRIPT THAT WE HAVE AGREED TO ON THE ELMO SO

7

THAT THE JURY CAN FOLLOW IN PRINT IF THEY NEED TO.

8
9

THE COURT:

VERY WELL.

THIS IS A TAPE OF SOME SORT?

10

MR. BURTON:

11

THE COURT:

SO 101-C, A --

IS IT A DIGITAL --

IT'S DIGITIZED.
ALL RIGHT.

SO WE'LL HAVE TO

12

GET A COPY OF IT SO WE CAN HAVE IT AVAILABLE FOR

13

THE JURY IF THEY WANT TO PLAY IT.

14
15

101-C IS IN EVIDENCE AND THE TRANSCRIPT.
IS THAT SEPARATELY MARKED?

16

MR. BURTON:

17

THE COURT:

IT'S THE 101-C TRANSCRIPT.
SO WE'LL CALL IT 101-C TAPE

18

AND 101-C TRANSCRIPT.

AND BOTH ARE IN EVIDENCE

19

WITHOUT OBJECTION IS WHAT I'M BEING TOLD.

20

(WHEREUPON, PLAINTIFF'S EXHIBIT NUMBER

21

101-C, HAVING BEEN PREVIOUSLY MARKED FOR

22

IDENTIFICATION, WAS ADMITTED INTO

23

EVIDENCE.)

24

THE COURT:

25

MR. BURTON:

YOU MAY PROCEED.
THANK YOU, YOUR HONOR.
260

U.S. COURT REPORTERS

1
2

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN
COURT OFF THE RECORD.)

3
4

THE COURT:

YOU MIGHT POINT ON THE

TRANSCRIPT WHERE WE ARE.

5

MR. BURTON:

(INDICATING.)

6

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN

7

COURT OFF THE RECORD.)

8

BY MR. BURTON:

9

Q

MR. SATREE, THAT'S YOUR VOICE ON THE TAPE?

10

A

YES, IT IS.

11

Q

AND I IMAGINE IF YOU KNEW IT WAS GOING TO BE

12

PLAYED IN A FEDERAL COURT, YOU WOULD HAVE WATCHED

13

YOUR LANGUAGE A LITTLE BETTER?

14

A

PROBABLY.

15

Q

DID YOU TRY THROUGHOUT THAT CALL TO RELAY AS

16

ACCURATELY AS YOU COULD WHAT WAS HAPPENING?

17

A

YES, I DID.

18

Q

OKAY.

19

AFTER THE OFFICERS LEFT AND BEFORE THEY CAME BACK

20

WHERE YOU SAID HE WAS OUTSIDE OF THE HOUSE AND THEN

21

HE WAS GOING THROUGH THE WINDOW?

22

A

YEAH.

23

Q

CAN YOU JUST DESCRIBE WHAT YOU SAW THEN?

24

A

UM, HE WAS ON THE PORCH AND HE PUNCHED THE

25

WINDOW OUT ON THE RIGHT SIDE OF THE DOOR.

THERE WAS ONE PART, SIR, IN BETWEEN

261

U.S. COURT REPORTERS

1

Q

DID IT APPEAR TO YOU THAT WHEN HE WAS OUT ON

2

THE PORCH THAT THE DOOR HAD BEEN SLAMMED BEHIND

3

HIM?

4

A

I'M NOT SURE.

5

Q

DID HE ACTUALLY CRAWL IN THROUGH THE WINDOW?

6

A

I THINK HE REACHED IN AND OPENED THE DOOR.

7

Q

AND THEN WENT BACK INTO THE HOUSE?

8

A

YEAH.

9

Q

WHAT -- WHAT -- CAN YOU JUST DESCRIBE WHAT

10

HAPPENED RIGHT AFTER YOU HUNG UP WITH THE

11

DISPATCHER?

12

A

COPS WERE JUST STANDING AROUND LOOKING AT HIM.

13

Q

AND DID YOU HEAR THE OFFICERS SAY ANYTHING?

14

A

NOT REALLY, NO.

15

Q

COULD YOU TELL WHETHER BOBBY HESTON WAS OKAY

16

OR NOT?

17

A

HE DIDN'T LOOK OKAY.

18

Q

AND WHAT LOOKED -- WAS THE MATTER WITH HIM?

19

A

WELL, HE WAS OUT.

20

THEM WAS KICKING HIM WITH HIS FOOT LIKE TO SEE IF

21

HE WAS MOVING.

22
23

MR. BURTON:

I DON'T THINK HE WAS.

HE WAS JUST LIKE ONE OF

THANK YOU.

AND THANK YOU,

MR. SATREE.

24

NO FURTHER QUESTIONS.

25

THE COURT:

VERY WELL.

ANY CROSS?
262

U.S. COURT REPORTERS

1

MR. HURLEY:

2

YES, YOUR HONOR.

CROSS-EXAMINATION

3

BY MR. HURLEY:

4

Q

5

AT SUN STREET, YOU WERE BOTH IN FOR REHABILITATION

6

FOR METHAMPHETAMINE?

7

A

NO.

8

Q

WHAT WERE YOU IN FOR?

9

A

I WAS IN FOR VOLUNTARILY FOR DRINKING.

10

Q

FOR DRINKING?

11

A

YEAH.

12

Q

AND AT THE TIME OF THIS EVENT YOU WERE ON FOUR

13

PRESCRIBED MEDICATIONS; CORRECT?

14

A

I REALLY DON'T RECALL.

15

Q

DO YOU REMEMBER TELLING THE POLICE THAT YOU

16

WERE ON KLONOPIN, PROZAC AND VICODIN AND ANOTHER

17

DRUG?

18

A

IF I DID, I PROBABLY WAS.

19

Q

DO YOU REMEMBER TELLING THE POLICE THAT?

20

A

NO.

21

Q

AND THEN TWO DAYS AFTER THIS EVENT YOU WENT

22

BACK TO PRISON; CORRECT?

23

A

TWO DAYS?

24

Q

YES.

25

A

I'M NOT SURE HOW LONG IT WAS.

MR. SATREE, WHEN YOU FIRST MET ROBERT HESTON

263

U.S. COURT REPORTERS

1

Q

FEBRUARY 2005 DID YOU GO BACK TO PRISON?

2

A

I WENT FOR MY FIRST TIME TO PRISON.

3

Q

AND THAT WAS FOR FELON IN POSSESSION OF A

4

SHOTGUN; IS THAT RIGHT?

5

A

6

CODE VIOLATION.

7

Q

8

CORRECT?

9

A

YEAH.

10

Q

AND AT THE TIME OF THIS EVENT, ON THE DAY OF

11

THIS EVENT, YOU SAID YOU CAME RIGHT AWAY.

12

TRUE THAT MR. HESTON CALLED YOU BACK BECAUSE YOU

13

SAID YOU COULDN'T GET A RIDE?

14

A

15

HIM, ONE OR THE OTHER.

16

Q

17

OVER BECAUSE YOU COULDN'T GET A RIDE?

18

A

THAT WAS ONLY LIKE A HALF AN HOUR.

19

Q

SO FROM THE TIME THAT HE CALLED YOU UNTIL YOU

20

GOT THERE IT WAS MORE THAN A HALF AN HOUR; CORRECT?

21

A

22

HOUR.

23

Q

24

HESTON DISCUSSED SOME OF HIS PAST INCIDENTS WITH

25

THE POLICE; CORRECT?

AND VIOLATION -- IT WAS FOR A VIOLATION, A

AND FOR FELON IN POSSESSION OF A SHOTGUN;

ISN'T IT

I CALLED -- EITHER HE CALLED ME OR I CALLED

AND YOU TOLD HIM YOU HADN'T BEEN ABLE TO COME

I WOULD SAY IT WAS APPROXIMATELY A HALF AN

AND WHEN YOU WERE AT SUN STREET YOU AND ROBERT

264

U.S. COURT REPORTERS

1

A

UH-HUH.

2

Q

YES?

3

A

YES.

4

Q

AND HE SHOWED YOU HIS DOG BITE SCAR FROM A

5

POLICE DOG?

6

A

YES.

7

Q

AND HE TOLD YOU THAT HAPPENED IN HIS PARENTS'

8

HOME?

9

A

YES.

10

Q

AND HE TOLD YOU THE POLICE BARRICADED THE

11

HOUSE TO GET HIM OUT OF THE HOUSE?

12

A

YES.

13

Q

AND HE TOLD YOU HE HAD THROWN A LOT OF THINGS

14

OUT OF THE HOUSE?

15

A

YES.

16

Q

AND DID HE TELL YOU ON ANOTHER OCCASION HE

17

PUNCHED HIS MOTHER?

18

A

NO.

19

Q

AND AFTER SUN STREET, DID YOU AND MR. HESTON

20

ATTEND ANY KIND OF MEETINGS OR ANY KIND OF REHAB?

21

A

AFTER SUN STREET, WHEN WE WERE BACK WORKING?

22

Q

AFTER -- AFTER YOU LEFT SUN STREET, DID YOU

23

AND MR. HESTON GO TO ANY OTHER KIND OF

24

REHABILITATION MEETINGS?

25

A

MAYBE A FEW, YEAH.
265

U.S. COURT REPORTERS

1

Q

AND THEN YOU SAW HIM AGAIN AFTER HE GOT OUT OF

2

PRISON; CORRECT?

3

A

YES.

4

Q

AND HE GOT OUT OF PRISON ABOUT THREE WEEKS

5

BEFORE THIS EVENT OCCURRED; RIGHT?

6

A

I COULDN'T TELL YOU.

7

Q

DO YOU HAVE ANY RECOLLECTION OF THAT?

8

A

NO.

9

Q

HAVE YOU -- HAVE YOU TOLD THE POLICE

10

PREVIOUSLY THAT YOU HAVE TROUBLE WITH YOUR MEMORY?

11

A

I DON'T KNOW IF I DO OR NOT.

12

Q

YOU DON'T KNOW?

13

A

WHAT I DON'T HAVE -- I DON'T HAVE

14

CHRONOLOGICAL -- I HAVE PROBLEMS CHRONOLOGICALLY

15

MEMORIZING.

16

Q

17

CEMENT COMPANY AFTER, AFTER HIS -- AFTER ROBERT C.

18

HESTON GOT OUT OF PRISON; CORRECT?

19

A

YES.

20

Q

AND TWO NIGHTS BEFORE THIS EVENT OCCURRED,

21

YOUR FRIEND ROBERT C. HESTON CALLED YOU FROM THE

22

KING'S DEN BAR; IS THAT RIGHT?

23

A

YES.

24

Q

AND HE TOLD YOU TO COME OVER THERE AND MEET

25

HIM; RIGHT?

NOW, YOU WORKED A FEW TIMES FOR MR. HESTON'S

266

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND YOU DID GO OVER THERE AND MEET HIM;

3

CORRECT?

4

A

YES.

5

Q

AND THAT WAS ABOUT MIDNIGHT?

6

A

PROBABLY.

7

Q

AND YOU STAYED UNTIL THE BAR CLOSING?

8

A

JUST ABOUT, YEAH.

9

Q

AND DURING THAT TIME THAT YOU WERE AT THE

10

KING'S DEN BAR, YOU HAD HAD A CONVERSATION WITH HIM

11

WHERE HE STARTED TALKING ABOUT GLASS BOTTOM BOATS;

12

DO YOU REMEMBER THAT?

13

A

YES.

14

Q

AND YOU DIDN'T UNDERSTAND WHAT HE WAS TALKING

15

ABOUT.

16

A

YES.

17

Q

AND THEN THE NEXT DAY, ACTUALLY THE DAY OF

18

THIS INCIDENT, FEBRUARY 19TH, AT 3:00 A.M., YOU

19

RECEIVED A CALL FROM, FROM ROBERT C. HESTON TELLING

20

YOU HE WANTED YOU TO PICK HIM UP; CORRECT?

21

A

PICK HIM UP?

22

Q

YES.

23

A

I DIDN'T HAVE A DRIVER'S LICENSE THEN SO I

24

DON'T KNOW WHY HE WOULD CALL ME TO PICK HIM UP.

25

Q

HE WAS GOING ON ABOUT GLASS BOTTOM BOATS?

DO YOU REMEMBER HIM CALLING YOU AND TELLING
267

U.S. COURT REPORTERS

1

YOU HE WAS OVER BY BLANCO ROAD AND YOU WERE WITH A

2

GIRL SO YOU ASKED THE GIRL TO COME --

3

A

YES.

4

Q

AND SO YOU ASKED THE GIRL TO DRIVE YOU OVER

5

THERE SO YOU COULD PICK UP ROBERT C. HESTON; RIGHT?

6

A

YES.

7

Q

AND YOU RECALL THAT WHEN HE WAS ON THE PHONE

8

WITH YOU HE SOUNDED AGITATED AND ANXIOUS?

9

A

YEAH.

10

Q

AND -- AND IT SOUNDED LIKE HE WANTED TO GET

11

OUT OF THERE; RIGHT?

12

A

YES.

13

Q

AND SO YOU ASKED THE GIRL TO DRIVE YOU OVER

14

THERE TO HELP YOU GET HIM OUT OF THERE; CORRECT?

15

A

YES.

16

Q

AND BUT WHEN YOU GOT THERE THERE WERE POLICE

17

CARS AT THE ADDRESS THAT HE TOLD YOU TO GO TO;

18

RIGHT?

19

A

YES.

20

Q

AND SO WHEN YOU SAW THERE WERE POLICE CARS

21

THERE YOU DECIDED TO LEAVE; RIGHT?

22

A

YES.

23

Q

AND SO WOULD THAT HAVE BEEN ABOUT THREE 3:00

24

IN THE MORNING AT ON FEBRUARY 19TH?

25

A

YES.

PROBABLY.
268

U.S. COURT REPORTERS

1

Q

CONSIDERING YOUR TRAVEL TIME, IF HE CALLED YOU

2

AT 3:00, YOU GOT THERE SOME TIME BETWEEN 3:00 AND

3

4:00?

4

A

PROBABLY.

5

Q

NOW, THAT MORNING HE PICKED YOU UP AT ABOUT

6

6:30 A.M.; RIGHT?

7

A

SOMETHING LIKE THAT.

8

Q

SO ABOUT THREE AND A HALF HOURS AND YOU WENT

9

OVER BUT THE POLICE WERE THERE; RIGHT?

10

A

YEAH.

11

Q

AND YOU DON'T KNOW IF HE GOT ANY SLEEP IN THAT

12

THREE HOURS BETWEEN THE TIME THAT YOU WENT TO

13

BLANCO ROAD AND THE TIME THAT HE PICKED YOU UP?

14

A

I HAVE NO IDEA.

15

Q

AND THEN YOU -- YOU AND ROBERT, YOUR FRIEND

16

ROBERT, DROVE OUT TO PACIFIC GROVE AREA TO FOAM

17

STREET; CORRECT?

18

A

YES.

19

Q

AND YOUR UNDERSTANDING WAS THAT YOU WERE GOING

20

OUT THERE TO CLEAN WOOD SUPPORTS OFF OF A CEMENT

21

JOB; CORRECT?

22

A

23

WORK.

24

Q

YOU DON'T KNOW WHAT YOU WERE GOING TO DO?

25

A

I DON'T RECALL.

NO, WE WERE GOING TO DO SOME KIND OF CONCRETE

269

U.S. COURT REPORTERS

1

Q

BUT YOU KNOW THAT YOU WEREN'T GOING TO BE

2

LAYING CEMENT, YOU WERE GOING TO BE DOING SOME KIND

3

OF CLEAN UP; CORRECT?

4

A

NO, I JUST -- I CAN'T REMEMBER.

5

Q

AND -- AND YOU GOT OUT THERE -- WELL, WHEN YOU

6

WERE ON YOUR WAY OUT THERE, YOUR FRIEND ROBERT TOLD

7

YOU THAT HE WAS GOING TO ROLL YOU UP LIKE A PIZZA

8

AND THROW YOU OUT OF THE TRUCK?

9

A

YEAH, SOMETHING LIKE THAT BUT HE WAS ALWAYS

10

MAKING, YOU KNOW, WEIRD STATEMENTS.

11

Q

12

TO ROLL YOU UP LIKE A PIZZA AND THROW YOU OUT OF

13

THE TRUCK?

14

A

YEAH.

15

Q

AND THEN YOU GOT TO FOAM STREET AND HE SAID

16

WE'RE NOT DOING THIS AND HE TURNED AROUND AND DROVE

17

BACK; RIGHT?

18

A

YES.

19

Q

AND SO HE NEVER DID WORK THAT DAY, YOU DROVE

20

ALL OF WAY BACK TO SALINAS; RIGHT?

21

A

YES.

22

Q

AND SO DID YOU TALK ANYMORE IN THE TRUCK AT

23

ALL?

24

A

YEAH.

25

Q

AND WAS HE STILL TALKING TO YOU ABOUT ROLLING

BUT HE OUT OF THE BLUE TOLD YOU HE WAS GOING

270

U.S. COURT REPORTERS

1

YOU UP LIKE A PIZZA AND THROWING YOU OUT?

2

A

NO.

3

Q

AND HE DROPPED YOU OFF AT ANOTHER PERSON'S

4

HOUSE NAMED SIMPSON; RIGHT?

5

A

RIGHT.

6

Q

AND THEN YOU STAYED AT THIS GUY SIMPSON'S

7

HOUSE UNTIL -- UNTIL ROBERT H. HESTON, THE FATHER,

8

CALLED YOU; CORRECT?

9

A

CORRECT.

10

Q

AND THEN WHEN HE CALLED YOU, HE TOLD YOU THAT

11

HE WANTED TO -- TO COME AND TAKE JUNIOR OUT OF THE

12

HOUSE; RIGHT?

13

A

SOMETHING ALONG THE LINES.

14

Q

AND YOU SAID HE WANTED TO GET HIM OUT OF HERE;

15

RIGHT?

16

A

OKAY.

17

Q

AND IS THAT WHAT HE SAID TO YOU?

18

A

I BELIEVE SO.

19

Q

AND YOU HAVE HAD YOUR DEPOSITION TAKEN IN THIS

20

MATTER BEFORE; RIGHT?

21

A

YEAH.

22

Q

AND THEN WHEN YOU WALKED UP YOU SAW ROBERT H.

23

HESTON, THE FATHER, STANDING OUTSIDE BY THE RAIL

24

AND YOU SAW ROBERT C. HESTON, THE SON, STANDING

25

INSIDE; CORRECT?
271

U.S. COURT REPORTERS

1

A

BOBBY -- ROBERT WAS SITTING DOWN ON THE BRICKS

2

OF THE FRONT AND BOBBY WAS IN THE HOUSE, YEAH.

3

Q

4

HESTON, YOU KNEW THAT HIS DRUG OF CHOICE WAS

5

METHAMPHETAMINE; CORRECT?

6

A

YES.

7

Q

AND WHEN YOU SAW HIS CONDUCT THAT FIRST TIME

8

THAT YOU WENT OUT TO THE HOUSE ON FEBRUARY 19TH,

9

YOU CONCLUDED THAT HE WAS ON METHAMPHETAMINE;

AND AT THIS POINT IN TIME, KNOWING ROBERT C.

10

CORRECT?

11

A

I THOUGHT HE WAS ON SOMETHING.

12

Q

AND DIDN'T YOU CONCLUDE THAT HE WAS ON

13

METHAMPHETAMINE?

14

A

I COULDN'T MAKE THAT CONCLUSION.

15

Q

HAVE YOU EVER TESTIFIED THAT YOU MADE THAT

16

CONCLUSION?

17

A

18

DRUGS BEFORE SO I DON'T KNOW.

19
20
21

I DON'T KNOW, BUT I HAVE NEVER SEEN HIM ON

MR. HURLEY:

I'LL LODGE WITH THE COURT

THE ORIGINAL DEPOSITION OF CLIFFORD SATREE.
THE COURT:

YOU WANT TO HAVE THE WITNESS

22

READ THIS TO SEE WHETHER OR NOT HE IS CONFRONTED

23

WITH HIS PRIOR TESTIMONY?

24

MR. HURLEY:

25

THE COURT:

YES, YOUR HONOR.
YOU GUYS CAN OPEN THESE UP.
272

U.S. COURT REPORTERS

1

MR. HURLEY:

I CAN GET HIM THE CERTIFIED

2

COPY IF YOU WANT THE ORIGINAL.

3

THE COURT:

4

CERTAINLY.

TELL US WHAT PAGE

YOU WANT THE WITNESS TO LOOK AT.

5

HERE YOU ARE, SIR.

6

MEMBERS OF THE JURY, THIS MIGHT BE A

7

CONVENIENT TIME FOR ME TO EXPLAIN WHAT IS GOING ON.

8
9
10

THAT'S A DEPOSITION.

PRIOR TO A TRIAL ANY WITNESS THAT MIGHT
TESTIFY IN A CASE CAN BE SWORN AND ASKED QUESTIONS
IN WHAT IS CALLED A DEPOSITION.

11

AND DURING THE COURSE OF THE TRIAL THAT

12

DEPOSITION CAN BE USED TO -- TO GIVE YOU THE

13

TESTIMONY THAT THE PERSON HAD PRIOR.

14
15

SOMETIMES IT'S USED JUST TO HAVE THE
PERSON READ IT AND THAT MIGHT REFRESH THEIR MEMORY.

16

OTHER TIMES IT'S A PARTY TO THE CASE AND

17

COUNSEL IS JUST PERMITTED TO READ WHAT IS IN THE

18

DEPOSITION.

19

SO THIS IS NOT A PARTY TO THE CASE.

HE'S

20

ALLOWED TO LOOK AT THE DEPOSITION AND SEE WHETHER

21

THAT REFRESHES HIS RECOLLECTION AND IF IT DOESN'T,

22

IT STILL CAN BE READ INTO THE RECORD AS A PRIOR

23

STATEMENT.

24

WHAT REFERENCE ARE YOU HAVING US GO TO?

25

MR. HURLEY:

YES, YOUR HONOR.
273

U.S. COURT REPORTERS

1

Q

MR. SATREE, IF YOU COULD READ PAGE 82 IN THAT

2

DEPOSITION.

3

THE COURT:

PAGE 82.

4

BY MR. HURLEY:

5

Q

PAGE 82, AND THEN GO TO LINE 14.

6

A

LINE 14?

7

Q

YES.

8

A

"NO, I DON'T..."

9

Q

YOU CAN READ IT TO YOURSELF AND TELL ME.

READ LINES 14 TO 23.

10

(PAUSE IN PROCEEDINGS.)

11

THE WITNESS:

WHAT DID YOU WANT ME TO

12

COMMENT ON?

13

BY MR. HURLEY:

14

Q

15

WAS ON METHAMPHETAMINE?

DO YOU RECALL CONCLUDING THAT ROBERT C. HESTON

16
17

MR. BURTON:

OBJECTION.

IT'S NOT

IMPEACHING AND NO FOUNDATION.

18

THE COURT:

WELL, I DON'T HAVE IT IN

19

FRONT OF ME SO YOU'RE SUGGESTING THAT IT DOESN'T

20

STATE THAT IN THE TRANSCRIPT?

21

YOU CAN READ -- HAVING GIVEN THE WITNESS

22

AN OPPORTUNITY TO READ IT, YOU CAN READ HIS

23

TESTIMONY IF YOU WANT.

24

THE WITNESS:

25

I DON'T SEE HERE WHERE IT

SAYS THAT.
274

U.S. COURT REPORTERS

1

(PAUSE IN PROCEEDINGS.)

2

MR. HURLEY:

3

I'M GOING TO COMMENCE

READING AT PAGE 82, LINE 14 TO 23.

4

"QUESTION:

DIDN'T YOU -- WELL, WHEN THE

5

POLICE WERE THERE AND ARRIVED THE FIRST TIME YOU

6

CAME TO THE CONCLUSION THAT BOBBY WAS ON

7

METHAMPHETAMINE, DIDN'T YOU?

8

"ANSWER:

9

"QUESTION:

10

I FIGURED HE WAS ON SOMETHING.
BUT DIDN'T YOU CONCLUDE HE

WAS ON METH?

11

"ANSWER:

I FIGURED THAT SINCE THAT WAS

12

HIS DRUG OF CHOICE, THAT WAS PROBABLY SO.

13

Q

14

ON METHAMPHETAMINE WAS BECAUSE HE WAS ACTING

15

PARANOID.

NOW, ONE OF THE REASONS THAT YOU KNEW HE WAS

16

THE COURT:

NOW, YOU'RE CHANGING IT TO

17

WHAT HE KNEW.

18

YOU CAN ADOPT THAT HE FIGURED HE WAS OR HE THOUGHT

19

HE WAS BUT YOU CAN'T WITHOUT AN ADOPTION WITH THE

20

FOUNDATION THAT HE KNEW HE WAS.

21

IF YOU'RE NOW FRAMING A NEW QUESTION

(PAUSE IN PROCEEDINGS.)

22

BY MR. HURLEY:

23

Q

24

BECAUSE HE WAS PARANOID?

25

A

DID YOU CONCLUDE HE WAS ON METHAMPHETAMINE

YEAH.
275

U.S. COURT REPORTERS

1

Q

NOW, YOU YOURSELF SAID THAT YOU DIDN'T WANT

2

THE POLICE TO BE THERE BECAUSE YOU THOUGHT YOU

3

COULD HANDLE ROBERT HESTON; CORRECT?

4

A

5

WOULD CALM HIM DOWN.

6

Q

7

POLICE CALL TO TRY TO GET A HOLD OF A POLICE

8

OFFICER?

9

A

NO, I DIDN'T.

10

Q

YOU WEREN'T CLOSE ENOUGH TO HEAR THAT

11

CONVERSATION?

12

A

NO.

13

Q

AND THEN YOU SAW THAT THE POLICE OFFICERS WERE

14

GOING TO LEAVE; CORRECT?

15

A

YEAH.

16

Q

AND WHEN THEY WENT OUT AND STOOD BY THEIR

17

CARS, ROBERT HESTON, ROBERT H. HESTON, THE FATHER,

18

TOLD YOU TO GO TELL HIM TO LEAVE BECAUSE THEY WERE

19

AGITATING HIS SON; CORRECT?

20

A

CORRECT.

21

Q

SO YOU WENT OVER AND TOLD THE POLICE OFFICERS

22

TO PLEASE LEAVE; IS THAT RIGHT?

23

A

YES.

24

Q

NOW, ON THE SECOND CALL YOU SAW ROBERT'S

25

BROTHER-IN-LAW, CURT KASTNER, ON THE STREET;

YEAH, I FIGURED BETWEEN ME AND THE DAD WE

AND THEN WHEN THE POLICE -- DID YOU HEAR THE

276

U.S. COURT REPORTERS

1

CORRECT?

2

A

YES.

3

Q

AND HE HAD ACTUALLY BEEN THERE FOR THE FIRST

4

CALL TOO; RIGHT?

5

A

I DON'T RECALL.

6

Q

AND CURT KASTNER DID NOT COME IN THE HOUSE AT

7

ALL BETWEEN THE TIME THE POLICE LEFT THE FIRST TIME

8

AND WHEN THEY CAME BACK THE SECOND TIME; RIGHT?

9

A

NO, I DON'T BELIEVE SO.

10

Q

SO I DIDN'T ASK A VERY GOOD QUESTION.

11

SO WHERE WAS CURT KASTNER STANDING THE

12

ENTIRE TIME THAT YOU COULD SEE?

13

A

14

COPS, UP UNTIL THE TIME HE WAS TASED.

15

Q

16

RIGHT?

17

A

AFTER -- AFTER HE WAS TASED.

18

Q

BEFORE HE WAS TASED DID YOU EVER GO IN THE

19

HOUSE?

20

A

NO, I WENT UP TO THE DOOR.

21

Q

YOU GOT TO THE FRONT DOOR?

22

A

YEAH.

23

Q

BUT YOU NEVER WENT IN THE HOUSE?

24

A

HUH-UH.

25

Q

NO?

I DIDN'T SEE CURT UNTIL THE SECOND TIME OF THE

BUT YOU WERE INSIDE OF THE HOUSE YOURSELF;

277

U.S. COURT REPORTERS

1

A

NO.

2

Q

AND THE REASON YOU NEVER WENT IN THE HOUSE WAS

3

BECAUSE ROBERT C. HESTON WOULD NOT LET YOU GO IN

4

THE HOUSE; RIGHT?

5

A

YEAH.

6

Q

AND HE SEEMED TO BE TRYING TO STAND IN BETWEEN

7

YOU AND HIS FATHER; RIGHT?

8

A

YES.

9

Q

AND YOU SAW HIM KNOCK DOWN HIS FATHER IN A

10

FOOTBALL STYLE SHOVE; CORRECT?

11

A

YES.

12

Q

AND WHEN YOU SAW HIM KNOCK DOWN HIS FATHER,

13

YOU SAID THAT YOU TRIED TO ACT LIKE A RODEO CLOWN

14

AND DISTRACT HIM AWAY FROM HIS FATHER; CORRECT?

15

A

YES.

16

Q

AND YOU ALSO SAY THAT YOU TRIED TO PULL HIM

17

OUT THE DOOR BUT THEN HE STARTED SWINGING AT YOU;

18

RIGHT?

19

A

YES.

20

Q

AND THEN WHEN YOU -- WHEN YOU WENT BACK OUT

21

THE DOOR, YOU SAW HIM KNOCK OVER THE GRANDFATHER

22

CLOCK; RIGHT?

23

A

YES.

24

Q

AND YOU SAW THAT HIS FATHER WAS UPSET BECAUSE

25

HE HAD RECEIVED THAT CLOCK AS A 50 YEAR BIRTHDAY
278

U.S. COURT REPORTERS

1

GIFT; CORRECT?

2

A

YES.

3

Q

AND AFTER ROBERT C. HESTON KNOCKED OVER THE

4

CLOCK YOU STARTED SMASHING -- HE STARTED SMASHING

5

IT?

6

A

I DON'T RECALL.

7

Q

AND DID YOU RECALL SEEING HIM THROWING THINGS

8

AND KNICKKNACKS OUT OF THE DOOR?

9

A

I BELIEVE SO.

10

Q

AND WHEN YOU SAY YOU BELIEVE SO, YOU SAW HIM

11

THROWING THING; RIGHT?

12

A

A COUPLE THINGS, YEAH.

13

Q

AND THEN YOU SAW ROBERT C. HESTON START

14

DRAGGING HIS FATHER ACROSS THE FLOOR BY HIS ARM;

15

RIGHT?

16

A

YES.

17

Q

AND WAS THAT AT THE POINT THAT HE THAT YOU

18

STEPPED IN LIKE A RODEO CLOWN OR DID YOU DO IT

19

TWICE?

20

A

I BELIEVE I DID IT TWICE.

21

Q

AND THAT'S THE SECOND TIME HE KNOCKED DOWN THE

22

FATHER; CORRECT?

23

A

I THINK HE ONLY KNOCKED HIM DOWN ONE TIME.

24

Q

DID YOU SEE HIM KNOCK HIM DOWN AT THE FRONT

25

PORCH?
279

U.S. COURT REPORTERS

1

A

NO.

2

Q

AND THEN WHEN YOU SAW HIM KNOCK DOWN HIS

3

FATHER AND TO THE FLOOR, YOU WENT OUTSIDE TO MAKE A

4

911 CALL; IS THAT CORRECT?

5

A

YEAH.

6

Q

NOW, DOES IT REFRESH YOUR RECOLLECTION THAT

7

WHEN THE POLICE CARS DID ARRIVE HE WAS DRAGGING HIS

8

FATHER ACROSS THE FLOOR?

9

A

IT DOESN'T REFRESH ME.

10

Q

SO YOU SAW HIM DRAGGING HIS FATHER ACROSS THE

11

FLOOR AND BECAUSE YOU SAW THAT YOU WENT OUTSIDE TO

12

MAKE A TELEPHONE CALL; CORRECT?

13

A

I WAS ALREADY ON THE PORCH.

14

Q

AND YOU LEFT THE PORCH AND WENT DOWN BY THE

15

TREE IN THE FRONT YARD; RIGHT?

16

A

YES.

17

Q

AND THE REASON YOU DID THAT IS THAT YOU DIDN'T

18

WANT ROBERT C. HESTON TO SEE YOU CALL THE POLICE?

19

A

20

FROM THE SCENE.

21

CALLING THE POLICE.

22

Q

WHY IS THAT?

23

A

BECAUSE HE WAS JUST IRRITATED.

24

Q

AND WHEN YOU HAD ALREADY CALLED THE POLICE,

25

HAD HE ALREADY BROKEN THE FRONT WINDOW?

I DON'T KNOW.

I JUST WANTED TO REMOVE MYSELF

I DON'T THINK HE FIGURED I WAS

280

U.S. COURT REPORTERS

1

A

I BELIEVE SO.

2

Q

ALL RIGHT.

3

ACTUALLY STEPPED ALL OF THE WAY OUTSIDE AND ROBERT

4

H. HESTON, THE FATHER, SLAMMED THE FRONT DOOR;

5

CORRECT?

6

A

IT GOT SHUT.

7

Q

THE DOOR GOT SHUT?

8

A

YES.

9

Q

AND WAS THERE ANYONE ELSE IN THE HOUSE THAT

SO THERE WAS A POINT WHEN HE

10

YOU KNOW OF?

11

A

I DON'T BELIEVE SO, NO.

12

Q

AND YOU WERE OUTSIDE ON THE FRONT LAWN;

13

CORRECT?

14

A

YES.

15

Q

AND WHEN THE DOOR GOT SHUT, ROBERT C. HESTON

16

WAS ENRAGED AND TRIED TO KICK THE DOOR IN; RIGHT?

17

A

18

SEEING HIM KICK THE DOOR.

19

Q

AND YOU DIDN'T SEE HIM KICK THE DOOR?

20

A

I DON'T BELIEVE SO.

21

Q

AND YOU SAW HIM PUNCH THE WINDOW?

22

A

YEAH.

23

Q

AND DESCRIBE THAT.

24

A

HE PUNCHED HIS ARM THROUGH IT.

25

Q

AND DID YOU SEE HIM BLEEDING?

I SAW HIM ENRAGED AND I DON'T KNOW ABOUT

281

U.S. COURT REPORTERS

1

A

YEAH.

2

Q

AND WAS HE BLEEDING FROM THE HAND THAT HE

3

STUCK THROUGH THE WINDOW?

4

A

YEAH.

5

Q

THEN YOU SAW THE POLICE OFFICERS ARRIVED AFTER

6

THAT; CORRECT?

7

CALL?

8

A

YES.

9

Q

AND THERE'S A POINT ON THE 911 CALL WHERE YOU

AND WE HAVE HEARD THAT ON THE 911

10

SAY, "OKAY, THEY'VE GOT HIM DOWN."

BUT THEN YOU

11

SAY "HE'S PULLING THINGS OUT"?

12

A

13

I THINK HE PULLED OUT.

14

Q

15

THE 911 CALL THAT HE WAS THROWING MORE STUFF OUT

16

THE DOOR; CORRECT?

17

A

YEAH.

18

Q

WE JUST HEARD THE CALL?

19

A

YEAH.

20

Q

AND -- AND THEN YOU TESTIFIED THAT YOU SAW

21

SOME OTHER OFFICERS FIRE SOME TASERS AT HIM AFTER

22

THE FIRST TIME; CORRECT?

23

A

YES.

24

Q

NOW, WHEN THESE OFFICERS -- LET'S CALL IT THE

25

SECOND GROUP THAT FIRED TASERS.

HE PULLED THE FIRST TASERS OUT AND THAT'S ALL

AND THEN HE GOT BACK UP AND WE HAVE HEARD ON

YOU KNOW THAT TWO
282

U.S. COURT REPORTERS

1

TASERS WERE FIRED WHILE YOU WERE STANDING OUT ON

2

THE FRONT LAWN; CORRECT?

3

A

YES.

4

Q

AND YOU KNEW THAT THEN THERE WERE THREE OTHER

5

TASERS FIRED A MINUTE OR SO AFTER THAT?

6

A

I WASN'T SURE HOW MANY THERE WAS.

7

Q

BUT YOU SAY THAT THEY BARRAGE TASED HIM; IN

8

FACT, YOU USED THE WORD THEY ROASTED HIM.

9

THE POLICE THAT; CORRECT?

YOU TOLD

10

A

YEAH.

11

Q

AND YOU TOLD THE POLICE THAT HE YELLED IN

12

SURPRISE.

13

A

YEAH.

14

Q

NOW, LET'S GO BACK.

15

A

BECAUSE HE WAS GOING TO HELP WHOEVER WAS IN

16

THE ATTIC.

17

HIM.

18

Q

19

THE ATTIC; RIGHT?

20

A

YES.

21

Q

AND HE YELLED THAT A NUMBER OF TIMES; RIGHT?

22

A

YES.

23

Q

AND HE KEPT SAYING SOMEONE IS IN THE ATTIC

24

WITH A GUN?

25

A

YOU HEARD HIM YELL; RIGHT?

HE THOUGHT THE POLICE WAS GOING TO HELP

HE KEPT YELLING ABOUT SOMEBODY WITH A GUN IN

YES.
283

U.S. COURT REPORTERS

1

Q

AND DID YOU SEE HIM MAKE THE HOLE IN THE

2

CEILING BY THE VENT?

3

A

I SAW HIM SWATTING AT A VENT.

4

Q

NOW, WHEN THIS EVENT WAS OVER, A POLICE

5

OFFICER DROVE YOU FIRST TO YOUR FRIEND'S HOUSE TO

6

GET SOME THINGS AND THEN DROVE YOU OVER TO THE

7

POLICE STATION TO BE INTERVIEWED; CORRECT?

8

A

YES.

9

Q

AND DO YOU REMEMBER BEING INTERVIEWED AT THE

10

POLICE STATION?

11

A

YES.

12

Q

AND THIS WAS WITHIN A FEW HOURS OF AFTER THE

13

INCIDENT OCCURRED; CORRECT?

14

A

15

WERE VIDEOED AND AUDIOED WHEN THAT TOOK PLACE, YOU

16

KNOW THAT NOW; RIGHT --

17

A

NO.

18

Q

AND HAVE YOU EVER WATCHED THAT DURING YOUR

19

DEPOSITION?

20

A

NO.

21

Q

AND YOU HAVE NO RECOLLECTION OF EVER WATCHING

22

THAT VIDEO?

23

A

THREE OR FOUR HOURS.

AND YOU KNOW THAT YOU

NO.

24

THE COURT:

25

THE WITNESS:

YOU HAVE TO ANSWER AUDIBLY.
NO.
284

U.S. COURT REPORTERS

1

BY MR. HURLEY:

2

Q

3

YOU TOLD THE POLICE THAT WHEN THIS SECOND GROUP OF

4

OFFICERS FIRED TASERS, THAT -- THAT HE YELLED IN

5

SURPRISE BUT HE WAS STILL STANDING.

NOW, WHEN YOU WERE INTERVIEWED BY THE POLICE,

6

DO YOU REMEMBER TELLING THE POLICE THAT?

7

A

NO, I DON'T.

8

Q

DO YOU REMEMBER SEEING THAT?

9

A

NO, I DON'T.

10

Q

AND AT THAT POINT THE OFFICERS TOLD YOU TO

11

BACK UP AND GET OVER BY THE TREE.

12

THE OFFICERS TELLING YOU TO GET OVER BY THE TREE?

13

A

YES.

14

Q

AND AFTER THE THREE OFFICERS IN THE SECOND

15

GROUP FIRED THEIR TASERS, AS YOU RECALL SEEING

16

THREE, ROBERT C. HESTON WAS --

17
18

MR. BURTON:

OBJECTION.

DO YOU REMEMBER

THAT MISSTATES

HIS TESTIMONY I THINK.

19

THE COURT:

I'LL SUSTAIN FOR LACK OF

20

FOUNDATION.

21

THERE WAS SOME QUESTION IN HIS MIND, AS I RECALL

22

HIS TESTIMONY, WITH RESPECT TO THE NUMBER THAT WAS

23

FIRED.

24
25

YOU NEED TO TAKE US BACK, BECAUSE

MR. HURLEY:
Q

VERY WELL.

YOU SAW THE FIRST TWO OFFICERS AND THEN YOU
285

U.S. COURT REPORTERS

1

SAW OTHER TASERS FIRED.

2

OF HOW MANY TASERS YOU PERSONALLY SAW FIRED BY

3

SECOND GROUP?

4

A

NO, I DON'T.

5

Q

DO YOU KNOW IF IT WAS MORE THAN TWO?

6

A

I DON'T KNOW.

7

Q

DID YOU HEAR THE SOUND OF TASERS?

8

A

I DIDN'T KNOW WHAT THEY SOUNDED LIKE AT THE

9

TIME, BUT I DO NOW.
ALL RIGHT.

DO YOU HAVE A RECOLLECTION

10

Q

11

HEAR TASERS?

12

A

YES.

13

Q

AND DO YOU KNOW HOW MANY TASERS YOU HEARD.

14

A

NO.

15

Q

AND COULD YOU DESCRIBE TASERS BEING OUT?

16

A

YES.

17

Q

AND COULD YOU DESCRIBE HOW MANY TASERS --

18

KNOWING WHAT YOU KNOW NOW, DID YOU

THE COURT:

YOU MEAN AFTER THE FIRST

19

GROUP?

20

BY MR. HURLEY:

21

Q

AFTER THE FIRST GROUP?

22

A

NO.

23

Q

AND COULD DO YOU REMEMBER WHO WAS CARRYING A

24

TASER?

25

A

A DARK HAIR AND A MUSTACHE, THE FIRST GUY ON
286

U.S. COURT REPORTERS

1

THE SCENE.

2

Q

3

WITH THE FIRST GUY ON THE SCENE --

4

A

HE WAS THE CLOSEST TO THE DOOR.

5

Q

LET'S GO BACK AGAIN.

NOW, WHEN YOU SAY A DARK HAIR AND A MUSTACHE

6

DID YOU SEE ROBERT C. HESTON THROW A LONG

7

PIECE OF WOOD AT A POLICE OFFICER?

8

A

NO.

9

Q

YOU HAVE SAID IN THE 911 TAPE THAT YOU THOUGHT

10

ONE OF THE OFFICERS WAS INJURED.

DO YOU REMEMBER

11

SAYING THAT?

12

A

YES.

13

Q

AND YOU HEARD THAT JUST NOW?

14

A

YES.

15

Q

AND WHY DID YOU THINK AN OFFICER WAS INJURED?

16

A

I DON'T HAVE ANY IDEA.

17

REASON AT THE TIME.

18

Q

19

OFFICERS ON THE AFTERNOON OR EVENING OF THIS EVENT,

20

THE -- THE -- WHAT OCCURRED IN THE EVENT WAS FRESH

21

IN YOUR MEMORY; CORRECT?

22

A

YES.

23

Q

AND YOUR BEST MEMORY WOULD HAVE BEEN IN THAT

24

AFTERNOON AND EVENING AFTER THE EVENT OCCURRED;

25

CORRECT?

IT MUST HAVE BEEN SOME

NOW, WHEN YOU GAVE THE STATEMENT TO THE

287

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND NOW, WHEN YOU SAW -- GOING BACK AGAIN, YOU

3

SAW THE ONE TASER, TWO TASER.

4

PAUSE.

5

YOU SAW AN OFFICER FIRE A TASER; CORRECT?

6

A

YES.

7

Q

AND YOU DON'T KNOW IF YOU SAW ANY MORE

8

OFFICERS FIRE A TASER; CORRECT?

9

A

AND THEN YOU SEE A

NOW YOU GO UP TO THREE TASER, NUMBER THREE.

I DON'T KNOW.

I WAS AROUND THE CORNER AT THAT

10

POINT BY THE TREE.

THEY ALL WENT INSIDE.

11

Q

12

THE LAWN?

13

A

YES.

14

Q

AND DID YOU -- AND THEN THE SECOND GROUP OF

15

OFFICERS THAT YOU SAY FIRED, WAS THAT GROUP OUTSIDE

16

ON THE LAWN?

17

A

NO, THEY WERE INSIDE AT THE DOORWAY.

18

Q

WELL, WERE THEY INSIDE TOTALLY OR AT THE

19

DOORWAY?

20

A

I COULD SEE THE BACKS OF THEM.

21

Q

HOW MANY BACKS COULD YOU SEE?

22

A

FOUR, FIVE.

23

Q

AND DO YOU RECALL TELLING THE POLICE THAT WHEN

24

THE OFFICERS WENT INSIDE, THEY TASED HIM AGAIN?

25

A

AND DID YOU SEE THE TASERS FIRED OUTSIDE ON

YES.
288

U.S. COURT REPORTERS

1

Q

AND BY SAYING "AGAIN," YOU SAW SOMEONE TASE

2

HIM SOMEWHERE NEAR THE THRESHOLD AND THEN YOU SAW

3

SOMEBODY ELSE TASE -- AN OFFICER, INSIDE OF THE

4

HOUSE; CORRECT?

5

A

YES.

6

Q

AND SO YOU SAW AT LEAST TWO TASERS AFTER THE

7

FIRST GROUP?

8

A

YES.

9

Q

AND YOU TOLD THE POLICE THAT HESTON WAS

10

PULLING THE PROBES OUT AND THROWING THEM BACK WHEN

11

THE SECOND OFFICER TASED HIM.

12

TELLING THEM THAT?

13

A

NO.

14

Q

DID YOU NOT SEE THAT OR YOU DON'T REMEMBER

15

SEEING IT?

16

A

I DON'T THINK I SAW IT.

17

Q

DO YOU KNOW WHY YOU WOULD TELL THE POLICE

18

THAT?

19

A

NO.

20

Q

AND THEN YOU WENT AROUND TO THE BACK-DOOR TO

21

GO INTO THE KITCHEN; CORRECT?

22

A

RIGHT.

23

Q

AND BY THE TIME THAT YOU GOT TO THE BACK-DOOR

24

AND WENT INSIDE OF THE KITCHEN, YOU LOOKED OUT IN

25

THE LIVING ROOM AND YOU SAW POLICE OFFICERS TRYING

DO YOU REMEMBER

289

U.S. COURT REPORTERS

1

TO RESUSCITATE ROBERT HESTON; DO YOU REMEMBER THAT?

2

A

NO.

3

Q

DO YOU RECALL TELLING THE POLICE THAT?

4

A

NO.

5

Q

IS THERE SOME REASON WHY -- WHY -- WITHDRAW

6

THAT.

7

AS YOU SIT HERE TODAY, DO YOU NOT HAVE A

8

RECOLLECTION OF SEEING THE POLICE TRYING TO

9

RESUSCITATE, OR IS IT YOUR TESTIMONY THAT THE

10

POLICE DID NOT TRY TO RESUSCITATE?

11

A

I HAVE NO RECOLLECTION OF IT.

12

Q

BUT YOUR RECOLLECTION WAS GOOD ON THE

13

AFTERNOON AFTER THE EVENT; CORRECT?

14

A

YES.

15

Q

NOW, WHAT YOU SAW, THE WAY YOU SAW ROBERT C.

16

HESTON ACTING THAT DAY WAS VERY UNUSUAL TO YOU,

17

WASN'T IT?

18

A

YES.

19

Q

AND YOU TESTIFIED THAT YOU HAVE SEEN HUNDREDS

20

OF PEOPLE ON METHAMPHETAMINE AND ROBERT C. HESTON

21

THAT DAY WAS DIFFERENT THAN ALL OF THE HUNDREDS YOU

22

HAD SEEN BEFORE; CORRECT?

23

A

YES.

24

Q

AND YOU YOURSELF HAVE TAKEN METHAMPHETAMINE

25

COUNTLESS TIMES, OVER A HUNDRED, AND WHAT YOU SAW
290

U.S. COURT REPORTERS

1

IN HIM THAT DAY WAS TOTALLY DIFFERENT THAN YOU EVER

2

EXPERIENCED; CORRECT?

3

A

4

YES.
MR. HURLEY:

YOUR HONOR, AT THIS TIME I

5

WOULD LIKE TO PLAY A PORTION OF THE POLICE

6

INTERVIEW OF MR. SATREE, AND I HAVE TRANSCRIPTS.

7

THE COURT:

ALL RIGHT.

AND SO HOW ARE WE

8

MARKING -- IS THIS ALSO ON A TAPE OR A CD OF SOME

9

SORT?

10

MR. HURLEY:

11

THE COURT:

12

MR. HURLEY:

IT IS A DVD.
ALL RIGHT.

HOW IS IT MARKED?

THE DVD ITSELF IS

13

EXHIBIT 206 AND THE TRANSCRIPT WOULD BE TRANSCRIPT

14

FOR EXHIBIT 206.

15

IT WILL TAKE ME ABOUT THREE MINUTES TO

16

HAND OUT THE TRANSCRIPTS AND MAKE SURE IT STARTS.

17

IT WOULDN'T RUN THROUGH THIS.

18

THE COURT:

CERTAINLY.

19

IT.

WE'LL STAY IN PLACE.

20

JUST TO HAVE YOU SET THIS UP.

21

MR. HURLEY:

22

THE COURT:

23

FOR THE JURY.

GO AHEAD AND DO

WE'RE NOT GOING TO LEAVE

ALL RIGHT.
WOULD YOU GIVE A TRANSCRIPT

IS THERE ENOUGH FOR THE JURY?

24

MS. MATCHAM:

YES, I BELIEVE.

25

(WHEREUPON, PLAINTIFFS' EXHIBIT NUMBER 206,
291

U.S. COURT REPORTERS

1

HAVING BEEN PREVIOUSLY MARKED FOR

2

IDENTIFICATION, WAS ADMITTED INTO

3

EVIDENCE.)

4

MS. MATCHAM:

5

YOUR HONOR, IF I MAY

APPROACH, I THINK THIS IS FOR YOU.

6

THE COURT:

7

(PAUSE IN PROCEEDINGS.)

8

MR. HURLEY:

9
10

YOUR HONOR, I WOULD REQUEST

THAT THE JURY AND THE COURT TURN TO THE TRANSCRIPT,
PAGE 25, LINE 20.

11

THE COURT:

12

MR. HURLEY:

13

AH.

VERY WELL.
AND THE FILM SHOULD BE IN

FROM THERE.

14

MR. BURTON:

I'M SORRY, I WOULD LIKE THE

15

WHOLE PASSAGE THAT HE IS GOING TO PLAY AND MAKE AN

16

OBJECTION THAT IT IS HEARSAY.

17

THE COURT:

18

MR. BURTON:

PARDON ME?
I WOULD LIKE TO HAVE THE

19

WHOLE PASSAGE HE'S GOING TO PLAY TO MAKE AN

20

OBJECTION BECAUSE IT'S HEARSAY AND IT WOULD ONLY

21

COME IN AS IMPEACHMENT.

22
23
24
25

THE COURT:

I DIDN'T UNDERSTAND THE FIRST

PART.
HE IS PERMITTED, FOR PURPOSES OF
IMPEACHING THE WITNESS, TO PLAY AN INCONSISTENT
292

U.S. COURT REPORTERS

1

STATEMENT.

2

THING.

3

UNDERSTAND THE OBJECTION, QUITE FRANKLY.

HE COULD PLAY ANY PART OF IT, BUT I DON'T

4
5

MR. BURTON:

I'M ASKING MR. HURLEY IF COUNSEL COULD
IDENTIFY WHAT HE'S GOING TO PLAY.

8
9

I JUST DON'T KNOW WHAT THE

WHOLE PASSAGE IS THAT HE IS PLAYING.

6
7

HE DOESN'T HAVE TO PLAY THE WHOLE

THE COURT:

HE'S TURNED US TO PAGE 25,

LINE 20 AND YOU WANT TO KNOW TO HOW FAR HE'S GOING

10

TO -- I THOUGHT THIS WAS ALL IN EVIDENCE BY

11

STIPULATION.

12

THING SO I'VE GOT THE WHOLE TRANSCRIPT IN EVIDENCE

13

AT THIS POINT.

14

THERE WAS NO OBJECTION TO THE WHOLE

MR. BURTON:

I'M SORRY IF THAT HAPPENED.

15

I THOUGHT IT WAS ONLY THE EXCERPTS THAT HE WAS

16

GOING TO ADMIT AS INCONSISTENT STATEMENTS THAT WERE

17

COMING IN.

18

HONOR.

I'M SORRY IF I MISUNDERSTOOD THAT, YOUR

19

THE COURT:

20

MR. HURLEY:

21

206 IS THE POLICE INTERVIEW

OF CLIFFORD SATREE.

22

THE COURT:

23

MR. HURLEY:

24

THE COURT:

25

WHAT IS -- WHAT IS 206?

THE ENTIRE TRANSCRIPT?
YES, IT IS.
AND ARE YOU OBJECTING TO THE

TRANSCRIPT?
293

U.S. COURT REPORTERS

1

MR. BURTON:

WE OBJECT TO THE TRANSCRIPT

2

IN TERMS OF HEARSAY.

3

INCONSISTENT IN COMING IN AS IMPEACHMENT.

4

THE COURT:

CERTAIN PASSAGES MAY BE

WELL, IT SEEMS THAT I NEED TO

5

TAKE CARE OF THAT OUT OF THE PRESENCE OF THE JURY

6

IN ANOTHER WAY, BECAUSE THEY HAVE BEEN GIVEN AN

7

ENTIRE TRANSCRIPT.

8

WHY DON'T YOU PAY ATTENTION AT THIS POINT

9

TO ONLY THE PORTION OF THE TRANSCRIPT THAT IS BEING

10

PLAYED FOR YOU, MEMBERS OF THE JURY, AND DON'T TURN

11

YOUR ATTENTION TO ANY OTHER PORTION UNTIL I HAVE

12

GIVEN YOU PERMISSION TO DO SO.

13

WHAT IS THE INCLUSIVE PORTION THAT YOU'RE

14

GOING TO PLAY FOR COUNSEL?

15

LINE 20 TO WHEN?

16
17

MR. HURLEY:

STARTING ON PAGE 25,

AT THIS POINT IT WOULD BE,

YOUR HONOR, PAGE 23, LINE 7 OF THE TRANSCRIPT.

18

THE COURT:

SO ALL OF THE MATERIAL

19

BETWEEN THE BEGINNING PART AND PAGE 23, LINE 7.

20

VERY WELL.

21
22

MR. BURTON:

COULD I HAVE A MOMENT, YOUR

HONOR?

23

(PAUSE IN PROCEEDINGS.)

24

(WHEREUPON, AN AUDIOTAPE WAS PLAYED IN

25

OPEN COURT, OFF THE RECORD.)
294

U.S. COURT REPORTERS

1
2
3
4

THE COURT:

I HEAR SOME AUDIO.

NOW STARTED IT?
MR. HURLEY:

NO, YOUR HONOR.

I JUST AM

MAKING SURE.

5

THE COURT:

6

(PAUSE IN PROCEEDINGS.)

7

THE COURT:

8

HAVE YOU

OH, OKAY.

ARE YOU WAITING FOR IT TO CUE

UP OR SOMETHING?

9

MR. HURLEY:

NO, IT'S READY TO CUE UP.

10

MR. BURTON:

IF I COULD HAVE A FEW MORE

11

MINUTES, YOUR HONOR.

12

THE COURT:

I HAVE SATISFIED MYSELF THAT

13

THIS IS IN THE AREA, THE SAME AREA THAT THE WITNESS

14

HAS TESTIFIED.

15

SO ANY OBJECTION TO PROCEEDING AT THIS

16

POINT IS OVERRULED SUBJECT TO MY GIVING THE JURY

17

INSTRUCTIONS TO DISREGARD PORTIONS OF IT, IT DOES

18

SEEM TO ME THAT IN THE INCLUSIVE PORTION IT RELATES

19

TO HIS TESTIMONY HERE ON DIRECT AND EARLIER ON

20

CROSS-EXAMINATION.

21

MR. BURTON:

22

THE COURT:

23

YOU MIGHT WANT TO ADJUST THE SOUND SO YOU

24
25

I HAVE NO OBJECTION.
YOU MAY PROCEED.

HAVE LESS BASS AND MORE TREBLE.
(WHEREUPON, AN AUDIOTAPE WAS PLAYED IN
295

U.S. COURT REPORTERS

1

OPEN COURT, OFF THE RECORD.)

2
3

THE COURT:

BOTH YOUR COMPUTER AND THE SYSTEM?

4
5

ARE YOU AT MAXIMUM VOLUME ON

(WHEREUPON, AN AUDIOTAPE WAS PLAYED IN
OPEN COURT, OFF THE RECORD.)

6

THE COURT:

7

THAT POINT.

8

BY MR. HURLEY:

9

Q

NOW, YOU HAD US MARKED TO

ARE YOU GOING TO CONTINUE TO PLAY IT?

NOW, MR. SATREE, WHEN YOU WENT AND LOOKED IN

10

THE FRONT DOOR, YOU SAW THAT ROBERT C. HESTON WAS

11

DOWN ON THE FLOOR; IS THAT RIGHT?

12

A

YEAH.

13

Q

SO --

14

THE COURT:

15

THE BENEFIT OF THE MICROPHONE.

16

THE WITNESS:

17

THE COURT:

SIT FORWARD, SIR, SO WE HAVE

YES.
THANK YOU.

18

BY MR. HURLEY:

19

Q

20

TREE UP TO THE FRONT DOOR, AND YOU LOOKED IN THE

21

FRONT DOOR, AND THEN YOU WENT BACK AROUND THE HOUSE

22

TO GET TO THE KITCHEN?

23

A

24
25

SO YOU TRAVELLED FROM WHERE YOU WERE BY THE

YES.
MR. HURLEY:

THANK YOU.

NOTHING FURTHER,

YOUR HONOR.
296

U.S. COURT REPORTERS

1
2

THE COURT:

ANY QUESTIONS FROM COUNSEL

FOR TASER?

3

MS. O'LINN:

4

BRIEFLY, YOUR HONOR.

CROSS-EXAMINATION

5

BY MS. O'LINN:

6

Q

GOOD AFTERNOON, MR. SATREE.

7

A

GOOD AFTERNOON.

8

Q

IMMEDIATELY AFTER THIS INCIDENT, WHAT HAPPENED

9

TO YOU?

10

A

TO ME?

11

Q

YES.

12

A

I NEVER HAD BEEN TO PRISON BEFORE.

13

Q

YOU WENT TO PRISON?

14

A

YEAH.

15

Q

AND HOW LONG WERE YOU THERE?

16

A

EIGHT MONTHS OR NINE MONTHS.

17

Q

AND YOU WERE ARRESTED BY THE SALINAS POLICE

18

DEPARTMENT IN THE PAST; CORRECT?

19

A

YEAH.

20

Q

OKAY.

21

EVER DISCUSS WITH ANYONE WHAT HAD HAPPENED TO YOUR

22

FRIEND BOBBY?

23

A

I DON'T RECALL.

24

Q

DID YOU HAVE -- DID YOU HAVE ANY EXPERIENCE IN

25

PRISON WITH -- WITH DISCUSSIONS ABOUT -- ABOUT HOW

YOU WENT BACK TO PRISON, DIDN'T YOU?

AND WHILE YOU WERE IN PRISON, DID YOU

297

U.S. COURT REPORTERS

1

TASERS WORK?

2

A

NO.

3

Q

NOT WITH OTHER PRISONERS ABOUT HOW --

4

A

NO.

5

Q

-- ABOUT HOW TO BREAK WIRES OFF YOUR BODY --

6

A

NO.

7

Q

-- IF YOU'RE SHOT WITH A TASER?

8

A

NO.

9

Q

AND AT THE END OF YOUR CALL TO THE POLICE

10

DEPARTMENT YOU SAID THAT, IF YOU RECALL, THAT HE'S

11

NOT GIVING UP; IS THAT CORRECT?

12

A

YES.

13

Q

AND WHY DID YOU SAY THAT?

14

A

BECAUSE HE WAS STILL MAKING NOISE AND MOVING

15

AROUND.

16

Q

17

CALL ENDED; CORRECT?

18

A

19
20

OKAY.

AND THAT WAS RIGHT BEFORE THE TELEPHONE

YES.
MS. O'LINN:

NOTHING FURTHER.

21

THE COURT:

22

MR. BURTON:

23

THANK YOU, YOUR HONOR.

VERY WELL.

ANY REDIRECT?

NO, YOUR HONOR.

THANK YOU.

I WOULD ASK THAT THE WITNESS BE EXCUSED.

24

THE COURT:

25

MR. HURLEY:

VERY WELL.
THE WITNESS WAS UNDER
298

U.S. COURT REPORTERS

1

SUBPOENA AND HE'S NOW EXCUSED.

2

THE COURT:

VERY WELL.

YOU'RE NOW

3

EXCUSED, SIR.

YOU'RE FREE TO GO OR YOU'RE FREE TO

4

REMAIN AS A MEMBER OF THE AUDIENCE TO WATCH THE

5

TRIAL.

IT'S UP TO YOU, BUT YOU'RE FREE TO GO.

6

THE WITNESS:

7

THE COURT:

8

MR. BURTON:

9

THANK YOU.
THANK YOU.
WE'LL RESUME WITH OFFICER

FAIRBANKS.

10

THE COURT:

HOW ARE YOU DOING?

11

ORDINARILY I TAKE A BREAK AT AROUND 2:30 OR SO.

12

LET'S HAVE THE OFFICER BACK.

13

VERY WELL.

14

RETURN TO THE STAND.

15

ALREADY BEEN SWORN IN THIS MATTER.

16

BY MR. WILLIAMSON:

19

Q

20

22

I'LL REMIND YOU THAT YOU HAVE

THANK YOU, YOUR HONOR.

AS-ON CROSS-EXAMINATION (RESUMED)

18

21

OFFICER FAIRBANKS, PLEASE

MR. WILLIAMSON:

17

SO

YOU CAN PUT THAT ASIDE, OFFICER FAIRBANKS.
WELL, GOOD AFTERNOON, OFFICER FAIRBANKS.

A

GOOD AFTERNOON.
MR. WILLIAMSON:

WE HAVE COMPLETE FAITH

23

IN THE SYSTEM, YOUR HONOR, WE JUST DON'T HAVE FAITH

24

IN OURSELVES, BUT I THINK I HAVE GOT IT STRAIGHT

25

HERE SO LET'S HOPE IT WORKS.
299

U.S. COURT REPORTERS

1
2

Q

OFFICER FAIRBANKS, THIS MORNING WHEN WE LEFT

3

OFF I WAS ABOUT TO SHOW YOU A VIDEO.

4

WHAT I WOULD LIKE TO DO AGAIN, TO REPEAT

5

THIS MORNING, WAS IF WE COULD SPECIFICALLY FOCUS ON

6

THE CALVES OF THE INDIVIDUAL AND THEN I'M GOING TO

7

ASK YOU A QUESTION ABOUT THAT.

8

A

OKAY.

9

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN

10

COURT, OFF THE RECORD.)

11

BY MR. WILLIAMSON:

12

Q

13

YOUR TRAINING?

14

A

YES.

15

Q

AND DO YOU KNOW IF, FOR EXAMPLE, THAT WAS A

16

POLICE OFFICER?

17

A

I DON'T KNOW THAT FOR SURE.

18

Q

AND THEN YOU RECALL THEN IN THAT PARTICULAR

19

USE VIDEO THAT THE INDIVIDUAL WAS SUBJECTED TO A

20

FULL ONE FIVE-SECOND DISCHARGE WITH TWO TASERS.

21

YOU RECALL THAT?

22

A

YES.

23

Q

OKAY.

24

MUSCLES AS I DIRECTED YOU TO DO DURING THAT?

25

A

DO YOU RECALL SEEING THAT USE VIDEO DURING

I WOULD ASSUME.

DO

NOW, DID YOU HAPPEN TO OBSERVE HIS CALF

YES.
300

U.S. COURT REPORTERS

1

Q

AND YOU SAW THE PRETTY VIOLENT SHAKING OF HIS

2

CALF MUSCLE, THE CONTRACTION OF THE CALF MUSCLE?

3

A

YES.

4

Q

AND WAS THAT YOUR EXPERIENCE WHEN YOU WERE

5

SUBJECTED TO THE TASER DISCHARGE?

6

A

7

TOES AS WELL, VOLUNTARILY.

8

Q

9

EXPERIENCE, YOU HAVE USED A TASER IN THE FIELD?

SOMEWHAT.

OKAY.

IT APPEARS HE MIGHT BE TAPPING HIS

LET ME ASK YOU THIS:

IN YOUR

10

A

YES.

11

Q

AND IN YOUR TRAINING HAVE YOU ALSO SUBJECTED

12

PEOPLE OR OTHER OFFICERS TO OFFICERS WITH TASERS?

13

A

YES.

14

Q

AND IN YOUR EXPERIENCE, WHETHER IT BE OUT IN

15

THE FIELD OR IN YOUR TRAINING, THAT PEOPLE WHO ARE

16

SUBJECTED TO TASER DISCHARGES HAVE SEVERE MUSCLE

17

CONTRACTIONS THAT YOU'RE ABLE TO OBSERVE THAT?

18

A

YES.

19

Q

NOW, WHEN YOU WERE SPECIFICALLY SUBJECTED TO A

20

TASER DISCHARGE DURING YOUR TRAINING, WOULD IT BE

21

CORRECT TO SAY THAT YOU COULDN'T MOVE YOUR ARMS OR

22

LEGS?

23

A

ONE OF THE INSTANCES.

24

Q

OKAY.

25

BOTH PROBES WERE ATTACHED TO YOU; CORRECT?

AND THE INSTANCE WOULD BE THE ONE WHERE

301

U.S. COURT REPORTERS

1

A

CORRECT.

2

Q

NOW, I WANT TO SHOW YOU THE NEXT SLIDE

3

ENTITLED "PROPULSION SYSTEM."

4

FIRST OF ALL, DO YOU RECOGNIZE THIS

5

SLIDE?

6

A

YES.

7

Q

AND AS I UNDERSTAND IT, WHEN YOU FIRST FIRE

8

THE M26, ESSENTIALLY THE FRONT CARTRIDGE OPENED, A

9

DOOR OPENED, I GUESS, AND TWO PROBES WITH WIRES FLY

10

OUT THE FRONT; RIGHT?

11

A

CORRECT.

12

Q

AND YOU -- YOU -- I'M NOT SURE IF WE COVERED

13

THIS THIS MORNING, BUT THE MAXIMUM RANGE OF THE

14

WIRES IS 21 FEET; CORRECT?

15

A

YES.

16

Q

AND DO YOU RECALL FROM YOUR TRAINING THAT THE

17

PROBES FIRE AT A LITTLE OVER 160 FEET PER SECOND?

18

A

YES.

19

Q

AND THE DARTS THEMSELVES, THEY'RE PRETTY

20

SHARP, THEY HAVE A SHARP POINT AT THE END; CORRECT?

21

A

YES.

22

Q

AND THEY HAVE ALSO KIND OF A BARB SIMILAR TO A

23

FISH HOOK?

24

A

CORRECT.

25

Q

THAT'S PART OF THAT PROBE; CORRECT?
302

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND OBVIOUSLY -- WELL, STRIKE THAT.

3

THE PURPOSE, AS YOU UNDERSTAND IT FROM

4

YOUR TRAINING, IS THAT THE POINT OF THE DART IS SO

5

SHARP IS THAT IT'S MEANT TO STICK INTO EITHER

6

CLOTHING OR SKIN; CORRECT?

7

A

CORRECT.

8

Q

NOW, AS PART OF YOUR TRAINING OF YOUR FELLOW

9

OFFICERS IN THE SALINAS POLICE DEPARTMENT, DO YOU

10

TRAIN THEM WITH WHAT THE EFFECTIVE RANGE OF THE

11

TASER M26 IS?

12

A

THE EFFECT OF THE RANGE?

13

Q

AND WHAT IS THAT?

14

A

12 TO 18 FEET.

15

Q

OKAY.

16

A

IDEAL EFFECTIVE RANGE I SHOULD SAY.

17

Q

WELL, I WAS GOING TO ASK YOU AND THAT WOULD BE

18

A DIFFERENT WORD, AND THAT WOULD BE OPTIMUM?

19

A

OPTIMUM, OKAY.

20

Q

AND WOULD THE OPTIMUM RANGE OF THAT -- HOW

21

MANY FEET?

22

A

12 TO 18 FEET.

23

Q

AND WHY IS THE OPTIMUM RANGE OF THE TASER LESS

24

THAN THE 21 FEET OF THE WIRE?

25

A

YES.

WHY IS THAT LESS?

WELL, I BELIEVE 18 FEET IS GETTING TOWARDS THE
303

U.S. COURT REPORTERS

1

END BY BEING AT THE MAXIMUM DISTANCE THERE COULD BE

2

FAILURES SUCH AS AN INDIVIDUAL FALLING BACKWARD AND

3

REMOVING THE -- THE PROBES FROM THEMSELF OR WIRES

4

BREAKING.

5

Q

6

IS CLOSE TO THE MAXIMUM RANGE OF THE 21 FEET AND --

7

AND DUE TO THE TASER DISCHARGE THEY FALL BACKWARDS,

8

THAT'S PROBABLY GOING TO EITHER BREAK THE WIRES OR

9

THE PROBES ARE GOING TO COME OUT OF THAT PERSON.

SO, IN OTHER WORDS, IF A PERSON, FOR EXAMPLE,

10

IS THAT A FAIR STATEMENT?

11

A

SURE.

12

Q

NOW, ALSO AS PART OF YOUR TRAINING WERE YOU

13

TAUGHT THAT WHEN A PROBE STRIKES A PERSON THAT IT

14

ESSENTIALLY CAUTERIZES OR BURNS THE SKIN AND LEAVES

15

A VERY DISTINCT MARK ON THE SKIN?

16

A

YES.

17

Q

I'D LIKE TO SHOW YOU THE NEXT SLIDE THEN.

18

WELL, WE HAVE ALREADY TALKED ABOUT THIS.

19

OKAY.

DO YOU RECOGNIZE THIS SLIDE FROM

20

YOUR VERSION 8 POWER POINT TRAINING?

21

A

YES.

22

Q

AND I'D LIKE TO FOCUS YOU ON THE RIGHT SIDE OF

23

THE SLIDE.

24

APPEARS TO HAVE TWO CIRCULAR RED MARKS ON HIS BACK?

25

A

YOU SEE THE BOTTOM WHERE THE GENTLEMAN

YES.
304

U.S. COURT REPORTERS

1

Q

AND THOSE WOULD BE CONSISTENT WITH A -- WOULD

2

THEY NOT, WITH A PERSON WHO HAS BEEN SHOT WITH A

3

TASER AND THAT'S THE RESIDUAL MARK THAT IS LEFT

4

AFTERWARDS; RIGHT?

5

A

YES.

6

Q

AND, IN FACT, THIS -- THIS SLIDE WAS IN THE

7

PRESENTATION TO DEMONSTRATE FOR PEOPLE LIKE

8

YOURSELF WHAT YOU COULD EXPECT TO -- TO OBSERVE

9

WHEN YOU SHOT SOMEBODY WITH A TASER AND THE MARK

10

THAT IT LEFT; RIGHT?

11

A

YES.

12

Q

NOW, LET'S GO ON TO THE NEXT SLIDE, IF I

13

COULD.

14

DEVICE AND HOW THAT WORKS.

I WANT TO TALK ABOUT THE CYCLING OF THE

15

BASED ON YOUR TRAINING, WAS IT YOUR

16

UNDERSTANDING THAT THE DEVICE AUTOMATICALLY CYCLES

17

WHEN THE TRIGGER IS DEPRESSED FOR FIVE SECONDS?

18

A

YES.

19

Q

AND WHAT HAPPENS WHEN YOU DEPRESS THE TRIGGER,

20

LET'S SAY, DURING THE FIRST SECOND OR TWO, WHAT

21

HAPPENS IN TERMS OF THE SITE?

22

A

23

TWO SECONDS --

24

Q

25

IF YOU ONLY HOLD IT FOR THE FIRST

I'M SORRY, I DIDN'T MEAN TO INTERRUPT YOU.
LET'S ASSUME SOMEONE HOLDS THE TRIGGERS
305

U.S. COURT REPORTERS

1

OR PRESSES IT OR LET'S GO OF THE TRIGGER AFTER A

2

SECOND OR SO, WHAT HAPPENS TO THE DEVICE?

3

A

IT WOULD CYCLE FOR ABOUT FIVE SECONDS.

4

Q

SO REGARDLESS, DURING THAT FIVE-SECOND PERIOD,

5

REGARDLESS OF HOW LONG YOU PRESS THE TRIGGER, THE

6

DEVICE CONTINUES TO CYCLE; CORRECT?

7

A

CORRECT.

8

Q

FOR FIVE SECONDS?

9

A

RIGHT.

10

Q

AND WHAT HAPPENS WHEN YOU CONTINUE TO -- TO

11

DEPRESS THE DEVICE; IN OTHER WORDS, YOU DEPRESSED

12

THE TRIGGER AND YOU HOLD IT DOWN, WHAT HAPPENS TO

13

THE DEVICE?

14

A

IT WOULD CONTINUE TO CYCLE.

15

Q

I WANT TO GO ON TO THE NEXT SLIDE TO SHOW YOU.

16

NOW, WERE YOU TAUGHT DURING YOUR TRAINING

17

THAT THE TASER CYCLE, WHEN IT MAKES GOOD CONTACT

18

WITH THE PERSON, IS RELATIVELY QUIET?

19

A

YES.

20

Q

BUT NONETHELESS, YOU CAN STILL HEAR THE TASER

21

CYCLING; TRUE?

22

A

TRUE.

23

Q

AND YOU CAN HEAR A VERY DEFINITE CLICKING

24

SOUND WHEN THE DEVICE WAS IN CONTACT WITH THE

25

PERSON AND IS STILL CYCLING; RIGHT?
306

U.S. COURT REPORTERS

1

A

YES.

2

Q

OKAY.

3

ON JUST A SECOND.

4
5

LET ME SHOW YOU THE NEXT VIDEO.

HOLD

WELL, LET'S TAKE A LOOK AT THIS VIDEO AND
THEN I'LL ASK YOU SOME QUESTIONS ABOUT IT.

6

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN

7

COURT, OFF THE RECORD.)

8

BY MR. WILLIAMSON:

9

Q

OKAY.

OFFICER FAIRBANKS, DO YOU AGREE THAT

10

THIS PARTICULAR SET OF VIDEOS WAS MEANT TO DESCRIBE

11

THE SITUATION WHERE -- WHERE THE CONTACT WAS A GOOD

12

CONTACT WITH THE PERSON AND TO DEMONSTRATE WHAT THE

13

SOUND OF THE DEVICE WOULD BE WITH THIS GOOD

14

CONTACT?

15

A

YES.

16

Q

AND WOULD YOU ALSO AGREE THAT IN EACH ONE OF

17

THE VIDEOS THAT YOU JUST SAW, THAT THE CLICKING

18

SOUND OF THE DEVICE IS VERY AUDIBLE, THAT YOU COULD

19

HEAR THAT QUITE EASILY?

20

A

YES.

21

Q

NOW, OFFICER FAIRBANKS, DO YOU AGREE THAT THE

22

TASER IS DESIGNED TO INCAPACITATE A PERSON?

23

A

YES.

24

Q

AND AFTER A PERSON IS INCAPACITATED BY THE

25

DEVICE, WOULD YOU AGREE THAT HE'S THEN IN A
307

U.S. COURT REPORTERS

1

POSITION, HE OR SHE IS IN A POSITION TO BE TAKEN

2

INTO CUSTODY AT THAT POINT?

3

A

IDEALLY.

4

Q

OKAY.

5

NEXT SLIDE WHICH IS ENTITLED "TACTICAL

6

CONSIDERATIONS."

7

AT THIS POINT I WANT TO SHOW YOU THE

DO YOU RECOGNIZE THIS SLIDE?

8

A

YES.

9

Q

AND THE SLIDE INDICATES THAT A FULL

10

FIVE-SECOND DEPLOYMENT SHOULD BE APPLIED WITHOUT

11

INTERRUPTION.

12

DEVICE; CORRECT?

13

A

YEAH.

14

Q

AND IT REFERS TO THE, TO THE -- TO SOMETHING

15

CALLED THE WINDOW OF OPPORTUNITY.

16

WELL, THAT'S AUTOMATIC WITH THE

WHAT DO YOU UNDERSTAND THE WINDOW OF

17

OPPORTUNITY TO BE?

18

A

19

BE THE POINT IN TIME WHERE THE FIVE-SECOND CYCLE IS

20

CYCLING AND -- AND THE INDIVIDUAL OR SUSPECT IS

21

INCAPACITATED TO GAIN A POSITION OF ADVANTAGE TO

22

FACILITATE HANDCUFFING AT THE END OF THAT

23

FIVE-SECOND CYCLE.

24

Q

25

DEPLOYMENT IS TO CONTROL A SUBJECT AND GET HIM INTO

THE WINDOW OF OPPORTUNITY, AS WE TRAIN, WOULD

WOULD YOU AGREE THAT THE PURPOSE OF THE TASER

308

U.S. COURT REPORTERS

1

RESTRAINTS AS QUICKLY AS POSSIBLE?

2

A

3

MAY NOT BE ABLE TO OCCUR.

4

Q

5

WANT TO GET THEM INTO CUFFS AS QUICKLY AS YOU CAN;

6

RIGHT?

7

A

YES.

8

Q

AND -- AND ONCE THE PERSON IS INCAPACITATED BY

9

THE TASER, YOU WANT TO MOVE IN AS QUICKLY AS YOU

NOT NECESSARILY.

CHANGING A SITUATION, THAT

BUT WHEN YOU WANT TO RESTRAIN A PERSON, YOU

10

CAN, AS YOU SAID, GAIN A POSITION OF ADVANTAGE, AND

11

CUFF THAT PERSON; CORRECT?

12

A

YES.

13

Q

WOULD YOU AGREE THAT -- THAT IDEALLY WHEN AN

14

OFFICER DEPLOYS HIS TASER, THERE SHOULD BE OTHER

15

OFFICERS PRESENT WHO -- WHO CAN GAIN THIS POSITION

16

OF ADVANTAGE TO PUT A PERSON IN RESTRAINTS?

17

A

IDEALLY, YES.

18

Q

SO ASSUMING THAT YOU HAVE DRAWN YOUR TASER AND

19

FIRED IT AT A PERSON, THE NEXT THING YOU WOULD WANT

20

TO DO IS GAIN THAT POSITION OR GET INTO THAT

21

POSITION OF ADVANTAGE WHILE THE PERSON IS

22

INCAPACITATED AND THEN TAKE THEM INTO CUSTODY,

23

IDEALLY?

24

A

25

TASED SOMEONE?

ARE YOU SPEAKING A PERSON BEING ME HAS -- HAS

309

U.S. COURT REPORTERS

1

Q

RIGHT.

2

A

WELL, NO, I WOULD BE HOLDING THE TASER --

3

Q

OKAY.

4

YOU, AND I APOLOGIZE TO THE COURT FOR DOING THAT.

5

WHAT I MEAN TO SAY IS THAT LET'S ASSUME

I'M SORRY.

I DON'T MEAN TO TALK OVER

6

THAT YOU'RE THE PERSON USING THE TASER AND YOU HAVE

7

A GROUP OF OTHER OFFICERS PRESENT WHO ARE AVAILABLE

8

TO TAKE A PERSON INTO CUSTODY.

9

SITUATION WOULD BE THAT YOU WOULD FIRE YOUR TASER

IDEALLY THE

10

AND YOU WOULD INCAPACITATE THAT PERSON; RIGHT?

11

A

YES.

12

Q

AND THEN THE TEAM OF OTHER OFFICERS WOULD MOVE

13

IN AND RESTRAIN THE PERSON AND EVENTUALLY HANDCUFF

14

THEM; CORRECT?

15

A

YES.

16

Q

WOULD IT BE FAIR TO SAY, OFFICER FAIRBANKS,

17

THAT, IN FACT, AS A TRAINING INSTRUCTOR YOU TRAIN

18

OTHER POLICE OFFICERS; THAT -- THAT ONCE A PERSON

19

HAS BEEN SHOT WITH A TASER, AND FALLEN TO THE

20

GROUND, THAT THEY SHOULD MOVE IN AS QUICKLY AS

21

POSSIBLE AND GAIN THIS POSITION OF ADVANTAGE TO

22

TAKE THE PERSON INTO CUSTODY.

23

WHAT YOU TRAIN OTHER OFFICERS?

24

A

TO GET INTO A POSITION TO, YES.

25

Q

I WANT TO SHOW YOU THE NEXT SLIDE.

YES.

THAT'S, IN FACT,

310

U.S. COURT REPORTERS

1

THIS IS ACTUALLY A VIDEO.

AND I WANT YOU

2

TO SPECIFICALLY, AS WE TALK ABOUT THIS VIDEO IN A

3

SECOND, I WANT YOU TO FOCUS --

4

YOU CAN SEE THIS GENTLEMAN IN THE VIDEO;

5

RIGHT?

6

A

YES.

7

Q

AND HE OBVIOUSLY IS A POLICE OFFICER.

8

RECOGNIZE HIM BY THE WAY?

9

A

DO I RECOGNIZE HIM PERSONALLY?

10

Q

YEAH.

11

A

NO.

12

Q

AND YOU CAN SEE HE'S A PRETTY MUSCLED

13

INDIVIDUAL.

14

A

YES.

15

Q

AND LET'S WATCH THE VIDEO, AND I SPECIFICALLY

16

WANT TO FOCUS YOU ON THE GENTLEMAN'S ARMS.

17

DO YOU

DO YOU AGREE WITH THAT?

OKAY?

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN

18

COURT, OFF THE RECORD.)

19

BY MR. WILLIAMSON:

20

Q

21

MUSCLED INDIVIDUAL, THE KIND OF -- AS SOON AS HE

22

GOT SHOT WITH THE TASER HIS ARMS WENT IN LIKE THIS

23

AND HIS FISTS WERE CLINCHED AND HE BASICALLY STAYED

24

IN THAT POSITION UNTIL HE FELL TO THE GROUND.

25

OKAY.

NOW, DID YOU NOTICE THIS HEAVILY

IS THAT ACCURATE?
311

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND -- AND WOULD THAT BE CONSISTENT WITH THE

3

TRAINING THAT YOU HAVE HAD THAT WHEN A PERSON IS --

4

IS SHOCKED WITH A TASER THAT THE MUSCLE

5

CONTRACTIONS IMMEDIATELY CAUSE ARMS TO BE VERY

6

UNRIGID?

7

A

SOMETIMES.

8

Q

OKAY.

9

GOING THROUGH THE TRAINING CLASS AND YOU WERE

AND IN YOUR EXPERIENCE WHEN YOU WERE

10

TASED, DID YOUR ARMS BECOME RIGID?

11

A

ONE OF THEM ON THE SECOND APPLICATION.

12

Q

OKAY.

13

BEING IN THE FIELD WHERE YOU HAVE DEPLOYED YOUR

14

TASER WHERE, WHERE A PERSON'S ARMS WILL BECOME

15

RIGID ALMOST IMMEDIATELY AS SOON AS THEY'RE

16

SUBJECTED TO A TASER DISCHARGE?

17

A

YES.

18

Q

AND, IN FACT, THAT'S THE EFFECT THAT YOU WANT,

19

ISN'T IT?

20

A

YEAH.

21

Q

AND WHEN THE TASER IS EFFECTIVE, IT'S

22

INTERRUPTING THE BRAIN'S ABILITY TO CONTROL THE

23

MUSCLES, CAUSING THOSE MUSCLES TO BE AFFECTED BY

24

THE -- BY THE SIMULTANEOUS CONTRACTIONS OF THE

25

MUSCLES; RIGHT?

HAVE YOU HAD THE EXPERIENCE OF -- OF

312

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND AGAIN, BASED ON YOUR EXPERIENCE, YOUR

3

TRAINING AND EXPERIENCE IN THE FIELD, IT'S TYPICAL

4

THAT WHEN A PERSON IS SUBJECTED TO A TASER, THEY

5

FALL TO THE GROUND VERY QUICKLY?

6

A

NOT NECESSARILY.

7

Q

WELL, I'M NOT SAYING IN ALL CASES BUT I'M

8

SAYING GENERALLY MOST PEOPLE, IN FACT, THE VAST

9

MAJORITY OF PEOPLE SUBJECTED TO TASER CHARGE, GO

10

DOWN ALMOST IMMEDIATELY?

11

A

YES.

12

Q

AND, IN FACT, WHEN I SHOWED YOU THE VIDEOS

13

EARLIER OF THE POLICE OFFICERS THAT WERE ALL TASED,

14

EACH ONE OF THEM WENT DOWN, DIDN'T THEY?

15

A

OR ASSISTED TO THE GROUND, YES.

16

Q

I WANT TO MOVE ONTO THE NEXT SLIDE.

17

WE JUST SKIPPED A FEW.

18
19
20

BEAR WITH ME.

COULD I HAVE A MOMENT,

YOUR HONOR?
I WANT TO SHOW YOU THIS NEXT SLIDE.

21

ACTUALLY WAS RIGHT.

22

EFFECTS OF THE M26.

23

WHOOPS.

I

I THOUGHT WE SKIPPED ONE.

NOW, THIS SLIDE DESCRIBES SOME OF THE

24

COMMON EFFECTS THAT A PERSON EXPERIENCES WHEN THEY

25

ARE SUBJECT TO A DISCHARGE; CORRECT?
313

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND THE FIRST LINE IS THAT SUBJECT CAN FALL

3

IMMEDIATELY TO THE GROUND.

4

HAVE BEEN TALKING ABOUT; RIGHT?

5

A

YES.

6

Q

AND YOU'LL HEAR OFTEN PEOPLE SCREAM BECAUSE

7

THE PAIN ASSOCIATED WITH THE DEVICE; RIGHT?

8

A

OBVIOUSLY, YES.

9

Q

AND OBVIOUSLY INVOLUNTARY MUSCLE CONTRACTIONS,

THAT'S JUST WHAT WE

10

WE HAVE ALREADY TALKED ABOUT THAT.

11

SHOW YOU -- I WANT TO SHOW YOU AGAIN SOME MORE USE

12

VIDEOS FROM THE TRAINING, AND I'LL ASK YOU SOME

13

QUESTIONS AFTER WE HAVE LOOKED AT THE VIDEO.

14

I WANT TO NOW

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN

15

COURT, OFF THE RECORD.)

16

BY MR. WILLIAMSON:

17

Q

18

THE VIDEOS, THESE WERE MEANT TO DESCRIBE SITUATIONS

19

WHERE EITHER A PERSON WAS STANDING STILL OR MOVING

20

TOWARDS THE OFFICER; CORRECT?

21

A

CORRECT.

22

Q

AND IN EACH ONE OF THESE CASES, THE -- THE

23

OFFICERS WANTED -- WERE NOT ASSISTED DOWN, THEY

24

ACTUALLY FELL DOWN AS A RESULT OF THE TASER

25

DISCHARGE; RIGHT?

NOW, OFFICER FAIRBANKS, AS YOU COULD SEE FROM

314

U.S. COURT REPORTERS

1

A

RIGHT.

2

Q

OKAY.

3

DEPLOY WAS ONLY BASED ON STOPPING A THREAT?

4

THE REASON TO USE A TASER?

5

A

YES.

6

Q

OKAY.

7

THIS REFERS TO WHAT THE TASERS MIGHT DO.

8
9

WERE YOU TAUGHT THAT THE DECISION TO
THAT'S

NOW, TAKE A LOOK AT THIS NEXT SLIDE.

WE HAVE ALREADY TALKED ABOUT THESE VERY
DISTINCT SIGNATURE MARKS THAT THE TASER LEAVES AS A

10

RESULT OF THE ONES THAT ARE CAUSED BY THE

11

ELECTRICITY FLOWING THROUGH THE BODY; RIGHT?

12

A

RIGHT.

13

Q

AND ONCE AGAIN, IN THIS SLIDE YOU SEE IN THE

14

MIDDLE OF THE SLIDE IT CAUSES MUSCLE CONTRACTIONS.

15

SO THAT'S SOMETHING THAT WE HAVE ALREADY DISCUSSED;

16

CORRECT?

17

A

YES.

18

Q

OKAY.

19

LET'S GO ON TO THE NEXT SLIDE.
THIS SLIDE REFERS TO SOMETHING WE ALSO

20

TALKED ABOUT A LITTLE EARLIER ABOUT THE FACT THAT

21

AN ARREST TEAM SHOULD COME IN AND HANDCUFF THE

22

SUBJECT AS QUICKLY AS POSSIBLE AFTER THE DISCHARGE;

23

CORRECT?

24

A

YES.

25

Q

AND THIS IS -- SOME OF THESE SLIDES ARE A
315

U.S. COURT REPORTERS

1

LITTLE REPETITIVE AND WE'LL GO THROUGH THEM

2

QUICKLY, BUT THIS REFERS TO THE REASONS WHY THE

3

TASER IS MORE EFFECTIVE THAN, FOR EXAMPLE, OTHER

4

TYPES OF DEVICES LIKE PEPPER SPRAY OR THE ORIGINAL

5

SHOCKING DEVICE BEFORE THE TASER CAME OUT; RIGHT?

6

A

RIGHT.

7

Q

OKAY.

8

RECEIVE SOME INSTRUCTION REGARDING A DATAPORT?

9

A

YES, DURING THE TRAINING, YES.

10

Q

AND, FOR EXAMPLE, YOU WERE TRAINED THAT THE

11

DATAPORT RECORDS EACH TRIGGER PULL AND THE TIME OF

12

EACH TRIGGER PULL; CORRECT?

13

A

UP TO 585, YES.

14

Q

AND WERE YOU EXPLAINED THE REASON WHY THE

15

DATAPORT WAS DESIGNED INTO THE PRODUCT?

16

A

17

DON'T RECALL IT SPECIFICALLY BEING EXPLAINED AS TO

18

WHY.

19

Q

20

TRAINING THAT THE DATAPORT WAS MEANT TO MONITOR THE

21

USAGE OF THE DEVICE SO THAT ABUSES COULD BE

22

RECOGNIZED, BUT ALSO IT COULD CONFIRM WHEN AN

23

OFFICER REPRESENTED THAT, FOR EXAMPLE, WE ONLY USED

24

THE DEVICE ONCE OR TWICE, IT WOULD RECORD THAT?

25

A

AND NOW, DURING YOUR TRAINING DID YOU

UM, FOR MONITORING OR JUST IT WASN'T -- I

WELL, YOU EXPLAINED, FOR EXAMPLE, DURING YOUR

YES.
316

U.S. COURT REPORTERS

1

Q

AND, IN FACT, IT WAS AN HONEST REPRODUCTION OF

2

THE NUMBER OF TASERS THAT WERE FIRED AT A

3

PARTICULAR POINT IN TIME; CORRECT?

4

A

IT WOULD BE, YEAH.

5

Q

RIGHT.

6

A

YES.

7

Q

OKAY.

8

SOMETHING.

9

THE RECORD?

NOW, LET ME JUST BE CLEAR ABOUT

AS A TASER TRAINING INSTRUCTOR, YOU WERE

10

NOT GIVEN THE RESPONSIBILITY TO MAINTAIN THE TASERS

11

IN THE DEPARTMENT; IS THAT A FAIR STATEMENT?

12

A

THAT IS CORRECT.

13

Q

AND YOU AGREE THAT THE DATAPORT PROTECTS

14

OFFICERS FROM UNFOUNDED ALLEGATIONS; RIGHT?

15

A

ALSO, YES.

16

Q

AND THE FLIPSIDE OF THE COIN IS THAT IT HOLDS

17

OFFICERS ACCOUNTABLE FOR ITS MISUSE OF THE PRODUCT.

18

A

YES.

19

Q

AND YOU AGREE WITH THAT, DON'T YOU?

20

A

YES.

21

Q

AND ONE LAST SLIDE AND WE'LL BE DONE WITH

22

THIS.

23

WERE YOU GENERALLY AWARE, BASED ON YOUR

24

TRAINING, OR HOW -- OR THE MECHANISM BY WHICH YOU

25

WOULD DOWNLOAD THE DATA FROM THE DATAPORT?
317

U.S. COURT REPORTERS

1

A

AS FAR AS THE SOFTWARE OR --

2

Q

RIGHT.

3

A

YEAH.

4

Q

AND YOU COULD CERTAINLY TELL ME IF YOU DON'T

5

KNOW THE ANSWER TO THIS, BUT DO YOU KNOW WHETHER

6

THE SALINAS POLICE DEPARTMENT HAD PURCHASED THE

7

SOFTWARE IN FEBRUARY OF 2005 TO DOWNLOAD THE

8

DATAPORT?

9

A

IN FEBRUARY 2005 AFTER THE INCIDENT IN

10

QUESTION.

11

Q

NO, I MEANT AT THE TIME --

12

A

I BELIEVE IT WASN'T PURCHASED.

13

Q

THANK YOU.

14

AND ISN'T IT TRUE, SIR, THAT, THAT AT THE

15

TIME OF THIS INCIDENT THE SALINAS POLICE DEPARTMENT

16

HAD NO POLICY IN PLACE CONCERNING SETTING THE

17

CLOCKS ON THE DATAPORT TO MAKE SURE THAT THEY

18

RECORDED AN ACCURATE TIME?

19

A

THERE WAS NO POLICY THAT I HAD KNOWLEDGE OF.

20

Q

AND ISN'T IT ALSO TRUE THAT AT THE TIME OF

21

THIS INCIDENT, THE SALINAS POLICE DEPARTMENT HAD NO

22

POLICY OR PRACTICE IN PLACE REGARDING DATAPORT

23

DOWNLOADS AFTER A TASER WAS USED DURING A

24

PARTICULAR INCIDENT?

25

A

YEAH.
318

U.S. COURT REPORTERS

1

Q

YES, THERE WAS NO POLICY?

2

A

RIGHT.

3

Q

NOW, DURING YOUR 20 HOURS OF TASER TRAINING

4

THAT WAS GIVEN TO YOU BY TASER INTERNATIONAL, WERE

5

YOU TOLD GENERALLY ABOUT THE POSSIBLE HEALTH RISK

6

POSED BY THE USE OF THE TASER?

7

A

YES.

8

Q

AND ISN'T IT TRUE THAT YOU WERE NEVER TOLD

9

DURING YOUR TRAINING THAT, THAT THERE MIGHT BE

10

RISKS ASSOCIATED WITH, WITH REPETITIVE FIRING OF

11

THE TASER, HEALTH RISKS I MEAN?

12

A

WAS I AT THE TIME?

13

Q

YES.

14

A

NO.

15

Q

WOULD IT BE FAIR TO SAY THAT THE ONLY RISK

16

THAT YOU EVER WERE TRAINED ABOUT DURING YOUR TASER

17

TRAINING THAT WAS GIVEN TO YOU BY TASER

18

INTERNATIONAL, WERE ASSOCIATED WITH, FOR EXAMPLE,

19

FALLING.

20

A

YES.

21

Q

AND WERE YOU TAUGHT THAT THERE WERE RISKS

22

ASSOCIATED WITH THE PROJECTILE GOING INTO A

23

PERSON'S EYE, FOR EXAMPLE, THINGS OF THAT NATURE?

24

A

25

ALCOHOL BASED COMPONENTS.

YES.

WERE YOU TAUGHT THAT?

YES, AND THE LASER CAUSING EYE DAMAGE,

319

U.S. COURT REPORTERS

1

Q

AND WERE YOU ALSO TAUGHT ABOUT THE DANGERS OF

2

POTENTIAL FLAMMABLE LIQUIDS BEING IN CLOSE

3

PROXIMITY TO A PERSON WHEN A DISCHARGE --

4

A

YES.

5

Q

-- THAT MIGHT CAUSE A FIRE?

6

A

YES.

7

Q

AND IS THERE ANYTHING ELSE THAT AS YOU SIT

8

HERE TODAY THAT YOU CAN REMEMBER THAT YOU WERE

9

TRAINED ABOUT BY TASER INTERNATIONAL CONCERNING THE

10

POTENTIAL HEALTH RISKS OF THE USE OF THE TASER?

11

A

NO.

12

Q

AND CERTAINLY, OFFICER FAIRBANKS, WOULD IT BE

13

FAIR TO SAY THAT YOU WERE NEVER TOLD AT ANY TIME

14

DURING YOUR TASER TRAINING, GIVEN BY TASER

15

INTERNATIONAL, THAT A PERSON COULD DIE AS A RESULT

16

OF BEING SUBJECTED TO A TASER DISCHARGE?

17

FAIR STATEMENT?

18

A

SOLELY BY A TASER DISCHARGE?

19

Q

YES.

20

A

THAT WOULD BE A FAIR STATEMENT.

21

Q

THANK YOU.

22

DURING YOUR TRAINING THAT NO ONE HAS EVER DIED AS A

23

RESULT OF BEING SUBJECTED TO A TASER DISCHARGE?

24

A

SOLELY BY TASER?

25

Q

I'M SORRY?

IS THAT A

DO YOU RECALL EVER BEING TOLD

320

U.S. COURT REPORTERS

1

A

IT WAS SAID THAT NO ONE HAS EVER DIED DIRECTLY

2

OR SOLELY BY THE USE OF TASER ALONE.

3

Q

4

ASSOCIATED WITH THE TASER DISCHARGE, WOULD IT BE

5

FAIR TO SAY ALSO THAT YOU NEVER TOLD THAT THERE

6

MIGHT BE RISKS ASSOCIATED WITH DURATIONS LONGER

7

THAN FIVE SECONDS?

8

A

THAT WOULD BE FAIR TO SAY.

9

Q

IS IT TRUE, SIR, THAT THE TASER WILL CONTINUE

OKAY.

AND IN TERMS OF POTENTIAL HEALTH RISKS

WOULD THAT BE FAIR TO SAY?

10

TO DISCHARGE SO LONG AS THERE'S BATTERY -- SO LONG

11

AS THERE IS ELECTRICITY IN THE BATTERY, IF YOU HOLD

12

DOWN THE TRIGGER?

13

A

YOU'RE SAYING IT WILL CONTINUE TO CYCLE?

14

Q

SO LONG AS THERE IS ELECTRICITY IN THE

15

BATTERIES?

16

A

YES.

17

Q

AND DO YOU HAVE ANY ESTIMATION OF HOW LONG A

18

PERSON -- LET'S ASSUME A FULLY CHARGED BATTERY IN

19

THE TASER DEVICE.

20

HOW LONG A TASER WOULD CONTINUE TO CYCLE IF YOU

21

DEPRESSED THE TRIGGER AND HELD IT DOWN?

22

A

NO.

23

Q

DO YOU RECALL RECEIVING ANY TRAINING ABOUT

24

THAT?

25

A

DO YOU HAVE ANY ESTIMATION OF

NO.
321

U.S. COURT REPORTERS

1

Q

OKAY.

2

YOUR TRAINING AND NOW LET'S SHIFT GEARS A LITTLE

3

BIT AND TALK ABOUT --

4

WE SPENT A LOT OF TIME TALKING ABOUT

OH, MY COUNSEL TELLS ME PERHAPS THIS

5

WOULD BE A GOOD TIME TO BREAK.

6

THE COURT:

7

WELL, I NORMALLY FIND A

PERIOD OF TIME.

8

HOW MUCH LONGER DO HAVE WITH THE WITNESS?

9

MR. WILLIAMSON:

10

I HAVE QUITE A WHILE.

MAYBE THE REST OF THE AFTERNOON.

11

THE COURT:

ALL RIGHT.

THEN WE MIGHT AS

12

WELL TAKE A BREAK IN THE ACTION.

IT'S 20 TO THE

13

HOUR.

14

AND SEE IF WE CAN GET BACK AT ABOUT FIVE OR

15

TEN MINUTES TO THE HOUR.

LET'S TAKE ABOUT A TEN-MINUTE BREAK OR SO

16

(WHEREUPON, A RECESS WAS TAKEN.)

17

THE COURT:

18

PLEASE BE SEATED.

YOU MAY

RESUME YOUR EXAMINATION.

19

MR. WILLIAMSON:

20

Q

21

THIS INCIDENT A LITTLE BIT.

22

OKAY.

THANK YOU, YOUR HONOR.

OFFICER FAIRBANKS, LET'S TALK ABOUT

FIRST OF ALL, IT'S TRUE BEFORE THIS

23

INCIDENT THAT YOU NEVER HAD ANY CONTACT WITH ROBERT

24

C. HESTON; CORRECT?

25

A

WELL THE FIRST CALL.
322

U.S. COURT REPORTERS

1

Q

I'M TALKING ABOUT BEFORE THE DATE OF THIS

2

INCIDENT.

3

A

BEFORE THE DATE, THAT'S CORRECT.

4

Q

OKAY.

5

HESTON HOME AT ANY TIME PRIOR TO THIS PARTICULAR

6

INCIDENT; THAT'S TRUE ALSO, ISN'T IT?

7

A

THAT'S TRUE.

8

Q

AND WOULD IT BE FAIR TO SAY THAT YOU KNEW

9

NOTHING ABOUT ROBERT C. HESTON'S HISTORY PRIOR TO

AND, IN FACT, YOU NEVER HAD BEEN TO THE

10

THE DAY OF THIS INCIDENT?

11

A

THAT'S TRUE.

12

Q

AND WHEN YOU ARRIVED AT THE SCENE THE FIRST

13

TIME, THERE WERE OTHER OFFICERS ALREADY AT THIS

14

SCENE ENGAGED WITH MR. HESTON; CORRECT?

15

A

THAT'S CORRECT.

16

Q

AND LET'S BE CLEAR ABOUT SOMETHING.

17

WERE TWO DIFFERENT INCIDENTS THAT DAY.

18

TIME WHEN YOU ARRIVED, WHEN YOU LEFT AND THE SECOND

19

TIME WHEN YOU ARRIVED AND OTHER THINGS HAPPENED.

20

THERE
THE FIRST

DO YOU HAVE THAT CLEAR IN YOUR MIND,

21

THOSE TWO DISTINCT INCIDENTS?

22

A

YES.

23

Q

OKAY.

24

ONE OF THE OFFICERS THAT WAS THERE WAS SERGEANT

25

DOMINICI; CORRECT?

NOW, WHEN YOU ARRIVED THE FIRST TIME,

323

U.S. COURT REPORTERS

1

A

CORRECT.

2

Q

AND YOU CERTAINLY RECOGNIZED HIM AS ONE OF

3

YOUR SUPERIOR OFFICERS?

4

A

5

PRIOR TO HIM AND THEN HE SHOWED UP, BUT HE WAS

6

THERE, IF THAT WAS THE QUESTION.

7

Q

8

CONVERSATION THAT TRANSPIRED BETWEEN ROBERT HESTON,

9

THE SON, AND ONE OF THE OTHER OFFICERS; CORRECT?

HE WAS PRESENT.

I BELIEVE MAYBE I WAS THERE

AND AS I UNDERSTAND IT, THERE WAS A

10

A

CORRECT.

11

Q

BUT YOU DIDN'T PARTICIPATE IN THAT

12

CONVERSATION; RIGHT?

13

A

THAT'S RIGHT.

14

Q

AND YOU STOOD BACK AND OBSERVED; RIGHT?

15

A

CORRECT.

16

Q

AND BASED ON YOUR OBSERVATIONS OF WHAT YOU SAW

17

WITH ROBERT HESTON, YOU CAME TO THE CONCLUSION THAT

18

HE WAS UNDER THE INFLUENCE OF DRUGS, DIDN'T YOU?

19

A

YES.

20

Q

AND BEING UNDER THE INFLUENCE OF DRUGS,

21

WHETHER HE WAS ON PAROLE OR NOT, IS A CRIME, IS IT

22

NOT?

23

A

THAT'S CORRECT.

24

Q

AND THEREFORE, BASED ON YOUR SUSPICION THAT

25

MR. HESTON WAS UNDER THE INFLUENCE OF DRUGS, YOU,
324

U.S. COURT REPORTERS

1

YOU COULD HAVE TAKEN HIM INTO CUSTODY RIGHT AT THAT

2

MOMENT, COULDN'T YOU?

3

A

SURE.

4

Q

NOW, AT SOME POINT DURING THAT FIRST ENCOUNTER

5

YOU LEARNED, THAT, IN FACT, MR. HESTON WAS ON

6

PAROLE; RIGHT?

7

A

I REMEMBER IT BEING TALKED ABOUT.

8

Q

AND, IN FACT, YOU MADE AN ATTEMPT -- STRIKE

9

THAT.

10

DO YOU RECALL THE DATE OF THE WEEK THIS

11

INCIDENT OCCURRED?

12

A

I DON'T KNOW THE SPECIFIC DAY OF THE CALENDAR.

13

Q

I'M SORRY?

14

A

NOT THE DAY OF THE WEEK.

15

Q

AND DOES A SATURDAY REFRESH YOUR RECOLLECTION?

16

A

YES.

17

Q

AND, IN FACT, WHEN YOU LEARNED THAT MR. HESTON

18

WAS ON PAROLE, YOU MADE ATTEMPTS TO TRY AND CONTACT

19

HIS PAROLE OFFICER; RIGHT?

20

A

21

CALL.

22

Q

23

THROUGH YOUR DISPATCHER?

24

A

I DON'T RECALL.

25

Q

NOW, ISN'T IT TRUE THAT AT SOME POINT DURING

YEAH, I THINK I MADE AN UNSUCCESSFUL PHONE

AND HOW DID YOU DO THAT?

DID YOU DO THAT

325

U.S. COURT REPORTERS

1

THIS ENCOUNTER WITH MR. HESTON, SERGEANT DOMINICI

2

MADE THE DECISION TO -- FOR ALL OF THE OFFICERS

3

PRESENT TO LEAVE THE SCENE?

4

A

YES.

5

Q

AND HE DID THAT AS THE -- AS ESSENTIALLY THE

6

COMMANDING OFFICER AT THE SCENE; IS THAT RIGHT?

7

A

YES.

8

Q

AND I SAY "COMMANDING OFFICER."

9

SUPERVISING OFFICER AT THE SCENE; RIGHT?

HE WAS THE

10

A

YES.

11

Q

NOW, A SHORT -- WELL, STRIKE THAT.

12

I UNDERSTAND THAT AFTER YOU LEFT THE

13

SCENE YOU DROVE TO A LOCATION NOT FAR AWAY AND, IN

14

FACT, PULLED OFF NEXT TO SERGEANT DOMINICI'S CAR

15

AND THE TWO OF YOU HAD SOME CONVERSATION; RIGHT?

16

A

THAT'S RIGHT.

17

Q

AND WHILE YOU WERE HAVING THAT CONVERSATION,

18

YOU RECEIVED A SECOND PHONE CALL OR A SECOND

19

DISPATCH CALL I SHOULD SAY, ALERTING YOU TO THE

20

FACT THAT YOU NEEDED TO GO BACK TO THE HESTON

21

RESIDENCE; IS THAT RIGHT?

22

A

THAT'S RIGHT.

23

Q

AND WHEN YOU GOT THAT CALL, I PRESUME YOU

24

IMMEDIATELY WENT BACK TO THE HESTON HOUSE?

25

A

THAT'S RIGHT.
326

U.S. COURT REPORTERS

1

Q

AND YOU AND SERGEANT DOMINICI WERE IN SEPARATE

2

VEHICLES; RIGHT?

3

A

RIGHT.

4

Q

AND WHEN YOU ARRIVED BACK IN THE VICINITY OF

5

THE HESTON RESIDENCE, DID YOU MAKE ANY OBSERVATIONS

6

AT THAT TIME?

7

A

YES.

8

Q

AND WHAT DID YOU SEE?

9

A

I SAW NUMEROUS ARTICLES OUT ON THE FRONT LAWN

10

AREA, THINGS BEING THROWN.

11

Q

12

SON?

13

A

YES.

14

Q

AND WHERE WAS HE LOCATED WHEN YOU FIRST

15

OBSERVED HIM?

16

A

17

THE THRESHOLD IN MY VIEW WOULD HAVE BEEN.

18

Q

19

THE THRESHOLD OF THE FRONT DOOR OF THE HOUSE?

20

A

YES.

21

Q

UP UNTIL THE POINT WHERE YOU SAW ROBERT

22

HESTON, THE SON, HAD YOU SEEN HIS FATHER?

23

A

NO.

24

Q

SO AT THAT POINT YOU HAD NO IDEA WHERE HE WAS?

25

A

THAT'S CORRECT.

OKAY.

DO YOU REMEMBER SEEING MR. HESTON, THE

WHEN I FIRST OBSERVED HIM?

STEPPING OUT OF

AND WHEN YOU SAY THE THRESHOLD, DO YOU MEAN

327

U.S. COURT REPORTERS

1

Q

AND NOW, AS YOU GOT CLOSER ON FOOT TO THE

2

HESTON RESIDENCE, DID YOU CONTINUE TO OBSERVE

3

MR. HESTON THROWING THINGS OUTSIDE OF THE HOUSE?

4

A

YES.

5

Q

ONE OF THE OBJECTS HE THREW WAS A PIECE OF

6

WOOD; CORRECT?

7

A

YES.

8

Q

AND DID YOU SEE THAT PIECE OF WOOD STRIKE

9

SERGEANT DOMINICI?

10

A

YES.

11

Q

AND DO YOU KNOW WHERE IT STRUCK HIM?

12

A

THE CENTER OF HIS CHEST.

13

Q

SERGEANT DOMINICI WASN'T HURT BY THAT, WAS HE?

14

A

HE DIDN'T APPEAR SO.

15

Q

IN FACT, HE DIDN'T RETREAT FROM HIS POSITION

16

WHEN THAT PIECE OF WOOD STRUCK HIM?

17

TO MAINTAIN HIS POSITION; RIGHT?

18

A

YES.

19

Q

NOW, AFTER -- AFTER -- WELL, FIRST OF ALL, WAS

20

THAT THE ONLY OBJECT THAT YOU SAW THAT WAS THROWN

21

BY MR. HESTON TOWARDS SERGEANT DOMINICI?

22

A

NO.

23

Q

DID YOU SEE OTHER PIECES OF WOOD THROWN?

24

A

NOT IN PARTICULAR, NO.

25

Q

OKAY.

HE CONTINUED

OTHER OBJECTS?
328

U.S. COURT REPORTERS

1

A

YES.

2

Q

BUT NOTHING ELSE HIT SERGEANT DOMINICI; WOULD

3

YOU AGREE WITH THAT?

4

A

I WOULD AGREE.

5

Q

DID IT APPEAR TO YOU THAT MR. HESTON WAS

6

FOCUSED ON A PARTICULAR POINT OUTSIDE OF HIS HOUSE,

7

OR WAS HE JUST MOVING AROUND IN KIND OF A HAPHAZARD

8

MANNER?

9

A

WAS HE MOVING AROUND IN HIS HOUSE IN A

10

HAPHAZARD MANNER?

11

Q

12

PORCH; WAS HE MOVING IN A HAPHAZARD MANNER?

13

A

14

WOULD GO TO THE SAME AREA SO --

15

Q

16

SERGEANT DOMINICI OR WAS HE EVEN FOCUSED ON YOU

17

STANDING OUTSIDE OF THE HOUSE?

18

A

AT TIMES YES, AT TIMES NO.

19

Q

NOW, AFTER SERGEANT DOMINICI WAS STRUCK BY THE

20

PIECE OF WOOD, WOULD IT BE FAIR TO SAY THAT HE

21

FIRED HIS TASER SECONDS LATER?

22

A

YES.

23

Q

AND, IN FACT, YOU FIRED YOUR TASER WITHIN

24

APPROXIMATELY A SECOND THEREAFTER, AFTER SERGEANT

25

DOMINICI FIRED; ISN'T THAT TRUE?

EITHER IN HIS HOUSE OR OUTSIDE ON THE FRONT

WHEN HE RETREATED BACK INTO THE RESIDENCE HE

WHAT I'M TRYING TO GET AT, WAS HE FOCUSED AT

329

U.S. COURT REPORTERS

1

A

NO.

2

Q

YOU DIDN'T FIRE YOUR TASER ALMOST

3

SIMULTANEOUSLY WITH SERGEANT DOMINICI?

4

A

I DON'T BELIEVE SO.

5

Q

HOW LONG WOULD YOU ESTIMATE THE TIME PASSED

6

BETWEEN THE TIME THAT SERGEANT DOMINICI FIRED HIS

7

TASER AND YOU FIRED YOUR TASER?

8

A

WITHIN FIVE SECONDS.

9

Q

NOW, ISN'T IT TRUE THAT ONLY ABOUT 10 TO

10

15 SECONDS PASSED BETWEEN THE TIME THAT YOU GOT OUT

11

OF YOUR CAR AND SERGEANT DOMINICI FIRED HIS TASER?

12

A

PROBABLY.

13

Q

NOW, YOU WERE INTERVIEWED AFTER THIS INCIDENT

14

BY YOUR DEPARTMENT; CORRECT?

15

A

CORRECT.

16

Q

AND THAT WAS VIDEOTAPED, RIGHT, AND IT WAS

17

ALSO RECORDED, THE AUDIO WAS RECORDED?

18

A

YES.

19

Q

HAVE YOU HAD A CHANCE TO LOOK AT THAT TAPE?

20

A

NO, I HAVEN'T LOOKED AT THE TAPE.

21

Q

DID YOU EVER LOOK AT THE TAPE?

22

A

NO.

23

Q

AND ISN'T IT TRUE, SIR, THAT YOU TOLD THE

24

INVESTIGATING OFFICERS FROM YOUR OWN DEPARTMENT

25

THAT YOU FIRED YOUR TASER ABOUT TWO SECONDS AFTER
330

U.S. COURT REPORTERS

1

SERGEANT DOMINICI?

2

A

IT COULD HAVE BEEN, YES.

3

Q

AND WOULD IT BE FAIR TO SAY THAT YOUR MEMORY

4

OF THIS INCIDENT WAS BETTER THE DAY THAT IT

5

HAPPENED AS OPPOSED TO TODAY, FOR EXAMPLE?

6

A

MY MEMORY, PROBABLY.

7

Q

NOW, INITIALLY YOU THOUGHT SERGEANT DOMINICI'S

8

TASERS -- THE TASER PROBES HIT MR. HESTON; CORRECT?

9

A

YES.

10

Q

THAT WAS YOUR INITIAL IMPRESSION?

11

A

INITIALLY, YES.

12

Q

AND THEN IT APPEARED THAT HE -- HE HAD SOME

13

EFFECT FROM THAT TASER?

14

A

THAT HE MOVED BACKWARDS.

15

Q

OKAY.

16

CONSISTENT WITH YOUR TRAINING AS TO -- AS TO THE

17

TYPE OF REACTION A PERSON HAS WHEN THEY GET SHOT

18

WITH THE TASER?

19

A

YES.

20

Q

AND THEN THERE WAS A POINT IN TIME SECONDS

21

LATER, WHEN IT APPEARED THAT MR. HESTON WAS NOT

22

REACTING TO THE TASER; CORRECT?

23

A

CORRECT.

24

Q

AND THAT'S WHEN YOU MADE YOUR DECISION TO FIRE

25

YOURS; RIGHT?

AND WHEN HE MOVED BACKWARDS WAS THAT

331

U.S. COURT REPORTERS

1

A

RIGHT.

2

Q

AND AFTER YOU FIRED YOUR TASER, IT SEEMED TO

3

HAVE THE DESIRED EFFECT ON MR. HESTON, DIDN'T IT?

4

A

MOMENTARILY, YES.

5

Q

AND, IN FACT, HE BECAME RIGID WHEN YOU -- WHEN

6

YOU SHOT HIM WITH YOUR TASER; RIGHT?

7

A

YES.

8

Q

AND THAT WOULD BE CONSISTENT WITH THE EFFECTS

9

OF THE TASER THAT YOU LEARNED IN YOUR TRAINING;

10

RIGHT?

11

A

YES.

12

Q

BUT HE DIDN'T GO DOWN; CORRECT?

13

A

HE WENT OUT OF MY SIGHT.

14

WENT DOWN.

15

Q

16

YOU GAVE AN ESTIMATE OF THE AMOUNT OF FEET THAT YOU

17

WERE FROM MR. HESTON WHEN YOU FIRST FIRED YOUR

18

TASER AND YOU ESTIMATED THAT HE WAS 19 TO 20 FEET

19

AWAY FROM YOU; RIGHT?

20

A

I BELIEVE THAT WAS MY STATEMENT, YES.

21

Q

I'M SORRY?

22

A

DID I GIVE THAT STATEMENT?

23

YOUR --

24

Q

YES.

25

A

I BELIEVE SO.

I DON'T BELIEVE HE

HE WENT OUT OF MY SIGHT.

NOW, ISN'T IT TRUE, OFFICER FAIRBANKS, THAT

IS THAT WHAT

332

U.S. COURT REPORTERS

1

Q

AND SO EARLIER WHEN YOU TESTIFIED ABOUT THE

2

OPTIMUM RANGE OF THE TASER, IN FACT, MR. HESTON WAS

3

ALREADY EXCEEDING THE OPTIMUM RANGE; RIGHT?

4

A

AT OR NEAR THAT, YES.

5

Q

OKAY.

6

SOMEWHERE ABOUT 19 OR 20 FEET AWAY, IT WOULD BE, IT

7

WOULD BE LOGICAL TO EXPECT THAT WHEN HE WENT

8

BACKWARDS IN RESPONSE TO THE TASER EFFECT, EITHER

9

THE WIRES BROKE OR THE PROBES CAME OUT; RIGHT?

AND WHEN MR. HESTON -- BECAUSE HE WAS

10

A

IF, IN FACT, THAT WAS AT THAT DISTANCE, YES.

11

Q

AND WOULD YOU AGREE THAT ONE OF THE

12

EXPLANATIONS FOR THE -- FOR THE FACT THAT

13

MR. HESTON STOPPED REACTING TO THE TASER WAS THAT

14

AS HE BACKED UP HE EXCEEDED THE 21-FOOT LENGTH OF

15

THE WIRES?

16

A

IT COULD HAVE BEEN ONE OF THE REASONS.

17

Q

NOW, AT SOME POINT AFTER YOU FIRED YOUR TASER,

18

SERGEANT RUIZ AND OTHER BACK-UP OFFICERS ARRIVED;

19

IS THAT CORRECT?

20

A

THAT'S CORRECT.

21

Q

AND THEY ARRIVED LESS THAN A MINUTE AFTER YOU

22

FIRED YOUR TASER THE FIRST TIME; RIGHT?

23

A

RIGHT.

24

Q

BY THE WAY, LET'S BE CLEAR ABOUT SOMETHING.

25

DON'T WANT TO CONFUSE ANYBODY.

I

YOU ONLY FIRED YOUR
333

U.S. COURT REPORTERS

1

TASER ONE TIME; RIGHT?

2

A

RIGHT.

3

Q

AND YOU DIDN'T HAVE A SECOND CARTRIDGE IN YOUR

4

BELT TO RELOAD; RIGHT?

5

A

RIGHT.

6

Q

SO AND SERGEANT DOMINICI DIDN'T HAVE A BACK-UP

7

CARTRIDGE EITHER, DID HE?

8

A

I DON'T BELIEVE SO.

9

Q

SO YOU HAD TO WAIT FOR OTHER OFFICERS TO

10

ARRIVE IN ORDER TO DEPLOY THEIR TASERS?

11

A

YES.

12
13

MR. WILLIAMSON:

COULD I HAVE A MOMENT,

YOUR HONOR?

14

THE COURT:

YES.

15

(PAUSE IN PROCEEDINGS.)

16

BY MR. WILLIAMSON:

17

Q

18

FAIRBANKS.

19

TASER DID YOU OBSERVE MR. HESTON TO BE PULLING THE

20

PROBES OUT?

21

A

22

INSIDE, BACK IN MY VIEW HE MADE A MOTION THAT

23

APPEARS AS IF HE WAS SWIPING DOWN HIS BODY, AS IF

24

HE WAS GRABBING SOMETHING AND THEN WHATEVER IT WAS,

25

I ASSUMED AT THE TIME IT TO BE PROBES, WERE THROWN

LET ME CLARIFY SOMETHING WITH YOU, OFFICER
AT SOME POINT AFTER YOU DEPLOYED YOUR

AT SOME POINT WHEN I -- WHEN HE CAME BACK FROM

334

U.S. COURT REPORTERS

1

AT ME OR IN MY GENERAL DIRECTION.

2

MOTION.

3

Q

4

HAD STRUCK MR. HESTON?

5

A

DID I KNOW EXACTLY WHERE ON HIS BODY?

6

Q

WELL, NO, BUT GENERALLY.

7

CHEST?

8

A

9

THE LEFT UPPER TORSO.

OKAY.

THAT WAS THE

DID YOU HAVE ANY IDEA WHERE YOUR PROBES

DID YOU HIT HIS ARMS?

DID YOU HIT HIS
IF YOU KNOW.

IT APPEARS THAT THE AREA THAT WAS EXPOSED WAS

10

Q

OKAY.

AND WAS THAT THE AREA THAT HE WAS

11

SWIPING WITH HIS ARM?

12

A

YES.

13

Q

AND, OF COURSE, AT THE POINT WHEN HE WAS

14

SWIPING AT HIS ARM YOU DIDN'T KNOW WHETHER THE

15

WIRES WERE BROKEN OR NOT; CORRECT?

16

A

17

WASN'T HAVING ANY EFFECT.

18

Q

19

APPROXIMATELY -- I'M SORRY.

I BELIEVED THAT THEY WERE BECAUSE THE TASER

OKAY.

20

NOW, WE WERE TALKING ABOUT THIS

OFFICER FAIRBANKS, THAT, IN FACT, WAS THE

21

ONLY TIME THAT YOU EVER SAW MR. HESTON SWIPING IT

22

TO REMOVE PROBES FROM HIS BODY; CORRECT?

23

A

YES.

24

Q

NOW, WE WERE TALKING ABOUT THIS APPROXIMATELY

25

MINUTE OF TIME THAT ELAPSED BETWEEN THE TIME THAT
335

U.S. COURT REPORTERS

1

YOU FIRED YOUR TASER AND OFFICER RUIZ AND THE OTHER

2

OFFICERS ARRIVED AS BACK UP.

3

OKAY.

DURING THAT PERIOD OF TIME MR. HESTON

4

CAME OUT OF THE HOUSE AND STOOD ON THE FRONT PORCH,

5

DIDN'T HE?

6

A

AT TIMES, YES.

7

Q

AND HE WAS STARTING TO THROW MORE OBJECTS OUT

8

OF THE HOUSE; RIGHT?

9

A

YES.

10

Q

AND AT SOME POINT HE KNOCKED DOWN A

11

GRANDFATHER CLOCK; RIGHT?

12

A

RIGHT.

13

Q

AND HE NEVER THREW THE GRANDFATHER CLOCK OUT

14

OF THE HOUSE, DID HE?

15

A

IN ITS ENTIRETY, NO.

16

Q

AND, IN FACT, THE GRANDFATHER CLOCK WAS IN THE

17

DOORWAY, WAS IT NOT?

18

A

IT WAS INSIDE OF THE THRESHOLD.

19

Q

NOW, DURING THIS LESS THAN A MINUTE OF TIME

20

BETWEEN THE TIME THAT YOU FIRED YOUR TASER AND THE

21

BACK-UP OFFICERS ARRIVED, YOU HADN'T SEEN ROBERT

22

HESTON'S FATHER, HAD YOU?

23

A

NO.

24

Q

DO YOU HAVE ANY IDEA WHERE HE WAS?

25

A

NO.
336

U.S. COURT REPORTERS

1

Q

DID YOU EVEN HAVE AN IDEA THAT HE WAS IN THE

2

HOUSE?

3

A

I BELIEVE HE WAS.

4

Q

NOW, AS MR. HESTON WAS THROWING OBJECTS OUT OF

5

THE HOUSE, WOULD IT BE FAIR TO SAY THAT HE APPEARED

6

IRRATIONAL?

7

A

YES.

8

Q

AND THEN DID YOU OBSERVE SERGEANT RUIZ TO

9

DEPLOY HIS TASER?

10

A

YES.

11

Q

WOULD IT BE FAIR TO SAY THAT MR. HESTON WAS IN

12

AND OUT THE DOORWAY WHEN SERGEANT RUIZ DEPLOYED HIS

13

TASER?

14

THE COURT:

15

MR. WILLIAMSON:

16

IN AND OUT I SHOULD HAVE

SAID.

17
18

IN OR OUT?

THE WITNESS:

AT THE MOMENT I BELIEVE HE

WAS OUTSIDE OF THE DOORWAY --

19

I SAID HE WOULD HAVE HAD TO HAVE BEEN

20

OUTSIDE OF THE DOORWAY IN MY ESTIMATION WHEN HE

21

DEPLOYED HIS TASER.

22

BY MR. WILLIAMSON:

23

Q

24

OUT OF THE DOORWAY AT THE TIME THAT SERGEANT RUIZ

25

DEPLOYED HIS TASER?

AND DO YOU RECALL HIM KIND OF DARTING IN AND

337

U.S. COURT REPORTERS

1

A

AS HE WAS APPROACHING, YES.

2

Q

ISN'T IT TRUE, OFFICER FAIRBANKS, THAT WHEN

3

SERGEANT RUIZ DEPLOYED HIS TASER, IT WAS EFFECTIVE

4

IN THAT MR. HESTON BEGAN TO MOVE BACKWARDS INTO THE

5

HOUSE?

6

A

IT APPEARED SO.

7

Q

AND IT WAS EFFECTIVE, IN YOUR OBSERVATION,

8

BECAUSE MR. HESTON BECAME RIGID AND MOVED

9

BACKWARDS; CORRECT?

10

A

RIGHT.

11

Q

OKAY.

12

TASER, YOU SAW VARIOUS OTHER OFFICERS MOVE TOWARDS

13

THE FRONT DOOR OF THE HOUSE; CORRECT?

14

A

CORRECT.

15

Q

AND WHEN THE OTHER OFFICERS MOVED TOWARDS THE

16

FRONT DOOR, YOU DIDN'T SEE ROBERT HESTON, THE SON,

17

ANY LONGER, DID YOU?

18

A

NO.

19

Q

DID YOU MAKE THE ASSUMPTION AT THAT POINT THAT

20

MR. HESTON HAD FALLEN DOWN OR NOT -- OR BEEN

21

KNOCKED DOWN BY THE TASER?

22

A

DID I MAKE AN ASSUMPTION AS TO THAT HAPPENING?

23

Q

I'M SORRY.

24
25

AND THEN OUT OF MY VIEW.
NOW, AND AFTER SERGEANT RUIZ FIRED HIS

LET ME BACKTRACK A SECOND.

WHEN YOU SAW MR. HESTON DISAPPEAR INSIDE
OF THE HOUSE, DIDN'T YOU ASSUME THAT HE HAD BEEN
338

U.S. COURT REPORTERS

1

KNOCKED DOWN BY THE TASER?

2

A

YES.

3

Q

AND, IN FACT, THE NEXT TIME THAT YOU SAW

4

MR. HESTON, HE WAS LYING ON THE FLOOR OF THE LIVING

5

ROOM OF THE HESTON HOUSE; ISN'T THAT TRUE?

6

A

THAT'S TRUE.

7

Q

AND ISN'T IT TRUE THAT AT ABOUT FIVE SECONDS

8

PASSED BETWEEN THE TIME THAT YOU LAST SAW ROBERT

9

HESTON, THE SON, AND THOUGHT HE HAD FALLEN AND THE

10

TIME THAT YOU ACTUALLY SAW HIM LYING ON THE GROUND?

11

A

THAT'S TRUE.

12

THE COURT:

THE GROUND OR THE FLOOR?

13

MR. WILLIAMSON:

THANK YOU, YOUR HONOR.

14

Q

ON THE FLOOR, THE LIVING ROOM FLOOR?

15

A

YES.

16

Q

YOU, IN FACT, WENT INTO THE HOUSE BEHIND

17

SERGEANT RUIZ AND THE OTHER OFFICERS WITH HIM;

18

ISN'T THAT TRUE?

19

A

THAT'S TRUE.

20

Q

AND BEFORE GOING INTO THE HOUSE, YOU MOVED THE

21

GRANDFATHER CLOCK ONTO THE WALKWAY IN FRONT OF THE

22

HOUSE; RIGHT?

23

A

THAT'S RIGHT.

24

Q

ARE YOU FAMILIAR WITH PHOTOGRAPHS THAT WERE

25

TAKEN AFTER THIS INCIDENT?

HAVE YOU HAD A CHANCE
339

U.S. COURT REPORTERS

1

TO LOOK AT THOSE?

2

A

YES.

3

Q

AND DO YOU RECALL SEEING A PHOTOGRAPH OF A

4

GRANDFATHER CLOCK THAT WAS ON THE FRONT LAWN OF THE

5

HOUSE?

6

A

YES.

7

Q

AND, IN FACT, YOU PLACED THE GRANDFATHER CLOCK

8

FROM THE WALKWAY ONTO THAT FRONT LAWN, DIDN'T YOU?

9

A

YES.

10

Q

AND IT WAS NEVER THROWN THERE BY MR. HESTON,

11

WAS IT?

12

A

NO.

13

Q

AND THE REASON WHY YOU MOVED THE GRANDFATHER

14

CLOCK OUT OF THE WAY WAS BECAUSE YOU WANTED TO

15

CLEAR THE PATH TO GET INTO THE HOUSE; TRUE?

16

A

THE FIRST TIME I MOVED IT?

17

Q

WELL, IN FACT, THE REASON YOU MOVED IT A

18

SECOND TIME WAS THAT YOU WANT TODAY CLEAR THE PATH

19

FOR THE EMT'S THAT YOU HAD CALLED; RIGHT?

20

A

RIGHT.

21

Q

NOW, WHEN YOU GOT INSIDE OF THE LIVING ROOM

22

ABOUT FIVE SECONDS AFTER SERGEANT RUIZ ENTERED, YOU

23

SAW MR. HESTON IN A PRONE FACE-DOWN POSITION, WITH

24

HIS ARMS UNDERNEATH HIM; CORRECT?

25

A

YES.

CORRECT.
340

U.S. COURT REPORTERS

1

Q

AND YOU RECOGNIZED THAT POSITION THAT

2

MR. HESTON WAS IN, LYING FACE DOWN WITH HIS ARMS

3

UNDERNEATH HIM, AS ONE THAT YOU SAW IN YOUR

4

TRAINING; RIGHT?

5

A

YES.

6

Q

AND, IN FACT, THE POSITION THAT MR. HESTON WAS

7

IN, WITH HIM LYING FACE DOWN WITH HIS ARMS TUCKED

8

UNDERNEATH HIM WAS CONSISTENT WITH YOUR TRAINING

9

EXPERIENCE, WASN'T IT?

10

WHAT I MEAN BY CONSISTENT, CONSISTENT

11

WITH SOMEONE WHO HAS BEEN SUBJECTED TO A TASER

12

DISCHARGE?

13

A

YES.

14

Q

YOU WOULD AGREE, WOULD YOU NOT, THAT WHEN YOU

15

FIRST OBSERVED MR. HESTON, HE WAS IN A RIGID

16

POSITION ON THE FLOOR, ON THE FLOOR OF THE LIVING

17

ROOM?

18

A

HE APPEARED.

19

Q

NOW, WHEN YOU GOT INTO THE LIVING ROOM, ABOUT

20

FIVE SECONDS BEHIND SERGEANT RUIZ, YOU MOVED OVER

21

TO A POSITION NEXT TO MR. HESTON'S RIGHT ARM;

22

CORRECT?

23

A

CORRECT.

24

Q

AND THERE WERE OTHER OFFICERS IN THE LIVING

25

ROOM, CORRECT, APART FROM OFFICER RUIZ AND
341

U.S. COURT REPORTERS

1

YOURSELF?

2

A

YES.

3

Q

AND DO YOU REMEMBER WHO THOSE OFFICERS WERE?

4

A

I RECOGNIZED OFFICER GODWIN BEING THERE,

5

OFFICER -- OR SERGEANT RUIZ OBVIOUSLY AND OFFICER

6

SIMPSON WERE THE ONLY THREE THAT I KNEW THEIR

7

IDENTITY.

8

Q

OKAY.

9

A

OR I RECOGNIZED THEM BEING THERE IS WHAT I'M

10

TRYING TO SAY.

11

Q

12

YOUR VOICE IS KIND OF TRAILING OFF SO I WOULD ASK

13

YOU TO KEEP YOUR VOICE UP SO I COULD HEAR YOU.

14

A

OKAY.

15

Q

DO YOU REMEMBER SEEING OFFICER LIVINGSTON?

16

A

I DON'T.

17

TIME.

18

Q

19

ARM OF MR. HESTON, THAT WAS CONSISTENT WITH YOUR

20

TRAINING THAT AS AN -- AS AN APPREHENSION OR PART

21

OF AN APPREHENSION TEAM, YOU WERE TRYING TO GET

22

INTO A POSITION OF ADVANTAGE TO SECURE MR. HESTON;

23

CORRECT?

24

A

CORRECT.

25

Q

AND ULTIMATELY HANDCUFF HIM; CORRECT?

I KNOW AS I GET OLDER MY HEARING IS GOING BUT

OKAY.

I DIDN'T RECALL SEEING HIM AT THE

AND WHEN YOU MOVED OVER TO THE RIGHT

342

U.S. COURT REPORTERS

1

A

YES.

2

Q

AND YOU HEARD OFFICERS GIVING COMMANDS TO

3

MR. HESTON TO SHOW HIS HANDS; CORRECT?

4

A

CORRECT.

5

Q

AND BASED ON YOUR TRAINING, IT WOULD HAVE BEEN

6

NEARLY IMPOSSIBLE FOR MR. HESTON TO HAVE PRODUCED

7

HIS ARMS WHILE HE WAS BEING SUBJECTED TO THE TASER

8

DISCHARGE; ISN'T THAT TRUE?

9

A

WHILE HE WAS BEING SUBJECTED, THAT'S TRUE.

10

Q

ISN'T IT TRUE THAT THE REASON WHY IT WAS

11

IMPOSSIBLE -- WELL, STRIKE THAT.

12

DID YOU GRAB MR. HESTON'S ARM?

13

A

YES.

14

Q

AND HIS ARM APPEARED TO BE RIGID TO YOU OR

15

FELT RIGID TO YOU, DIDN'T IT?

16

A

YES.

17

Q

AND DID YOU MAKE ATTEMPTS TO TRY TO REMOVE HIS

18

ARMS?

19

A

YES.

20

Q

AND ISN'T IT TRUE THAT THE REASON WHY IT

21

WASN'T POSSIBLE FOR YOU TO HAVE TAKEN HIS RIGHT

22

HAND AND PULLED IT OUT FROM UNDERNEATH HIM WAS

23

BECAUSE HE WAS BEING TASED AND HIS ARM WAS TOO

24

RIGID?

25

A

NO.
343

U.S. COURT REPORTERS

1

Q

SO IF HE WAS BEING TASED AT THE TIME -- WELL,

2

STRIKE THAT.

3

LET ME ASK YOU THIS QUESTION:

IF HE WAS

4

BEING TASED AT THE TIME, MR. HESTON THAT IS, WOULD

5

IT BE -- WOULD IT HAVE BEEN POSSIBLE FOR YOU TO

6

HAVE TAKEN HIS RIGHT ARM OUT AND PUT IT BEHIND HIM

7

IN A HANDCUFFING POSITION, OR WOULD IT HAVE BEEN

8

TOO RIGID?

9

A

AT THE TIME THAT I PULLED ON HIM IT

10

APPEARED -- IT FELT TOO RIGID TO PUT BEHIND HIM.

11

Q

12

TRY TO ASK IT ONE MORE TIME.

OKAY.

13

THAT WASN'T QUITE MY QUESTION.

LET ME

IF MR. HESTON WAS BEING SUBJECTED TO A

14

TASER DISCHARGE AT THE TIME, WOULD IT HAVE BEEN

15

POSSIBLE FOR YOU TO HAVE TAKEN HIS RIGHT ARM OUT

16

FROM UNDERNEATH HIM AND PUT IT BEHIND HIM IN ORDER

17

TO HANDCUFF HIM?

18

A

19

WAS TOO RIGID.

20

Q

21

I -- AT THE TIME I MADE THE ASSESSMENT THAT IT

OKAY.
THE COURT:

YOU'RE BEING ASKED A

22

HYPOTHETICAL QUESTION IT SEEMS TO ME.

IN OTHER

23

WORDS, BASED ON YOUR TRAINING, IF YOU TRIED TO

24

REMOVE SOMEONE'S ARM AND TO HANDCUFF THEM WHILE

25

THEY'RE BEING TASED, IS THE EFFECT OF THE TASER
344

U.S. COURT REPORTERS

1

SUCH THAT YOU CANNOT MOVE THE ARM?

2

YOU'RE NOT BEING ASKED ABOUT THIS

3

SITUATION, ALTHOUGH YOU'RE USING MR. HESTON IN YOUR

4

HYPOTHETICAL --

5

MR. WILLIAMSON:

6

THE COURT:

THAT'S RIGHT.

YOU'RE BEING ASKED HAVE YOU

7

ENCOUNTERED A SITUATION SO YOU CAN TELL US, IN YOUR

8

OPINION IF YOU CAN MOVE AN ARM OR A HAND AND

9

HANDCUFF WHILE TASER IS BEING CYCLED?

10
11

THE WITNESS:
RIGID.

FOR THE MOST PART HE FELT

DOES THAT -- DOES THAT ANSWER THE QUESTION?

12

MR. WILLIAMSON:

NO.

WE'RE ASKING A

13

HYPOTHETICAL QUESTION.

14

Q

15

REMOVE AN ARM FROM A PERSON WHO IS BEING TASED.

16

DON'T YOU THINK IT WOULD BE HARD TO REMOVE THAT ARM

17

WHILE THE TASER IS FLOWING INTO THE BODY.

18

A

19

QUESTION.

20

APPENDAGE WOULD NOT BE 100 PERCENT CORRECT.

21

Q

22

SAY IT'S EXTREMELY DIFFICULT TO DO THAT?

23

A

I WOULD SAY EXTREMELY DIFFICULT.

24

Q

OKAY.

25

LET'S FORGET MR. HESTON, WE'RE HAVING SOMEONE

I WOULD SAY IT'S IMPOSSIBLE TO ANSWER THE
SAYING IT'S IMPOSSIBLE TO MANIPULATE

IF YOU DON'T AGREE IT'S IMPOSSIBLE, WOULD YOU

THANK YOU.
NOW, ISN'T IT TRUE THAT WHILE YOU WERE AT
345

U.S. COURT REPORTERS

1

A CERTAIN POINT AT THE RIGHT SIDE OF MR. HESTON AND

2

HE WAS FACE DOWN ON THE FLOOR OF THE LIVING ROOM

3

WITH HIS ARMS UNDERNEATH HIM, THAT YOU SAW OFFICER

4

GODWIN FIRE HIS TASER, THE PROBES, INTO THE BACK OF

5

MR. HESTON WHILE HE WAS LYING ON THE FLOOR?

6

A

YES.

7

Q

AND ISN'T IT TRUE THAT WHEN OFFICER GODWIN

8

FIRED HIS TASER INTO MR. HESTON'S BACK, IT CYCLED

9

FOR A FULL FIVE SECONDS?

10

A

YES.

11

Q

AND IMMEDIATELY AFTER THOSE FIVE SECONDS, YOU

12

FELT MR. HESTON'S ARMS BECOME -- RELAX?

13

A

AT THE END OF THE CYCLE, YES, SOMEWHAT.

14

Q

OKAY.

15

AFTER THAT FULL FIVE-SECOND DISCHARGE FROM OFFICER

16

GODWIN'S TASER, YOU WERE THEN ABLE TO PULL OUT HIS

17

ARM AND BEGIN THE HANDCUFFING PROCESS; CORRECT?

18

A

CORRECT.

19

Q

SO THERE WAS A DEFINITE PERIOD OF TIME WHEN

20

YOU FELT MR. HESTON'S ARM RIGID AND THEN IT

21

RELAXED?

22

A

YES.

23

Q

WHEN -- AT THE MOMENT IN TIME WHEN

24

MR. HESTON'S ARM BEGAN TO RELAX, YOU WERE AWARE

25

THAT OFFICER GODWIN HAD COMPLETED HIS FIVE-SECOND

AND AT THAT POINT AS HIS ARMS RELAXED,

346

U.S. COURT REPORTERS

1

CYCLE OF THE TASER; ISN'T THAT TRUE?

2

A

THAT'S TRUE.

3

Q

AND THIS EFFECT FROM THE TASER WOULD BE

4

CONSISTENT WITH, WITH YOUR TRAINING, CORRECT, THAT

5

AS SOON AS THE CYCLE IS COMPLETE, THE PERSON'S BODY

6

WOULD BECOME LIMP, ESSENTIALLY OR RELAX, NOT LIMP

7

BUT RELAX?

8

A

YES.

9

Q

AND IMMEDIATELY AFTER THE HANDCUFFS -- DID

10

YOU -- WERE YOU ACTUALLY INVOLVED IN THE

11

HANDCUFFING PROCESS?

12

A

PUTTING THE HANDCUFFS ON HIM?

13

Q

YES.

14

A

NO.

15

Q

AND DO YOU RECALL WHO THAT WAS?

16

A

I BELIEVE IT WAS OFFICER SIMPSON.

17

Q

ALL RIGHT.

18

DIFFERENT OFFICERS.

19

WE HAVE TALKED ABOUT A NUMBER OF

DO YOU REMEMBER WHEN OFFICER SIMPSON

20

ARRIVED IN THE LIVING ROOM OF THE HESTON HOUSE?

21

A

NO.

22

Q

BUT YOU WERE AWARE SUDDENLY AS YOU WERE

23

PULLING MR. HESTON'S ARM OUT, HIS RIGHT ARM OUT

24

FROM UNDER HIS BODY THAT OFFICER SIMPSON WAS THERE?

25

A

YES.
347

U.S. COURT REPORTERS

1

Q

2

PLACED ON MR. HESTON, YOU GOT UP AND WALKED OUT OF

3

THE HOUSE; CORRECT?

4

A

CORRECT.

5

Q

AND WHEN YOU WALKED OUT OF THE HOUSE YOU

6

IMMEDIATELY CALLED FOR PARAMEDICS; IS THAT TRUE?

7

A

THAT'S TRUE.

8

Q

AND AT THIS POINT I'D LIKE TO SHOW YOU WHAT

9

HAS BEEN MARKED AS PLAINTIFF'S 128-B, AND IT'S

10
11
12

AND IMMEDIATELY AFTER THE HANDCUFFS WERE

ACTUALLY PAGE 2 OF 128-B.
MR. BURTON:

THIS IS ADMISSIBLE BY

STIPULATION, YOUR HONOR, WITH THE OTHER SIDE.

13

MR. HURLEY:

RIGHT.

14

THE COURT:

15

MR. WILLIAMSON:

VERY WELL.

WHAT IS IT?

IT'S AN ACTUAL ITEMIZED

16

CAD OF THE DISPATCH CALLS AND THE RADIO CALLS FROM

17

THE OFFICERS.

18

THE COURT:

19

MR. WILLIAMSON:

20
21
22

AN ITEMIZED CAD.
A CAD, A CALL HISTORY

ESSENTIALLY.
THE COURT:

ALL RIGHT.

128-B IS IN

EVIDENCE, AN ITEMIZED CALL.

23

(WHEREUPON, PLAINTIFFS' EXHIBIT NUMBER 128

24

HAVING BEEN PREVIOUSLY MARKED FOR

25

IDENTIFICATION, WAS ADMITTED INTO
348

U.S. COURT REPORTERS

1

EVIDENCE.)

2

MR. WILLIAMSON:

IT'S COMING UP THERE.

3

Q

OFFICER FAIRBANKS, HAVE YOU EVER SEEN THIS

4

CALL HISTORY BEFORE?

5

A

YES.

6

Q

AND YOU RECOGNIZE THIS DOCUMENT AS A DATE AND

7

TIME STAMP OF CALLS THAT WERE BEING EXCHANGED AT

8

THE TIME OF THIS INCIDENT BETWEEN THE POLICE

9

OFFICERS THAT WERE PRESENT AND YOUR RADIO

10

DISPATCHER; RIGHT?

11

A

RIGHT.

12

Q

OKAY.

13

IT'S HARD.

14

SECOND.

15

PERTAINS TO A CALL THAT YOU MADE.

16

I HAVE A PARTICULAR SECTION, AND I KNOW
WE'RE GOING TO MAGNIFY THIS IN A

BUT I HAVE A YELLOWED PORTION THAT

WE'RE GOING TO DO A NIFTY THING HERE AND

17

TRY AND MAGNIFY SO WE CAN SEE IT, IF MR. BURTON CAN

18

HANDLE THE TECHNOLOGY.

19
20
21
22
23
24
25

THE COURT:

YOU NEED TO SELECT THE TOOL

THAT MAGNIFIES IT, THAT MADE IT SMALLER.
THE WITNESS:

I SAID I'M ABLE TO READ IT

IF THAT'S -THE COURT:

WELL, NO, WE ALL WANT TO BE

ABLE TO SEE IT.
THE WITNESS:

OKAY.
349

U.S. COURT REPORTERS

1

THE COURT:

SO LET'S GIVE COUNSEL A

2

CHANCE.

3

BY MR. WILLIAMSON:

4

Q

5

TO READ NOW?

6

A

YES.

7

Q

OKAY.

8

ATTENTION TO THE TIME 14:26:47 SECONDS; DO YOU SEE

9

THAT?

OFFICER FAIRBANKS, IS THAT BIG ENOUGH FOR YOU

I WANT TO SPECIFICALLY DIRECT YOUR

10

A

YES.

11

Q

AND JUST TO BE CLEAR THIS IS MILITARY TIME.

12

14:26 IS 2:26 P.M.?

13

A

YES.

14

Q

AND SO THIS WOULD BE 14:26 WOULD BE 2:26 P.M.?

15

A

RIGHT.

16

Q

AND WHAT WAS THE CODE YOU USED ON THE DATE OF

17

THIS INCIDENT?

18

A

F2.

19

Q

AND DO YOU SEE ON THE PARTICULAR LINE OF THAT

20

ENTRY F2?

21

A

YES.

22

Q

AND DOES THAT DESIGNATE THAT'S A CALL THAT YOU

23

MADE?

24

A

YES.

25

Q

AND WAS THIS A TIME -- STRIKE THAT.
350

U.S. COURT REPORTERS

1

THIS WAS A DISPATCHER REPORTING OVER

2

RADIO COMMUNICATION THAT YOU HAD REQUESTED CODE 3,

3

FIRE/AMR; IS THAT RIGHT?

4

A

RIGHT.

5

Q

AND FIRE/AMR REFERS TO PARAMEDICS?

6

A

AMR WAS THE PARAMEDICS SERVICE AT THE TIME.

7

Q

AND WOULD IT BE FAIR TO SAY THAT THE RADIO

8

DISPATCHER WOULD HAVE SENT THIS BROADCAST OUT ON

9

THE RADIO WITHIN SECONDS AFTER YOU PLACED THE CALL

10

TO THAT DISPATCHER?

11

A

WOULD THEY HAVE CONTACTED AND --

12

Q

NO, NO, NO, NO, NO.

13

THIS REFERENCE IS TO THE DISPATCHER,

14

NOTING THAT YOU HAVE REQUESTED CODE 3; RIGHT?

15

A

RIGHT.

16

Q

WHAT I'M TRYING TO GET AT IS WHAT IS THE TIME

17

GAP THAT YOU CALL YOUR DISPATCHER AND YOU SAY I

18

NEED CODE 3 BACK UP AT THIS LOCATION, OR CODE 3

19

FIRE/AMR AT THIS LOCATION AND THE TIME THAT THE

20

DISPATCHER REPORTS THAT?

21

A

22

MAKE THIS CALL HOW LONG IT TOOK THEM TO -- TO

23

CONTACT --

24

Q

25

TOOK THEM TO CONTACT.

SO YOU'RE SAYING ESTIMATE THE TIME THAT ONCE I

TO BROADCAST YOUR REQUEST, NOT HOW LONG IT

351

U.S. COURT REPORTERS

1

A

THEY WOULDN'T REBROADCAST MY REQUEST.

2

Q

OKAY.

3

BECAUSE NOW I'M A LITTLE CONFUSED.

4

SO LET ME ASK YOU A DIFFERENT WAY

IS THIS YOUR CALL TO YOUR DISPATCHER

5

REQUESTING CODE 3, FIRE?

6

A

A RECORD OF WHAT I TOLD THEM?

7

Q

RIGHT.

8

A

YES.

9

Q

OKAY.

WHAT I'M TRYING TO GET AT IS IN TERMS

10

OF THE TIME STAMP.

11

A

UH-HUH.

12

Q

WHEN IS THIS RECORD CREATED IN RELATION TO

13

WHEN YOU MADE THE REQUEST?

14

AFTER YOU MADE THE REQUEST?

15

MR. HURLEY:

ISN'T IT JUST SECONDS

OBJECTION.

IT CALLS FOR

16

SPECULATION AND OUTSIDE OF THE SCOPE OF THIS

17

WITNESS.

18

RECORD.

19

IT'S NOT A SALINAS POLICE DEPARTMENT

THE COURT:

WELL, PERHAPS IT IS OR NOT

20

OUTSIDE OF THE SCOPE.

21

FOR LACK OF FOUNDATION.

22

I'LL SUSTAIN THE OBJECTION

MR. WILLIAMSON:

OKAY.

23

Q

DO YOU KNOW THE PROCESS BY WHICH THE

24

DISPATCHER MAKES THE RECORD OF YOUR BROADCAST FOR

25

THE CODE 3 FIRE/AMR?
352

U.S. COURT REPORTERS

1

A

THAT THEY DOCUMENT IT, I DON'T KNOW HOW LONG

2

IT TAKES THEM.

3

Q

4

POLICE RADIO BY THE DISPATCHER THAT THE REQUEST HAS

5

BEEN MADE?

6

A

YES.

7

Q

AND DO YOU RECALL HEARING THE DISPATCHER

8

COMMUNICATE YOUR REQUEST OVER THE, OVER YOUR RADIO

9

FOR FIRE AND AMBULANCE?

OKAY.

DOES THIS REFLECT A BROADCAST OVER

10

A

THEY'RE ON THE ENTIRELY DIFFERENT CHANNEL SO

11

THIS WOULDN'T HAVE COME ACROSS --

12

Q

OKAY.

13

A

-- OUR RADIO.

14

Q

MAY I HAVE A SECOND?

15

(PAUSE IN PROCEEDINGS.)

16

BY MR. WILLIAMSON:

17

Q

18

YOU, OFFICER FAIRBANKS.

OKAY.

19

I JUST HAVE A COUPLE MORE QUESTIONS FOR

WOULD IT BE FAIR TO SAY THAT ONLY A FEW

20

SECONDS PASSED BETWEEN THE TIME THAT THE HANDCUFFS

21

WERE PLACED ON MR. HESTON AND YOU BROADCAST FOR A

22

FIRE AND AMBULANCE?

23

A

YES.

24

Q

AND ISN'T IT TRUE THAT YOU COULD NOT

25

POSITIVELY SAY ONE WAY OR THE OTHER WHETHER THERE
353

U.S. COURT REPORTERS

1

WAS EVER A PERIOD OF TIME WHEN MR. HESTON WAS

2

DEFINITELY NOT BEING TASED FROM THE POINT THAT YOU

3

FIRST SAW HIM ON THE FLOOR UNTIL THE POINT WHEN

4

OFFICER GODWIN SHOT HIM IN THE BACK WITH HIS TASER;

5

ISN'T THAT TRUE?

6

A

CAN YOU REPEAT THE QUESTION?

7

Q

ISN'T IT TRUE THAT YOU CAN'T POSITIVELY SAY

8

ONE WAY OR THE OTHER WHETHER THERE WAS EVER A

9

PERIOD OF TIME WHEN MR. HESTON DEFINITELY WAS NOT

10

BEING TASED, FROM THE POINT IN TIME WHEN YOU FIRST

11

ENTERED THE LIVING ROOM AND FIRST SAW HIM ON THE

12

FLOOR TO THE POINT WHEN YOU SAW OFFICER GODWIN FIRE

13

HIS TASER INTO THE BACK OF MR. HESTON?

14

TRUE?

15

A

THAT'S NOT TRUE.

16

Q

I'D LIKE TO READ FROM THE WITNESS'S

17

DEPOSITION, PAGE 80, LINES 18 TO 23.

18

YOUR HONOR, WE ALREADY LODGED THE ORIGINAL

19

TRANSCRIPT WITH THE COURT.

20

THE COURT:

21

MR. WILLIAMSON:

22

THE COURT:

23

AND I THINK,

IS THIS A PARTY?
NO, YOUR HONOR.

YOU NEED TO GIVE HIM AN

OPPORTUNITY TO READ IT.

24
25

ISN'T THAT

MR. WILLIAMSON:
COPY.

I THINK WE LODGED OUR

OURS ARE ALL DIGITAL, YOUR HONOR.

AND I
354

U.S. COURT REPORTERS

1

THINK --

2
3

THE COURT:

DOCUMENTS THAT THEY GAVE YOU?

4
5

DO THEY HAVE A SET OF

THE CLERK:

WELL, IT WAS ALL SITTING

THE COURT:

WELL, OKAY.

HERE.

6
7

BY MR. WILLIAMSON:

8

Q

9

PAGE 80, LINES 18 TO 23.

CAN YOU GIVE IT.

OFFICER, LET ME DIRECT YOU SPECIFICALLY TO

10

A

AND YOUR QUESTION WAS IS THIS YOUR QUESTION?

11

Q

MY QUESTION IS THAT NOW HAVING READ IT, DOES

12

THAT REFRESH YOUR RECOLLECTION ABOUT HOW YOU

13

RESPONDED TO THE QUESTION THAT I JUST POSED TO YOU

14

A MINUTE AGO?

15

A

YES.

16

Q

AND DID YOU HAVE A DIFFERENT RESPONSE AT THE

17

TIME OF YOUR DEPOSITION?

18

WELL, LET ME ASK YOU THIS, SIR:

ISN'T IT

19

TRUE THAT AT THE TIME OF YOUR DEPOSITION, YOU

20

TESTIFIED UNDER OATH THAT YOU COULD NOT POSITIVELY

21

SAY ONE WAY OR THE OTHER, IF WE TAKE THE TIMEFRAME

22

FROM THE TIME THAT YOU FIRST ENTERED THE LIVING

23

ROOM AND SAW MR. HESTON ON THE FLOOR TO THE POINT

24

WHEN YOU SAW OFFICER GODWIN FIRE HIS TASER, THAT

25

YOU CAN'T SAY POSITIVELY ONE WAY OR THE OTHER
355

U.S. COURT REPORTERS

1

WHETHER MR. HESTON WAS EVER NOT BEING TASED?

2

A

COULD I SAY POSITIVELY?

3

Q

OKAY.

4

I WOULD SAY NO.

THANK YOU.
ISN'T IT TRUE, SIR, THAT FROM THE POINT

5

IN TIME WHEN YOU FIRST SAW MR. HESTON ON THE FLOOR

6

IN THE LIVING ROOM ON THE FLOOR WITH HIS ARMS

7

UNDERNEATH HIM TO THE POINT WHEN OFFICER GODWIN

8

SHOT HIM ON THE BACK, THAT HE NEVER MOVED FROM THAT

9

POSITION?

10

ISN'T THAT TRUE?

11

A

THAT'S TRUE.

12

Q

ISN'T IT ALSO TRUE THAT FROM THE POINT IN TIME

13

WHEN YOU FIRST SAW MR. HESTON ON THE FLOOR IN THE

14

LIVING ROOM WITH HIS ARMS UNDERNEATH HIM, TO THE

15

POINT WHEN OFFICER GODWIN SHOT HIM IN THE BACK,

16

THAT YOU NEVER HEARD MR. HESTON SAY ANYTHING; ISN'T

17

THAT TRUE?

18

A

19
20
21
22

THAT'S TRUE.
MR. WILLIAMSON:

I HAVE NOTHING FURTHER.
THE COURT:

THANK YOU.

VERY WELL.

DOES ANY OTHER

PARTY WISH TO EXAMINE THE WITNESS AT THIS TIME?

23

MR. HURLEY:

24

THE COURT:

25

THANK YOU, YOUR HONOR.

YES, YOUR HONOR.
THIS WOULD BE IN THE NATURE

OF A DIRECT EXAMINATION.
356

U.S. COURT REPORTERS

1

DIRECT EXAMINATION

2

BY MR. HURLEY:

3

Q

4

ASKED IF YOU COULD STATE POSITIVELY EXACTLY WHAT

5

WAS OCCURRING WITH THE TASERS AT THE TIME THAT YOU

6

SAW MR. HESTON ON THE FLOOR.

OFFICER FAIRBANKS, JUST A MOMENT AGO YOU WERE

7

COULD YOU EXPLAIN YOUR ANSWER?

8

A

WELL, AS TO THE WAY THE QUESTION WAS POSED TO

9

ME AND BEING SPECIFICALLY CLEAR WITH ALL OF THE

10

COMMOTION AND LOOKING BACK ON IT AND REVIEWING IT

11

IN MY HEAD, THERE SEEMS TO BE A TIME WHERE I RECALL

12

SPEAKING ABOUT THE INCIDENT.

13

MY HEAD AS I SIT HERE TODAY THAT I COULD SAY THAT I

14

DID HEAR TASERS CYCLING AT ONE POINT IN TIME.

15

Q

16

HIM, WE CAN'T GET HIS ARMS OUT"?

17

A

I RECALL WORDS TO THAT EFFECT.

18

Q

AND WHAT WAS YOUR OBJECTIVE WHEN YOU GOT INTO

19

THE HOUSE AND GOT TO THE SIDE OF ROBERT C. HESTON?

20

A

21

HIS BODY.

22

Q

23

WHEN A TASER IS OPERATING?

24

A

25

DIFFERENTLY.

AND RECALLING IT IN

DID YOU EVER HEAR SIMPSON SAY TO GODWIN, "TASE

TO ATTEMPT TO REMOVE HIS HAND FROM UNDERNEATH

AND IS IT IMPOSSIBLE TO MOVE A PERSON'S ARMS

IT'S HARD TO SAY.

IMPOSSIBLE?

DIFFERENT PEOPLE REACT

357

U.S. COURT REPORTERS

1

WE TRAIN WITH STANDARD WINDOW OF

2

OPPORTUNITY TO GET IN THE POSITION WHEN THEY COME

3

OUT WITH THAT EXTRA MUSCLE RIGIDNESS.

4

TO STRUGGLE WITH THE PERSON AT THAT POINT.

5

Q

6

ARMS, WHAT WAS YOUR OBJECTIVE AS TO MR. HESTON'S

7

ARMS?

8

A

TO MOVE THEM TO HIS BACK AND TO HANDCUFF HIM.

9

Q

AND IN YOUR TRAINING AND EXPERIENCE -- WELL,

IT IS EASIER

AND ON THAT DAY AS FAR AS FOCUSING ON HIS

10

FIRST OF ALL, IN YOUR TRAINING, WHEN YOU'RE

11

TRAINING OFFICERS AND THEY HAVE BEEN TASED, DO YOU

12

HAVE ANY EXPERIENCE WITH OFFICER'S ARMS BEING

13

SUBJECT TO BEING MOVED?

14

A

15

SOME PACIFIC IN A PARTICULAR INSTANT WHERE I WAS

16

TASED I COULD MOVE MY LEFT ARM.

THEY'RE RIGID AND IN A LOT OF THE CASES AND

17

SO THERE IS DIFFERENCES.

18

Q

AND IN THE TRAINING THAT YOU GIVE TO THE

19

OFFICERS AND THE TRAINING THAT WAS GIVEN TO THE

20

OFFICERS IN 2003, DID THAT INCLUDE VIDEOS OF

21

OFFICERS WHO WERE SUBJECT TO TASER GOING DOWN WITH

22

THEIR ARMS IN VARIOUS POSITIONS?

23

A

YES.

24

Q

ALL RIGHT.

25

POLICE DEPARTMENT TRAINING HERE.

I'M GOING TO BRING UP YOUR SALINAS

358

U.S. COURT REPORTERS

1
2

THE COURT:
THE SYSTEM?

3
4

DID YOU SWITCH THE INPUT ON

MR. HURLEY:

IT SHOULD COME UP IN A

MINUTE.

5

(PAUSE IN PROCEEDINGS.)

6

BY MR. HURLEY:

7

Q

8

GO BACK TO WHERE YOU WERE OUTSIDE OF THE HOUSE

9

WHEN YOU WENT UP ALONG THE FRONT SIDE OF THE HOUSE.

WHILE WE'RE WAITING FOR THAT TO COME UP, LET'S

10

AND WE'LL LOOK AT SOME PICTURES TOMORROW, WHEN YOU

11

WENT UP ALONG THE FRONT SIDE OF THE HOUSE, YOU WERE

12

ON AN ANGLE LOOKING DOWN ALONG THE FRONT; IS THAT

13

CORRECT?

14

A

15

THE FRONT OF THE HOUSE.

16

Q

17

FRONT WINDOW?

18

A

THERE WAS.

19

Q

AND HAVE YOU SINCE MEASURED WHERE YOU WERE

20

WHEN YOU DEPLOYED YOUR TASER?

21

A

YES.

22

Q

YOU WERE QUESTIONED BY THE HESTON'S ATTORNEY

23

ABOUT WHERE YOU WERE STANDING AT THE TIME OF YOUR

24

DEPOSITION AND YOU HAVE NOT MEASURED IT; IS THAT

25

CORRECT?

PRETTY MUCH PARALLEL.

MY PATH WAS PARALLEL TO

AND COULD YOU SEE THAT THERE WAS A BROKEN

359

U.S. COURT REPORTERS

1

A

THAT'S CORRECT.

2

Q

AND SINCE THEN IN PREPARING TO TESTIFY IN THIS

3

TRIAL, DID YOU GO OUT AND DO THAT?

4

A

YES, I DID.

5

Q

AND WHAT WAS THE DISTANCE YOU WERE STANDING

6

FROM HESTON WHEN DEPLOYED?

7

A

I WOULD SAY APPROXIMATELY 17 TO 18 FEET.

8

Q

AND THEN AFTER HESTON WENT BACK INSIDE AND

9

THIS MINUTE WENT ON BEFORE OTHER OFFICERS CAME, CAN

10

YOU DESCRIBE FOR US WHAT HESTON WAS DOING?

11

A

12

HE WAS -- HE WAS APPEARED LOOKING FOR MORE ARTICLES

13

TO THROW AT US.

14

HE WAS MOVING ABOUT, IN AND OUT OF THE HOUSE.

AFTER I HAD DEPLOYED MY TASER AND IT

15

DIDN'T HAVE THE EFFECT, ONE OF THE ITEMS

16

IMMEDIATELY THEREAFTER THAT HE, THAT HE CHOSE WAS

17

THE OUTDOOR PORCH LIGHT FIXTURE THAT WAS SOMEWHERE

18

IN THE VICINITY OF HIS -- OF HIS LEFT SHOULDER AREA

19

I WOULD IMAGINE AND HE GRABBED THAT LIGHT FIXTURE

20

AND RIPPED IT FROM THE WALL.

21

WHEN HE DID SO THERE WAS A -- I SAW THE

22

ARC AS WE SPOKE ABOUT EARLIER AND SAW HIM CONVULSE

23

FROM WHAT IT SEEMED TO ME TO BE AN ELECTRICAL SHOCK

24

FROM THAT FIXTURE.

25

AND THEN HE TURNED AND THREW THAT IN THE
360

U.S. COURT REPORTERS

1

VICINITY OR AT SERGEANT DOMINICI AND THEN RETURNING

2

BACK INSIDE OF THE HOUSE AT ONE POINT I COULDN'T

3

SEE CLEARLY BECAUSE OF THE FRONT WINDOW AND THE

4

WINDOW, OVER THE WINDOW SILL I COULD SEE HIM BEND

5

OVER AS IF HE WAS LOOKING AT IT.

6

APPEARED TO BE ATTEMPTING TO BREAK OBJECTS WITHIN

7

THE HOUSE TO GET ITEMS TO THROW AT US TO

8

MANUFACTURE MORE ITEMS.

9

Q

IN HINDSIGHT, IT

AND WHEN YOU SAY YOU WERE LOOKING AT IT IN

10

HINDSIGHT, WHAT WERE YOU THINKING AT THE TIME?

11

A

12

SENIOR, THAT THE POSTURE THAT HE HAD APPEARED AS IF

13

HE WAS, FOR LACK OF A BETTER WORD PUMMELING ANOTHER

14

PERSON.

15

Q

16

DOING WHEN YOU SAY PUMMELING?

17

A

18

CLEARLY HIS -- IT WAS HIS UPPER BODY AND ELBOW AREA

19

MAKING JUST PUMPING MOTIONS AS IF HE WAS GIVING CPR

20

OR SOMETHING, IF THAT MAKES IT CLEAR.

21

Q

AND HOW LONG DID HE CONTINUE DOING THAT?

22

A

I WOULD SAY JUST A COUPLE SECONDS.

23

Q

AND THEN AFTER HE WAS DOING THAT, WHAT DID HE

24

DO NEXT?

25

A

AT THE TIME, BECAUSE I HADN'T SEEN MR. HESTON

AND COULD YOU DESCRIBE WHAT HIS HANDS WERE

I COULD SEE HIS HANDS, IF I REMEMBER IT

HE RETURNED TO THE DOOR, THROWING ITEMS.
361

U.S. COURT REPORTERS

1

Q

DID YOU EVER HEAR HIM SAYING ANYTHING DURING

2

THIS PROCESS WHEN HE WAS GOING BACK AND FORTH IN

3

AND OUT OF THE HOUSE?

4

A

5

WAS HE WAS SPEAKING OF SOMEONE WHO WAS IN THE ATTIC

6

WITH THE .22 HE REFERRED TO A .22.

7

US TO COME IN AND GET HIM, ALL THE WHILE THROWING

8

THINGS AT US.

9

Q

HE WAS -- ONE OF THE THINGS THAT I REMEMBER

HE WAS URGING

AND WHEN HE'S REFERRING TO A .22, WHAT DOES

10

THAT MEAN TO YOU?

11

A

12

WAS REFERRING TO A FIREARM.

13

Q

14

CEILING?

15

A

NOT THAT I RECALL.

16

Q

AND THEN WHEN SERGEANT RUIZ ARRIVED, DID YOU

17

SEE SERGEANT RUIZ STARTING TO WALK UP?

18

A

YES.

19

Q

AND PRIOR TO SERGEANT RUIZ ARRIVING, HAD YOU

20

GONE TO ANOTHER WEAPON BESIDES THE TASER?

21

A

I HAD.

22

Q

AND WHY DID YOU DO THAT?

23

A

AT THE TIME I FELT THAT WE MAY HAVE TO RESORT

24

TO A LETHAL FORCE SITUATION.

25

Q

THAT WOULD MEAN THAT THERE WAS A FIREARM, HE

DID YOU EVER SEE HIM DO ANYTHING WITH THE

I HAD DRAWN MY PISTOL.

NOW, WHEN IT WAS JUST YOU AND SERGEANT
362

U.S. COURT REPORTERS

1

DOMINICI THERE, DID YOU EVER THINK ABOUT RUNNING

2

AROUND TO THE BACK AND TRYING TO GUARD THE

3

BACK-DOOR TO KEEP HIM FROM GETTING OUT?

4

A

NO.

5

Q

AND WHY NOT?

6

A

I FELT THAT THE THREAT LEVEL AND IN FRONT OF

7

US, HE WAS GOING TO THE BACK.

8

UNKNOWN THINGS IN THE BACK.

9

ME TO GO AROUND TO THE BACK AND IT DIDN'T SEEM LIKE

THERE WERE TOO MANY
THIS NEVER OCCURRED TO

10

A SAFE THING TO DO AT THE TIME.

11

Q

12

METHAMPHETAMINE BEFORE?

13

A

I WOULD SAY NO.

14

Q

HAD YOU EVER SEEN ANYBODY ACTING LIKE THIS

15

BEFORE IN YOUR EXPERIENCE AS A POLICE OFFICER?

16

A

PRIOR TO THAT?

17

Q

AND AT THE TIME THAT YOU APPROACHED THE HOUSE,

18

I TAKE IT THAT YOU WERE CARRYING -- YOU WERE

19

WEARING A DUTY BELT WHICH HAD EQUIPMENT ON IT;

20

CORRECT?

21

A

CORRECT.

22

Q

AND COULD YOU EXPLAIN FOR US WHAT EQUIPMENT

23

YOU HAD ON YOUR DUTY BELT?

24

A

25

PISTOL, AN EXTENDABLE BATON, OC OR PEPPER SPRAY,

HAVE YOU SEEN SAFE PEOPLE ON A RAMPAGE WITH

I HAD HANDCUFFS.

NO.

I HAD A GLOCK 45-CALIBER

363

U.S. COURT REPORTERS

1

AND MY TASER.

2

Q

3

COULD YOU DESCRIBE FOR US WHAT THAT IS?

4

A

5

THREE SECTION EXPANDIBLE STEEL STICK.

6

Q

AND IT HAS A BALL ON THE END?

7

A

YES.

8

Q

AND WHAT IS IT MADE OUT OF?

9

A

I BELIEVE IT'S MADE OUT OF ALUMINUM.

10

Q

AND THAT IS THE VERSION OF A BATON OR A NIGHT

11

STICK THAT THE SALINAS POLICE DEPARTMENT CARRIES;

12

CORRECT?

13

A

CORRECT.

14

Q

AND YOU RECEIVED TRAINING ON HOW TO USE THAT

15

DEVICE?

16

A

YES.

17

Q

AND WHEN YOU USED THAT DEVICE, DO YOU HAVE ANY

18

EXPECTATION THAT YOU'RE GOING TO CAUSE INJURY?

19

A

EXPECTATION?

20

Q

WHAT KIND OF INJURIES CAN THAT DEVICE CAUSE?

21

A

JUST A BLUNT FORCE INJURY ON THE MUSCLE MASS

22

AND BROKEN BONES BEING CAUSED BY IT.

23

Q

24

TO MR. HESTON AND USING YOUR BATON ON HIM?

25

A

DESCRIBE -- YOU SAID AN EXPANDIBLE BATON.

WELL, EXPANDED IT'S BASICALLY A NIGHT STICK OR

NO.

AND IN THIS CASE DID YOU CONSIDER RUNNING UP

ABSOLUTELY NOT.
364

U.S. COURT REPORTERS

1

Q

AND WHY NOT?

2

A

HE'S THROWING ITEMS AT US.

3

HOUSE WAS FILLED WITH DEBRIS.

4

CONSIDERATION THAT REMAINED ON MY PART IN ENGAGING

5

IN THAT CLOSE PROXIMITY WITH HIM AT THAT TIME.

6

Q

7

HESTON WAS ON THE GROUND, DID YOU CONSIDER YOURSELF

8

USING THE BATON --

THE INSIDE OF THE
IT -- THERE WAS NO

AND WHEN YOU GOT INSIDE OF THE HOUSE AND

9

THE COURT:

10

MR. HURLEY:

THE FLOOR.
THANK YOU.

11

Q

WHEN HESTON WAS ON THE FLOOR, DID YOU CONSIDER

12

USING YOUR BATON ON HIM TO FORCE HIM TO PULL HIS

13

ARMS OUT?

14

A

NO.

15

Q

WHY NOT?

16

A

JUST IT WOULD BE AN EASIER SITUATION WITH THE

17

TASER WITHOUT HAVING TO INFLICT THOSE TYPES OF

18

INJURIES.

19

Q

20

MEAN?

21

A

22

THE TASER HAS NEVER HAD ANY ISSUES TO IT.

23

HAVE REBOUNDED QUITE RAPIDLY.

24

WHERE THAT WAS OUR BEST AVAILABLE TOOL.

25

A SITUATION AND SWINGING AROUND BATONS WITH A

AND BY "THOSE TYPES OF INJURIES," WHAT DO YOU

POSSIBLY BREAKING A BONE.

MY EXPERIENCE WITH
PEOPLE

IT WAS A SITUATION
GOING INTO

365

U.S. COURT REPORTERS

1

NUMBER OF OTHER OFFICERS AND IN A CLUTTERED ROOM.

2

Q

3

CONSIDER HAVING TO USE YOUR PEPPER SPRAY TO MAKE

4

HIM PULL HIS ARMS OUT?

5

A

NO.

6

Q

AND WHY IS THAT?

7

A

WITH THE PEPPER SPRAY THERE'S ALWAYS A

8

CONSIDERATION OF CROSS CONTAMINATION, WHERE I SPRAY

9

MY PEPPER SPRAY IT'S GOING TO MISS OR REFLECT OFF

LIKEWISE YOU HAD THE PEPPER SPRAY.

DID YOU

10

THE INTENDED TARGET AND WOULD PROBABLY MOST OF THE

11

PEOPLE THERE WOULD HAVE BEEN AFFECTED BY.

12

Q

AND YOU WOULD HIT THE OTHER OFFICERS?

13

A

IT WOULD HIT THE OTHER OFFICERS.

14

Q

NOW, YOU'RE 6 FEET 9 AND YOU WEIGH 260 POUNDS,

15

SO IF YOU HAD SAT ON HIM, IT WOULD HAVE BEEN HARD

16

FOR HIM TO PUSH YOU OFF; CORRECT?

17

A

I THINK IT WOULD --

18

MR. WILLIAMSON:

19

IT CALLS FOR SPECULATION.

20

THE COURT:

OBJECTION, YOUR HONOR.

WELL, AS PHRASED I'LL SUSTAIN

21

THE OBJECTION.

22

BY MR. HURLEY:

23

Q

24

YOU HAVE SAT ON MR. HESTON BEING '6 "9 AND BEING

25

240 OR WHATEVER YOU SAID, 250?

IN YOUR EXPERIENCE AS A POLICE OFFICER, WOULD

366

U.S. COURT REPORTERS

1

A

250.

2

Q

250.

3

A

NO, I WOULDN'T.

4

Q

AND WHY NOT?

5

A

IN SITUATIONS LIKE THIS THERE'S ALWAYS THE

6

SITUATION OF POSITIONAL ASPHYXIA SITUATION AND WE

7

WOULDN'T WANT TO AFFECT THE BREATHING.

8

ALREADY A PERSON WHO HAS EXPENDED A LOT OF ENERGY,

9

SO TO DISRUPT HIS BREATHING WOULD HAVE BEEN IN

IT'S

10

ERROR.

11

Q

12

ASPHYXIA AND THE POLICE DEPARTMENT TRAINS ABOUT

13

POSITIONAL ASPHYXIA; CORRECT?

14

A

CORRECT.

15

Q

AND IT DID IN 2003 AND 2004; CORRECT?

16

A

CORRECT.

17

Q

ALL RIGHT.

18

OFFICERS ARE TAUGHT ABOUT POSITIONAL ASPHYXIA?

19

A

20

AFTER TAKING A PERSON INTO CUSTODY IS TO TAKE A

21

PERSON ON THEIR SIDE SO THEY'RE NOT RESTING THEIR

22

WEIGHT ON THE DIAGRAM OR THEIR CHEST.

23

AND YOU MENTIONED THE WORDS POSITIONAL

COULD YOU EXPLAIN TO US WHAT

WE'RE TAUGHT THE FIRST AND FOREMOST THING

WE'RE NOT TO WEIGH DOWN PEOPLE OR

24

BASICALLY DOG PILE ON SOMEONE BASICALLY BECAUSE OF

25

A SITUATION WHERE WE COULD AFFECT THE BREATHING AND
367

U.S. COURT REPORTERS

1

POSSIBLY CAUSE A MEDICAL PROBLEM WITH THE SUSPECT.

2

Q

3

YOU DESCRIBE WHAT A DOG PILE IS?

4

A

5

ON HIM AND HOLING HIM DOWN WHEN EVERYBODY IS TRYING

6

TO GRAB A WRIST OR A HANDCUFF.

7

Q

HAVE YOU EVER HEARD THE TERM SWARM?

8

A

NEVER.

9

Q

AND YOU WERE NEVER TRAINED WITH THAT TERM?

10

A

NO.

11

Q

CAN YOU THINK OF ANY OTHER ALTERNATIVE YOU HAD

12

IF YOU WERE GOING TO USE SOME KIND OF METHOD TO TRY

13

AND KEEP HIM UNDER CONTROL?

14

CONTROL YOU HAD EITHER ON YOUR BELT OR TRAINING

15

THAT YOU COULD USE?

16

A

AT WHAT POINT?

17

Q

AT THE POINT THAT YOU WERE DOWN NEXT TO

18

MR. HESTON AND WANTED TO GET HIS ARMS OUT.

19

A

I WOULD NOT HAVE RESORTED TO ANY OTHER FORCE.

20

Q

NOW, WE TALKED ABOUT HEARING TASERS.

21

AND YOU USED THE REFERENCE TO DOG PILE.

COULD

WELL, IT WOULD BE ALL OF THE OFFICERS JUMPING

WAS THERE ANY OTHER

WAS THERE A POINT WHEN YOU WERE PULLING

22

ON MR. HESTON'S ARMS THAT YOU FELT THAT HE WAS NOT

23

BEING AFFECTED BY A TASER BUT WAS BEING RESISTIVE?

24

A

THERE WAS.

25

Q

AND COULD YOU DESCRIBE THAT FOR US?
368

U.S. COURT REPORTERS

1

A

2

A, I GUESS A STATIC SITUATION.

3

FROM PULLING THAT THERE WAS SOME RESISTANCE IN THE

4

RIGHT ARM OF MR. HESTON.

5

THE TIME -- THE POINT IN TIME WHERE IT BECAME
IT APPEARED TO ME

AT THAT POINT I REMEMBER OFFICER GODWIN

6

RELOADED HIS TASER AND AFTER FAILING TO PULL THE

7

ARMS FROM BENEATH MR. HESTON, HE ANNOUNCED THAT HE

8

WAS GOING TO TASE HIM AGAIN.

9

Q

NOW, ARE YOU TRAINED ABOUT BEING CONCERNED FOR

10

A PERSON ROLLING UP -- A PERSON WHO IS ON THE FLOOR

11

ROLLING UP AND WITH OFFICERS AROUND THE PERSON?

12

A

RIGHT.

13

Q

NOW, BY THE TIME SIMPSON GOT THERE I THINK

14

THERE WERE SEVEN OFFICERS THERE; CORRECT?

15

A

I DON'T KNOW EXACTLY.

16

Q

YOU DON'T RECALL, BUT FOR ALL OF THOSE

17

OFFICERS THERE, THEY'RE ALL TRAINED THE SAME ABOUT

18

NOT GETTING ON TOP OF HIM; CORRECT?

19

A

CORRECT.

20

Q

AND SO EVEN THOUGH THERE ARE SEVEN OFFICERS

21

THERE, IN YOUR TRAINING IS THERE ANY DANGER IF A

22

PERSON ROLLS UP AND COMES UP FROM A PRONE POSITION?

23

A

24

HIS HANDS UNDER HIM TO PRESS UP WITH HIS HANDS.

25

THAT WOULD HAVE, THE POSITION OF HIS HANDS WOULD

PARTICULARLY AND IN THE POSITIONING WAS WITH

369

U.S. COURT REPORTERS

1

HAVE FACILITATED HIM GETTING UP OR BENT.

2

Q

3

OBSERVE WHAT WAS -- ABOUT THE FLOOR OF THE HOUSE

4

THAT YOU ENTERED INTO?

5

A

6

WOOD.

7

Q

8

SERGEANT DOMINICI; CORRECT?

9

A

CORRECT.

10

Q

AND AFTER WHEN YOU WENT OUTSIDE THERE WAS A

11

LONG PIECE OF WOOD LAYING AT THE SPOT WHERE

12

DOMINICI HAD BEEN STANDING WHEN HE HAD BEEN STRUCK;

13

CORRECT?

14

A

CORRECT.

15

Q

AND I'M SHOWING YOU ITEM 249, WHICH IS A PIECE

16

OF WOOD FROM FURNITURE.

17

LAYING OUT IN FRONT OF THE HOUSE AFTER YOU SAW A

18

PIECE OF WOOD THROWN AT SERGEANT DOMINICI?

19

A

I COULDN'T EXACTLY SAY.

20

Q

RIGHT.

21

THAT YOU SAW --

22

A

YES.

23

Q

-- COME OUT OF THE HOUSE?

24

A

YES.

25

Q

AND DID YOU SEE ANYTHING THROWN AT SERGEANT

AND WHEN YOU WENT INTO THE HOUSE, DID YOU

THERE WAS GLASS, THERE WAS BROKEN PIECES OF
THERE WERE A NUMBER OF DIFFERENT THINGS.
NOW, YOU SAW HESTON THROW A PIECE OF WOOD AT

IS THIS THE WOOD THAT WAS

DOES IT LOOK SIMILAR TO THE OBJECT

370

U.S. COURT REPORTERS

1

RUIZ WHEN SERGEANT RUIZ STARTED UP THE PATH?

2

A

YES.

3

Q

AND I'M SHOWING YOU AN ITEM WHICH IS 27, A

4

GRANDFATHER CLOCK WEIGHT.

5

DOES THIS APPEAR TO --

6

THE COURT:

7

DIRECT QUESTION.

8

BY MR. HURLEY:

9

Q

10

YOU NEED TO ASK THAT AS A

DID -- CAN YOU DESCRIBE FOR US -- LET ME GO

BACK.

11

WHEN YOU SAW SOMETHING THROWN AT SERGEANT

12

RUIZ, DESCRIBE WHAT YOU HAD SAW?

13

A

14

RUIZ.

15

Q

16

METALLIC ITEMS THROWN OUT OF THE HOUSE?

17

A

I ONLY RECALL SEEING ONE.

18

Q

AND I'M HOLDING 207, THE GRANDFATHER CLOCK

19

WEIGHT.

20

SAW THROWN OUT OF THE HOUSE?

21

A

IT DOES.

22

Q

AND WHERE WAS SERGEANT RUIZ STANDING WHEN YOU

23

SAW THIS ITEM THROWN OUT OF THE HOUSE THAT LOOKS

24

LIKE 207?

25

A

I SAW A GOLD METALLIC ITEM THROWN AT SERGEANT

DID YOU SEE MORE THAN ONE OF THOSE GOLD

DOES THIS APPEAR TO BE THE ITEM THAT YOU

I BELIEVE HE WAS APPROACHING ON OR NEAR UP TO
371

U.S. COURT REPORTERS

1

THE FRONT DOOR, PROBABLY IN THE AREA OF THE

2

SIDEWALK.

3

Q

4

GRANDFATHER CLOCK, AND YOU TALKED ABOUT MOVING THE

5

GRANDFATHER CLOCK TWICE, IF I UNDERSTOOD THE

6

TESTIMONY.

7

A

I MOVED IT TWICE.

8

Q

THE FIRST TIME YOU MOVED THE GRANDFATHER

9

CLOCK, WHERE WAS IT LAYING WHEN YOU FIRST FOUND IT?

NOW, WHEN YOU WERE ASKED ABOUT MOVING THE

DO YOU RECALL MOVING IT TWICE OR ONCE?

10

A

IT WAS IN THE AREA OF THE THRESHOLD OF THE

11

FRONT DOOR.

12

Q

13

TO GET INTO THE HOUSE?

14

A

YOU WOULD HAVE TO, YEAH.

15

Q

AND WHEN YOU MOVED THE GRANDFATHER CLOCK THE

16

FIRST TIME, WHERE DID YOU MOVE IT TO?

17

A

18

BELIEVE THERE'S ONE OR TWO STAIRS TO THE FRONT THE

19

PORCH.

20

Q

21

CLOCK, WHERE DID YOU MOVE IT TO?

22

A

OFF TO THE LAWN ON THE RIGHT SIDE LOOKING UP.

23

Q

AFTER THE FIRST TIME THAT YOU MOVED THE

24

GRANDFATHER CLOCK, WHEN YOU WERE GOING TO GO IN THE

25

DOOR INTO THE LIVING ROOM, DO YOU RECALL AN OFFICER

AND WAS IT SOMETHING THAT YOU WOULD STEP OVER

DOWN TO THE AREA DOWN AT THE BOTTOM.

I

AND THE SECOND TIME YOU MOVED THE GRANDFATHER

372

U.S. COURT REPORTERS

1

COMING IN BEHIND YOU?

2

A

I DON'T RECALL WHO WAS BEHIND ME.

3

Q

DO YOU EVER RECALL, IN YOUR MEMORY OF THE

4

EVENT, OFFICER PAREDEZ COMING INTO THE HOUSE?

5

A

6

DON'T REMEMBER HIM COMING INTO THE HOUSE.

I REMEMBER HIM BEING THERE AT THE END, BUT I

7

MR. HURLEY:

YOUR HONOR, IF THIS IS A

8

GOOD TIME TO RECESS FOR THE AFTERNOON, I COULD THEN

9

GO TO THE PHOTOGRAPHS AND FIX THE TECHNOLOGY.

10

THE COURT:

VERY WELL.

11

MEMBERS OF THE JURY, IT'S ABOUT 4:00 SO

12

WE'LL RECESS FOR THE DAY.

13

SCHEDULE.

14

WE COME BACK TO THIS MATTER TOMORROW

15

MORNING AT 9:00.

16

ADMONITIONS.

17
18

LET ME CHECK OUR

I'LL SEE YOU THEN.

REMEMBER MY

(WHEREUPON, THE PROCEEDINGS IN THIS
MATTER WERE HELD OUT OF THE PRESENCE OF THE JURY:)

19

THE COURT:

VERY WELL.

20

YOU MAY STEP DOWN.

WE'RE OUT OF THE

21

PRESENCE OF THE JURY.

22

NEEDED TO TAKE UP SOME MATTER HAVING TO DO WITH A

23

WITNESS?

24
25

MR. BURTON:

I WAS ADVISED THAT YOU

YOUR HONOR, IT ACTUALLY HAS

TO DO WITH A MOTION IN LIMINE AND I BELIEVE IT'S
373

U.S. COURT REPORTERS

1

SALINAS MOTION IN LIMINE NUMBER 4, WHICH THE COURT

2

GRANTED OVER NO OPPOSITION, BUT THE EXPLANATION OF

3

THE NO OPPOSITION WAS CONDITIONAL.

4
5
6

IF I COULD GIVE JUST A QUICK DESCRIPTION
OF WHAT HAPPENED HERE.
DR. HADDIX WAS THE MEDICAL EXAMINER WHO

7

DID THE AUTOPSY OF ROBERT HESTON AND THEN TURNED IN

8

HER REPORT TO THE COUNTY CORONER, WHO IS ALSO THE

9

SHERIFF AND GAVE, AS A PRIMARY CAUSE OF DEATH,

10

TASER APPLICATIONS AND AGITATED STATE

11

METHAMPHETAMINE INTOXICATION.

12

AFTER THAT THE SHERIFF, SOMEBODY FROM THE

13

SHERIFF'S OFFICE, A COMMANDER CLARK, AND THEN THE

14

SHERIFF HIMSELF, CORONER, CALLED DR. HADDIX AND

15

SUGGESTED THAT SHE CHANGE HER OPINION.

16

DECLINED TO DO SO.

17

SHE

SUBSEQUENTLY HER AUTOPSY REPORT WAS

18

REVIEWED BY TWO OTHER MEDICAL EXAMINERS, DR. HAIN

19

AND DR. KARCH WHO ISSUED -- THEY DID NOT DO

20

AUTOPSIES, BUT THEY ISSUED REPORTS SAYING THAT WE

21

WOULD FIND THE TASER TO BE A CONTRIBUTORY CAUSE OF

22

DEATH BUT NOT PUT IT IN THE SAME PLACE THAT

23

DR. HADDIX DID.

24
25

WHEN THE CITY OF SALINAS BROUGHT THE
MOTION TO EXCLUDE THE CALLS FROM COMMANDER CLARK
374

U.S. COURT REPORTERS

1

AND THE CORONER WHOSE NAME I DON'T WANT TO MESS UP,

2

KANALAKIS WE SAID WE DON'T OPPOSE THIS MOTION.

3

IT'S IRRELEVANT SO LONG AS THE SUBSEQUENT AUTOPSIES

4

OF DR. HAIN AND DR. KARCH ARE NOT BROUGHT UP OR THE

5

SUBSEQUENT REVIEWS OF HER AUTOPSY.

6
7
8
9

BUT IF THOSE ARE BROUGHT UP, THEN THAT
MIGHT MAKE THAT RELEVANT.
AND I LOOKED AT THE WITNESS LIST THAT
EXISTED AT THAT TIME ON THE PRETRIAL CONFERENCE AND

10

SAW NEITHER DR. HAIN NOR DR. KARCH LISTED AS A

11

WITNESS AND REFERRED TO THAT.

12

SO I'VE TOLD THE OTHER SIDE, I SAID I

13

DON'T THINK IT'S ADMISSIBLE UNLESS YOU OPEN THE

14

DOOR AND THAT'S WHAT I TOLD THE COURT IN THE MOTION

15

TO THE OPPOSITION IN LIMINE.

16

IN COUNSEL'S TASER OPENING STATEMENT, YOU

17

KNOW, THAT DR. HADDIX'S FINDINGS WERE CRITICIZED BY

18

THE CORONER'S OFFICE AND THERE WERE THESE TWO OTHER

19

REVIEWS, I THINK THAT -- IF WE'RE GOING TO GO DOWN

20

THAT PATH, IT'S GOING TO OPEN THE DOOR.

21

THE COURT:

22

MR. BURTON:

TO WHAT?
TO HAVING HER TESTIFY THAT

23

AFTER SHE ISSUED THE REPORT, SHE WAS CALLED BY THE

24

CORONER'S OFFICE AND ASKED TO CHANGE HER OPINION

25

AND SHE REFUSED TO DO SO.
375

U.S. COURT REPORTERS

1

AND SHE'S GOING TO BE HERE TOMORROW

2

MORNING AND WE DON'T WANT TO CALL HER BACK AND SO

3

IF -- WE WOULD ASK THAT, THAT IF THEY'RE GOING TO

4

DO THAT SHE BE ALLOWED TO TESTIFY AS TO THE WHOLE

5

SEQUENCE AS TO HOW THOSE TWO SUBSEQUENT REVIEWS

6

CAME ALONG.

7

THANK YOU.

8

THE COURT:

9

ALL RIGHT.

SO IS THERE ANY

OBJECTION -- SO YOU WANT TO MAKE CERTAIN THAT BASED

10

ON THE OPENING STATEMENT YOU'RE ABLE TO ASK

11

DR. HADDIX ABOUT THE CALL THAT WAS MADE TO HER BY

12

THE MONTEREY COUNTY SHERIFF OFFICIALS, WHAT THEY

13

SAID, AND WHAT SHE SAID BACK.

14

MR. BURTON:

15

THE COURT:

16

MR. HURLEY:

YES.
ANY OBJECTION?
YES, YOUR HONOR.

17

COMPLETE HEARSAY.

18

NOT RELATED TO THIS CASE IN ANY WAY OTHER THAN -- I

19

MEAN, IT'S JUST GOING TO OPEN A CAN OF WORMS.

20

THEY'RE NOT PARTIES.

IT'S

SHE HAD AN OUTBURST.

THEY'RE

THEY HAD VEHEMENT

21

DISAGREEMENTS OVER HER CONDUCT, NOTHING TO DO WITH

22

HER OPINION.

SHE WAS NEVER CALLED BACK.

23

WE'RE GOING TO GET INTO THIS.

24

THE COURT:

25

I'M SORRY, YOU'RE WAY AHEAD

OF ME.
376

U.S. COURT REPORTERS

1

MR. HURLEY:

2

THE COURT:

3

OKAY.
YOU STARTED TALKING ABOUT

OUTBURSTS.

4

MR. HURLEY:

DR. HAIN, AND WE HAVE NO

5

INTENTION OF ASKING DR. HAIN ABOUT IT.

6

HAS NOT ASKED HER TO COME BACK BECAUSE DR. HADDIX

7

HAD SOME KIND OF PERSONALITY OUTBURSTS WITH

8

EMPLOYEES OF THE MONTEREY COUNTY SHERIFF'S OFFICE.

9

THEY'RE TOTALLY UNRELATED TO US.

10

DR. HAIN

SHE SAYS THAT THEY ASKED HER TO CHANGE

11

HER TESTIMONY.

12

HAS ASKED THEM.

13

EVER WORK FOR THEM AGAIN.

14

NOBODY HAS DEPOSED THEM.

NOBODY

SHE SAYS SHE WASN'T CALLED BACK TO

SHE IMPLIES THAT IT MAY BE BECAUSE OF HER

15

OPINION BUT DR. HAIN TESTIFIED THAT IT WAS BECAUSE

16

OF HER CONDUCT.

17

NOBODY --

18

THE COURT:

19

OKAY.

I THINK I'M STARTING

TO GET A FLAVOR FOR THIS.

20

WHAT WAS SAID DURING THE OPENING

21

STATEMENT THAT YOU BELIEVE BRINGS THIS INTO

22

RELEVANCE?

23

MR. BURTON:

THE FACT THAT DR. HADDIX,

24

WHO WAS A MEDICAL EXAMINER WHO PERFORMED THE

25

AUTOPSY, THAT IT WAS SUBSEQUENTLY REVIEWED.

WELL,
377

U.S. COURT REPORTERS

1

THERE WERE TWO OTHER AUTOPSIES BY DR. KARCH AND

2

DR. HAIN THAT CAME TO A COMPLETELY OPPOSITE RESULT.

3

IN FACT, THE FINDINGS OF THOSE TWO

4

REPORTS WERE MISREPRESENTED DURING THE OPENING

5

STATEMENT, BECAUSE THEY BOTH DID FIND THAT THE

6

TASER WAS A CONTRIBUTING CAUSE AND NEITHER OF THOSE

7

DOCTORS PERFORMED AN AUTOPSY.

8
9
10
11

BOTH OF THEM REVIEWED THE CASE AND
REVIEWED DR. HADDIX'S AUTOPSY AND SAID THAT WE
WOULD HAVE PHRASED IT A LITTLE DIFFERENTLY.
IN BETWEEN THERE'S A CALL FROM COMMANDER

12

CLARK AND A CALL FROM THE SHERIFF CORONER WHICH HAD

13

NOTHING TO DO WITH THIS ALLEGED PERSONALITY DISPUTE

14

THAT SAID THAT WE THINK YOUR CONCLUSION REGARDING

15

THE CAUSE OF DEATH IN THIS CASE IS WRONG, WE WANT

16

TO CHANGE IT FROM TASER APPLICATIONS TO A

17

METHAMPHETAMINE OVERDOSE.

18

REFUSE TO DO THAT.

19
20
21

SHE SAID I ABSOLUTELY

AFTER THAT THEN THEY SENT IT TO THESE TWO
OTHER MEDICAL EXAMINERS FOR REVIEW.
IF THEY'RE GOING TO BRING UP THE TWO

22

OTHER MEDICAL EXAMINERS FOR REVIEW, IT SEEMS TO ME

23

THAT THE JURY NEEDS TO HAVE THE WHOLE SEQUENCE.

24

AGREE IT'S A CAN OF WORMS AND WE THINK THE WHOLE

25

THING SHOULD BE KEPT OUT.

WE

378

U.S. COURT REPORTERS

1

WE THOUGHT IT WAS GOING TO BE KEPT OUT.

2

THAT'S THE POINT OF OUR POSITION ON MOTION IN

3

LIMINE NUMBER 4 AND THEN ALL OF A SUDDEN TASER'S

4

COUNSEL RAISES IT DURING --

5
6

THE COURT:

WHAT WAS THE "IT"

THAT WAS RAISED?

7
8

RAISES IT?

MR. BURTON:

THE FACT THAT THERE WERE

THESE TWO --

9

THE COURT:

EVERY TIME I ASK A QUESTION

10

YOU NEED TO ANSWER MY QUESTION.

11

AND TELL ME MORE THAT I NEED TO KNOW.

12

COME BACK AND LET YOU ARGUE MORE BUT IT SEEMS TO ME

13

YOU NEED TO SAY WHAT STATEMENT WAS MADE DURING THE

14

OPENING STATEMENT WHICH YOU NOW BELIEVE OPENS THE

15

DOOR TO YOU GETTING INTO THIS MATTER THAT I HAVE

16

ALREADY RULED ON.

17

MR. BURTON:

18

THE COURT:

19
20

YOU START TO ARGUE
BECAUSE I'LL

THAT AFTER DR. HADDIX -THIS IS THE STATEMENT THAT

WAS MADE?
MR. BURTON:

RIGHT.

THAT AFTER

21

DR. HADDIX, THE MEDICAL EXAMINER, PERFORMED THE

22

AUTOPSY AND DETERMINED THAT THE TASER WAS A CAUSE

23

OF DEATH, THE FINDING WAS REJECTED BY THE SHERIFF

24

CORONER WHO THEN HAD TWO OTHER AUTOPSIES PERFORMED

25

BY DR. HAIN AND DR. KARCH, EACH OF WHOM CONCLUDED
379

U.S. COURT REPORTERS

1

THAT THE DEATH WAS DUE TO METHAMPHETAMINE

2

INTOXICATION.

3

THE COURT:

THAT WAS THE STATEMENT.

4

AND YOU BELIEVED THAT YOU NEED NOW TO

5

BRING IN THE EVIDENCE ABOUT SOMETHING ELSE TO PUT

6

THAT STATEMENT INTO CONTEXT.

7

MR. BURTON:

8

THE COURT:

9

YES.
ALL RIGHT.

DO YOU AGREE THAT

THAT WAS THE STATEMENT THAT WAS MADE?

10

MS. O'LINN:

IT'S NOT QUITE ALL THE

11

STATEMENT, NO, YOUR HONOR.

12

LISTED TASER AS A CONTRIBUTOR IN THE TEMPORAL,

13

ALONG WITH THE POLICE STRUGGLE.

14

IN THE OPENING.

15

I SAID THAT ALL OF THEM

THAT'S WHAT I SAID

HOWEVER, YOUR HONOR, I DIDN'T SAY

16

ANYTHING ABOUT DR. HADDIX NOT BEING INVITED BACK TO

17

EVER WORK FOR THE COUNTY.

18
19
20
21

THE COURT:

HE DIDN'T INCLUDE THAT IN THE

STATEMENT.
MS. O'LINN:

IT GOES TO THE

CREDIBILITY --

22

THE COURT:

23

MS. O'LINN:

24

THE COURT:

25

I DIDN'T --

EXCUSE ME.
PARDON ME.
YOU DO ACKNOWLEDGE IN YOUR

OPENING STATEMENT YOU DISCUSS DR. HADDIX AND SAID
380

U.S. COURT REPORTERS

1

THAT AFTER SHE HAD DONE AN AUTOPSY AND CAME TO A

2

CONCLUSION THAT WAS LATER REJECTED AND OTHERS DID

3

AN AUTOPSY AND THEY CAME TO A DIFFERENT CONCLUSION.

4

MS. O'LINN:

I'M NOT SURE I USED THE WORD

5

"REJECTED" YOUR HONOR.

6

MEDICAL EXAMINERS THAT DID REPORTS.

7
8
9
10

I SAID THERE WERE TWO MORE

IT GOES TO HER OPINION, YOUR HONOR, AND I
APOLOGIZE FOR INTERRUPTING YOU.
THE COURT:

THE HEARSAY IS HER STATEMENT

ABOUT WHAT THESE COUNTY OFFICIALS SAID TO HER?

11

MR. HURLEY:

12

THE COURT:

YES.
AND YOU'RE OBJECTING ON

13

HEARSAY GROUNDS BECAUSE THE STATEMENTS ARE BEING

14

OFFERED FOR THE TRUTH OF THE STATEMENT, OR ARE THEY

15

OFFERED TO EXPLAIN WHAT SHE DID OR SOMETHING?

16

I GUESS THE ONLY RELEVANCE IS THE TRUTH

17

THAT SOMEHOW IS CONVEYING THAT HER AUTOPSY IS

18

INCORRECT IN SOME WAY.

19

MR. HURLEY:

SHE DIDN'T DO ANYTHING OR

20

CHANGE ANYTHING IN ANY WAY.

21

WITNESSES WOULD THEN HAVE TO BE CALLED, I PRESUME,

22

TO SAY WHAT THEY SAID.

23

AND, YOU KNOW, THOSE

REMEMBER, ONE CONTEXT HERE, AND I DON'T

24

WANT TO GET INTO THE SCIENCE AGAIN, IS THAT SHE

25

SAID THAT VENTRICULAR FIBRILLATION WAS THE LAST
381

U.S. COURT REPORTERS

1

EFFECT ON THE HEART.

2

EVERYBODY HAS SAID THAT'S NOT CORRECT.

3

CAN SURMISE THAT THE SHERIFF'S OFFICIALS, HAVING

4

READ THINGS LIKE THAT HAVE SAID, YOU KNOW, WE DON'T

5

AGREE WITH YOUR POSITION, THE SHERIFF BEING THE

6

CORONER AND THE PERSON WHO IS AUTHORIZED TO

7

SUPERVISE A MEDICAL EXAMINER.

8
9

BUT HE HAS NOTHING TO DO WITH US.

I

IF

IT'S PERMITTED IN IN ANY WAY, NOT ONLY IS IT

10

HEARSAY BUT IT'S EXTREMELY PREJUDICIAL TO THE LAW

11

ENFORCEMENT OFFICIALS TO HAVE THIS DOCTOR CLAIMING

12

THAT A LAW ENFORCEMENT OFFICER TRIED TO GET HER TO

13

CHANGE HER REPORT.

14

PREJUDICIAL.

15

THAT WOULD BE EXTREMELY

THE COURT:

IS THAT THE REASON THAT

16

YOU'RE OFFERING IT IS TO SUGGEST THAT THERE WAS

17

SOME EFFORT TO COVER UP OR TO GET HER TO CHANGE HER

18

REPORT FOR SOME REASON OTHER THAN MEDICAL?

19

MR. BURTON:

YES, AND THAT'S WHY THERE

20

WERE THE TWO SUBSEQUENT AUTOPSIES.

MY

21

RECOMMENDATION HERE, YOUR HONOR, IS THAT WE SIMPLY

22

DON'T DISCUSS THE REVIEW OF THE CASE BY DRS. HAINS

23

AND DR. KARCH IS KIND OF WHAT I THOUGHT THE PLAYING

24

FIELD WAS GOING TO BE WHEN I FILED THE OPPOSITE TO

25

THE IN LIMINE MOTION.
382

U.S. COURT REPORTERS

1

THE COURT:

2

TAKE THOSE AS SEPARATE ISSUES.

3

THERE IS SOME MOTIVE ON THE PART OF ANYONE TO ASK

4

DR. HADDIX TO CHANGE HER MEDICAL CONCLUSION FOR

5

REASONS OTHER THAN MEDICAL REASONS --

6

MR. BURTON:

7

THE COURT:

WELL, NO.

LET ME -- I'LL
IF YOU BELIEVE THAT

YES.
-- THEN I WILL SUSTAIN THE

8

OBJECTION TO ALLOWING YOU TO DO IT BY NOT CALLING

9

THOSE WITNESSES WHO MADE THOSE STATEMENTS.

10

BECAUSE THAT -- THE OPPOSING PARTY NEEDS

11

TO BE ABLE TO EXAMINE THAT PARTY BECAUSE IT COULD

12

BE THAT THOSE MONTEREY COUNTY OFFICIALS WOULD

13

EXPLAIN WHY THEY MADE THE REQUEST.

14

I WON'T PERMIT YOU TO PUT ON AN

15

OUT-OF-COURT STATEMENT TO SUGGEST THAT INDEED THERE

16

WAS SOME NEFARIOUS MOTIVE FOR THOSE STATEMENTS

17

WITHOUT HAVING THOSE WITNESSES AVAILABLE.

18

IT SURPRISES ME THAT YOU HAVEN'T ALL

19

DEPOSED THOSE PEOPLE AND YOU KNOW EXACTLY WHAT THEY

20

WOULD SAY ABOUT THAT.

21

NOW, IF, AS I UNDERSTAND IT, THERE WAS --

22

THERE WAS SOME OTHER MEDICAL EXAMINATION BY THESE

23

OTHER PEOPLE, HAIN AND WHAT IS THE OTHER NAME?

24

MS. O'LINN:

25

THE COURT:

KARCH.
AND NOW, WHAT IS IT THAT THEY
383

U.S. COURT REPORTERS

1

DID AND WHAT DO THEY SAY?

2
3

MS. O'LINN:
SOME --

4
5

THEIR OPINIONS ARE IN

THE COURT:

WHAT DID THEY DO FIRST?

DID

THEY CONDUCT AN AUTOPSY?

6

MS. O'LINN:

NO, THEY DID NOT.

THEY

7

WROTE MEDICAL EXAMINATION REPORTS AND GAVE AN

8

OPINION ABOUT THE CAUSE OF DEATH.

9

THE COURT:

10

DR. HADDIX'S REPORT?

11

MS. O'LINN:

FROM WHAT?

FROM READING

AND HER PHYSICAL ASSESSMENTS

12

AND THEN COMING TO THEIR OWN CONCLUSIONS BASED ON

13

THE -- ON THE RECORDED EVIDENCE SHE PROVIDED VIA

14

HER AUTOPSY.

15

THE COURT:

16

HAVE HAIN AND KARCH?

17

MS. O'LINN:

WHY DO I HAVE TWO?

WHY DO I

HAIN WAS THE ONE THAT WAS ON

18

VACATION.

19

COUNTY.

20

THEN, BECAUSE HIS OPINION WAS DIFFERENT THAN

21

HADDIX'S, THEY HAD A THIRD OPINION RENDERED.

22

HE'S THE MEDICAL EXAMINER FOR THE
HE DID A REPORT WHEN HE CAME BACK AND

AND, YOUR HONOR, WE WOULD AGREE, WE DON'T

23

HAVE ANY INTENTION OF PUTTING HAIN OR KARCH ON AT

24

THIS POINT.

25

THAT WAS LASTLY PROVIDED TO THE COURT, THE FINAL

HAIN IS LISTED ON THE WITNESS LIST

384

U.S. COURT REPORTERS

1

ONE THAT WAS PROVIDED WITH THE 50 WITNESSES;

2

HOWEVER, OUR EXPERTS HAVE CERTAINLY REVIEWED ALL

3

THREE MEDICAL EXAMINER REPORTS AND, QUITE FRANKLY,

4

TO JUST TELL THE JURY THAT THERE WAS ONLY ONE

5

MEDICAL EXAMINER REPORT DONE IN THIS CASE WAS NOT

6

THE TRUTH AND WHETHER WE AGREED NOT TO EXPLORE

7

THOSE AND PUT THOSE WITNESSES ON IS -- THAT'S

8

SIMPLY NOT THE CASE.

9

RENDERED AND THAT OPINION CARRIES GREAT WEIGHT WAS

THAT THERE WAS ONE OPINION

10

THE IMPLICATION OF JUST TELLING THEM ABOUT ONE

11

MEDICAL EXAMINER REPORT.

12

THE COURT:

AND THE REASON I'M DIVIDING

13

THE QUESTION IS THAT IT DOES SEEM TO ME THAT IF AS

14

A MATTER OF FACT THERE WERE THREE REPORTS AND THE

15

JURY NEEDS TO UNDERSTAND THE CAUSE OF DEATH HERE,

16

BOTH IN TERMS OF THE CARDIAC ARREST AND THE

17

ULTIMATE DEATH.

18

UNDERSTANDING THAT INFORMATION.

19

I WOULDN'T DEPRIVE THE JURY OF

BUT IF YOU'RE TRYING TO PROVE THAT TWO

20

DOCTORS OR THROUGH SOME INTERMEDIARY WERE TRYING TO

21

INFLUENCE THE REPORT TO BE OTHER THAN WHAT WAS

22

MEDICALLY CORRECT, THAT'S A DIFFERENT MATTER AND I

23

NEED TO HAVE THAT EXPLORED DIRECTLY.

24

YOU TO DO IT INDIRECTLY BY INFERENCE OR SUGGESTION.

25

IF THAT IS A CLAIM THAT YOU'RE MAKING YOU

I WON'T ALLOW

385

U.S. COURT REPORTERS

1

NEED TO PRODUCE THOSE WITNESSES AND HAVE THEM

2

EXAMINED AND THAT DOES MEAN IF WE'RE AT A POINT

3

WE'RE IN THE MIDDLE OF TRIAL AND THAT'S COMING OUT,

4

I WOULD SUSTAIN THE OBJECTION AND EXCLUDE THE

5

TESTIMONY UNDER THESE CIRCUMSTANCES, UNLESS THE

6

PLAINTIFF CLAIMS SOME PREJUDICE FROM THE THREE

7

REPORTS HAVING BEEN EXAMINED.

8
9

YOU'RE ABLE TO SEE THE FIRST REPORT BY
DR. HADDIX AND YOU HAD IT AND THE OTHER TWO REPORTS

10

AND YOU CAN HAVE AN EXPERT EXAMINE ALL OF THAT AND

11

COME TO YET A DIFFERENT CONCLUSION.

12

MS. O'LINN:

WHICH IS WHAT HAPPENED.

13

MR. BURTON:

RIGHT.

BUT WE THINK WE NEED

14

NOW TO EXPLAIN TO THE JURY WHY ARE THERE TWO OTHER

15

DOCTORS BEING CALLED IN TO, YOU KNOW, SHOPPING FOR

16

THIS OPINION TO CRITICIZE DR. HADDIX.

17

REASON THAT THERE IS TWO

18

THE COURT:

19

MR. BURTON:

AND THE

NON DOCTORS.

WHY WERE THEY CALLED IN?
RIGHT.

AND THE REASON IS

20

THAT BECAUSE TWO NON DOCTORS, TWO OFFICIALS OF THE

21

SHERIFF'S DEPARTMENT AND MONTEREY, COMMANDER CLARK

22

AND THE SHERIFF CALLED DR. HADDIX.

23
24
25

NOW, THIS IS NOT HEARSAY BECAUSE IT'S NOT
BEING OFFERED FOR THE TRUTH.
DR. HADDIX WILL SAY I ANSWERED THE PHONE
386

U.S. COURT REPORTERS

1

AND COMMANDER CLARK SAID THAT WE WANT YOU TO CHANGE

2

YOUR OPINION.

3

TASER AND WE ALL KNOW IT WAS A METHAMPHETAMINE

4

OVERDOSE.

5

YOU HAVE WRITTEN THAT IT WAS DUE TO

SHE SAID, NO, I'M NOT CHANGING MY

6

OPINION.

7

TELEPHONE CALL FROM THE SHERIFF HIMSELF.

8

THE SAME THING.

9

TWO WEEKS LATER SHE GETS A SIMILAR
SHE SAYS

SHE DOCUMENTS IT.

SHE WAS DEPOSED.

SHE DESCRIBED THESE

10

CONVERSATIONS IN DETAIL AND ACTUALLY PRODUCED

11

CONTEMPORANEOUS NOTES OF ONE AT HER DEPOSITION.

12

THEY MADE THE MOTION TO EXCLUDE THAT

13

TESTIMONY.

14

THE SUBSEQUENT REVIEWS OF DR. HAIN AND DR. KARCH,

15

NEITHER OF WHOM ARE ON THE WITNESS LIST AT THAT

16

TIME, ARE NOT BEING INTRODUCED AS, YOU KNOW, TO

17

SUGGEST THAT THE SHERIFF DIDN'T TRUST DR. HADDIX'S

18

OPINION AND THEREFORE, WAS GETTING TWO OTHER

19

OPINIONS.

20

WE SAID WE WON'T OPPOSE IT SO LONG AS

SO THAT'S THE STATE OF THE RECORD.
THE COURT:

WELL, IS THAT THE ISSUE?

21

OTHER WORDS, IT'S BECAUSE THERE IS A SUGGESTION

22

THAT THEY DIDN'T TRUST DR. HADDIX'S OPINION THAT

23

THEY GOT THE OTHER TWO OPINIONS?

24

BELIEVE OPENS THE DOOR?

25

MR. BURTON:

YES.

IN

IS THAT WHAT YOU

OR THAT THEY WERE -387

U.S. COURT REPORTERS

1

NOT THAT THEY DIDN'T TRUST IT, BUT THEY DIDN'T LIKE

2

IT BECAUSE IT PLACED RESPONSIBILITY ON TASER.

3

THE COURT:

TASER, IN THE OPENING

4

STATEMENT, SAID THAT THAT WAS BECAUSE THEY DIDN'T

5

LIKE IT?

6
7

MS. O'LINN:

ABSOLUTELY

NOT.

8
9

NO, YOUR HONOR.

THE COURT:
IT AGAIN.

HERE'S MY CONCERN.

I'LL SAY

YOU CAN TRY THIS CASE AND IF YOU HAVE

10

EVIDENCE THAT CLARK OR THE SHERIFF WERE ATTEMPTING

11

TO PROTECT OTHER LAW ENFORCEMENT OFFICERS BY TRYING

12

TO GET A DOCTOR TO CHANGE THEIR OPINION, THAT'S A

13

PERMISSIBLE THING TO TRY AND PROVE TO THE JURY, BUT

14

YOU NEED TO HAVE THOSE WITNESSES HERE FOR

15

CROSS-EXAMINATION.

16

YOU CAN'T HAVE A WITNESS HEARSAY CLARK

17

SAID THIS TO ME AND I CAN'T CROSS-EXAMINE CLARK,

18

AND THE SHERIFF SAID THIS TO ME, WITHOUT THE

19

SHERIFF BEING HERE TO BE EXAMINED, BECAUSE IF I

20

ASKED CLARK OR THE SHERIFF THAT AND THEY SAY NO, I

21

DIDN'T SAY IT BECAUSE IT'S REALLY THE MEANING OF

22

THE EVENT, NOT THE STATEMENTS NECESSARILY THAT

23

YOU'RE AFTER.

24

MR. BURTON:

I'LL MOVE ON, YOUR HONOR,

25

BUT I'D LIKE TO MAKE ONE POINT.

I DON'T THINK IT'S
388

U.S. COURT REPORTERS

1

HEARSAY, FOR EXAMPLE, WHAT COMMANDER CLARK SAID,

2

"WE ALL KNOW HE DIED OF A METHAMPHETAMINE

3

OVERDOSE."

4

STATEMENT FOR THE TRUTH WHICH WOULD MAKE IT

5

HEARSAY.

6

NOW, WE'RE CERTAINLY NOT OFFERING THAT

OUR TESTIMONY IS DIRECT TESTIMONY.
THE COURT:

BUT IT IS FOR THE TRUTH IN

7

THE SENSE THAT WHAT YOU'RE SUGGESTING IS THAT WE

8

ALL KNOW IS WHAT HE'S REALLY SAYING IS THAT WE ALL

9

KNOW IT WAS NOT THAT, BUT WE WANTED TO SAY THAT.

10

THAT'S WHY YOU'RE OFFERING.

11

MR. BURTON:

12

THE COURT:

THAT'S WHAT A JURY IS FOR.
I KNOW, BUT THAT'S A

13

STATEMENT.

14

IMPLIED STATEMENT.

15

EXAM, TO CROSS-EXAMINATION ABOUT THE TRUTH OF THAT

16

PROFFERED IMPLIED STATEMENT, THE OLD BOY'S NETWORK

17

KIND OF THING, WE ALL KNOW IT'S METHAMPHETAMINE,

18

WINK WINK, THEN THE OTHER SIDE IS DEPRIVED OF THE

19

OPPORTUNITY TO CROSS-EXAMINE.

20

YOU'RE OFFERING IT FOR THE TRUTH OF THE
AND WITHOUT THAT PERSON HERE TO

THAT'S A PERMISSIBLE THING FOR YOU TO

21

ATTACK IF THAT'S GOING ON, BUT YOU CAN'T DO IT

22

WITHOUT THE PERSON BEING SUBJECTED TO

23

CROSS-EXAMINATION.

24
25

IN OTHER WORDS, YOU OUGHT TO BE CALLING
THAT PERSON AS PART OF YOUR CASE, IF THAT'S WHAT
389

U.S. COURT REPORTERS

1

YOU'RE REALLY TRYING TO PROVE; THAT THE EXAMINATION

2

WAS CHANGED.

3

IT AT THAT AND SAY THAT THIS PERSON CALLED ME AND

4

TOLD ME TO PHONY UP MY REPORT.

5

YOU CAN'T CALL THE DOCTOR AND LEAVE

MR. BURTON:

WELL, ALL RIGHT.

I MEAN,

6

THAT'S NOT THE WAY I SEE THE RULES OF EVIDENCE BUT

7

I'M NOT WEARING THE BLACK ROBE SO I'LL, YOU KNOW.

8

AND YOU'VE BEEN DOING THIS LONGER THAN I HAVE.

9
10

THE COURT:
WHETHER I'M THE JUDGE.

11

IT'S NOT THE QUESTION OF
THAT'S NOT THE QUESTION.

BUT IT'S A QUESTION OF WHAT YOUR MOTIVE

12

IS.

YOU'RE TRYING TO PROVE THAT THERE WAS A

13

CONVERSATION WHERE THE SHERIFF TOLD THE MEDICAL

14

EXAMINER TO MAKE A FALSE REPORT.

15

TO DO THAT THROUGH THE STATEMENT OF THE DOCTOR

16

WITHOUT HAVING THE PERSON WHO ACTUALLY MADE THE

17

STATEMENT ON THE WITNESS STAND.

18

MR. BURTON:

RIGHT.

AND YOU'RE TRYING

WE'RE TRYING TO

19

PROVE IT THROUGH THE WITNESS WHO MADE THE

20

STATEMENT.

21

THE COURT:

BUT THAT'S AN OUT-OF-COURT

22

STATEMENT BEING OFFERED TO PROVE THE TRUTH THAT THE

23

PERSON WAS TRYING TO GET HER TO PHONY THE EXAM.

24
25

MR. BURTON:

WELL, YOU KNOW, THAT'S WHERE

I DIFFER, AND I UNDERSTAND WHY THEY WOULD SAY
390

U.S. COURT REPORTERS

1

PREJUDICE BECAUSE IT'S A DIFFERENT LAW ENFORCEMENT

2

AGENCY AND EVEN IF THEY HAVE LUNCH TOGETHER OR

3

WHATEVER, THEY'RE ENTITLED TO THAT.

4

BUT WHEN THEY START BRINGING IN THESE

5

SECOND REPORTS, SAYING DR. HADDIX'S REPORT WAS EVEN

6

RELIED UPON BY THE MONTEREY SHERIFF'S CORONER'S

7

OFFICE, BECAUSE THAT'S WHERE SHE DID IT, BECAUSE

8

THEY HAVE THESE TWO OTHER REPORTS PHRASING THE

9

CAUSE OF DEATH.

10
11

THE COURT:
THAT ISSUE.

12

MAYBE WE'RE NOT COMMUNICATING.

IT SEEMS TO ME YOU NEED TO GO AT IT IN A

13

DIFFERENT WAY.

14

WITNESSES?

15

I'M SAYING YOU CAN'T GET INTO

ARE CLARK AND THE SHERIFF

MR. BURTON:

NO, WE DON'T THINK -- I

16

MEAN, WE DIDN'T UNDERSTAND THE DOOR WAS GOING TO BE

17

OPENED THIS WAY.

18

THE COURT:

I'M NOT SURE I UNDERSTAND THE

19

DOOR OPENING ISSUE, BUT I'M SAYING THIS IS

20

PERFECTLY PERMISSIBLE FOR A PLAINTIFF TO PROVE THAT

21

A CAUSE OF DEATH THAT IS BEING PROFFERED BY ONE

22

SIDE WAS NOT TRUTHFUL AND THAT LAW ENFORCEMENT

23

OFFICIALS TRIED TO GET IT DONE IN A WAY THAT IS NOT

24

TRUTHFUL TO COVER UP.

25

I'M NOT SAYING THAT'S TRUTHFULLY WHAT
391

U.S. COURT REPORTERS

1

HAPPENED, BUT IF THAT'S YOUR THEORY, YOU OUGHT TO

2

BE ABLE TO TRY AND PROVE THAT.

3

BUT YOU CAN'T DO IT BY HAVING AN

4

OUT-OF-COURT STATEMENT PUT IN FRONT OF THE JURY

5

THAT CAN'T BE CROSS-EXAMINED.

6

THE STATEMENT IS NOT HERE.

7
8
9

MR. BURTON:

THE PERSON WHO MADE

WELL, NO, THE PERSON WHO IT

WAS TOLD TO WAS SUBJECT TO CROSS-EXAMINATION.
THE COURT:

WELL, I'M NOT SURE THERE'S AN

10

EXCEPTION TO THE HEARSAY RULE THAT SAYS THAT I CAN

11

GET THE OUT-OF-COURT STATEMENT IN AS LONG AS I HEAR

12

THE OUT-OF-COURT STATEMENT.

13

EXCEPTION THAT GETS YOU THERE.

14

MS. O'LINN:

I DON'T KNOW THE

AND I DON'T UNDERSTAND THE

15

FACT THAT WE WOULD BE ALLOWED TO DEAL WITH THE FACT

16

THAT THERE WAS EVIDENCE OVER DIFFERENT OPINIONS,

17

MEDICAL EXPERT OPINIONS ABOUT THE CAUSE OF DEATH.

18

AND OUR EXPERTS MAY FEEL THAT THAT IS PART OF THE

19

BASIS FOR THEIR OPINION.

20

THE COURT:

I'LL CONTINUE TO LISTEN TO

21

THE EVIDENCE TO MAKE SURE THAT YOU'RE PUTTING IT IN

22

A WAY THAT THEY CAN UNDERSTAND THAT.

23

IT DOES SEEM TO ME THAT A GENUINE

24

DISAGREEMENT IS ONE THING, BUT A SUGGESTION THAT AN

25

AUTOPSY REPORT BE CHANGED TO COVER UP IS A MUCH
392

U.S. COURT REPORTERS

1

DIFFERENT MATTER.

2

AND IF THAT'S WHAT YOU'RE ATTEMPTING TO

3

PROVE, YOU HAVE TO GO AT IT, YOU'RE PERMITTED TO GO

4

AT IT IF THAT'S YOUR CASE, BUT YOU HAVE TO DO IT BY

5

NOT HAVING SOMEONE -- FOR ME IT'S THE SAME AS

6

HAVING ANY PERSON COME IN AND SAY I HEARD THE

7

SHERIFF SAY THAT THESE POLICE OFFICERS ARE TRYING

8

TO COVER UP THEIR BAD ACTS AGAINST MR. HADDIX.

9

THE PERSON HEARD.

THEY'RE NOT TESTIFYING

10

ABOUT IT, BUT THE STATEMENT IS FROM THE PERSON YOU

11

NEED ON THE WITNESS STAND TESTIFYING ABOUT.

12

DO YOU UNDERSTAND?

13

MR. BURTON:

14

MAY I DEFER TO

MR. WILLIAMSON?

15

MR. WILLIAMSON:

NO, I JUST WANT TO WEIGH

16

IN ON ANOTHER POINT ACTUALLY AND THEN IF YOU WANT

17

TO FINISH.

18

THE COURT:

I HAVE A MEETING TO GO TO.

19

MR. WILLIAMSON:

YOUR HONOR, LET ME --

20

I'M GOING TO BE THE ONE EXAMINING DR. HADDIX

21

TOMORROW AND I WANT A POINT OF CLARIFICATION, IN

22

LIGHT OF WHAT HAS BEEN SAID HERE THIS AFTERNOON.

23

WE HAD NOT ORIGINALLY INTENDED TO USE

24

DR. HADDIX TO DISCUSS THE REPORTS OF DRS. HAIN AND

25

KARCH BECAUSE WE THOUGHT THAT WAS OUT OF BOUNDS.
393

U.S. COURT REPORTERS

1
2

THE COURT:
WITH THOSE?

3
4

DID THEY HAVE ANYTHING TO DO

MR. WILLIAMSON:

ABSOLUTELY.

SHE

CONSIDERED THOSE AS PART OF HER EXPERT OPINION.

5

MR. BURTON:

SHE DIDN'T KNOW ABOUT THEM

7

MS. O'LINN:

NO.

8

MR. WILLIAMSON:

6

9

AFTER.

AT THE TIME SHE DIDN'T.

ULTIMATELY SHE DID.

NO,

BUT ULTIMATELY SHE DID AND

10

SHE'S REVIEWED THOSE REPORTS AND I THINK NOW, IN

11

LIGHT OF MS. O'LINN'S COMMENTS IN OPENING

12

STATEMENT, THAT'S FAIR GAME FOR US TO GET INTO WITH

13

DR. HADDIX, THE FACT THAT OTHER CORONERS REVIEWED

14

HER REPORTS AND CAME TO EITHER SIMILAR OR DIFFERENT

15

OPINIONS, WHATEVER SHE MIGHT SAY ABOUT THAT.

16

THINK THAT'S FAIR GAME.

17

THE COURT:

SO I

I HAVEN'T SAID ANYTHING ABOUT

18

EXAMINING HER, ABOUT HER REPORT, DISAGREEING WITH

19

OTHER DOCTORS AND THOSE.

20

SOMEONE ON LAW ENFORCEMENT SIDE TRIED TO GET HER TO

21

PHONY UP HER REPORT IS WHAT I'M RESPONDING TO.

22

IT'S THE SUGGESTION THAT

BUT UNLESS THERE'S AN OBJECTION HAVING TO

23

DO WITH THE DISCLOSURE OF WHAT SHE WOULD TESTIFY

24

ABOUT, YOU'RE PERMITTED TO TESTIFY ABOUT HER

25

CONCLUSIONS, HER REPORT, WHAT SHE KNOWS ABOUT OTHER
394

U.S. COURT REPORTERS

1

DOCTORS LOOKING AT THE SAME THING AND WHAT THEY --

2

HOW HER CONCLUSIONS DIFFER FROM THEIRS.

3

MR. WILLIAMSON:

I WANT TO MAKE ONE

4

POINT, AND THAT IS WITH ALL DUE RESPECT TO MS.

5

O'LINN, SHE DID SAY IN HER OPENING STATEMENT THAT

6

THE OTHER CORONERS REJECTED THE OPINION OF

7

DR. HADDIX, AND THEREFORE, THE INSINUATION IS THAT

8

SOMEHOW DR. HADDIX WAS INCOMPETENT AND THEREFORE,

9

THE COUNTY NEEDED TO BRING IN ADDITIONAL DOCTORS TO

10
11

REVIEW THAT.
THE COURT:

WELL, I'M NOT SURE ABOUT

12

INCOMPETENCY, BUT DOCTORS DISAGREE.

13

YOUR QUESTION?

14

MR. WILLIAMSON:

AND SO WHAT IS

I'M JUST CLARIFYING THAT

15

POINT; THAT THAT INSINUATION HAS BEEN MADE AND

16

THEREFORE, NOW WE'RE IN A POSITION WHERE WE NEED TO

17

EXPLORE THESE OTHER REPORTS AND THESE OTHER

18

OPINIONS THAT WERE PUT FORTH BY THE OTHER TWO

19

DOCTORS AND THAT'S ALL I WANT TO SAY ABOUT THAT.

20

THE COURT:

21

MS. O'LINN:

YES.
ONE POINT OF CLARIFICATION

22

AND THIS WILL TAKE US BACK TO OUR PRETRIAL

23

CONFERENCE.

24
25

THIS WHOLE ISSUE, DR. HADDIX HAD AN
OPINION ABOUT THE VF AS WE DISCUSSED AND WE'RE
395

U.S. COURT REPORTERS

1

WAITING TO SEE WHAT HAPPENS WITH THE VF.

2
3

BUT PLAINTIFF'S CASE IS COMPLETELY BASED
NOW WITH MEYERS ON THIS ACIDOSIS THEORY.

4

WE DON'T EXPECT THERE TO BE -- THEY'RE

5

GOING TO RELY ON HADDIX'S OPINION PER SE WITH

6

REGARD TO -- WITH REGARD TO THAT POSITION, BUT I

7

DON'T KNOW UNTIL THEY PUT HER ON.

8
9

AND THE FACT IS THAT THE EVIDENCE IS THAT
THERE WERE THREE REPORTS DONE.

10

SO I -- I MENTIONED THAT IN MY OPENING.

11

I DON'T UNDERSTAND WHY THAT WOULD BE A SURPRISE

12

THAT THERE WERE THREE REPORTS DONE.

13

NEVER ANY AGREEMENT THAT WE WOULDN'T ADDRESS THE

14

FACT THAT THERE WERE THREE MEDICAL EXAMINER

15

REPORTS.

16

THE COURT:

THERE WAS

AS I SAID, I'LL LISTEN TO THE

17

TESTIMONY.

18

EXAMINE FURTHER ON THE QUESTION OF WHY THE REPORTS

19

WERE DONE, AND IT DOESN'T SEEM TO ME THAT I HAVE A

20

CLEAR PATH FROM A REJECTION OF HER OPINION AND TWO

21

OTHER PEOPLE GIVING A REPORT TO THE REASON FOR THAT

22

WAS TO COVER UP.

23

IF YOU FEEL THAT YOU HAVE A RIGHT TO

IT JUST SEEMS TO ME THAT IT COULD JUST AS

24

EASILY BE DIFFERING OPINIONS ABOUT THE CAUSE OF

25

DEATH.
396

U.S. COURT REPORTERS

1

BUT IF YOU PROFFER THAT SOMEONE TRIED TO

2

GET HER TO CHANGE HER OPINION IN SOME IMPROPER WAY,

3

THAT'S SOMETHING THAT YOU'RE PERMITTED TO PROVE BUT

4

YOU HAVE TO SATISFY ME THAT YOU'RE GOING TO DO IT

5

IN A FASHION WHICH WOULD ALLOW THE DEFENDANTS TO

6

CROSS-EXAMINE THOSE DEFENDANT WHOSE STATEMENTS WERE

7

MADE TO -- WERE MADE TO THE DOCTOR WHICH SHE

8

INTERPRETED.

9

I TAKE IT THAT SHE SAID THAT I THOUGHT

10

THEY WERE TRYING TO GET ME TO CHANGE MY REPORT

11

IMPROPERLY.

12

MR. WILLIAMSON:

ABSOLUTELY.

AND, IN

13

FACT, THAT IS THE REASON WHY THE EXPLANATION WHY

14

TWO ADDITIONAL DOCTORS WERE CONTACTED.

15

WHEN DR. HAIN WAS CONTACTED AND HE WROTE

16

A REPORT AND HE CAME TO THE SAME CONCLUSION THAT

17

SHE DID THAT THE TASER WAS A CONTRIBUTING FACTOR,

18

THEY WEREN'T SATISFIED THEN.

19

DOCTOR AND GOT A THIRD OPINION.

20

THE COURT:

21

MR. BURTON:

22

THE COURT:

23

THEY WENT TO A THIRD

WHO?
MONTEREY COUNTY.
AND WHY AREN'T THEY PARTIES

TO THE LAWSUIT WITH THE SPOLIATION TORT?

24

MR. WILLIAMSON:

25

THE COURT:

WELL, THEY DIDN'T --

WELL, BUT IT'S A TORT.

IF
397

U.S. COURT REPORTERS

1

THEY'RE NOT A PARTY TO THIS CASE, THE OTHER CONCERN

2

I HAVE IS THAT YOU NEED TO CONNECT WHAT THE

3

MONTEREY COUNTY SHERIFF'S OFFICE DID.

4

HEAR FROM THE PARTIES IS THEY MAY WELL HAVE TRIED

5

TO DO IT GRATUITOUSLY BUT IT'S GOING TO FURTHER

6

SUGGEST TO THE JURY THAT THEY'RE DOING IT FOR US.

7
8
9

MR. WILLIAMSON:
WITH YOU.

AND WHAT I

YOUR HONOR, WE AGREE

WE DON'T DISAGREE WITH THAT.
THE FACT OF THE MATTER IS THAT ONCE THESE

10

STATEMENTS WERE MADE THIS MORNING, THAT GAVE THIS

11

INSINUATION THAT SOMEHOW THE REASON FOR THE

12

SHOPPING OF THE OTHER CORONERS WAS THAT SHE WAS

13

INCOMPETENT.

14

THAT'S NOT THE REAL REASON.

THE COURT:

I DIDN'T HEAR THE WORD

15

"INCOMPETENT" AND I DIDN'T HEAR THE WORD

16

"SHOPPING," BUT IF YOU GET THE TRANSCRIPT AND YOU

17

SATISFY ME THAT THERE WERE SUGGESTIONS THAT SOMEHOW

18

SHE WAS INCOMPETENT, I WILL RECONSIDER THIS.

19

IT SEEMS TO ME THAT AS LONG AS I HAVE IT

20

ON THE FOOTING THAT SHE WAS MENTIONED, THAT THERE

21

ARE MULTIPLE REPORTS AND OUT OF THIS ALL THE JURY

22

IS GOING TO HAVE TO JUDGE WHICH OPINION TO ACCEPT

23

AS MORE COMPETENT THAN THE OTHERS, THEN WE DON'T

24

GET INTO THIS MATTER HAVING TO DO WITH BAD FAITH.

25

AND IF YOU -- IF YOU SATISFY ME THAT BAD
398

U.S. COURT REPORTERS

1

FAITH IS NOW AN ISSUE FOR SOME OTHER METHOD, THEN

2

YOU HAVE MY DIRECTIONS ON THAT.

3

I'M AFRAID I DO HAVE TO GO.

4

MR. BURTON:

5

MR. WILLIAMSON:

6

MS. O'LINN:

7

(WHEREUPON, THE EVENING RECESS WAS

8

THANK YOU, YOUR HONOR.
THANK YOU, YOUR HONOR.

THANK YOU.

TAKEN.)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

399

U.S. COURT REPORTERS

1 John Burton, State Bar No. 86029
THE LAW OFFICES OF JOHN BURTON
2 414 South Marengo Avenue
Pasadena, California 91101
3
Telephone: (626) 449-8300
4 Facsimile: (626) 449-4417
E-Mail:
jb@johnburtonlaw.com
5
Peter M. Williamson, State Bar No. 97309
6 WILLIAMSON & KRAUSS
18801 Ventura Boulevard., Suite 206
7 Tarzana, California 91356
8 Telephone: (818) 344-4000
Facsimile: (818) 344-4899
9 E-Mail:
pmw@williamson-krauss.com
10 Attorneys for Plaintiffs Betty Lou Heston, individually,
and Robert H. Heston, individually and
11 as the personal representatives of Robert C. Heston, deceased
12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14
15
16
17

BETTY LOU HESTON and ROBERT
H. HESTON, individually, and MISTY
KASTNER, as the personal
representative of ROBERT C.
HESTON, deceased,

18
19
20

Plaintiffs,
v.

22

CITY OF SALINAS, SALINAS
POLICE DEPARTMENT, MICHAEL
DOMINICI, JAMES GODWIN, LEK
LIVINGSTON, JUAN RUIZ and
TASER INTERNATIONAL, INC.,

23

Defendants.

21

Case No. C 05-03658 JW (RS)
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTIONS IN
LIMINE TO LIMIT TESTIMONY
OF THEIR EXPERT WITNESSES
AND TERRI L. HADDIX, M.D.:
SALINAS DEFENDANTS’
MOTIONS IN LIMINE NOS. 1-2
TASER’S MOTIONS IN LIMINE
NOS. 1-3
Pretrial Conference:

25

Date:
April 29, 2008
Time:
1:00 p.m.
Courtroom: 8

26

Trial:

27

Date:
May 13, 2008
Time:
9:00 a.m.
Courtroom: 8

24

28

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE TO LIMIT TESTIMONY OF EXPERT WITNESSES

N.D. Cal. Case No. C 05-03658 JW (RS)

1
2
3
4
5
6
7

TABLE OF CONTENTS
Contents

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I.

INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

PRINCIPLES APPLICABLE TO THE CASE IN GENERAL... . . . . . . . . . . 3

8
9
10
11
12
13

A.

The Applicable Law... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B.

The Claims Against the Salinas Defendants. . . . . . . . . . . . . . . . . . . . . 4

C.

The Claims Against TASER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III.

POLICE PRACTICES EXPERT ROGER CLARK . . . . . . . . . . . . . . . . . . . . 5

IV.

POLICE PRACTICES EXPERT ERNEST BURWELL. . . . . . . . . . . . . . . . 10

V.

MARK MYERS, M.D., SHOULD BE ALLOWED TO TESTIFY
ON THE CAUSE OF MR. HESTON’S CARDIAC ARREST. . . . . . . . . . . 12

14 VI.
15

Page(s)

THE MEDICAL EXAMINER WHO CONDUCTED THE
AUTOPSY FOR MONTEREY COUNTY SHOULD BE
ALLOWED TO TESTIFY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16 VII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE TO LIMIT TESTIMONY OF EXPERT WITNESSES

N.D. Cal. Case No. C 05-03658 JW (RS)

-i-

1

TABLE OF AUTHORITIES

2
3 Authorities

Page(s)

4 Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5
Graham v. Connor,
6
490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). . . . . . . . . . . . . . . . . 4
7 Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 119 S.Ct. 1167 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8
Morales v. County of Ventura,
9
2003 U.S. App. LEXIS 27561 (C.D. Cal. July 14, 2003).. . . . . . . . . . . . . . . . 6
10 Reno-West Coast Distribution Co. v. Mead Corp.,
613 F.2d 722(9th Cir.), cert. denied,
11
444 U.S. 927, 100 S. Ct. 267, 62 L. Ed.2d 183 (1979).. . . . . . . . . . . . . . . . . . 4
12 Salem v. United States Lines Co.,
370 U.S. 31, 82 S. Ct. 1119, 8 L. Ed.2d 313 (1962).. . . . . . . . . . . . . . . . . . . . 3
13
14
15
16
17
18

FEDERAL RULES OF EVIDENCE
Fed. R. Evid. § 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
PEER REVIEWED ARTICLES
Hicks, et al., Metabolic Acidosis in Restraint-Associated
Cardiac Arrest: a Case Series (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

19 Jauchem, et al., Acidosis, Lactate, Electrolytes, Muscle
Enzymes, and Other Factors in the Blood of Sus Scrofa
20
Following Repeated TASER Applications (2005). . . . . . . . . . . . . . . . . . . . . 14
21 Dennis, et al., Acute16 of TASER X26
Discharges in a Swine Model (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
22
23
24
25
26
27
28
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE TO LIMIT TESTIMONY OF EXPERT WITNESSES

N.D. Cal. Case No. C 05-03658 JW (RS)

- ii -

1 I.

INTRODUCTION

2

Defendants filed four motions in limine challenging testimony by three of the

3 four expert witnesses plaintiff retained, police practices expert Roger Clark, Electrical
4 Control Device (ECD) expert Ernest Burwell, and cardiology expert Mark Myers, M.D.
5 Salinas Motions in Limine Nos. 1-2 and TASER Motions in Limine Nos. 1 and 3.
6 Defendant TASER International has also challenged an independent expert, Terri L.
7 Haddix, M.D., the forensic pathologist hired by the County of Monterey Sheriff8 Coroner to autopsy Robert C. Heston and to determine his cause of death. TASER
9 Motion in Limine No. 2.
10

The challenges range from barring the experts’ explanations for the bases of their

11 opinions to barring the experts altogether. Defendants’ substantive challenges to these
12 four experts can be generally grouped into the following three categories:
13

1.

Testimony that relies on facts which defendants dispute;

14

2.

Testimony based on expertise the expert witness allegedly lacks; and

15

3.

Testimony based on science or methodology that does not meet the

16

standards for Rule 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

17

U.S. 579, 592, 113 S.Ct. 2786, 2796 (1993), and Kumho Tire Co., Ltd. v.

18

Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 1174-75 (1999).

19 Much of what the defendants raise, however, fall into none of these categories, and
20 goes solely to the weight the jury should give the experts’ opinions rather than their
21 admissibility. These issues are not subject to resolution on motions in limine.
22

The defendants’ bulky motions have deliberately created an unwieldy and

23 convoluted mass of contentions and arguments that in places run far afield from the
24 narrow issues presented. There is no practical way plaintiffs could possibly answer all
25 defendants’ myriad contentions without bogging everyone down in hopeless detail.
26 The Court should instead slice this Gordian Knot by fashioning reasonable guidelines
27 to apply to all the expert witnesses in this case, setting forth clearly what each expert
28 can opine about, rather than trying to pick through the parties’ assertions one-by-one.
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE TO LIMIT TESTIMONY OF EXPERT WITNESSES

N.D. Cal. Case No. C 05-03658 JW (RS)

-1-

1

The first category is easily addressed. An expert should be allowed to explain to

2 the jury the basis of the opinions being rendered. That at times requires reference to
3 controverted facts and testimony, which the expert might accept or discount.
4

For example, one expert might credit Sgt. Ruiz’s testimony that he did not pull

5 his ECD’s trigger after Mr. Heston hit the floor in his parents’ living room. Another
6 might base an opinion on the fact that Ruiz’s dataport information shows he pulled the
7 trigger five more times. Such disputed facts relate to the grounds for the expert’s
8 opinion. The jury will ultimately decide those facts, and weigh the experts’ opinions
9 accordingly. That is how the jury system is designed to operate. The integrity of the
10 jury can be protected by the Court’s reading an instruction at the beginning of the
11 evidence explaining that determinations regarding the credibility of witnesses, and
12 ultimately the facts of the case, are solely within its province, and that jurors are free
13 to reject expert testimony based on facts they conclude are not supported by the
14 evidence.
15

Plaintiffs will submit such a proposed instruction before the pretrial conference.

16

The second two categories obviously present more complex matters that require

17 the Court to consider the specific issues presented by this case, the expertise of the
18 witness, and the methodologies underlying their opinions.
19

The specific issues, as relates to the challenged experts, are the following:

20

1.

21

administered to the decedent after he hit the living room floor served no law

22

enforcement purpose and therefore violated the Fourth Amendment’s prohibition

23

of excessive force. Plaintiffs are offering Mr. Clark and Mr. Burwell to opine in

24

this area.

25

2.

26

their subordinates, causing the foregoing constitutional violation to occur.

27

Plaintiffs are offering Mr. Clark and Mr. Burwell to opine in this area.

Whether the repeated shocks defendants Ruiz, Livingston and Godwin

Whether the supervisory defendants, Dominici and Ruiz, failed to control

28
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE TO LIMIT TESTIMONY OF EXPERT WITNESSES

N.D. Cal. Case No. C 05-03658 JW (RS)

-2-

1

3.

Whether the entity defendants, the City of Salinas and the Salinas Police

2

Department, adequately trained or supervised their police officers in the use of

3

ECD’s. Plaintiffs are offering Mr. Clark and Mr. Burwell to opine in this area.

4

4.

5

in blood acid (metabolic acidosis) that triggered decedent’s cardiac arrest.

6

Plaintiffs’ are offering Dr. Myers and Dr. Haddix to opine on this issue.

7

5.

8

repeated exposures before marketing its ECD’s. Plaintiffs intend to prove this

9

issue through TASER’s CEO (and its designated expert) Rick Smith.

Whether repeated exposures to ECD shocks caused dangerous increases

Whether defendant TASER adequately tested the risks of acidosis from

10

6.

Whether defendant TASER adequately warned users about the risks of

11

repeated ECD exposures. Plaintiffs are offering Dr. Myers, Mr. Clark and Mr.

12

Burwell on this subject, as well as numerous defendants.

13

As explained below, plaintiffs’ retained experts and Dr. Haddix have specialized

14 opinion testimony within their recognized areas of expertise. Their opinions rest on
15 reliable foundations, sound methodology and are relevant to the issues. Accordingly,
16 they should be allowed to present them to the jury. Defendants are free to attack the
17 testimony within the Federal Rules of Evidence, but it should not be excluded.
18 II.

PRINCIPLES APPLICABLE TO THE CASE IN GENERAL.

19

A.

20

The touchstone for opinion testimony is, of course, Fed. R. Evid. 702, which

The Applicable Law.

21 provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier
22
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
23
education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony
24
is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
25
The trial court has broad discretion in admitting and excluding expert testimony.
26
27 Appellate courts routinely sustain the trial court’s action unless it is manifestly
28 erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 1122,
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1 8 L.Ed2d 313 (1962); Reno-West Coast Distribution Co. v. Mead Corp., 613 F.2d 722,
2 726 (9th Cir.), cert. denied, 444 U.S. 927, 100 S. Ct. 267, 62 L. Ed.2d 183 (1979).
3

B.

The Claims Against the Salinas Defendants

4

Fundamental to all plaintiffs’ claims against the various Salinas defendants is

5 their contention that the decedent was subjected to excessive force in violation of
6 Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Court,
7 as it indicated at the last hearing, is familiar with these issues from the extensive
8 briefing on the motions for summary judgment and reconsideration.
9

Briefly stated, plaintiff contends that the Fourth Amendment was violated when

10 defendants Ruiz, Livingston and Godwin continued to shock their son repeatedly after
11 he collapsed to the livingroom floor. Those 22 five-second shocks were objectively
12 unreasonable and, in fact, counterproductive. The two supervisors, Dominici and Ruiz,
13 share liability for that excessive force because they allowed the officers under their
14 command to shock the decedent repeatedly, without formulating an appropriate tactical
15 plan or directing them to stop shocking him. The City of Salinas and its police
16 department are liable because they chose not to by the necessary software ($150.00) to
17 monitor their officers’ ECD use, and failed to keep abreast of safety warnings.
18

Plaintiffs contend that the Salinas defendants’ repeated application of electrical

19 current from three M26’s was a substantial factor in causing Mr. Heston’s February 19,
20 2005 cardiac arrest, the consequent irreversible brain damage, and his death on
21 February 20, 2005.
C.
The Claims Against TASER.
22
23

Plaintiffs do not contend that Mr. Heston died due to direct electrical stimulation

24 of the heart – commonly known as electrocution – which induces a potential lethal
25 arrhythmia known as ventricular fibrillation (VF). They contend, rather, that
26 defendants’ multiple and repeated ECD cycles induced severe, involuntary muscle
27 contractions, which in turn discharged lactic acid (lactate) into his blood stream,
28 causing a precipitous increase in his blood acid level (measured as a decline in pH), and
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1 resulting in a deadly condition known as metabolic acidosis, which alone is known to
2 cause cardiac arrest.
3

Like plaintiffs’ cardiologist, Mark Myers, M.D., all but one of TASER’s medical

4 experts attribute Mr. Heston’s cardiac arrest to metabolic acidosis. The dispute for jury
5 determination is whether that metabolic acidosis was generated solely by the decedent’s
6 agitated behavior (defendants call this purported cause of death “excited delirium” or
7 “excited delirium syndrome”), or whether the ECD shocks contributed to Mr. Heston’s
8 metabolic acidosis as well.
9 III. POLICE PRACTICES EXPERT ROGER CLARK
10

(Salinas Motion in Limine No. 1 and Taser Motion in Limine No. 3)

11

Defendants filed 30 pages of argument challenging plaintiffs’ police practices

12 expert Roger Clark. Neither defense motion seeks to exclude his testimony in its
13 entirety, only to limit him from opining on certain matters. Salinas’s objections to Mr.
14 Clark’s testimony fall into the following categories: (a) statements about qualifications
15 and expertise; (b) opinions offered about the manufacture, operation, use or effect of
16 TASER (the sole basis for TASER’s Motion in Limine No. 3 to Exclude Clark’s
17 Testimony); (c) the methodology used in preparing a chart documenting TASER
18 discharges; (d) opinions concerning the physical, medical or mental condition of
19 Heston or the physical effects of TASER discharges on him; (e) opinions concerning
20 Heston’s cause of death; (f) opinions concerning the credibility of certain witnesses;
21 (g) opinions concerning the “systemic culture” of the police department; (h) opinions
22 concerning TASER efficiency during the police encounter with Heston; (i) opinions
23 about Heston’s intentions or what he was thinking; and (j) opinions about clicking
24 noises on the 911 recordings. Many of the categories listed above can be dealt with
25 quite easily by offering an explanation of what Mr. Clark will testify to rather than
26 what he will not testify to.
First, there is no question that Mr. Clark is highly qualified as a police practices
27
28 expert. He has testified hundreds of times and has been accepted as an expert witness
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1 in state and federal courts throughout the United States. Nonetheless, the Salinas
2 defendants suggest that he is not qualified by claiming incorrectly that Mr. Clark
3 falsely testified that he has never been excluded as an expert witness.
While it is true that certain trial courts have, from time to time, entered orders
4
5 limiting his testimony to certain matters, as happens not infrequently to all expert
6 witnesses (all parties are asking the Court to limit experts in this case), no court has
7 ever excluded Mr. Clark as an expert witness.
One case cited by the Salinas defendants, Morales v. County of Ventura, 2003
8
9 U.S. App. LEXIS 27561 (C.D. Cal. July 14, 2003), is particularly illustrative. Counsel
10 for the plaintiffs herein know something about it inasmuch as they represented the
11 plaintiff, Anthony Morales. While Magistrate Judge Patrick Walsh did limit Mr.
12 Clark’s testimony to certain issues, he was permitted to testify at great length regarding
13 the police tactics used in that non-fatal shooting incident. Mr. Clark’s testimony was
14 deemed highly persuasive by the jury, which returned a verdict for plaintiff in the sum
15 of $2.1 million dollars. Plaintiffs’ counsel intend to elicit the same sort of testimony
16 from Mr. Clark in this case. The defense will have the full opportunity to cross17 examine Mr. Clark regarding his qualifications. If he testifies untruthfully, defense
18 counsel can impeach him. Motions in limine are not intended for such fine-tuning of
19 expert testimony.
Given his expert qualifications, Mr. Clark should be permitted to offer his
20
21 opinions concerning the tactics and procedures employed by the individual defendant
22 officers and their supervisors during their encounter with Mr. Heston. The fact that the
23 officers specifically employed TASER ECD’s during this incident is somewhat
24 tangential to the thrust of Mr. Clark’s opinions, which do not necessarily hinge on the
25 particular tool or device used. For example, Mr. Clark’s opinions would not be any
26 different if baton blows or kicks had been employed against Mr. Heston while he lay
27 helpless on the floor, rather than shocks from three ECD’s.
28
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1

Likewise, Mr. Clark should be permitted to tell the jury about his understanding

2 of the TASER dataport, its general purpose and why the Salinas Police Department’s
3 failure to purchase the dataport software in order to keep records of TASER discharges
4 prevented the department from monitoring and taking action, if necessary, to stop
5 abuses of the device. This opinion supports plaintiffs’ claim that the Salinas Police
6 Department was deliberately indifference to the civil rights of people with whom it
7 comes into contact.
8

And, finally, Mr. Clark should be permitted to testify from the viewpoint of a law

9 enforcement supervisor regarding the general administrative procedures by which
10 equipment warnings, such as those associated with the health risk of repeated TASER
11 ECD shocks on persons in excited delirium, are disseminated from manufactures such
12 as TASER to line officers in the field, and the duty of departments to make sure its
13 officers understand the dangers of their tools.
Both TASER and the Salinas defendants primarily seek to preclude Mr. Clark
14
15 from expert opinions on the characteristics of the TASER Model M26 ECD. It is a
16 fact that Mr. Clark retired from law enforcement seven years before the Model M26
17 was first marketed. He does not claim to be an expert as to its specific characteristics
18 such as electrical output, or its precise mannerof operation. It is for this reason that
19 plaintiffs designated Ernest Burwell, a TASER certified instructor who, prior to his
20 recent retirement, trained Los Angeles County Sheriff’s Department deputies in the use
21 of the device. However, Mr. Clark has sufficiently familiarized himself with the
22 TASER training materials, use instructions and the device itself to render opinions
23 regarding police tactics used in this matter and whether such tactics were reasonable
24 and appropriate.
25

Mr. Clark’s opinions go to the overall police tactics, supervision and control in

26 this case. He is basing those opinions in significant part on the published materials
27 available regarding TASER ECD’s, including materials produced by TASER itself, and
28 his familiarity, generally, with the intended effects (knocking a subject to the ground),
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1 range and dataport tracking software. This information is not subject to dispute. If, in
2 the course of his expert testimony, Mr. Clark misstates such information, defendants
3 can impeach him.
The Salinas defendants also seek to exclude any reference made by Mr. Clark to
4
5 a chart that he helped prepare along with plaintiffs’ counsel. They argue that the
6 “purpose of admitting the chart is to support his opinion that electricity was delivered
7 to Heston for approximately 74-seconds.” (Salinas MIL No. 1, P. 8, ll. 21-22) (actually
8 it was more current than that, but over a 74-second period.) The chart referenced by
9 defendants does not illustrate “opinions.” Rather, it graphically depicts “facts”
10 established by TASER’s expert witness, Dr. Adam Aleksander, and Salinas Police
11 Sergeant Michael Groves, who both independently analyzed the dataport information
12 downloaded from the M26’s used during this incident. They both independently
13 determined the number of trigger pulls recorded on the M26’s of each officer involved.
14 The chart simply illustrates the number and duration of the trigger pulls in relation to
15 each other. This information is fact, not expert opinion as claimed by defendants.
Defendants further argue that Mr. Clark should not be permitted to offer any
16
17 opinions to the effect that Sgt. Dominici violated Heston’s Fourth Amendment rights
18 by allowing multiple M26’s from firing at the same time or in sequence (Salinas
19 Opposition MIL No. 1, P. 9, ll. 24-27). Insofar as these opinions relate to the failure
20 of Sgt. Dominici to employ reasonable and appropriate tactics and to properly supervise
21 the officers under his command during their encounter with Heston, it is clearly
22 appropriate for Mr. Clark to offer such opinions.
23

Defendants next seek exclusion of a number of opinions offered by Mr. Clark

24 at his deposition that relate to the medical issues involved in this case including such
25 things as the physical, medical or mental conditions of Mr. Heston, the cause of Mr.
26 Heston’s death, and the physical effects of the TASER. Plaintiffs agree that Mr. Clark
27 should not opine at trial on the medical consequences of TASER ECD shocks, or on
28 the cause of Mr. Heston’s death. Those opinions should be left to physician experts
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1 such as Mark Myers, M.D., and Terri L. Haddix, M.D., and defendants’ seven
2 designated medical doctors. Plaintiffs would request that this exclusion be made
3 mutual and apply to all non-physician witnesses.
However, without rendering a medical opinion, Mr. Clark should be permitted
4
5 to discuss the objective factors that should have formed the basis for the officers’
6 decision regarding force. One of those factors is their physical observations of Mr.
7 Heston and his demeanor at the time of the encounter. All of the defendant officers
8 believed that Mr. Heston was either under the influence of drugs or suffering from
9 mental illness or both. This was plainly apparent to everyone at the scene. Mr. Clark
10 may offer opinions concerning the specific public safety tactics to be employed when
11 encountering someone in Mr. Heston’s state of mind. He is certainly well qualified
12 to do so. But such opinions will be offered from the perspective of an officer and not
13 delve into the medical aspects of Mr. Heston’s physical or mental condition.
Finally, defendants seek to exclude a number of opinions purportedly offered by
14
15 Mr. Clark including the credibility of witnesses, the credibility of the City of Salinas
16 and the Salinas Police Department, the systemic culture of the Salinas Police
17 Department, what Heston was thinking and intending, and about clicking noises on the
18 911 recordings. All of these issues can be dealt with in short shrift — Mr. Clark will
19 not be offering opinions on any of these issues at the time of trial.
To reiterate, the Court should issue an omnibus ruling concerning opinions as
20
21 to Heston’s cause of death and the medical effects of TASER discharges that applies
22 to all experts. Like all the other non-medical doctor witnesses, Mr. Clark should not
23 be allowed to testify on these issues, but should stick to areas within his expertise.
24
25
26
27
28
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1 IV.

POLICE PRACTICES EXPERT ERNEST BURWELL

2

(Salinas Motion in Limine No. 2)

3

The Salinas defendants filed another rambling 12 pages of argument challenging

4 plaintiffs’ ECD expert, Ernest Burwell. Once again, defendants’ motion does not seek
5 to exclude his testimony in its entirety, but, only to limit him from opining on certain
6 matters. Defendants commence their argument by launching into a personal attack of
7 Mr. Burwell and his qualifications to serve as an expert. Yet, their motion does not
8 seek to exclude him as an expert because he is unqualified. The reason is obvious —
9 Mr. Burwell was an approved training instructor in the Los Angeles County Sheriff’s
10 Department. Mr. Burwell’s training to be a TASER instructor is the same or more than
11 Salinas’ designated experts Sergeants Groves and Gibson received (it is interesting to
12 note that Sgt. Gibson received his initial training at the Los Angeles County Sheriff’s
13 Department, the department that Mr. Burwell was assigned as an ECD instructor).
14

Mr. Burwell served not only as a TASER instructor but also downloaded data

15 from the dataport of each TASER used in his unit. Because of this assignment, he
16 became intimately familiar with the TASER dataport and its download features. He is
17 also intimately familiar with the types of data produced by the dataport.
The Salinas defendant’s objections to Mr. Burwell’s testimony fall into the
18
19 following categories: (a) opinions offered about the mechanics, operation, or use of
20 TASER; (b) opinions concerning the physical, medical or mental condition of Heston
21 or the physical effects of TASER discharges on him; and (c) opinions about Heston’s
22 intentions or what he was thinking; Many of the categories listed above can be dealt
23 with quite easily by offering an explanation of what Mr. Burwell will testify to rather
24 than what he will not testify to.
25

Mr. Burwell has been designated by plaintiffs as an ECD expert in order to offer

26 opinions including, but not limited to, TASER training, the deployment criteria for
27 TASER’s, the purpose of TASER deployments, tactics and strategies to be utilized
28 during TASER deployments, the expected effects from TASER discharges and
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1 generally how the discharges incapacitate the subject, and the existence of, or lack
2 thereof, of warnings concerning TASER use.
3

Mr. Burwell should be permitted to offer opinions regarding proper use of the

4 TASER. If he is not qualified to render opinions about usage of this device, it is
5 doubtful that anyone else is qualified.
6

Mr. Burwell will not be asked to offer opinions concerning the physical, medical

7 or mental condition of Heston or the physical effects of TASER discharges on him.
Mr. Burwell will also not be asked to offer any opinions about Heston’s
8
9 intentions or what he was thinking. Plaintiffs agree that speculative opinions about
10 Heston’s intentions are improper and should be excluded from the testimony of all
11 witnesses. Nor will Mr. Burwell offer any opinions about Mr. Heston’s cause of death.
12 As previously mentioned, only physician experts should be permitted to opine on cause
13 of death and there should be such an order applying to all non-medical experts in this
14 case.
15

It should be noted that many of the arguments that defendants make to exclude

16 Mr. Burwell’s opinions center on his recitation of facts that have been established by
17 the defendants’ own experts. For example, defendant seek to exclude comments by
18 Burwell that Officer Godwin “fired and cycled his TASER a total of five times.”
19 (Salinas MIL No. 2 at 8:9-20) Defendants confuse facts with opinions. An expert is
20 entitled to rely on the opinions of any other expert in the case in formulating his own
21 opinions. The “fact” that Officer Godwin fired and cycled his TASER a total of five
22 times is not mere conjecture on Mr. Burwell’s part but rather was established by the
23 testimony of TASER’s expert, Dr. Adam Aleksander, who independently tested and
24 analyzed the ECD’s used during this incident and their dataports. Mr. Burwell merely
25 relies on Dr. Aleksander’s conclusions in opining about Officer Godwin’s number of
26 TASER discharges. Another example of defendants’ mis-characterizing opinions
27 offered by Mr. Burwell is his reference to the fact that Livingston’s dataport “indicates
28 repeated trigger pulls and lengthy discharges with the trigger being held down.”
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1 (Salinas MIL No. 2 at 8:23-24) Once again, this testimony is based on Dr. Aleksander’s
2 inspection and analysis.
3

Finally, Mr. Burwell will not offer any opinions concerning Heston’s physical

4 condition before or during this incident. However, such an exclusion should apply to
5 all witnesses, including those of the defendant officers and any other experts who have
6 no personal knowledge or expertise as to Heston’s physical condition prior to this
7 incident.
8 V.

MARK MYERS, M.D., SHOULD BE ALLOWED TO TESTIFY ON THE

9

CAUSE OF MR. HESTON’S CARDIAC ARREST

10

Based principally on a declaration by Mark Kroll, a TASER advisor and

11 stockholder, who is an electrical engineer with no medical education, TASER contends
12 that plaintiffs’ retained expert cardiologist, Mark Myers, M.D., should be barred from
1
13 testifying. The motion lacks merit.
There is no question that Dr. Myers is an eminently qualified physician. He has
14

15 been board certified for more than two decades in internal medicine and cardiology,
16 and is a recognized expert in electro-physiology (the medical specialty addressing the
17 heart’s electrical system). He has published extensively. Opining on the cause of Mr.
18 Heston’s cardiac arrest – the cessation of the heartbeat – falls squarely within Dr.
2
19 Myers’ professional expertise.
There is also no competent challenge to his methodology. TASER designated
20

21 two cardiology experts, Drs. Luceri and Ideker. Neither criticized Dr. Myers
22 methodology, or used a method that contradicted his.
23
1
Indeed, Mark Kroll’s criticisms of Dr. Myers do not meet themselves meet Rule
24 702 standards, as Kroll is an electrical engineer who lacks the education and training to
criticize a cardiologist regarding the cause of a cardiac arrest. Plaintiffs have filed their
25 own motion in limine urging the Court to issue an omnibus order limiting all the expert
witnesses, including Kroll, to opinions within their own established areas of expertise.
26
2
Dr. Myers’ resume and expert reports are attached as exhibits to TASER’s
27 moving papers. They establish he is qualified to opine on the cause of Mr. Heston’s
cardiac arrest. Any purported deficiency in his experience specifically with regards to
28 TASER ECD’s goes to the weight of his testimony, not its admissibility.
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1

TASER incorrectly characterizes Dr. Myers’ opinions. His initial Rule 26

2 reports states his opinion on the cause of Mr. Heston’s cardiac arrest as plaintiffs intend
3 to argue it to the jury: “The likely mechanism of cardiac arrest due to TASER
4 applications is its documented ability to cause respiratory arrest and severe metabolic
5 (lactic) acidosis.” He restated this opinion in his supplemental reports:
6
7
8
9
10
11
12

Mr. Heston’s cardiopulmonary arrest occurred after and/or during
repeated and continuous applications of TASER by multiple TASER
weapons. The fact that he was immediately cyanotic [turning blue from
lack of oxygen] is indicative of TASER induced hypoxia for a significant
period of time. It is true that physiologic recording devices were not
attached to the decedent to prove the exact mechanisms TASER induced
cardiopulmonary arrest, but reasonable inferences can be made and are
supported by the objective clinical findings. As explained in my previous
report, severe respiratory and metabolic acidosis were present and
attributable to the use of TASER. Malignant ventricular arrhythmias may
have been transiently present and need not have been due to direct
electrical stimulation of the heart, but secondary to the adverse metabolic,
hypoxic milieu.

13 Dr. Myers summed up, in his final report,
I am persuaded however, that TASER application in the manner of
14
Heston’s case would cause metabolic acidosis, respiratory acidosis and
hypoxia, a malignant vasosvagal reaction and the observed consequent
15
asystolic cardiac arrest that led to his demise.
16
The question whether Dr. Myers’ analysis, that Mr. Heston suffered an acidosis
17
induced cardiac arrest, meets the standards of Fed. R. Evid. 702 should be answered
18
in the affirmative.3
19
TASER characterizes Dr. Myers’ views as follows:
20
Myers’ metabolic theory in lay terms is that the ECDs caused violent and
prolonged muscle contractions in Mr. Heston which significantly raised
21
the lactic acid levels in his blood; his body failed to correct for this, and
the acidosis was allegedly so severe that it shut down his heart. Myers’
22
theory of metabolic acidosis also is wrong, and is wholly lacking in
scientific support and reliability.
23
24
25
26
27

3

TASER’s claim that Dr. Myers’ opinions changed over time – a contention
plaintiffs’ dispute – goes to the weight the jury should give the opinions, not their
28 admissibility under Rule 702.
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4
1 TASER Memorandum in Support of Motion in Limine No. 1 at 15. In fact, there is
2 ample scientific support for Dr. Myers’ opinion testimony to meet the Rule 702

3 “gatekeeping” standard, including two independent peer-reviewed studies directly on
4 point, and admissions by TASER’s CEO and designated spokesperson in this litigation,
5 Rick Smith.
That metabolic acidosis triggers cardiac arrest is not disputed. See Hicks, et al.,
6
5
7 Metabolic Acidosis in Restraint-Associated Cardiac Arrest: a Case Series (1999). In
8 fact, one of TASER’s own cause-of-death theories in this case is that “[e]xcited

9 delirium brings on metabolic derangements – specifically acidosis – which often leads
10 to a cardiac arrest.” TASER Memorandum in Support of Motion in Limine No. 1 at 15.
11 Thus, TASER cannot dispute Dr. Myers’ opinion that acidosis caused Mr. Heston’s
12 cardiac arrest, only his opinion that the ECD applications were among the sources of
13 the acidosis. That issue presents a matter of historical fact for the jury to determine, not
14 an issue of law susceptible to disposition by way of an in limine motion.
15

That repeated TASER applications do cause dangerous levels of acidosis was

16 established in an independent study financed by the US Air Force, Jauchem, et al.,
17 Acidosis, Lactate, Electrolytes, Muscle Enzymes, and Other Factors in the Blood of Sus
6
18 Scrofa Following Repeated TASER Applications (2005). The Jauchem study provided
19 the basis for Dr. Myers’ opinion that the ECD applications were the source of Mr.

20
21

4

TASER bases this argument in large part on its claim that the evidence will show
a “total of 5-9 seconds of ECD application.” TASER Memorandum in Support of Motion
22 in Limine No. 1 at 15. Plaintiffs contend that the evidence will support a finding of
almost two minutes of ECD application in this case.
23
5
The medical literature to which plaintiffs refer in their Motions in Limine are
24 attached as exhibits to the Declaration of John Burton re Exhibits in Support of
Plaintiffs’ Motions in Limine filed with plaintiffs’ motions in limine two weeks ago.
25
6
Although TASER attempts to distinguish the study because it used swine, CEO
26 Rick Smith acknowledged that his company first tested the ECD “in 1996 . . . using an
anesthetized pig.” 1 Smith Depo. at 80-81. Obviously no human experiments can be
27 conducted to determine the number of ECD applications necessary to induce lethal levels
of acidosis. Comparisons of the human and swine studies for single ECD applications
28 show that the two species have similar blood acid responses.
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1 Heston’s acidosis, and therefore, his cardiac arrest.
TASER CEO Rick Smith embraced this study at his deposition:
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Q. Now, the next paragraph is research done by the Air Force Research
Laboratory. That’s Dr. Jauchem’s study?
A. Yes.
Q. Do you agree with the last sentence of that paragraph: We believe this
study provides support for the proposition that police should, where
possible, be minimizing multiple TASER applications?
A. Yes.
2 Smith Depo. at 277:16-24.
Finally, a recent study published in the Journal of Trauma, Dennis, et al., Acute
Effects of TASER X26 Discharges in a Swine Model (2007), issued after Dr. Myers
wrote his Rule 26 reports and gave his deposition, confirms Dr. Jauchem’s results and
therefore Dr. Myers’ opinion. Two 40-second ECD applications (still less current than
Mr. Heston absorbed) induced severe metabolic acidosis in swine, and actually caused
cardiac arrest in two test animals.
Of particular relevance to this motion is the fact that in response to questions
about a US Department of Defense study questioning the safety of repeated or
prolonged ECD exposures, TASER CEO Smith acknowledged the same scientific
principles on which Dr. Myers’ opinion relies:
Q. I’d like to invite your attention to page 19, and there’s a Section
3.3.2.8, which has several subsections I’m going to go through. The
heading is Effects of Prolonged Muscle Contraction: Respiratory
Impairment, Acidosis, Rhabdomyolysis, and Nervous System Effects.
And do you have that?
A. I do.
Q. I’d like to invite your attention to the sentence, it’s about two-thirds
of the way through that first paragraph, or halfway through. It says: Field
experience indicates that in most cases only one or a small number of
five-second activations are needed to achieve and maintain control of the
subject.
Do you agree with that sentence?
A. Yes. That’s the general experience.

28
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1 2 Smith Depo. at 202:16-203:6
Q. Now, the next sentence: However, repeated or constant activation of
2
the devices can deliver constant electrical output, which results in
sustained muscle contraction with little or no muscle recovery period.
3
Do you agree with that statement?
4
5
6
7
8

A. Yes, assuming good contact, it can cause sustained muscle
contractions.
Q. With no – little or no muscle recovery period?
A. In the case of constant activation, yeah, the muscle would continue to
flex.

9 2 Smith Depo. at 207:9-18
Q. Respiratory failure or muscle lactate production, or a combination of
10
these, may induce acidosis.
11
Do you see that?
12
A. I do.
13
Q. And is muscle – do muscles produce lactate when they’re contracted?
14
A. Yes.
15
Q. And would that be true whether they’re contracted voluntarily, let’s
say by the brain when you were weight-lifting this morning, or when
16
they’re contracted involuntarily by application of a TASER current?
17
A. Yes.
18
Q. And is it true as a general scientific principle, as your understanding,
that the more the muscle is contracted, the more lactate it will produce?
19
20
21
22
23
24

A. Generally my understanding would be the longer time duration it’s
contracted, the more lactate it would produce.
2 Smith Depo. at 218:4–23.7
Q. The next sentence: Any acidosis from sustained muscle contraction
will at first be localized to muscle, and would affect systemic pH only if
lactate production were prolonged and massive, such as might occur with
stimulus durations much greater than the five seconds, even without
impaired respiration.

25

Do you agree with that?

26
27
7

Human tests show that limited duration ECD exposures increase blood lactate
28 levels similar to the effect of moderate exercise.
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1

A. In general, yes.

2 2 Smith Depo. at 219:4–11.
Q. Now, the next sentence: When acidosis becomes severe, confusion,
3
irritability, or lethargy can occur, followed by -- I’ll say “fainting” so I
don’t mispronounce -- and if unresolved, can be fatal.
4
Do you agree with that as a scientific principle?
5
6

A. Yes.

7 2 Smith Depo. at 223:24–224:5.
Here, TASER CEO and spokesman Rick Smith is acknowledging the very same
8
9 scientific principles and methodology on which Dr. Myers bases his opinion, and which
10 TASER now says is “wrong” and “wholly lacking in scientific support and reliability.”
11

There remains an open question on the effect of ECD discharges on breathing.

12 Impaired respirations can aggravate acidosis in two ways. First, the accumulation of
13 carbon dioxide is a second source of blood acid, usually referred to as “respiratory
14 acidosis.” Second, respiration itself is the body’s method of compensating for
15 metabolic acidosis. Both swine studies found that the animals stopped breathing during
16 prolonged ECD applications. Human tests, however, showed that under laboratory
17 conditions police officer volunteers were able to breath through brief 5-15 second ECD
18 applications.
The following testimony by Rick Smith illustrates that there are two sides to the
19
20 issue of respiratory impairment:
Q. Well, did the decision-makers at TASER International consider that
21
it should warn its users that the potential consequences of extended
stimulus periods are – that those consequences are not known at this time,
22
and therefore, that long stimulus durations should be avoided when
possible?
23
24
25
26
27
28

A. Well, I think we were – we were already doing that. If you look at
our Version 12 training from November of 2004, and I’ll refer you to –
Q. That’s Exhibit 4.
A. – the second page there, we have a slide in the training course for
officers using the TASER. And I’ll read it into the record. It says, quote,
“Duration of Field Applications. The application of the TASER is a
physically stressful event. Although there is no predetermined limit to the
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1
2
3
4
5
6

number of cycles that can be administered to the subject, officers should
only apply the number of cycles reasonably necessary to allow them to
safely approach and restrain the subject. Especially when dealing with
persons in a health crisis such as excited delirium, it is advisable to
minimize the physical and psychological stress to the subject to the
greatest degree possible.
“Further, TASER applications directly across the chest may cause
sufficient muscle contractions to impair normal breathing patterns. While
this is not a significant concern for short (five-second) exposure, it may
be a more relevant concern for extended duration applications.”

8
7 2 Smith Depo. at 264:25–266:1.
Accordingly, the motion in limine as to Dr. Myers should be denied. Plaintiffs’
8

9 cardiology expert should be allowed to opine on the cause of Mr. Heston’s cardiac
10 arrest, and its relationship to the repeated ECD exposures. Defendants’ retained expert
11 witness medical doctors (but not their non-physician witnesses such as Mark Kroll)
12 should be allowed to opine on that subject as well. The jury then can be trusted to reach
13 the correct decision based on all the evidence.
14 VI. THE MEDICAL EXAMINER WHO CONDUCTED THE AUTOPSY FOR
15

MONTEREY COUNTY SHOULD BE ALLOWED TO TESTIFY.

16

TASER challenges Terri L. Haddix, M.D., as an expert witness to opine on Mr.

17 Heston’s cause of death. She is a board certified forensic pathologist who teaches
18 medicine at Stanford University. Dr. Haddix was hired by the Monterey County
19 Sheriff-Coroner to autopsy Mr. Heston and to determine his cause of death.
Dr. Haddix, the only truly independent medical expert in this case, opined that
20
21 the multiple ECD applications caused Mr. Heston’s cardiac arrest. TASER’s challenge
22 to Dr. Haddix credentials are similar to those levied against Dr. Myers, that neither has
23 enough direct experience with TASER death cases to qualify as a cause-of-death expert
24 in this case.
25
26
27

8

Although issued three months before this incident, this directly apposite warning
apparently never made it to the defendant officers, plaintiffs contend due to the
28 malfeasance of TASER, the Salinas Police Department, or both.
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Disregarding the maxim that sauce for the goose is sauce for the gander, TASER

2 is simultaneously urging that the Court allow seven non-physicians it has retained as
3 expert witnesses to opine on cause of death.
4

Dr. Haddix testified that in addition to conducting an autopsy, she reviewed the

5 medical records from Mr. Heston’s final hospitalization, and she gathered as much
6 information as possible from the Salinas Police Department. She also contacted TASER
7 directly and corresponded with one of its employees, Mark Johnson, who provided her
8 the same Department of Defense study that Rick Smith answered questions about.
9 Finally, she did research and spoke to her colleagues before rendering her opinion. All
10 this is referred to in her deposition testimony. The sheriff-coroner then submitted her
11 report to two other forensic pathologists, Dr. Hain and Dr. Karch. They praised her
12 thoroughness and concurred that the ECD shocks contributed to the death.
13

TASER, although it has designated three forensic pathologists, has submitted

14 no evidence from any of them that Dr. Haddix did not follow correct methodology in
15 conducting her examination or rendering her opinion. All indications are that she
16 followed the established methodology for medical examiners to rule out various
17 factors, and then make a finding for the local government on the cause of death. Absent
18 competent evidence that she deviated from the methodology used by comparable
19 medical examiners – not complaints from Mark Kroll about her “logic” – the testimony
20 should be admitted.
Dr. Haddix issued her report before the publication of the critical Jauchem study.
21
22 Nevertheless, without using the term “acidosis” – she referred to “additional stress” –
23 Dr. Haddix came to essentially the same conclusion as Dr. Myers.
24
25
26
27
28

Q. So if I understand you correctly, are you saying that the mechanism
of injury from the TASER is electrocution?
A. Well, in this case, what I’m worried about -- and this gets back to
what you mentioned earlier. I’m worried about that there’s a couple
different ways in which this happened or in which TASER has a role in
this. First, is along the lines what Dr. Hain said previously as well, that
is, the additional -- the additional stress, the additional strain placed upon
his heart, et cetera, related to that, related to the struggle, related to a
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1

number of things going on.

2

But what I’m worried about is the induction of a cardiac rhythm,
abnormal or fatal cardiac rhythm that happened with that last application.
And I guess this also gets back to a couple other things that kind of
muddy things to some degree. And that is, it is my understanding that
while Mr. Heston was on the floor, there were barbs from several different
TASERs still within his body and I’m not a hundred -- in contact with -this point, I’m not clear how many TASERs were actually being cycled at
that time as well, too.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

....
Q. Now, you indicated first of all you’re concerned about the, as you
put it, the same factor that Dr. Hain has expressed concern about is your
understanding that there may have been additional stress and strain put on
the heart by the application of the TASER as well as the police physical
struggle with Mr. Heston in this case; is that correct?
A.

As well as the effects of drugs as well, too. Yes. That’s right.

....
Q. Do you have any percentage of probability as far as these three
different issues that you are concerned about with the TASER as to which
one is your greater concern or more likely to have occurred than the other
two?
A. Well, I think the first part, the addition of the strain and the stress,
et cetera, it’s my reading of some studies that they found indeed there’s
increased heart rate associated with the application of TASERs, et cetera.
So, I think that is supported in that regard.
Haddix Depo, at 99-101.
Most of TASER’s Memorandum in Support of Motion in Limine No. 2 might be
relevant to cross examination, but not a Rule 702 determination. Much of their
argument arises from facts which are disputed, such as whether Mr. Heston had a
highly elevated temperature (hyperthermia). The paramedics measured his temperature
at 97 degrees, which is not hyperthermic. Defendants can use such purported facts to
attack Dr. Haddix’s opinions at trial, but her testimony on cause of death is within the
standard of her profession and should be expressed to the jury.

25
26
27
28
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1 VII. CONCLUSION
For the foregoing reasons, defendants motion to limit or exclude plaintiffs’
2
3 expert witnesses and Dr. Haddix should be denied.
4 DATED: April 15, 2008
5

Respectfully submitted,

6

THE LAW OFFICES OF JOHN BURTON
WILLIAMSON & KRAUSS

7
8
9

BY: /s/ John Burton
Attorneys for Plaintiffs

10
11
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18
19
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1 John Burton, State Bar No. 86029
THE LAW OFFICES OF JOHN BURTON
2 414 South Marengo Avenue
Pasadena, California 91101
3
Telephone: (626) 449-8300
4 Facsimile: (626) 449-4417
E-Mail:
jb@johnburtonlaw.com
5
Peter M. Williamson, State Bar No. 97309
6 WILLIAMSON & KRAUSS
18801 Ventura Boulevard., Suite 206
7 Tarzana, California 91356
8 Telephone: (818) 344-4000
Facsimile: (818) 344-4899
9 E-Mail:
pmw@williamson-krauss.com
10 Attorneys for Plaintiffs Betty Lou Heston, individually,
and Robert H. Heston, individually and
11 as the personal representatives of Robert C. Heston, deceased
12
13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15
16
17
18

BETTY LOU HESTON and ROBERT
H. HESTON, individually, and MISTY
KASTNER, as the personal
representative of ROBERT C.
HESTON, deceased,

19
20
21
22
23
24
25

Plaintiffs,
v.
CITY OF SALINAS, SALINAS
POLICE DEPARTMENT, MICHAEL
DOMINICI, JAMES GODWIN, LEK
LIVINGSTON, JUAN RUIZ and
TASER INTERNATIONAL, INC.,
Defendants.

Case No. C 05-03658 JW
PLAINTIFFS’ MEMORANDUM OF
LAW IN OPPOSITION TO
DEFENDANT TASER’S RENEWED
AND SUPPLEMENTAL MOTION
FOR JUDGMENT AS A MATTER
OF LAW (JMOL) OR REDUCTION
IN PUNITIVE DAMAGES
Trial:
Date Commenced: May 13, 2008
Date of Verdict:

June 6, 2008

Post-Trial Telephonic Conference:
September 17, 2008 at 9:00 a.m.

26
27
28
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TABLE OF CONTENTS

1
2 Contents

Page

3
4 Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
5 Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
6 I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

7 II.

THE EVIDENCE SUPPORTS THE JURY’S VERDICT.. . . . . . . . . . . . . . . . . 3

8 III.

THE COURT SHOULD NOT VACATE OR REDUCE
THE AMOUNT OF PUNITIVE DAMAGES; IT SHOULD ENTER
JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST
TASER ON THE NEGLIGENCE CLAIM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

9
10
11

IV.

12
13
14

THE AWARD OF PUNITIVE DAMAGES IS AMPLY
SUPPORTED BY LAW AND FACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.

Punitive Damages Are Available for Negligent Failure
to Warn About the Risks of Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B.

Plaintiffs Proved by Clear and Convincing Evidence
That TASER’s Conduct Was Wilful, Intentional, and Done
in Reckless Disregard of the Probability of Injury to Others.. . . . . . . . . . 10

15
16
17
18
19
20
21
22
23
24
25
26
27

V.

i.

The Findings were Based on
Clear and Convincing Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii.

The Jury Had a Factual Basis for
Awarding Punitive Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

THE PUNITIVE DAMAGE AWARD OF $5.2 MILLION
IS NOT EXCESSIVE FOR A WRONGFUL DEATH CASE.. . . . . . . . . . . . . 15
A.

The Factors for Reviewing a Punitive Damages Award Demonstrate that
the $5,200,000 Punitive Damages Award Is Not Excessive.. . . . . . . . . . . 15

B.

The Punitive Damages Award Is Not Excessive Because the Jury Properly
Found TASER’s Conduct to be Reprehensible... . . . . . . . . . . . . . . . . . . . 16

C.

The Ratio of Punitive to Compensatory Damages Is
Appropriate for a Wrongful Death Case.. . . . . . . . . . . . . . . . . . . . . . . . . . 17

D.

Plaintiffs Established Defendant TASER’s Financial Condition... . . . . . . 21

E.

There Is No Reason to Believe the Punitive Damage Award
Was the Result of Passion and Prejudice... . . . . . . . . . . . . . . . . . . . . . . . . 22

F.

The Punitive Damage Award Should Not Be Reduced.. . . . . . . . . . . . . . 22

28
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1 Contents
2
3

VI.

TASER IS NOT ENTITLED TO JUDGMENT AS A
MATTER OF LAW ON PLAINTIFFS’ NEGLIGENT
FAILURE TO WARN CLAIM BECAUSE THERE WAS
NO NEED FOR EXPERT TESTIMONY REGARDING
THE STANDARD OF CARE FOR THE WARNING.. . . . . . . . . . . . . . . . . . 23

VII.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

4
5
6

Page

7
8
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10
11
12
13
14
15
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17
18
19
20
21
22
23
24
25
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TABLE OF AUTHORITIES

1
2 Cases
3
4

Page(s)

Billiar v. Minnesota Mining and Manufacturing Co.,
623 F.2d 240 (2d Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

5 Black v. Public Service Electric and Gas Co.,
265 A.2d 129 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6
BMW of North America, Inc. v. Gore,
7
517 U.S. 559 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
8 Boyle v. Lorimar Products,
13 F.3d 1357 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9
Burgess v. Premier Corp.,
10
727 F.2d 826 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11 Carlin v. Superior Court,
13 Cal.4th 1104 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,9
12
Caudle v. Bristow Optical Co.,
13
224 F.3d 1014 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
14 Cocco v. Deluxe Systems, Inc.,
516 N.E.2d 1171 (Mass.App.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15
Ebaugh v. Rabkin,
16
22 Cal.App.3d 891 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17 Grimshaw v. Ford Motor Co.,
119 Cal.App.3d 757 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9,22
18
Hilliard v. A.H. Robbins Co.,
19
148 Cal.App.3d 374 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20 I-Gotcha, Inc. v. McInnis,
903 S.W.2d 829 (Tex.App. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
21
Johansen v. Combustion Engineering, Inc.,
22
170 F.3d 1320 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
23 Johnson v. Breeden,
280 F.3d 1308 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
24
Kennedy v. Los Angeles Police Dep’t,
25
901 F.2d 702 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
26 Marchant v. Dayton Tire & Rubber Co.,
836 F.2d 695 (1st Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
27
Miller v. Los Angeles County Flood Control Dist.,
28
8 Cal.3d 689 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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1 Cases

Page(s)

2 Morgan v. Woessner,
997 F.2d 1244 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3
Neal v. Farmers Ins. Exchange,
4
21 Cal.3d 910 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Nolin v. National Convenience Stores, Inc.,
95 Cal.App.3d 279 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
6
Pau v. Yosemite Park & Curry Co.,
7
928 F2d 880 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8 Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9
Romo v. Ford Motor Co.,
10
113 Cal.App.4th 738 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21
11 Simon v. San Paolo U.S. Holding Co., Inc.,
35 Cal.4th 1159 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,19
12
State Farm Mut. Auto. Ins. Co. v. Campbell,
13
538 U.S. 408 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,19
14 Taylor v. Superior Court,
24 Cal.3d 890 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9
15
United States v. Parsons Corp.,
16
1 F.3d 944 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17 Winarto v. Toshiba America Electronics Components, Inc.,
274 F.3d 1276 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
18
19 Other Authorities
20 Anno., Effect of Plaintiff’s Comparative Negligence in Reducing Punitive
Damages Recoverable,
21
27 A.L.R.4th 318 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,18
22 How to value life? EPA devalues its estimate $900,000 taken off
in what critics say is way to weaken pollution rules, Associated Press,
23 www.msnbc.msn.com/id/25626294/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Dylan, B., Subterranean Homesick Blues (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
25 California Civil Code §3294. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8,13
26 Fed. R. Civ. P. 50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,4
27 Fed. R. Civ. P. 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28
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1 I.

INTRODUCTION

2

After four weeks of hotly contested trial, the Court instructed the jury

3 thoroughly, there were extended deliberations, and the jury returned a mixed verdict,
4 finding against defendant TASER International, Inc., (TASER) for negligently failing to
5 warn about the risks of its product, the M26 ECD, and against plaintiffs on all other
6 claims. The jury awarded compensatory damages of $21,000.00 to the estate of Robert
7 C. Heston, and $1,000,000.00 to his parents, Robert H. Heston and Betty Lou Heston,
8 for their wrongful-death damages. The jury apportioned fault 85 % to the decedent and
9 15% to TASER. Finally, the jury assessed punitive damages of $5,200,000.00 against
10 TASER.
11

TASER now renews and supplements its Rule 50 Motion for Judgment as a

12 Matter of Law.1 The motion asserts, essentially, that the jury lacked any basis for finding
13 TASER liable for the death resulting from its unreasonable failure to warn about the risk
14 of its product, or for the award of punitive damages for recklessly placing such a product
15 into commerce under the motto, “Saving lives every day.” TASER also contends that
16 the Court should reduce or even vacate altogether the jury’s award of punitive damages.
17

Plaintiffs acknowledge that because they prevailed only on a state-law theory, the

18 general damages awarded to the estate do not survive and the compensatory damages
19 should be reduced to $1,189.30, the amount of economic loss (burial expenses). That
20 sum, and the compensatory damages awarded on the wrongful death claim, are subject
21 to an 85% reduction based on the decedent’s fault, bringing the estate’s total
22 compensatory damages to $178.43, and the parents’ award to $150,000.00. For the
23 following reasons, however, judgment should be entered in the full amount of $5.2
24 million for punitive damages, plus costs.
25
26
1
Plaintiffs’ opposition to TASER’s Rule 59 new trial motion, and the arguments
27 raised therein, is set forth in a separate memorandum filed herewith. There is significant
overlap between the two motions. This memorandum tracks TASER’s JMOL Memorandum
28 section by section.

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The verdict against TASER was amply supported by the evidence, which showed

2 the danger of acidosis from repeated or prolonged ECD applications was theorized in
3 the literature prior to TASER’s marketing the more powerful Model M26 ECD. The
4 jury was properly instructed on the applicable law, which required them to determine,
5 based on “clear and convincing evidence,” whether TASER’s failure to test and warn for
6 acidosis constituted “a conscious disregard of the probability of injury to others.”
7

The testimony of TASER CEO Patrick Smith demonstrated that TASER

8 unreasonably failed to test its new product’s effect on acidosis, and recklessly marketed
9 the product to police agencies for use on human beings, including some suffering from
10 mental illness or the acute effects of drug intoxication, without first gathering the
11 “scientific knowledge” necessary to evaluate its grandiose claims of safety, regardless of
12 the number or duration of applications.
13

TASER did not “act[] promptly to provide warnings to its customers of the

14 scientific information that . . . repeated shocks by a TASER ECD might cause acidosis.”
15 But see TASER’s Supplemental JMOL Memorandum at 4:6-8. The firm’s overriding
16 concern for sales over safety was demonstrated by its burying a potential life saving
17 warning on a single slide in a power point presentation which the City of Salinas did not
18 timely receive, and which failed to reach the involved officers before the Heston
19 incident.
20

TASER’s reckless marketing of the M26, in conscious disregard for the lives of

21 persons shot by the device, is among the scenarios for which California law expressly
22 authorizes punitive damages. The award is only about one-half the ratio to
23 compensatory damages authorized under the Court’s instructions. The award is less
24 than the U.S. Government’s statistical value of a human life (recently reduced to $6.9
25 million). The award is only five percent of TASER’s 2007 annual revenues ($100.7
26 million), and 4.3 percent of its current net worth ($120.6 million).
27

JMOL should be denied, the verdict affirmed, and judgment entered.

28
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1 II.

THE EVIDENCE SUPPORTS THE JURY’S VERDICT

2

TASER’s contention that “the jury’s findings do not support its conclusions,”

3 TASER’s Supplemental JMOL Memorandum at 5:21-6:5, is based solely on a three4 paragraph argument that the punitive damages are purportedly disproportionate to the
5 compensatory damages – but only after the Court makes the reduction for comparative
6 fault.
7

The jury returned a general verdict on special questions, and made no “findings.”

8 The issue is whether the evidence supports the jury’s verdict, not whether “findings,”
9 which do not exist, support the jury’s “conclusions.”
10

The record demonstrates that the jury followed the Court’s instructions to a “T”

11 regarding proportionality of punitive and compensatory damages. The jury was first
12 instructed not to reduce the amount of compensatory damages by the percentage of
13 fault, Closing Instructions at 19:18-20, and then was told that “punitive damages may
14 be no more than 10 times the amount of compensatory damages, but can be as little in
15 amount as the jury decides.” Id. at 20:10-11.
16

Were the jury to have done what TASER now contends it should have done –

17 reduced the compensatory damages by the percentage of decedent’s fault before
18 calculating punitive damages – it would have violated the Court’s instructions.
19

TASER is seeking an end run around the rule that the jury’s comparative fault

20 determination does not reduce the punitive damages. See Anno., Effect of Plaintiff’s
21 Comparative Negligence in Reducing Punitive Damages Recoverable, 27 A.L.R.4th 318
22 (1984), and the cases cited therein. It should not be allowed to do so.
23

The jury awarded punitive damages equal to about five times the compensatory

24 damages. That considered judgment of the jury, which was almost $5 million less than
25 the maximum amount the Court’s instructions authorized, should stand.
26
27
28
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1 III.

THE COURT SHOULD NOT VACATE OR REDUCE THE AMOUNT

2

OF PUNITIVE DAMAGES; IT SHOULD ENTER JUDGMENT IN

3

FAVOR OF PLAINTIFFS AND AGAINST TASER ON THE

4

NEGLIGENT PRODUCTS LIABILITY CLAIM.

5

TASER does not cite the applicable legal standard. A trial court can overturn the

6 jury and grant a post-trial Rule 50 JMOL motion “only if, under the governing law,
7 there can be but one reasonable conclusion as to the verdict. In other words, the motion
8 should be granted only if ‘there is no legally sufficient basis for a reasonable jury to find
9 for that party on that issue.’” Winarto v. Toshiba America Electronics Components,
10 Inc., 274 F.3d 1276, 1283 (9th Cir. 2001) (citing Reeves v. Sanderson Plumbing
11 Products, Inc., 530 U.S. 133, 149,(2000) and quoting Rule 50(a)).
12

In ruling on a motion for JMOL, the court is not to make credibility

13

determinations or weigh the evidence and should view all inferences in the

14

light most favorable to the nonmoving party. Reeves, 530 U.S. at 150

15

(citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 91 L.Ed.2d 202,

16

106 S.Ct. 2505 (1986)). “The court must accept the jury’s credibility

17

findings consistent with the verdict.” Bilbrey by Bilbrey v. Brown, 738

18

F.2d 1462, 1468 n. 8 (9th Cir. 1984). It “must disregard all evidence

19

favorable to the moving party that the jury is not required to believe.”

20

Reeves, 530 U.S. at 151. The court “may not substitute its view of the

21

evidence for that of the jury.” Johnson v. Paradise Valley Unified Sch.

22

Dist., 251 F.3d 1222, 1227 (9th Cir. 2001).

23 Id. Missing from TASER’s moving papers is any attempt to analyze the evidence or to
24 demonstrate how, under these most stringent of legal standards, the jury could not have
25 returned the verdict it did.
26

As explained in the following sections, there was ample evidence for the jury to

27 conclude that TASER unreasonably failed to perform the necessary testing on the effect
28 of repeated or prolonged shocks on blood acid before manufacturing and marketing its
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1 new high powered ECDs to police agencies throughout California and the United
2 States. Even after the necessary scientific knowledge was established by Dr. James
3 Jauchem at the U.S. Air Force laboratory, his important results were buried in a training
4 power point so as not to affect TASER’s sales, which are based in large part on its
5 exaggerated safety claims.
6

TASER also asserts it is entitled to the “reduc[tion of a] constitutionally excessive

7 punitive damage award.” TASER Supplemental JMOL Memorandum at 6:17-18. For
8 reasons explained below, the award is not constitutionally excessive and should not be
9 reduced on that basis.
10

Finally, although a trial court may have discretion to reduce a punitive damage

11 award under appropriate circumstances, the “jury’s award of punitive damages is not to
12 be lightly disturbed. See Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 707 n.3
13 (9th Cir. 1990). Reflecting our general deference to jury verdicts, we have never
14 required the district court to adjust a jury’s punitive damages verdict so that it is
15 proportional, in the court’s view, to the defendant’s wickedness. Such proportional
16 adjustments are left to the jury itself.” Caudle v. Bristow Optical Co., 224 F.3d 1014,
17 1028 (9th Cir. 2000) (footnote omitted).
18

TASER cites out-of-circuit authority, Johansen v. Combustion Engineering, Inc.,

19 170 F.3d 1320, 1331-32 (11th Cir. 1999), for the proposition that the Court may
20 reduce the jury’s award of punitive damages without “offering plaintiff the option of a
21 new trial.” TASER’s Supplemental JMOL Memorandum at 6:18-19. The rule in the
22 Ninth Circuit is different. Where a district court decides – after considering factors such
23 as the need for deterrence and for compensation of the private attorneys who prosecute
24 such actions – “that the award should be reduced a remittitur with the option of a new
25 trial would be required.” Boyle v. Lorimar Products, 13 F.3d 1357, 1361 (9th Cir.
26 1994) (citing Morgan v. Woessner, 997 F.2d 1244, 1258-59 (9th Cir. 1993)).
27

Regardless, the jury’s award should be affirmed.

28
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1 IV.

THE AWARD OF PUNITIVE DAMAGES IS AMPLY SUPPORTED BY

2

LAW AND FACT

3

A.

4
5

Punitive Damages Are Available for Negligent Failure to Warn
About the Risks of Products.

California courts have long held that punitive damages are recoverable in

6 product-liability actions because of important public policy. The term “malice” as used
7 in California Civil Code section 3294 is not limited to conduct undertaken with an
8 intent to vex, annoy or injure, but also encompasses “conduct evincing callous and
9 conscious disregard of public safety by those who manufacture and market mass
10 produced articles.” Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 810 (1981).
11

In the traditional noncommercial intentional tort, compensatory damages

12

alone may serve as an effective deterrent against future wrongful conduct

13

but in commerce-related torts, the manufacturer may find it more

14

profitable to treat compensatory damages as a part of the cost of doing

15

business rather than remedy the defect. . . . Deterrence of such

16

“objectionable corporate policies” serves one of the principal purposes of

17

Civil Code section 3294 . . . . Punitive damages [are] the most effective

18

remedy for consumer protection against defectively designed mass

19

produced articles. They provide a motive for private individuals to enforce

20

rules of law and enable them to recoup the expenses of doing so which can

21

be considerable and not otherwise recoverable.

22 Id.
23

Two “failure to warn” theories are recognized in product-liability actions —

24 negligent failure to warn and strict liability failure to warn. To establish negligent
25 failure to warn, plaintiff must prove that the manufacturer’s conduct “fell below the
26 acceptable standard of care, i.e., what a reasonably prudent manufacturer would have
27 known and warned about.” Strict liability, instead of looking to the defendant’s
28 conduct, focuses on “scientific and medical knowledge available at the time of
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1 manufacture and distribution.” Carlin v. Superior Court, 13 Cal.4th 1104, 1112
2 (1996). Here, the jury logically found TASER’s failure to test for the danger of acidosis
3 and warn against it to be unreasonable and “below the acceptable standard of care.” The
4 jury found no strict liability precisely because TASER’s negligent failure to conduct pre5 release testing of its product did not generate the “scientific and medical knowledge”
6 necessary to assess accurately the risk of acidosis from repeated or prolonged ECD
7 applications.
8

That knowledge was forthcoming only as the result of the Jauchem and Dennis

9 independent testing performed long after the product was put on the market. TASER’s
10 warning based on those belated results was too little, too late to be of any help to Robert
11 C. Heston.
12

TASER argues that a cause of action for negligent failure to warn cannot, as a

13 matter of law, support an award of punitive damages. TASER’s Supplemental JMOL
14 Memorandum at 3:20-23, 7:1-8:5. TASER is incorrect. While evidence of simple
15 negligence generally does not support punitive damages, a negligence cause of action
16 justifies such an award where the evidence also shows malice, especially in products
17 liability.
18

In Nolin v. National Convenience Stores, Inc., 95 Cal.App.3d 279 (1979), the

19 plaintiff was severely injured when oil and gasoline on the ground near defendant’s s gas
20 pumps caused her to slip and fall. Plaintiff alleged negligence, but also sought to recover
21 punitive damages on the ground that defendant’s conduct was so egregious that it
22 constituted a callous and conscious disregard for her safety. The jury awarded
23 substantial compensatory and punitive damages, and the appellate court affirmed the
24 judgment.
25

In a section of the appellate opinion entitled “The Right to Recover Punitive

26 Damages in an Action Founded on Negligence,” id., at 284, the court held that
27 unintentional carelessness does not necessarily support an award of punitive damages,
28 but that “a non-intentional tort can have the characteristics of an intentional tort to the
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1 extent of embracing the concept of malice as used in Civil Code section 3294.” Id., at
2 286. The Court of Appeal noted that such malice is established by proof of a conscious
3 disregard for the rights or safety of others, and held the evidence in that case sufficient
4 to justify the jury’s finding of malice and to support its award of punitive damages. Id.,
5 at 286, 288.
6

The California Supreme Court addressed the same issue in Taylor v. Superior

7 Court, 24 Cal.3d 890 (1979), a personal injury action arising from an automobile
8 accident. The complaint alleged not only that the defendant was intoxicated, but also
9 that he was an alcoholic; that he had previously caused a serious accident while driving
10 drunk; that he had been arrested for and convicted of drunk driving on numerous prior
11 occasions; that he had recently completed a period of probation after a drunk driving
12 conviction; that at the time of the accident another criminal drunk driving charge was
13 pending against him, and so forth. Based on these allegations, the plaintiff sought
14 punitive damages. The defendant demurred, contending that punitive damages could
15 not be assessed against a negligent driver, at least in the absence of an allegation that
16 defendant actually intended to harm the plaintiff. The trial court sustained the
17 demurrer as to punitive damages, but the state Supreme Court reversed, holding that
18 the plaintiff’s allegations were sufficient because a conscious disregard for the safety of
19 others constitutes “malice” within the meaning of Civil Code section 3294. Id., at 895.
20

The foregoing rule – that a negligence cause of action will support an award of

21 punitive damages if the plaintiff alleges and proves not just carelessness but a conscious
22 disregard for the safety of other – was applied to products liability in Hilliard v. A.H.
23 Robbins Co., 148 Cal.App.3d 374 (1983). The plaintiff sued the manufacturer of an
24 intrauterine birth control device for injuries she suffered, asserting a variety of theories
25 including negligence and strict liability. The trial court bifurcated the issue of punitive
26 damages, and after a 19-week trial the jury returned a verdict awarding plaintiff
27 $600,000 in compensatory damages. The trial court then granted the defendant’s
28 motion for a directed verdict on the issue of punitive damages, apparently in the belief
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1 that evidence of defendant’s disregard for the safety of its product could not establish
2 malice. The appellate court reversed the directed verdict, citing Grimshaw and Taylor,
3 holding specifically that punitive damages were recoverable on both the negligence and
4 strict liability causes of action. Id., at 394-95.
5

TASER cites two cases to support its argument that punitive damages cannot be

6 recovered in a negligent-failure-to-warn, products-liability case. The first is Ebaugh v.
7 Rabkin, 22 Cal.App.3d 891 (1972), a 36-year-old medical malpractice decision not
8 involving products liability or a failure to warn. Ebaugh states that for conduct to
9 constitute malice under Civil Code section 3294 “[t]here must be an intent to vex,
10 annoy or injure,” Id., at 894 (emphasis in original), the very holding the California
11 Supreme Court later rejected in Taylor.
12

In the second case, Carlin v. Superior Court, the issue was whether a plaintiff

13 injured by a prescription drug can state a claim against the manufacturer for strict
14 liability failure to warn, as opposed to negligent failure to warn. TASER relies on a
15 single sentence in a concurring and dissenting opinion by Court of Appeal Justice Paul
16 Turner (sitting by special assignment) stating that “a failure to warn of a knowable risk
17 [in the prescription drug context] is subject to traditional negligence principles
18 including the unavailability of punitive damages.” Id., 13 Cal.4th at 1136 (quoted in
19 TASER’s Supplemental JMOL Memorandum, at 7:17-19). This statement, insofar as it
20 refers to punitive damages, is dicta, as the case presented no such issue, and there is no
21 other reference to punitive damages anywhere in the majority, concurring and
22 dissenting, or dissenting opinions. The statement is made without citation to authority
23 or analysis of any kind. It is accurate to the extent that punitive damages are unavailable
24 in cases where the evidence shows only simple negligence without malice, but it is not
25 authority that punitive damages are never available in negligence-based products-liability
26 cases, given decisions specifically addressing the issue conclude otherwise.
27

In sum, TASER takes the elementary rule that simple negligence cannot support

28 an award of punitive damages and attempts to convert it into a rule that a cause of
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1 action grounded in negligence can never support an award of punitive damages, even
2 where the evidence proves a defendant acted with conscious disregard for public health
3 and safety. TASER’s contention is particularly incorrect in a product-liability action,
4 where California Supreme Court authority recognizes the public policy in favor of
5 punitive damages.
6

B.

Plaintiffs Proved by Clear and Convincing Evidence That TASER’s

7

Conduct Was Wilful, Intentional, and Done in Reckless Disregard of

8

the Probability of Injury to Others.

9

(i)

10

The Verdict was Based on Clear and Convincing Evidence.

TASER contends “that plaintiffs did not prove by clear and convincing evidence

11 that TASER’s conduct was willful, intentional, or done in reckless disregard of its
12 possible results.” TASER’s Supplemental JMOL Memorandum at 8:12-16. TASER
13 does not base its argument on the record, but on the contention that “although the
14 ‘clear and convincing’ and ‘conscious disregard’ language were included in the Closing
15 Instructions, the Court failed to include either standard” in its verdict form. Id. at 9:716 12.
17

TASER cites no authority for its proposition that the absence of these questions

18 on the general verdict form constitutes a “defect,” much less grounds “for vacating the
19 punitive damages award.” Id. at 8:16-17. A party requesting special findings by the jury
20 must present the proposed questions of fact to the judge before submission to the jury.
21 Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 891 (9th Cir. 1991) (citing Burgess
22 v. Premier Corp., 727 F.2d 826, 831 (9th Cir. 1984). TASER’s proposed verdict form,
23 filed May 29, 2008, had no such questions.
24

Moreover, TASER had an obligation to object timely to the form submitted to

25 the jury, and its failure to do so waived any objections. United States v. Parsons Corp., 1
26 F.3d 944, 945 (9th Cir. 1993). Even had a request by TASER for such questions on
27 the verdict form been denied, or its objections to the form been made and overruled,
28 the correct law stated in the instructions made any error harmless.
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1

Failure to give requested jury interrogatories may not be error, or if error

2

may be harmless, where the jury verdict itself, viewed in the light of the

3

jury instructions, and any interrogatories that were answered by the jury,

4

indicate without doubt what the answers to the refused interrogatories

5

would have been, or make the answers to the refused interrogatories

6

irrelevant.

7 Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002).
8

Here, there can be no question that the jury gave considerable thought to the

9 matter before finding a negligent failure to warn and assessing TASER with $5.2 million
10 in punitive damages. There is no reason to believe the jury disregarded the correct
11 instructions that it must do so on “clear and convincing” evidence that TASER acted
12 with “conscious disregard.”
13
14
15

Accordingly, the motion should be denied.
(ii)

The Jury Had a Factual Basis for Awarding Punitive Damages.

What is absent from TASER’s moving papers is any attempt to analyse the

16 evidence in the light most favorable to the jury verdict.
17

Through their scientific expert, Mark D. Myers, M.D., plaintiffs established that

18 muscle contractions cause increases in blood acid, measured as a decrease in blood pH,
19 that a buildup of too much blood acid too quickly can cause a cardiac arrest, and that
20 people in an agitated state, such as Mr. Heston, are already acidotic, and therefore more
21 vulnerable to acidosis-induced cardiac arrests.
22

Dr. Myers then reviewed the results of three very important independent studies.

23 The first by Dr. Jauchem for the U.S. Air Force established dramatic increases in the
24 blood acid of pigs resulting from repeated TASER applications. The second by Dr.
25 Dennis for Cook County Hospital, found similar results from prolonged TASER
26
27
28
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1 applications.2 The third, by Dr. Vilke for the University of California San Diego,
2 found that the pH response to a single TASER shock in human beings was the same as
3 that observed in pigs.
4

These test results, Dr. Myers explained to the jury, provided a firm scientific

5 foundation for his medical opinion that the decedent suffered cardiac arrest from
6 acidosis induced by repeated TASER applications. Unfortunately, this scientific
7 knowledge did not exist at the time the M26s were manufactured and sold because
8 TASER had unreasonably failed to perform the testing.
9

Essential to plaintiffs’ negligent products-liability claim against TASER was the

10 testimony of Patrick Smith, which was presented in their case in chief through his
11 videotaped deposition.
12

Q.

You’ve said things like this several times, I think: Primary risks

13

associated with TASER use include fall-related injuries and injuries

14

associated with strong muscle contractions, which are similar to strenuous

15

athletic exertion.
Right?

16
17

A.

Correct

18

Q.

And has that been your view since the TASER M26 was put on the

19

market?

20

A.

Yes.

21

Q.

And that's still your view today?

22

A.

Yes.
....

23
24

Q.

And is muscle – do muscles produce lactate when they’re

25

contracted?

26

A.

Yes.

27
2

Patrick Smith testified incorrectly that the Dennis study was funded by a TASER
28 competitor.
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1

Q.

And would that be true whether they’re contracted voluntarily, let’s

2

say by the brain when you were weight-lifting this morning, or when

3

they’re contracted involuntarily by application of a TASER current?

4

A.

Yes.

5

Q.

And is it true as a general scientific principle, as your

6

understanding, that the more the muscle is contracted, the more lactate it

7

will produce?

8

A. Generally my understanding would be the longer time duration it’s

9

contracted, the more lactate it would produce.
....

10
11

Q.

12

localized to muscle, and would affect systemic pH only if lactate

13

production were prolonged and massive, such as might occur with

14

stimulus durations much greater than the five seconds, even without

15

impaired respiration.
Do you agree with that?

16
17

Any acidosis from sustained muscle contraction will at first be

A.

In general, yes.
....

18
19

Q.

20

irritability, or lethargy can occur, followed by [syncope] and if unresolved,

21

can be fatal.
Do you agree with that as a scientific principle?

22
23

Now, the next sentence: When acidosis becomes severe, confusion,

A.

Yes.
....

24
25

Q.

Did you test for changes in pH levels in pigs before you marketed

26

the M26?

27

A.

No.

28
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Plaintiffs’ counsel then took advantage of the Court’s rule and addressed the jury

2 on plaintiffs’ views of the significance of this testimony.
3

The important thing about this particular segment is that TASER

4

acknowledged that when it put this device on the market it had no idea

5

what the effect of these prolonged applications such as we’ve seen in this

6

case are and although acidosis was brought to their attention, that they

7

performed no test. They used anesthetized pigs to see whether or not the

8

direct electrical stimulation from the device caused cardiac arrest, but they

9

didn’t measure the changes in pH that were caused by repeated

10

applications.

11 R.T. May 22, 2008 at 1346. Plaintiffs also introduced into evidence, albeit somewhat
12 later in the trial, Exhibit 151A, a peer-reviewed study that was done at Penn State in
13 1999 – before the M26 was first marketed and sold – which posited that extended
14 duration shocks from ECDs would cause lethal levels of acidosis. The jury was free to
15 disbelieve Mr. Smith’s testimony that TASER was unaware of the study, especially as it
16 came from TASER’s own research compendium.
17

TASER’s efforts to repair this damage during its defense only made matters

18 worse, as often happens when a defendant tries to disprove something so logical and
19 true as Dr. Myers’ cause-of-death theory. Dr. Jeffrey Ho was exposed on the stand as a
20 TASER functionary who flew around in the company’s private jet espousing
21 manipulated test results designed to camouflage dangerous propensities of TASER
22 ECDs, a fact that came out most clearly when he was impeached by deposition
23 testimony showing that he drew blood from his volunteers too soon after TASER ECD
24 exposures to register the changes in pH.
25

Finally, the jury heard that TASER’s motto was “saving lives every day.” The

26 company’s exaggerated claims of product safety were directly linked to its marketing and
27 sales, and explained its reticence to perform proper testing and issue proper warnings.
28 That would affect TASER’s fiscal bottom line by inhibiting use of its products.
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With this showing, the jury was justified in concluding, based on clear and

2 convincing evidence, that TASER’s actions demonstrated “conscious disregard of the
3 probability of injury to others,” in other words, “that TASER International was aware of
4 the probable dangerous consequences of its conduct and deliberately failed to avoid
5 those consequences.” Closing Instructions at 20:27-21:3.
6 V.

THE PUNITIVE DAMAGE AWARD OF $5,200,000 IS NOT

7

EXCESSIVE FOR A WRONGFUL DEATH CASE.

8

A.

The Factors for Reviewing a Punitive Damages Award Demonstrate

9

that the $5,200,000 Punitive Damages Award Is Not Excessive.

10

The United States Supreme Court has set forth three guideposts for determining

11 if an award of punitive damages is excessive: (1) the reprehensibility of the defendant’s
12 conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff
13 and the punitive damage award; and (3) the difference between this remedy and the civil
14 penalties authorized or imposed in comparable cases. BMW of North America, Inc. v.
15 Gore, 517 U.S. 559, 574-75 (1996). California law required consideration of the first
16 two factors long before Gore, together with a third – the wealth of the defendant. Neal
17 v. Farmers Ins. Exchange, 21 Cal.3d 910, 928 (1978).
18

TASER makes no argument based on civil penalties in comparable cases, but it

19 does contend that the punitive damage award is excessive and must be vacated or
20 reduced because of: (1) the supposedly low degree of reprehensibility of its conduct; (2)
21 the supposedly high ratio between the punitive-damage award and the harm suffered;
22 and (3) plaintiffs’ purported failure to offer sufficient evidence of TASER’s financial
23 condition. TASER further argues that these same factors demonstrate the punitive
24 award to be the result of passion or prejudice. All of TASER’s contentions are without
25 merit.
26
27
28
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1

B.

TASER’s Conduct Was Reprehensible.

2

The most important factor in assessing the reasonableness of a punitive damage

3 award is the reprehensibility of the defendant’s conduct. Gore, 517 U.S. at 575.
4 Reprehensibility is determined “by considering whether: the harm caused was physical
5 as opposed to economic; the tortious conduct evinced an indifference to or a reckless
6 disregard of the health or safety of others; the target of the conduct had financial
7 vulnerability; the conduct involved repeated actions or was an isolated incident; and the
8 harm was the result of intentional malice, trickery, or deceit, or mere accident.” State
9 Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003).
10

TASER claims that all these factors operate in its favor, TASER’s Supplemental

11 JMOL Memorandum at 16:14-15, but the contention is incorrect. First, TASER
12 misrepresents the first factor, construing it to mean that physical harm to a human being
13 is less reprehensible than economic injury. Id. at 16:26 (arguing that the first factor
14 operates in its favor because “the harm experienced was physical, not financial”). The
15 mere making of such an argument alone reveals the TASER mind-set that got this
16 company into so much hot water with the jury, which perhaps thought TASER’s motto
17 ought to be “profits before people” rather than “saving lives every day.” The law is not
18 so callous; causing economic injury is less reprehensible than injuring or killing
19 someone. See, e.g., Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal.4th 1159, 1180
20 (2005) (holding first factor operated in the defendant’s favor because its tortious acts
21 “caused only economic harm”).
22

Regarding the second factor, TASER asserts that its negligent failure to warn of

23 the risk of prolonged deployment of the TASER ECD did not evince an indifference to
24 or a reckless disregard of the health or safety of others. The jurors concluded otherwise.
25 They were properly instructed on the malice required for an award of punitive damages
26 under California Civil Code section 3294, and they would not have made the large
27 punitive award if they did not conclude that TASER acted with a willful and conscious
28 disregard of the rights or safety of others.
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The third factor, whether TASER targeted someone who was financially

2 vulnerable, is irrelevant in the context of this case. It should be noted, however, that to a
3 large extent TASER victims in the field are, like Mr. Heston, irrational and in the throes
4 of a health crisis, rather than voluntary users of the product, as in other products5 liability cases.
6

The fourth factor, whether the conduct involved repeated actions or was an

7 isolated incident, also supports the damages awarded, as TASER continued to market
8 and sell ECDs, even introducing a second model, the X26, without ever conducting the
9 necessary testing on prolonged or multiple shocks. Even after Dr. Jauchem’s Air Force
10 study confirmed acidosis, TASER continued to market the device without an adequate
11 warning.
12

Finally, with regard to the fifth factor, TASER’s conduct may not have been

13 “intentional,” but it was malicious and certainly no accident.
14
15
16

C.

The Ratio of Punitive Damages to the Harm Caused Is Not Excessive
and Therefore Not Unconstitutional.

TASER compares the punitive and compensatory damages after the latter’s

17 reduction by the decedent’s percentage of fault, and concludes that the punitive damage
18 award is excessive because the ratio is much more than a single-digit. This analysis is
19 fundamentally flawed in two ways. First, in determining the ratio between punitive and
20 compensatory damages, the relevant figure is the amount determined by the jury, not
21 the amount the plaintiff actually recovers after reduction for comparative fault. Second,
22 the usual single-digit ratio rule does not apply in death cases because the
23 uncompensated harm to the decedent (i.e., losing a life) and the need to punish
24 malicious conduct causing death must be taken into account.
25

No California court has addressed the issue, but courts across the country

26 uniformly conclude that comparative fault does not apply to punitive damages, that they
27 are not reduced by the proportion of the plaintiff’s comparative fault as are
28 compensatory damages. See Anno., Effect of Plaintiff’s Comparative Negligence in
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1 Reducing Punitive Damages Recoverable, 27 A.L.R.4th 318 (1984), and the cases cited
2 therein. TASER accepts that this is the law by not arguing to reduce punitive damages
3 by the proportion of Robert Heston’s fault. It seeks the same goal, however, by arguing
4 comparison should be with the compensatory damages after reduction for comparative
5 fault rather than, as the jury was instructed, before.
6

In I-Gotcha, Inc. v. McInnis, 903 S.W.2d 829 (Tex.App. 1995), the jury

7 awarded $450,000 in actual damages and $1,500,000 in punitive damages. The actual
8 damages were reduced by 49% based on comparative negligence. A statute capped
9 punitive damages at four times the amount of actual damages. On appeal, the
10 defendant argued that the punitive damages were excessive because they were more than
11 four times the compensatory damages after reduction for comparative fault. The
12 appellate court rejected the argument. It noted that punitive damages are not reduced
13 under the doctrine of comparative fault because the main purpose of punitive damages
14 is to punish the defendant, not to compensate the plaintiff. Following that reasoning, it
15 concluded that for purposes of the statutory cap the punitive award should be compared
16 to the compensatory award before reduction because “the public policy interests of using
17 punitive damages as punishment rather than as compensation for the plaintiff are best
18 served by having the punitive damages related to the total amount of harm that occurred
19 as reflected by the damages awarded by the jury.” Id., at 840. The same is true with
20 respect to the constitutional limit on punitive damages set by the U. S. Supreme Court.
21

In the present case, when the proper figures are compared, the ratio between

22 punitive and compensatory damages is not excessive. The jury awarded a total of
23 $1,021,000 in compensatory damages and $5,200,000 in punitive damages, for a
24 punitive-compensatory ratio of just greater than 5 to 1.
25

More importantly, however, this is a death case. In State Farm, the Supreme

26 Court indicated that the amount of compensatory damages awarded is not always the
27 proper figure for comparison with the punitive damages. It spoke of proportionality
28 between punitive damages and the harm or “potential harm” suffered by the plaintiff.
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1 The High Court referred to the relationship between punitive damages and “the
2 amount of harm” as well as “the general damages recovered,” recognizing that they are
3 not always identical. In some cases compensatory damages are not the appropriate
4 measure of harm because the injury is hard to detect or the non-economic loss difficult
5 to value. State Farm, 538 U.S. at 424-26. Accordingly, many federal and state courts,
6 in a variety of contexts, have considered uncompensated or potential harm when
7 determining whether punitive damages are excessive. Simon, 35 Cal.4th at 1174 n.3
8 and accompanying text.
9

One such case is Romo v. Ford Motor Co., 113 Cal.App.4th 738 (2003). The

10 Romo family was riding in a 1978 Ford Bronco when it rolled over. Three family
11 members were killed, including both parents, and three others severely injured. The
12 survivors brought a products-liability action against the manufacturer individually and
13 on behalf of the estates of the decedents. A jury awarded a total of nearly $5 million in
14 compensatory damages and $290 million in punitive damages. The judgment was
15 affirmed by the Court of Appeal, and a petition for review by the California Supreme
16 Court denied. The U. S. Supreme Court then granted a petition for certiorari, vacated
17 the judgment, and remanded the case to the Court of Appeal for reconsideration of the
18 punitive damages portion of the judgment in light of State Farm.
19

In considering the “reasonable relationship” factor, the Court of Appeal noted

20 that a decedent loses something of extreme value when he or she loses life, and that
21 there is no award for it in the verdict because such loss does not survive as compensatory
22 damages for the estate. Id., at 760. It further noted, however, that compensation is not
23 the issue because punitive damages are not intended to compensate but to punish and
24 make an example of the defendant. Id., at 760-61.
25

[P]ublic policy and legitimate interests of the state in the protection of its

26

people require a mechanism to punish and deter conduct that kills people.

27

It would be unacceptable public policy to establish a system in which it is

28

less expensive for a defendant’s malicious conduct to kill rather than injure
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1

a victim. [Citation] Thus, the state has an extremely strong interest in

2

being able to impose sufficiently high punitive damages in malicious-

3

conduct wrongful death actions to deter a “cheaper to kill them” mindset,

4

while still maintaining limits on wrongful death compensation in cases of

5

ordinary negligence. We do not perceive that due process considerations

6

of proportionality between compensatory and punitive damages require a

7

state to establish a system that inadequately punishes and deters malicious

8

conduct that, with reasonable foreseeability, may cause death; we hold that

9

death actions present an example of the type of extraordinary case

10

contemplated by State Farm [citation] in which a single-digit multiplier

11

does not necessarily form an appropriate limitation upon a punitive

12

damages award.

13

This is not to say that all standards are thrown out in cases brought

14

by personal representatives of the estates of deceased victims. Even among

15

instances of malicious conduct that causes death, some of such conduct

16

will be more or less reprehensible than other instances. We conclude,

17

however, that the proportionality factor has less weight in the context of

18

malicious conduct causing death. Given the unique nature of the

19

compensatory damages arising under [California Code of Civil Procedure]

20

section 377.34, the proportionality inquiry must focus, in any event, on

21

the relationship of punitive damages to the harm to the deceased victim,

22

not merely to compensatory damages awarded.

23
24

Id., at 761.
After considering all the relevant factors, the appellate court reduced the total

25 punitive award from $290 million to $23,723,287, which sum included $5 million to
26 the estate of each deceased parent. The $5 million awarded to those estates was
27 respectively 17 and 25 times the compensatory damages awarded them by the jury, and
28 1,000 times the amount each estate actually recovered after the trial court reduced the
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1 jury awards to reflect comparative negligence adjustments and reductions resulting
2 from a motion for judgment notwithstanding the verdict. Id., at 757, 763.
3

The Environmental Protection Agency (EPA) calculates the “value of a statistical

4 life” for determining the feasibility of safety measures. According to recent news reports,
5 that amount was lowered from $7.8 million five years ago to $6.9 million today. How
6 to value life? EPA devalues its estimate $900,000 taken off in what critics say is way to
7 weaken pollution rules, Associated Press, www.msnbc.msn.com/id/25626294/. That
8 reflects a less than one-to-one ratio of the punitive damages to the statistical value of the
9 life of Robert C. Heston.
10

D. Plaintiffs met their burden of proving TASER’s financial condition.

11

Despite the fact that plaintiffs introduced TASER’s 2007 financial statements,

12 Exhibit 149A, by stipulation on May 22, 2008, R.T. at 1349-50, TASER argues that
13 the punitive damage award must be vacated because plaintiffs failed to meet their
14 burden of proving TASER’s financial condition. TASER does not contend that the
15 report lacks the needed information concerning its financial condition, but only that
16 expert testimony was required to explain it to the jury. This contention lacks merit.
17

Expert opinion evidence is not required unless “the matter in issue is one within

18 the knowledge of experts only and not within the common knowledge of laymen.”
19 Miller v. Los Angeles County Flood Control Dist., 8 Cal.3d 689, 702 (1973). TASER
20 suggests, without citing any authority, that “an ordinary layperson could not be
21 expected to interpret TASER’s 2007 Annual Report without the assistance of expert
22 testimony,” TASER’s Supplemental JMOL Memorandum at 19:24-26, but that simply
23 is not the case. A lay person can understand categories such as “net sales,” “net
24 income,” “revenues,” “total assets” and “total liabilities” without expert opinion.
25

The documents showed TASER had a 2007 income of about $100 million and

26 net worth of about $120 million. The $5.2 punitive damage award would translate to a
27 $5,200.00 “fine” for a worker making $100,000 per year and possessing a net worth of
28 $120,000. That is a restrained, appropriate amount, akin to the financial penalty for a
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1 non-injury, first-offense driving under the influence of alcohol.
2

E.

Prejudice.

3
4

The Punitive Damage Award Was Not the Result of Passion or

“In deciding whether an award [of punitive damages] is excessive as a matter of

5 law or was so grossly disproportionate as to raise the presumption that it was the
6 product of passion or prejudice, the following factors should be weighed: The degree of
7 reprehensibility of defendant’s conduct, the wealth of the defendant, the amount of
8 compensatory damages, and an amount which would serve as a deterrent effect on like
9 conduct by defendant and others who may be so inclined.” Grimshaw,119 Cal.App.3d
10 at 819.
11

The first three factors (reprehensibility, the defendant’s wealth, and the amount

12 of compensatory damages) have already been discussed. Contrary to TASER’s
13 assertions, the degree of reprehensibility of TASER’s conduct was not extremely low,
14 and the ratio of punitive damages to the harm caused is not excessively high. As to
15 TASER’s wealth, plaintiffs were required to present evidence of TASER’s financial
16 condition and they did so. Regarding the fourth factor (an amount which would serve
17 as a deterrent), TASER states: “The deterrence factor is inapplicable here as TASER’s
18 negligent failure to warn was not intentional or malicious.” TASER’s Supplemental
19 JMOL Memorandum at 20:17-18. Again, the jury disagreed. It was instructed on the
20 issue of malice, and its punitive damage award necessarily indicates that it found
21 TASER guilty of malice.
22

In short, consideration of the four factors in no way indicates that the punitive

23 damage award was the result of passion or prejudice.
24

F.

The Punitive Damage Award Should Not Be Reduced.

25

This jury knew exactly what it wanted to do, and utilized the Court’s instructions

26 and verdict form to reach what it believed to be the just and fair result. Despite the
27 extreme number of shocks delivered to Mr. Heston by the involved officers, the jury
28 exonerated them, no doubt because the officers all believed that the shocks were not
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1 potential lethal. They thought so because of TASER’s reckless assurances of safety and
2 failures to warn.
3

This jury also wanted to send a message of strong disapproval to the Robert C.

4 Hestons of the world, that it is not acceptable to abuse methamphetamine, especially
5 when a known effect is the triggering of agitated and delirious episodes. That message
6 was made loud and clear by the exceptionally large 85 percent finding on comparative
7 fault, and alone disproves the “passion and prejudice” argument.
8

Finally, and most important, the jury wanted TASER to understand that its

9 policy of ignoring and misrepresenting the health risks of ECDs to boost sales is not
10 acceptable corporate behavior. The jury wanted to deter such despicable conduct, and to
11 create a fund to compensate the private attorneys who fight to expose it.
12

For all these reasons, the award was not due to passion or prejudice. The verdict

13 should be affirmed, and the judgment entered.
14 VI.

TASER IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW

15

ON PLAINTIFFS’ NEGLIGENT FAILURE TO WARN CLAIM

16

BECAUSE THERE WAS NO NEED FOR EXPERT TESTIMONY

17

REGARDING THE STANDARD OF CARE FOR THE WARNING.

18

TASER final argument is that it is entitled to judgment as a matter of law on

19 plaintiffs’ negligent-failure-to-warn claim because plaintiffs failed to put on expert
20 testimony regarding the standard of care for warnings. Plaintiff presented all the expert
21 testimony required, however.
22

Throughout its argument TASER conflates two separate issues as demonstrated

23 in the following passage: “Plaintiffs’ did not prove their negligent failure to warn claim
24 against TASER because they failed to put on a warnings expert to testify that TASER
25 did not take reasonable measures to warn of the potential risks of the TASER ECD
26 which ordinary consumers would not have recognized. Plaintiffs’ failure to put on
27 expert evidence of the potential risks of the TASER ECD bars plaintiffs’ negligent
28 failure to warn claim as a matter of law.” TASER Supplemental JMOL Memorandum
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1 at 21:21-26.
2

The potential risks of the TASER ECD and whether TASER adequately warned

3 of those risks are two separate issues. To the extent TASER’s argument is intended to
4 claim that plaintiffs failed to put on expert testimony regarding the ECD’s risks, in
5 other words that repeated or prolonged exposure can cause cardiac arrest, then it is false.
6 Plaintiffs’ scientific expert Mark D. Myers, M.D., testified to this effect, and the jury
7 obviously accepted his testimony.
8

Once the danger or potential danger was established, the question arose as to

9 whether TASER adequately warned of that danger. In TASER’s four pages of argument
10 on the subject it repeatedly asserts that plaintiffs should have put on a warnings expert,
11 but it cites no authority whatsoever holding that expert testimony is needed to show the
12 inadequacy of a warning when, as here, no warning was given.
13

As Bob Dylan once sang, “You don’t need a weather man to know which way the

14 wind blows.” Subterranean Homesick Blues (1965) TASER never issued a warning
15 about the risk of acidosis from repeated or prolonged exposures.3 Concerned about
16 hurting its sales pitch about complete safety, three months before the Heston death
17 TASER buried a mealy-mouthed warning about impacting respirations deep in a power
18 point. The lack of efficacy of this “warning” was demonstrated by the fact that none of
19 the defendant officers heard anything about it, and the Salinas Police Department did
20 not receive the power point until after the Heston death. Under such circumstances,
21 expert testimony is unnecessary.
22

Cases from other jurisdictions illustrates the point. In Black v. Public Service

23 Electric and Gas Co., 265 A.2d 129 (1970), the decedent was working with a high
24 boom crane that came into contact with uninsulated high voltage wires 33 feet above
25 the ground. The defendant utility had not posted any warning signs in the area, and no
26 expert was called to testify that its failure to do so fell below the standard of care. The
27
28

3

This remains true to the present.
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1 court held that such expert testimony was not needed. “We think such persons acting
2 in the capacity of jurors and comprehending the danger presented by the facts in this
3 case, were competent to decide without expert testimony whether the duty to exercise
4 care commensurate with the risk involved was satisfied when the utility failed to post
5 warning signs.” Id., at 136.
6

In Billiar v. Minnesota Mining and Manufacturing Co., 623 F.2d 240 (2d Cir.

7 1980), the plaintiff was injured by chemicals with which she was working. Plaintiff’s
8 employer did not require her to read the warnings printed on the cans containing the
9 chemicals. Although she was provided smocks and rubber gloves, she was not required,
10 instructed or even encouraged to wear them. The employer gave no safety instructions
11 aside from telling plaintiff to wash her hands and not touch her face. The court held
12 that expert testimony was not required to establish failure to adequately warn. “Under
13 New York law, the jury does not need expert testimony to find a warning inadequate,
14 but may use its own judgment considering all the circumstances.” Id., at 247.
15

In Cocco v. Deluxe Systems, Inc., 516 N.E.2d 1171 (Mass. App.1987), the

16 plaintiff was injured by a shredder. The manufacturer knew it would frequently jam,
17 and that workers put their hands into the machine to clear it. The issue was whether
18 operators should have been warned to use a disconnect switch on the wall when clearing
19 the machine, rather than the on-off switch on the shredder, which could be turned back
20 on accidently. The court held that expert testimony was not required. “Even if the
21 technology of the machine was complex, the essential facts relating to the danger were
22 not. Despite the absence of expert testimony that a warning, in the circumstances, was
23 required to make the shredder reasonably safe, lay persons on the jury were competent
24 to make the judgment that the defendants at the time of the sale had that duty.” Id., at
25 1174.
26

In Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695 (1 st Cir. 1988), the

27 defendant distributed to tire dealers a chart that warned not to inflate tires above 40
28 p.s.i. when mounting, but no such warning was placed on the tire or distributed to every
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1 foreseeable tire mounter. This was consonant with industry-wide practice, and plaintiff
2 offered no expert testimony that the warning was inadequate, but the court held none
3 was needed. “The test is whether the warning is comprehensible to the average user and
4 whether it conveys a fair indication of the nature and extent of the danger to the mind
5 of a reasonably prudent person. [Citation] Few questions are more appropriately left to a
6 common sense lay judgment than that of whether a written warning gets its message
7 across to an average person.” Id., at 701.
8

In the present case, plaintiffs presented expert testimony establishing the danger

9 posed by a TASER ECD. Once that danger was established, the jury was perfectly
10 capable of determining the adequacy of any warning given without the aid of expert
11 testimony, especially given that TASER gave no warning.
12
13

VII. CONCLUSION
For the foregoing reasons, the motion of defendant TASER International, Inc.,

14 for judgment as a matter of law, or for modification and reduction of the jury’s verdict
15 in this case should be denied, and judgment entered accordingly.
16 DATED: August 25, 2008
17

Respectfully submitted,

18

THE LAW OFFICES OF JOHN BURTON

19

WILLIAMSON & KRAUSS

20
21
22

BY:

23

/s/ JOHN BURTON
Attorneys for Plaintiffs

24
25
26
27
28
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1
2
3
4
5
6

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
For the Northern District of California

United States District Court

7

12
13
14

Betty Lou Heston, et al.,
v.

NO. C 05-03658 JW

Plaintiffs,

CLOSING INSTRUCTIONS

City of Salinas, et al.,
Defendants.

15

/

16
17

Members of the jury, now that you have heard all the evidence, it is my duty to

18

instruct you on the law which applies to this case. Copies of these instructions have

19

been made available for you to consult.

20

As I have instructed you, it is your duty to find the facts from all the evidence in

21

the case. To those facts you must apply the law as I give it to you. You must follow

22

the law as I give it to you whether you agree with it or not. In deciding the case you

23

must not be influenced by any prejudices or sympathy. This means that you must

24

decide the case solely on the evidence before you and according to the law. You will

25

recall that you took an oath promising to do so at the beginning of the case.

26
27
28

You must follow all of my instructions. You must not single out some and
ignore others; they are all important.

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The evidence from which you are to base your verdict consists of: the sworn
testimony of witnesses, both on direct and cross-examinations, regardless of who

3

called the witness; the exhibits which have been received into evidence; and any facts

4

to which the lawyers have agreed or stipulated.

5

If there is a conflict between the testimony of one or more witnesses and that of

6

other witnesses, you must decide which testimony to believe and which testimony not

7

to believe. You may disbelieve all or any part of any witness’ testimony. In making

8

that decision, you should take into account a number of factors including the

9

following:
(1)

Was the witness able to see, or hear, or know the things about which that
witness testified?

11
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12

(2)

How well was the witness able to recall and describe those things?

13

(3)

What was the witness’ manner while testifying?

14

(4)

Did the witness have an interest in the outcome of this case or any bias or
prejudice concerning any party or any matter involved in the case?

15
16

(5)

all the evidence in the case?

17
18

How reasonable was the witness’ testimony when considered in light of

(6)

Was the witness’ testimony contradicted by what that witness said or did

19

at another time, or by the testimony of other witnesses, or by other

20

evidence?

21

In deciding whether or not to believe a witness, keep in mind that people

22

sometimes forget things. You need to consider whether a contradiction is an innocent

23

lapse of memory or an intentional falsehood, and that may depend on whether it has to

24

do with an important fact or with only a small detail.

25
26

The persuasiveness of the evidence presented by each side does not necessarily
depend on the number of witnesses testifying on one side or the other. You must

27
28

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consider all the evidence in the case, and you may decide that the testimony of a

2

smaller number of witnesses on one side has greater persuasiveness than that of a

3

larger number on the other side.

4

You have heard testimony from individuals who, because of education or

5

experience, have become experts in a particular field. The law permits experts to state

6

opinions about matters in the field of their expertise and they are permitted to state the

7

reasons for those opinions.

9

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Expert opinion testimony should be judged just like any other testimony. You
may accept it or reject it, and give it as much weight as you think it deserves. In

10

deciding whether to believe an expert’s testimony, you should consider the expert’s

11

training and experience, the facts the expert relied on, and the reasons for the expert’s

12

opinion.

13

With respect to each claim, the Plaintiffs have the burden of establishing by a

14

preponderance of the evidence all of the facts necessary to prove that claim. This

15

means that Plaintiffs have to produce evidence which, considered in light of all the

16

facts, leads you to believe that what Plaintiffs claim is more likely true than not. To

17

put it differently, if you were to put Plaintiffs’ and Defendants’ evidence on opposite

18

sides of a scale, Plaintiffs would have to make the scale tip in Plaintiffs’ favor. If you

19

evaluate the evidence and you find that the evidence is evenly balanced between the

20

two sides, your verdict must be in favor of the Defendants. If you evaluate the

21

evidence and you decide that what the Plaintiffs claim is more likely true than not

22

true, in other words, if the scale tips to the Plaintiffs’ side–even slightly, then your

23

verdict should be rendered in favor of the Plaintiffs.

24

As I instructed you at the beginning of the case, you might have heard of proof

25

beyond a reasonable doubt. That is a stricter standard, i.e., it requires more proof than

26

a preponderance of evidence. The reasonable doubt standard does not apply to a civil

27

case and you should therefore put it out of your mind.

28

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Evidence may be direct or circumstantial. Direct evidence is testimony by a
witness about what that witness personally saw or heard or did. Circumstantial

3

evidence is indirect evidence; that is, it is proof of one or more facts from which one

4

can find another fact. You are to consider both direct and circumstantial evidence.

5

The law permits you to give equal weight to both, but it is for you to decide how much

6

weight to give to any evidence.
During the trial, if I ordered that evidence be stricken from the record and that

8

you disregard or ignore the evidence, this means that when you are deciding the case,

9

you must not consider the evidence which I told you to disregard.

10

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Document 313

During the trial, you heard testimony from experts about studies and report

11

published after February 19, 2005, the date of the events in this case. The Plaintiffs’

12

claims against the City of Salinas Police Department, and Michael Dominici, Juan

13

Ruiz, James Godwin, or Lek Livingston relate to what those Defendants knew before

14

February 19, 2005. Therefore, the information from studies and reports published

15

after February 19, 2005, cannot be considered by you to decide any of the claims

16

against the City of Salinas Police Department, or Michael Dominici, Juan Ruiz, James

17

Godwin, or Lek Livingston.

18

During your deliberations, you may review evidence presented and admitted

19

during the trial. Those exhibits capable of being displayed electronically will be

20

provided to you in that form, and you will be able to view them in the jury room. Ms.

21

Garcia will show you how to operate the computer and other equipment; how to locate

22

and view the exhibits on the computer; and how to print the exhibits. You will also be

23

provided with a paper list of all exhibits received in evidence. If you need additional

24

equipment or supplies, you may make a request by sending a note.

25

There is more than one Defendant in this case. You must consider the evidence

26

against each Defendant separately. The verdict form will contain a place for you to

27

indicate your verdict as to each Defendant. If you find that the Plaintiffs have not

28

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proved a claim as to a particular Defendant, you must return a verdict against the

2

Plaintiffs on that claim as to that Defendant.
One of the Defendants in this case, TASER International, is a corporation. All

4

parties are equal before the law and a corporation is entitled to the same fair and

5

conscientious consideration by you as any party. Under the law, a corporation is

6

considered to be a person. It can only act through its employees, agents, directors, or

7

officers. Therefore, a corporation is responsible for the acts of its employees, agents,

8

directors, and officers performed within the scope of their authority.

9

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This is a lawsuit in which the Executor of the Estate of a deceased person and

10

his parents are claiming a right to recover money damages from individual police

11

officers, the City of Salinas Police Department, and TASER International. Such a

12

lawsuit can be brought under federal laws and under laws of the State of California.

13

Plaintiffs are making some claims against some defendants under federal laws and

14

some claims against other defendants under California laws. A plaintiff is permitted

15

to make a claim under both federal and California law. With respect to each claim, I

16

will instruct you on what the Plaintiffs must prove against each Defendant in order to

17

receive your verdict. A plaintiff who proves more than one claim against a defendant

18

is entitled to receive your verdict on every claim which the plaintiff has proved.

19

However, simply because a plaintiff has proved multiple claims does not mean that

20

the plaintiff is entitled to duplicate or multiple damages. As to each Defendant, I will

21

instruct you on what the Plaintiffs must prove on each separate claim. Afterward, I

22

will instruct you on the law with respect to damages.

23
24

In these instructions, I will refer to the electronic control device product of
TASER International as the Taser ECD.

25
26
27
28

5

Case 5:05-cv-03658-JW

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FIRST CLAIM

2

FEDERAL LAW

3

DEPRIVATION OF RIGHTS PROTECTED BY CONSTITUTION

4

BY PERSONS ACTING UNDER COLOR OF LAW
Plaintiffs’ First Claim is under federal law. The First Claim is asserted against

6

Defendants Police Officers Juan Ruiz, Lek Livingston, James Godwin, and Michael

7

Dominici for depriving Robert C. Heston of rights protected by the Constitution or

8

laws of the United States. In order to recover under this First Claim, the Plaintiffs

9

must prove by a preponderance of the evidence that:

10
11
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12

1.

A particular Defendant Police Officer acted under color of law as a

member of the City of Salinas Police Department;
2.

While acting in such a capacity, that Defendant Police Officer committed

13

an act or omission which deprived Robert C. Heston, now deceased, of a right

14

protected by the Constitution or laws of the United States;

15

3.

As a consequence of the acts or omission of that Defendant Police

16

Officer: (a) prior to his death, Robert C. Heston was deprived of his civil rights to be

17

free from excessive force,; and (b) separately, Plaintiffs Betty Lou Heston and Robert

18

H. Heston, the parents of Robert C. Heston, suffered harm because, as a consequence

19

of the excessive force, Robert C. Heston died.

20

I will now discuss each of these elements with you.

21

As I have instructed you, you must decide the case with respect to each

22

defendant separately. Plaintiffs have asserted this First Claim against four individual

23

Police Officers. You must decide whether the Plaintiffs have proven each element

24

against each Defendant Police Officer. The verdict form will have a place for a

25

separate finding as to each Defendant Police Officer.

26
27
28

The federal law which entitles a plaintiff to recover money damages for
infliction of excessive force is set forth in Title 42 of the United States Code at
6

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1

Section 1983. Section 1983 provides that a plaintiff may recover money damages if

2

the plaintiff proves by a preponderance of the evidence that a defendant, while “acting

3

under color of law,” deprives a person of rights guaranteed by the Constitution or laws

4

of the United States.

5

United States District Court

Document 313

Under the first element, the Plaintiffs must prove that a Defendant Police

6

Officer “acted under color of law.” A police officer who is attempting to detain or

7

arrest a person is acting under “color of law” because the “law” gives the police

8

officer the right to make a detention or arrest under proper circumstances. The parties

9

have stipulated that the Police Officer Defendants were acting under color of law.

10

Under the second element, the Plaintiffs must prove that a Defendant Police

11

Officer committed an act which deprived Robert C. Heston of “a right protected by

12

the Constitution or laws of the United States.” The Fourth Amendment to the

13

Constitution of the United States protects individuals from “unreasonable searches

14

and seizures.” A detention or an arrest is a “seizure” – a seizure of the person. A

15

police officer may lawfully detain or arrest a person when the police officer has

16

probable cause to believe that the person is under the influence of an illegal drug or

17

has committed an assault and battery upon another person.

18

Notice that in the second element, both an act or an omission can be the basis of

19

recovery. A Defendant Police Officer is liable if that Defendant observes another

20

police officer using excessive force and the Defendant Police Officer does not

21

intercede to prevent the use of excessive force, again under circumstances in which a

22

reasonable police officer would do so.

23

In this case, the parties have stipulated that when the Police Officer Defendants

24

returned to the Heston home on the second occasion, they had probable cause to arrest

25

Robert C. Heston. When a police officer has probable cause to detain or arrest a

26

person, the police officer may use reasonable force to make the detention or arrest. A

27

person being arrested or detained has a duty not to resist a police officer making an

28

7

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Page 8 of 22

arrest, unless the police officer is using unreasonable force. A police officer may only

2

use such force as is “objectively reasonable” under all of the circumstances.
You must decide whether one or more of the Police Officer Defendants used

4

unreasonable force in detaining and arresting Robert C. Heston. A detention or arrest

5

is “unreasonable,” and therefore a violation of rights protected by the Constitution or

6

laws of the United States if a police officer uses “excessive force” in making a

7

detention or an arrest, even if there is lawful cause for making the detention or arrest.

8

In other words, you must judge the reasonableness of a particular use of force from

9

the perspective of a reasonable officer on the scene and not with the 20/20 vision of

10
11
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hindsight.
In determining whether a Defendant Police Officer used “excessive force” in

12

this case, consider all of the circumstances known to the Defendant Police Officer on

13

the scene, including:

14

(1)

Police Officer was responding;

15
16

(2)
(3)
(4)

Whether Robert C. Heston was actively resisting detention or arrest or
attempting to evade arrest by flight;

21
22

The officer’s understanding or Robert C. Heston’s physical condition and
mental state;

19
20

Whether Robert C. Heston posed an immediate threat to the safety of the
Defendant Police Officer or to others;

17
18

The severity of the crime or other circumstances to which the Defendant

(5)

The amount of time and any changing circumstances during which the

23

Defendant Police Officer had to determine the type and amount of force

24

that appeared to be necessary;

25

(6)

The type and amount of force used;

26
27
28

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1

(7)

The risk of injury from the amount and type of force used;

2

(8)

The availability of alternative methods to subdue Robert C. Heston;

3

(9)

Whether force was applied after any resistance had ceased; and

4

(10) Whether the type of force applied was reasonable in accomplishing the

5

objective of achieving compliance with lawful police orders being given

6

to Robert C. Heston;

7

The deployment of a Taser ECD against a person is the use of force. The

8

purpose of the device is to deliver electric shocks to an individual to disable the

9

individual so that police officers can apply restraints to the individual. In this case,

10

you must decide if one or more Defendant Police Officer delivered one or more

11

electric shock cycles from his Taser ECD when a reasonable police officer under the

12

same circumstances would not have done so.

13
14
15
16

In these instructions, I am using the word “deployment” to refer to the delivery
of electric shock cycles from a Taser ECD.
A “prolonged deployment” refers to multiple, repeated electric shock cycles
delivered to a person from one or more Taser ECDs.

17

With respect to this claim, Plaintiff Misty Kastner, the Executor of the Estate of

18

Robert C. Heston, is entitled to your verdict if you find that excessive force was used,

19

irrespective of whether the force caused the death of Robert C. Heston.

20

The money damages claimed by Plaintiffs Betty Lou Heston and Robert H.

21

Heston, the parents of Robert C. Heston, are for their loss of the society and

22

companionship of their child. They are entitled to recover damages only if you find

23

that the excessive force was a substantial factor in causing the death of Robert C.

24

Heston.

25
26
27
28

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1

SECOND CLAIM

2

FEDERAL LAW

3

FAILURE ON THE PART OF

4

CITY OF SALINAS POLICE DEPARTMENT

5

TO ADEQUATELY TRAIN OR SUPERVISE
Plaintiffs’ Second Claim is also under federal law and is asserted against the

6

United States District Court

Document 313

7

City of Salinas Police Department. Under federal law, a plaintiff may recover money

8

damages against a City Police Department if an individual was deprived of a right

9

protected by the Constitution or laws of the United States and that deprivation was

10

caused by an official police department policy or practice. Included within a police

11

department’s official policy or practice are its policies and practices with respect to

12

training or supervision of police officers. Supervision includes effectively monitoring

13

the use of force by police officers. Plaintiffs claim that Robert C. Heston was

14

deprived of his constitutional right to freedom from application of excessive force

15

because the City of Salinas Police Department did not adequately train or adequately

16

supervise the Police Officer Defendants on using the Taser ECD.
In order to prevail on this Claim, the Plaintiffs must prove each of the following

17
18

elements by a preponderance of the evidence:
1.

19

One or more police officers employed by the City of Salinas Police

20

Department deprived Robert C. Heston of rights protected by the Constitution or laws

21

of the United States by using excessive force in the deployment of Taser ECDs against

22

him;

23

2.

The training or supervision policies or practices of the Defendant City of

24

Salinas Police Department were not adequate to train or supervise Salinas Police

25

Officers to handle the usual and recurring situations with which they must deal with

26

respect to the deployment of Taser ECDs;

27
28

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The Defendant City of Salinas Police Department was deliberately

2

indifferent to the obvious consequences of its failure to train or supervise their police

3

officers adequately with respect to the deployment of Taser ECDs; and

4

United States District Court

3.

Document 313

4.

The failure of the Defendant City of Salinas Police Department to

5

provide adequate training or supervision caused the deprivation of the constitutional

6

rights of Robert C. Heston by the Police Officer Defendants; that is, the Salinas Police

7

Department’s failure to train or supervise is so closely related to the deprivation of the

8

Plaintiffs’ rights as to be the moving force that caused either one or both of the

9

following injuries: (a) prior to his death, Robert C. Heston was deprived of his civil

10

rights to be free from excessive force and suffered damages; and (b) separately,

11

Plaintiffs Betty Lou Heston and Robert H. Heston, the parents of Robert C. Heston,

12

suffered damages because the excessive force was a substantial factor in causing the

13

death of Robert C. Heston.

14

Notice that the first element of this Claim requires that you find in favor of the

15

Plaintiffs with respect to the first two elements of the First Claim, namely that one or

16

more Salinas Police Officer deprived Robert C. Heston of a right protected by federal

17

law. However, simply because you find one or more police officers liable does not

18

mean that you must find the City of Salinas Police Department liable. If the training

19

or supervision provided by a City Police Department is not proved inadequate, the

20

City is not liable simply because a police officer acts inconsistently with the officer’s

21

training or supervision.

22

“Deliberate indifference” by the Salinas Police Department is the conscious

23

choice to disregard the consequences of its acts or omissions. The Plaintiffs may

24

prove deliberate indifference with respect to this Claim by showing that the Defendant

25

City of Salinas Police Department knew its failure to train or supervise adequately

26

made it highly predictable that its police officers would deploy Taser ECDs in a

27

manner that would deprive a person, such as Robert C. Heston of his rights.

28

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1

“Deliberate indifference” refers to the conduct of Defendant City of Salinas Police

2

Department and not the conduct of a police officer in using the Taser ECD.

3

THIRD CLAIM

4

CALIFORNIA LAW

5

BATTERY

6

United States District Court

Document 313

In their Third Claim, the Plaintiffs claim that Police Officer Defendants Juan

7

Ruiz, Lek Livingston, James Godwin, and Michael Dominici committed a battery

8

against Robert C. Heston because they used excessive force against him. Under

9

California law, a battery is an intentional offensive touching of a person. A plaintiff

10

may recover money damages for a battery committed by a defendant. In addition, if

11

the battery is committed by the defendant while the defendant is acting in the course

12

and scope of employment, the plaintiff may recover money damages against the

13

employer of the defendant. In order to recover on the battery claim, Plaintiffs must

14

prove the following elements by a preponderance of the evidence:

15

1.

On February 19, 2005, while acting in the course and scope of

16

employment as a Salinas Police Office, Police Officer Defendants Juan Ruiz, Lek

17

Livingston, James Godwin, or Michael Dominici, or all of them, detained and arrested

18

Robert C. Heston;

19

2.

In the course of the detention and arrest, the Police Officer Defendants

20

touched Robert C. Heston in an offensive manner, namely by intentionally using

21

excessive force in the deployment of Taser ECDs against him;

22

3.

Robert C. Heston did not consent to the offensive touching;

23

4.

As a consequence of the intentional act of the Police Officer Defendants

24

either one or both of the following injuries occurred: (a) prior to his death, Robert C.

25

Heston was deprived of his civil rights to be free from excessive force and suffered

26

damages; and (b) separately, Plaintiffs Betty Lou Heston and Robert H. Heston, the

27
28

12

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Page 13 of 22

parents of Robert C. Heston, suffered damages because, as a consequence of the

2

excessive force, Robert C. Heston died.
Notice that with respect to this claim, the Plaintiffs have the burden to prove

4

that the amount of force used by one or more Police Officer Defendants was

5

excessive. The previous instructions I have given to you with respect to reasonable

6

and excessive force apply to this Claim.

7

FOURTH CLAIM

8

CALIFORNIA LAW

9

NEGLIGENCE BY MANUFACTURER IN FAILING TO WARN

10

For the Northern District of California

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3

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Document 313

Plaintiffs’ Fourth Claim is against TASER International only. In their Fourth

11

Claim, Plaintiffs claim that TASER International is liable under the principles of

12

“negligent product liability.” Under California law, the manufacturer of a product

13

must conduct itself in accordance with what a reasonable manufacturer of the product

14

would do. Conduct which falls below this standard of care is considered “negligent.”

15

In this case, the Plaintiffs claim that a reasonable manufacturer of an ECD would have

16

warned purchasers that prolonged deployment could cause acidosis to a degree which

17

poses a risk of cardiac arrest in the person against whom the device is deployed.

18

Plaintiffs claim that TASER International was negligent in failing to warn purchasers

19

of this risk with respect to the M-26 ECD. In order to recover under the Fourth Claim,

20

Plaintiffs must prove the following by a preponderance of the evidence:

21

1.

TASER International was the manufacturer of Taser ECDs which are

22

devices capable of delivering electric shocks to a person against whom they are

23

deployed;

24

2.

At the time TASER International manufactured and sold Taser ECDs, a

25

reasonably prudent manufacturer of an electronic control device knew or reasonably

26

should have known that the M-26 ECD was dangerous or likely to be dangerous

27

because prolonged exposure to electric shock from the device potentially causes

28

13

Case 5:05-cv-03658-JW

Page 14 of 22

acidosis to a degree which poses a risk of cardiac arrest in a person against whom the

2

device is deployed;

4

3.

6
7

A reasonably prudent manufacturer of an ECD would have warned

purchasers of this risk;

5

4.

TASER International failed to adequately warn purchasers about this

5.

On February 19, 2005, while using the product in a manner reasonably

risk;

8

foreseeable by TASER International, members of the Salinas Police Department used

9

a prolonged deployment of Taser ECDs against Robert C. Heston;

10

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6.

The failure by TASER International to warn the Salinas Police Officers

11

of the risks of prolonged deployment was a substantial factor in causing the officers to

12

use a prolonged deployment against Robert C. Heston;

13

7.

As a consequence of the prolonged deployment either one or both of the

14

following injuries occurred: (a) prior to his death, Robert C. Heston suffered acidosis

15

to a degree which caused him to have a cardiac arrest; and (b) separately, Plaintiffs

16

Betty Lou Heston and Robert H. Heston, the parents of Robert C. Heston, suffered

17

harm because, as a consequence of the cardiac arrest, Robert C. Heston died.

18

FIFTH CLAIM

19

CALIFORNIA LAW

20

STRICT PRODUCTS LIABILITY

21

Plaintiffs’ Fifth Claim is against TASER International only. In their Fifth

22

Claim, Plaintiffs claim that TASER International is liable under the principles of

23

“strict product liability.” Under California law, there are two different bases under

24

which a manufacturer may be found liable for harm caused by its products. The first

25

basis is called “negligent product liability.” I have instructed you on the law of

26

negligent failure to warn in the Fourth Claim. Under “strict product liability,” if a

27

manufacturer knows of a risk posed by its product or if the risk is knowable through

28

14

Case 5:05-cv-03658-JW

Page 15 of 22

scientific information available, and the risk is not obvious to the purchaser of the

2

product, and the manufacture does not warn of the risk, the product is deemed

3

“defective,” and the manufacturer may be held liable for harm caused by the product,

4

irrespective of whether a reasonably prudent manufacturer would have given a

5

warning or not. In order to recover under their Fifth Claim, Plaintiffs must prove the

6

following by a preponderance of the evidence:
1.

TASER International was the manufacturer of Taser ECDs which are

8

devices capable of delivering electric shocks to a person against whom they are

9

deployed;
2.

10

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Document 313

In or around 2005, at the time TASER International manufactured and

11

sold Taser ECDs to the Salinas Police Department, TASER International knew or it

12

was knowable by the use of available scientific information that prolonged exposure

13

to shocks from ECDs potentially causes acidosis to a degree which poses a substantial

14

danger, namely of causing a person against whom the device is deployed to have a

15

cardiac arrest;

16

3.

Ordinary purchasers of the Taser ECDs would not have recognized this

18

4.

TASER International failed to adequately warn purchasers of this risk;

19

5.

On February 19, 2005, while using the product in a manner reasonably

17

risk;

20

foreseeable by TASER International, members of the Salinas Police Department used

21

a prolonged deployment of Taser ECDs against Robert C. Heston;

22

6.

The failure by TASER International to adequately warn the Salinas

23

Police Officers of the risks of prolonged deployment was a substantial factor in

24

causing the prolonged deployment of Taser ECDs by the officers against Robert C.

25

Heston;

26

7.

As a consequence of the prolonged deployment either one or both of the

27

following injuries occurred: (a) prior to his death, Robert C. Heston suffered acidosis

28

15

Case 5:05-cv-03658-JW

Page 16 of 22

which in turn caused him to have a cardiac arrest; and (b) separately, Plaintiffs Betty

2

Lou Heston and Robert H. Heston, the parents of Robert C. Heston, suffered harm

3

because, as a consequence of the cardiac arrest, Robert C. Heston died.

5

For the Northern District of California

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Document 313

COMPENSATORY DAMAGES
It is the duty of the Court to instruct you about the measure of damages. By

6

instructing you on damages, the Court does not mean to suggest for which party your

7

verdict should be rendered.

8

The Plaintiffs have the burden of proving damages by a preponderance of the

9

evidence. The opinion of witnesses are not required as to the amount of reasonable

10

compensation. Furthermore, the argument of counsel as to the amount of damages is

11

not evidence of reasonable compensation.

12

As to The Estate of Robert C. Heston:

13

Under the laws of both the State of California and the United States, the

14

Executor of the Estate of a deceased person is entitled to recover for any injury

15

inflicted upon the deceased person prior to death.

16

If, under the instructions of the Court, you find that the conduct of a defendant

17

caused harm to Robert C. Heston, prior to his death, you must determine the amount

18

of damages which will compensate for that harm and award them to Plaintiff Misty

19

Kastner, the Executor of his Estate. Damages means the amount of money which

20

would have reasonably and fairly compensated Robert C. Heston for any injury or loss

21

you find was caused by the Defendants’ conduct. With respect to Robert C. Heston’s

22

pre-death damages, you must consider the nature and extent of any injuries, the loss or

23

damages that Robert C. Heston sustained or incurred before death, including any

24

exemplary damages that he would have been entitled to recover had he lived. Under

25

California law, these damages do not include damages for pain and suffering.

26
27
28

16

Case 5:05-cv-03658-JW

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1

If you find in favor of Plaintiffs on the First and Second Claims, but find that

2

Plaintiff Kastner has not proved that Robert C. Heston sustained damages, then you

3

must return a verdict for the Plaintiffs in the nominal sum of one dollar.

4

United States District Court

Document 313

If you find in favor of Plaintiffs on the Third Claim, and you find that the

5

conduct was committed in the course and scope of their employment, your damage

6

award would be assessed against the Individual Police Officer or Officers and the City

7

of Salinas Police Department, as the employer of the officer or officers.

8

As to Robert H. Heston and Better Lou Heston

9

The damages claimed by Robert H. Heston and Betty Lou Heston fall into two

10

categories called economic damages and non-economic damages. You will be asked

11

to state the two categories of damages separately on the verdict form. Robert H.

12

Heston and Betty Lou Heston do not have to prove the exact amount of their damages.

13

However, you must not speculate or guess in awarding damages.

14
15
16

Robert H. Heston and Betty Lou Heston claim the following economic
damages:
1.

The financial support, if any, that Robert C. Heston would have

17

contributed to the family during either the life expectancy that Robert C. Heston had

18

before his death or the life expectancy of Robert H. Heston and Betty Lou Heston,

19

whichever is shorter;

20
21

2.

The loss of gifts or benefits that Robert H. Heston and Betty Lou Heston

would have expected to receive from Robert C. Heston;

22

3.

Funeral and burial expenses; and

23

4.

The reasonable value of household services that Robert C. Heston would

24

have provided.

25

Your award of any future economic damages must be reduced to present cash

26

value. The parties have agreed that the funeral expenses incurred by Plaintiffs to date

27

are $1,189.30.

28

17

Case 5:05-cv-03658-JW

1

Page 18 of 22

Robert H. Heston and Betty Lou Heston also claim the following non-economic
damages, namely, the loss of Robert C. Heston’s love, companionship, comfort, care,

3

assistance, protection, affection, society, moral support.
No fixed standard exists for deciding the amount of non-economic damages.

5

You must use your judgment to decide a reasonable amount based on the evidence and

6

your common sense. Your award for non-economic damages must be reduced to

7

present cash value.

8

In determining Robert H. Heston and Betty Lou Heston’s loss, do not consider:

9

1.

Robert H. Heston and Betty Lou Heston’s grief, sorrow, or mental
anguish;

10

For the Northern District of California

Filed 06/03/2008

2

4

United States District Court

Document 313

11

2.

Robert C. Heston’s pain and suffering; or

12

3.

The poverty or wealth of Robert H. Heston and Betty Lou Heston.

13

Damages for wrongful death may be based on a person’s life expectancy. In

14

deciding a person’s life expectancy, you may consider, among other factors, the

15

average life expectancy of a person of that age, as well as that person’s health, habits,

16

activities, lifestyle, and occupation. According to a table of mortality, the life

17

expectancy of a male person aged 40 years is 39.5 additional years. According to a

18

table of mortality, the life expectancy of a female person aged 65 years is 18.4

19

additional years. According to a table of mortality, the life expectancy of a male

20

person aged 69 years is 15.5 additional years. This published information is evidence

21

of how long a person is likely to live but is not conclusive. It is an average life

22

expectancy of persons who have reached that age.

23

These figures may be considered by you in connection with other evidence

24

relating to the probable life expectancy of Robert C. Heston and each individual

25

Plaintiff, including evidence of occupation, health, habits and other activities, bearing

26

in mind that many persons live longer and many die sooner than the average.

27
28

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Damages Resulting from Negligence or Strict Product Liability

2

Damages for a Claim of Negligent Failure to Warn or for Strict Product

3

Liability are subject to reduction under the law of comparative fault. If you find that

4

TASER International is liable under the Fourth or Fifth Claim, or both, you must

5

determine whether the harm to Robert C. Heston was caused, in whole or in part, by

6

his own negligent conduct. A person is negligent if he does something that a

7

reasonably careful person would not do or if he fails to do something that a reasonably

8

careful person would do in the same situation. If you find that Robert C. Heston was

9

negligent and that this negligence was a substantial factor in causing his death, you

11
For the Northern District of California

Filed 06/03/2008

1

10

United States District Court

Document 313

must decide on the percentage of his responsibility for his injuries.
You must also determine the comparative fault between Defendants with

12

respect to Plaintiffs’ strict liability and negligence claims. If either TASER

13

International or the Police Officer Defendants were at fault regarding the use of the

14

Taser ECDs and the use of the Taser ECDs was a substantial factor in causing Robert

15

C. Heston’s death, then you must decide the percentage of their responsibility for his

16

own injuries in comparison to the percentage of responsibility of TASER

17

International.

18

The percentage fault of the parties must add up to 100%. However, you only

19

need to calculate their percentage of fault, not an actual dollar number. I will make

20

the final calculation of the apportionment of damages in later proceedings.

21

The Same Injuries Resulting from Conduct of Multiple Defendants

22

If you find that the Police Officer Defendants and the City of Salinas Police

23

Department and TASER International, or any combination of these are liable for the

24

same injuries to the Plaintiffs, you must decide, as among the liable Defendants the

25

percentage of responsibility between or among them. The verdict form will have a

26

place for you to indicate these percentages if such an allocation is necessary from your

27

findings.

28

19

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PUNITIVE DAMAGES

2

The purposes of punitive damages are to punish a defendant and to deter a

3

defendant and others from committing similar acts in the future. If you find that

4

punitive damages are appropriate, you must use reason in setting the amount. Punitive

5

damages, if any, should be in an amount sufficient to fulfill their purposes but should

6

not reflect bias, prejudice or sympathy toward any party. In considering punitive

7

damages, you may consider the degree of reprehensibility of the Defendants’ conduct

8

and the relationship of any award of punitive damages to any actual harm inflicted on

9

the Plaintiffs.

11
For the Northern District of California

Filed 06/03/2008

1

10

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Document 313

Under the law, punitive damages may be no more than 10 times the amount of
compensatory damages, but can be as little in amount as the jury decides.

12

As to Police Officer Defendants

13

If you find for Plaintiffs against a Police Officer Defendant and if you award

14

compensatory damages or nominal damages, you may, but are not required to, award

15

punitive damages.

16

You may award punitive damages only if you find a Police Officer Defendant’s

17

conduct was malicious, or in reckless disregard of Plaintiffs’ rights. Conduct is

18

malicious if it is accompanied by ill-will, spite, or if it is for the purpose of injuring

19

another. Conduct is in reckless disregard of Plaintiffs’ rights if, under the

20

circumstances, it reflects complete indifference to the rights of others.

21

As to the City of Salinas Police Department

22

Punitive damages may not be awarded against the City of Salinas Police

23

Department.

24

As to Defendant TASER International

25

If you find for Plaintiffs against TASER International on the Fourth and Fifth

26

Claims, you may award punitive damages if you find by clear and convincing

27

evidence that TASER International’s conduct constitutes a conscious disregard of the

28

20

Case 5:05-cv-03658-JW

Document 313

probability of injury to others. You must find that TASER International was aware of

2

the probable dangerous consequences of its conduct and deliberately failed to avoid

3

those consequences.
ARGUMENT OF COUNSEL
I will now permit counsel for the parties to make their closing arguments.

5
6

Counsel for Plaintiffs will make a closing argument, followed by the closing

7

arguments by counsel for Defendants. If he does not use all of his allotted time,

8

counsel for Plaintiffs will be permitted a brief rebuttal argument and then I will have

9

some brief additional instructions for you with respect to the conduct of your

10

deliberations. Remember, statements of the attorneys are not evidence.
DUTY TO DELIBERATE

11
For the Northern District of California

Page 21 of 22

1

4

United States District Court

Filed 06/03/2008

When you retire, you should elect one member of the jury as your

12
13

foreperson, i.e., your presiding juror. That person will preside over the deliberations

14

and speak for you here in court.
You will then discuss the case with your fellow jurors to reach agreement

15
16

if you can do so. Your verdict must be unanimous.

17

Each of you must decide the case for yourself, but you should do so only

18

after you have considered all the evidence, discussed it fully with the other jurors, and

19

listened to the views of your fellow jurors.
Do not be afraid to change your opinion if the discussion persuades you

20
21

that you should. But do not come to a decision simply because other jurors think it is

22

right.

23

It is important that you attempt to reach a unanimous verdict but, of

24

course, only if each of you can do so after having made your own conscientious

25

decision. Do not change an honest belief about the weight and effect of the evidence

26

simply to reach a verdict.

27
28

During the course of your deliberations, you may take rest breaks or
lunch breaks as you wish. Since we will be standing by pending your deliberations,
21

Case 5:05-cv-03658-JW

Page 22 of 22

please send us a note as to what your schedule will be. During any break, do not

2

deliberate further upon the case. Cease all deliberations until your foreperson has

3

brought you back into session with all of you present.
RETURN OF VERDICT
After you have reached unanimous agreement on a verdict, your

5
6

foreperson will fill in the form that will be given to you, sign and date it and advise

7

the marshal or clerk of court outside your door that you are ready to return to the

8

courtroom.
COMMUNICATION WITH COURT

9
10

For the Northern District of California

Filed 06/03/2008

1

4

United States District Court

Document 313

If it becomes necessary during your deliberations to communicate with

11

me, you will find a form for that purpose included in the material sent into the jury

12

room. Any one of you may communicate with me by filling out the form. Bring it

13

into my Chambers and give it to me or a member of my staff. No member of the jury

14

should ever attempt to communicate with me except by a signed writing; and I will

15

communicate with any member of the jury on anything concerning the case only in

16

writing, or orally here in open court. Remember that you are not to tell

17

anyone—including me or Ms. Garcia— how the jury stands, numerically or otherwise,

18

until after you have reached a unanimous verdict or have been discharged.

19
20

Dated: June 3, 2008

JAMES WARE
United States District Judge

21
22
23
24
25
26
27
28
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1 John Burton, State Bar No. 86029
THE LAW OFFICES OF JOHN BURTON
2 414 South Marengo Avenue
Pasadena, California 91101
3
Telephone: (626) 449-8300
4 Facsimile: (626) 449-4417
E-Mail:
jb@johnburtonlaw.com
5
Peter M. Williamson, State Bar No. 97309
6 WILLIAMSON & KRAUSS
18801 Ventura Boulevard., Suite 206
7 Tarzana, California 91356
8 Telephone: (818) 344-4000
Facsimile: (818) 344-4899
9 E-Mail:
pmw@williamson-krauss.com
10 Attorneys for Plaintiffs Betty Lou Heston, individually,
and Robert H. Heston, individually and
11 as the personal representatives of Robert C. Heston, deceased
12
13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15
16
17
18

BETTY LOU HESTON and ROBERT
H. HESTON, individually, and MISTY
KASTNER, as the personal
representative of ROBERT C.
HESTON, deceased,

19
20
21
22
23
24
25

Plaintiffs,
v.
CITY OF SALINAS, SALINAS
POLICE DEPARTMENT, MICHAEL
DOMINICI, JAMES GODWIN, LEK
LIVINGSTON, JUAN RUIZ and
TASER INTERNATIONAL, INC.,
Defendants.

Case No. C 05-03658 JW
PLAINTIFFS’ MEMORANDUM OF
LAW IN OPPOSITION TO
DEFENDANT TASER’S MOTION
FOR A NEW TRIAL;
DECLARATION OF PETER M.
WILLIAMSON IN SUPPORT
THEREOF
Trial:
Date Commenced: May 13, 2008
Date of Verdict:

June 6, 2008

Post-Trial Telephonic Conference:
September 17, 2008 at 9:00 a.m.

26
27
28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

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TABLE OF CONTENTS

1
2 Contents

Page

3 1.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

4 2.

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

5 3.

TASER IS NOT ENTITLED TO A NEW TRIAL

6

BECAUSE THE CLEAR WEIGHT OF THE

7

EVIDENCE SUPPORTED THE JURY’S VERDICT . . . . . . . . . . . .

8

a.

Plaintiffs’ Witnesses were well-qualified to provide expert
testimony concerning Robert C. Heston’s cause of death . . . . . .

9
10

2

b.

6

The Court’s Instructions and corresponding Jury Verdict

11

form comport with California products liability law

12

and properly apprised the jury of the claims and defenses

13

raised by the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

14

1)

Instructions re: Plaintiff’s Failure to Warn Claim . . . . . . .

9

15

2)

Instructions re: “substantial factor” . . . . . . . . . . . . . . . . . .

12

16

3)

Instructions re: “clear and convincing” and
“conscious disregard” . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17
4)

18

Supplemental Jury Instruction re: sufficient
warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19
5)

20
21

14

14

Supplemental Jury Instruction re: Foreseeable
Dangers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

22

c.

No misconduct was committed by Plaintiffs’ counsel . . . . . . . . .

17

23

d.

The jury did not conduct an improper experiment . . . . . . . . . . .

18

24

e.

The Jury’s findings are supported by the evidence

25

and are consistent and completely reconcilable . . . . . . . . . . . . . .

26

1)

27

20

The Jury’s Answers to Questions 13 and 16
are Not Inconsistent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

-i-

20

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TABLE OF CONTENTS (conti.)

1
2 Contents

Page

3
4

f.

Expert testimony is not required to prove a Failure

5

to Warn claim where evidence established that TASER

6

gave NO warning of any kind re: Metabolic Acidosis . . . . . . . . .

7

g.

Where the jury concluded that acidosis brought on by

8

TASER discharges could cause cardiac arrest, the

9

failure of TASER to give a warning of this potentially

10

life-threatening risk supported an award of punitive

11

damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

h.

order to recover punitive damages in favor of a

14

decedent’s estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.

25

Compensatory damages need not be awarded in

13

15

24

26

Evidence adduced at trial clearly established that

16

TASER manufactured and sold the ECDs used

17

by the Salinas Police Officers during their restraint

18

of Robert C. Heston . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

19
20 4.

TASER’S TRIAL STRATEGY WAS INTENDED TO

21

INSULATE THE POLICE OFFICER DEFENDANTS

22

FROM INDIVIDUAL LIABILITY AND THIS GOAL

23

WAS ACHIEVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30

27 Declaration of Peter M. Williamson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31

24
25 5.
26

28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

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Page 4 of 37

TABLE OF AUTHORITIES
Page

2
3 Anderson v. Owens-Corning Fiberglass Corp.
53 Cal. 3d 987, 281 Cal. Rptr. 528 (1991) . . . . . . . . . . . . . . . . . . .
4
Austin v. Paramount Parks, Inc.
5
195 F3d 715, 726 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . .

10, 22

6 Bertrand v. Southern Pac. Co.
282 F.2d 569, 572 (9th Cir.1960) . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Carlin v. Superior
Court
8
13 Cal. 4 th 1104, 56 Cal. Rptr. 2d 162 (1996) . . . . . . . . . . . . . . . . .
9 Carr vs. Wal-Mart Stores, Inc.
312 F. 3d 667, 670 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . .
10
Correia v. Fitzgerald
11
354 F. 3d 47, 57 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . .
12 County of Los Angeles
vs. Superior Court (Schonert)
21 Cal. 4 th 292, 87, Cal. Rptr. 2 nd 441 (1999) . . . . . . . . . . . . . . . .
13
Daubert v Merrell Dow Pharmaceuticals, Inc.
14
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) . . . . . . .
15 Ewing v. Northridge Hosp.
Medical Center
120 Cal. App. 4 th 1289, 16 Cal. Rptr. 3d 591(2004) . . . . . . . . . . .
16
Floyd v. Laws
17
929 F.2d 1390, 1396 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . .
18 Franz v. Board of Medical Quality Assurance
31 Cal. 3d 124, 141, 181 Cal. Rptr. 732 (1982) . . . . . . . . . . . . . . .
19
Garcia v. Superior Court (County of Los Angeles)
20
42 Cal. App. 4th 177, 49 Cal. Rptr. 2d 580 (1996) . . . . . . . . . . . . .
21 Gallick v. Baltimore & Ohio R.R. Co.
372 U.S. 108, 83 S. Ct.659, 9 L. Ed. 2d 618 (1963) . . . . . . . . . . . .
22
Gulliford v. Pierce County
23
136 F3d 1345, 1348 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . .
24 Jinro Am., Inc. v. Secure Invs., Inc.
266 F.3d 993, 1004 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . .
25
Konkel vs. Bob Evans Farm Inc.
26
165 F. 3rd 275 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

- iii -

23
16
22
1
23
27
6, 9
24
21
24
27
21
9
6
18

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TABLE OF AUTHORITIES (conti.)
Page

2
3 Kumho Tire Co. v. Carmichael
526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) . . . . . . . .
4
Landes Const. Co., Inc., vs. Royal Bank of Canada
5
883 F.2d 1365 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7
2

6 Molski vs. M.J. Cable, Inc.
481 F. 3d 724, 729 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Murphy v. National R.R. Passenger Corp.
8
547 F2d 816 (4th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1
17

9 Palmer v. Hoffman
318 U.S. 109, 119, 63 S. Ct. 477, 87 L. Ed. 645 (1943) . . . . . . . . . .
10
Putensen v. Clay Adams, Inc.
11
12 Cal. App. 3d 1062, 1076-1077, 91 Cal. Rptr. 319 (1970) . . . . . .

16
10

12 Reno-West Coast Distrib. Co., Inc. v. Mead Corp.
613 F. 2d 722, 726 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Romo vs Ford Motor Co.
14
113 Cal. App. 4 th 738, 761-762 6 Cal. Rptr. 3 rd 793 (2003) . . . . . . .

11
26

15 Truman v. Vargas
275 Cal. App. 2 nd 976, 80 Cal. Rptr. 373 (1969) . . . . . . . . . . . . . . . .
16
United States v. Beach
17
296 F. 2d 153 (4th Cir. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24
18

18 U.S. v. Reed
147 F. 3d 1178 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Voohries-Larson v. Cessna Aircraft Co.
20
241 F. 3d 707 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21 White v. Ford Motor Co.
312 F3d 998, 1005 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Williams v. KETV Television, Inc.
23
26 F. 3d 1439, 1442-1443 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . .

26
16
20, 23

24
25
26
27
28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

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TABLE OF AUTHORITIES (conti.)

1

Page

2
3 STATUTES
4
5 Federal Rules of Civil Procedure, Rule 51 . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

6 Federal Rules of Civil Procedure, Rule 51(c) . . . . . . . . . . . . . . . . . . . . . . . . .

16

7 Federal Rules of Civil Procedure, Rule 59 . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

8 Federal Rules of Evidence, Rule 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

9
10

MISC.

11 CACI 1222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

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1 1.

INTRODUCTION

2

After four weeks of hotly contested trial, the Court gave thorough instructions.

3 Following extended deliberations, the jury returned a general verdict with special questions
4 against defendant TASER International, Inc., (TASER) for negligently failing to warn
5 about the risks of its product, the M26 ECD. The jury awarded compensatory damages of
6 $21,000.00 to the estate of Robert C. Heston, and $1,000,000.00 to his parents, Robert
7 H. Heston and Betty Lou Heston, for their wrongful death damages. The jury apportioned
8 fault 85 % to the decedent and 15% to TASER. Finally, the jury assessed punitive damages
9 of $5,200,000.00 against TASER.
10

TASER now moves for a new trial on myriad grounds, which can be grouped into

11 the following six categories: 1) The jury verdict should be ignored because it was contrary
12 to the weight of the evidence and inconsistent; 2) Plaintiff’s “experts” were not qualified,
13 yet the Court erroneously permitted them to testify; 3) The Court’s instructions to the jury
14 were erroneous and prejudicial; 4) The Court erroneously allowed plaintiff’s counsel to
15 commit prejudicial misconduct; 5) The Court erroneously allowed misconduct by the jury;
16 and 6) The Court prepared an erroneous verdict form.
17

None of the arguments has merit. The verdict is amply supported by the record. The

18 new trial motion, along with the supplemental motion for JMOL, should be denied, the
19 jury verdict affirmed, and judgment entered in favor of plaintiffs and against TASER.
20 2.

STANDARD OF REVIEW

21

A motion for a new trial brought pursuant to FRCP Rule 59 may be granted if, in

22 the Court’s view, the verdict is against the clear weight of the evidence. Molski v. M.J.
23 Cable, Inc., 481 F. 3d 724, 729 (9th Cir. 2007). A trial judge may set aside a verdict only
24 where “the verdict is against the clear weight of the evidence, or is based upon evidence
25 which is false or will result in a miscarriage of justice.” (Carr v. Wal-Mart Stores, Inc., 312
26 F. 3d 667, 670 (5th Cir. 2002))
27

No definitive language exists to help explain the meaning of “clear weight of the

28 evidence.” Arguably, the verdict should be set aside only where the trial court “is left with
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1 the definite and firm conviction that a mistake has been committed by the jury.” (Landes
2 Const. Co., Inc., v. Royal Bank of Canada, 883 F.2d 1365, 1371-72) (9th Cir. 1987))
3 (emphasis added).
4

The jury made no such mistake here. The jury had ample grounds to hold TASER

5 responsible for consciously disregarding the lives and safety of people like Mr. Heston who
6 are subjected to ECD exposures, all to increase its sales and financial bottom line.
7 3.

TASER IS NOT ENTITLED TO A NEW TRIAL BECAUSE THE CLEAR

8

WEIGHT OF THE EVIDENCE SUPPORTED THE JURY’S VERDICT.

9

Plaintiffs produced substantial evidence to support the jury’s verdict.

They

10 established that the theory of metabolic acidosis causing cardiac arrests was well known to
11 the medical and scientific community for many years prior to this incident. In this regard,
12 plaintiffs introduced evidence of a review of the physiological effects of the Sticky Shocker
13 and other ECD’s which was conducted at Penn State University in 1999. In that review,
14 a panel of scientists led by Dr. Raymond M. Fish considered the possibility that electrical
15 insults from ECDs could result in metabolic acidosis. The Penn State review, admitted
16 into evidence as Plaintiff’s Exhibit No. 151a, contained the following statement:
17

“deaths following Tasers use may be due to acidosis.

Acidosis may have

18

caused cardiac dysrhythmias or failure in the presence of illicit drugs that are

19

usually present in persons being Tasered. Deaths following Tasers use may

20

be related to the ability of these devices to cause increased muscle activity and

21

decreased breathing.”

22

The concept of metabolic acidosis causing cardiac arrest was further supported by

23 the testimony of Dr. Mark Myers, the only board certified electro-physiologist to testify at
24 trial. Dr. Myers explained to the jury how TASER ECDs cause metabolic acidosis. First,
25 he explained that severe muscle contractions produce lactic acid.

Second, he described

26 what happens to a human being when lactic acid levels in the blood increase too rapidly
27 without an ability to compensate or blow-off the acid through respiration. And, finally,
28 Dr. Myers described how severe metabolic acidosis lowers pH to such a dangerous level that
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1 it can trigger a cardiac arrest. Dr. Myer’s testimony was supported by several significant
2 pieces of evidence.
3

First, TASER’s own CEO, Patrick Smith, testified that TASER ECDs cause severe

4 muscle contractions.

In fact, the very purpose of the TASER is to cause muscle

5 contractions to such an extent that a subject is completely incapacitated. TASER’s own
6 use videos were shown to the jury during the testimony of Officer Fairbanks, without
7 objection, to illustrate the severe muscle contractions that result from TASER discharges.
8 Second, Mr. Smith further conceded that severe muscle contractions do produce a build-up
9 of lactic acid in the blood. Plaintiffs produced peer-reviewed research which established
10 statistically significant elevations in lactate in the blood in human subjects after only one
11 5-second discharge.

The results of this research correlated with similar peer-reviewed

12 research studies of swine introduced into evidence by plaintiffs. These comparative studies
13 proved that the physiological effects of TASER discharges on humans are nearly identical
14 to swine. Plaintiffs also introduced research conducted by Dr. James Jauchem on behalf
15 of the U.S. Air Force which showed dangerous elevations in lactate in swine after repeated
16 TASER discharges, significantly less than the number Mr. Heston was subjected
17 immediately prior to his cardiac arrest.

Third, Dr. Myers testified that the emergency

18 room records of Natividad Medical Center indicated that Mr. Heston’s pH was measured
19 at 6.8 shortly after his admission – far below the life-threatening level of 7.0 – further
20 evidence that he was suffering from severe metabolic acidosis.
21

Finally, Dr. Myers’ expertise in cardiology and electro-physiology was more than

22 sufficient to inform the jury as to Mr. Heston’s cause of death. His testimony was clearly
23 supported by the overwhelming medical and scientific evidence presented to the jury.
24

For whatever tactical reason, TASER chose not to call an electro-physiologist to

25 counter Dr. Meyers’ testimony even though it had designated two - Dr. Richard Luceri and
26 Dr. Raymond Ideker - in its Rule 26 Expert Disclosures. TASER’s decision not to call Dr.
27 Luceri or Dr. Ideker allowed Dr. Myers’ testimony – the most crucial in the case – to go
28 unchallenged. TASER’s reason for not calling these witnesses is that they would have
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1 supported rather than undercut plaintiffs’ cause-of-death theory.
2

Dr. Jeffrey Ho, TASER’s medical expert (an emergency room physician and paid

3 TASER consultant), testified that Mr. Heston’s cardiac arrest resulted from metabolic
4 acidosis.
5

The clear weight of the evidence, which essentially went unchallenged by TASER,

6 established that metabolic acidosis caused Mr. Heston’s cardiac arrest. Thus, the jury was
7 left to decide what caused the metabolic acidosis in Mr. Heston’s case. The evidence
8 established that he was subjected to as many as 25 five-second ECD discharges over a
9 74-second period. Although TASER and the Salinas defendants suggested that Mr. Heston
10 did not actually receive electrical current from all these discharges, neither introduced
11 expert testimony on this issue nor produced physical evidence to establish that the ECDs
12 failed to deliver electrical current. It is clear, based on the weight of the evidence, that the
13 jury reasonably concluded that the TASER ECDs caused a sudden, dangerous metabolic
14 acidosis which, in turn, resulted in Mr. Heston’s cardiac arrest.
15

The jury was asked to consider whether TASER knew or should have known about

16 the risks posed by metabolic acidosis in the context of prolonged duration ECD
17 applications and, if so, whether it warned potential users of this danger.

(Note – a more

18 detailed discussion of the jury’s verdict and its consistency is set forth below.) Once again,
19 the evidence established that as early as 1999, in the published Penn State review conducted
20 by Dr. Fish and his colleagues, the possibility that ECDs could cause metabolic acidosis to
21 such an extent that it could result in cardiac arrest was known in the scientific community.
22 The review recommended that further research be conducted on this issue.

TASER,

23 through the testimony of its CEO, Patrick Smith admitted that no such research was
24 conducted by TASER. When Mr. Smith learned the results of the Jauchem experiments,
25 which confirmed the effect of repeated TASER ECD discharges on blood acid levels, he
26 testified that his company immediately published a warning concerning this risk. The
27 warning was allegedly sent to TASER purchasers, including the Salinas Police Department,
28 in January, 2005, but was not received by Salinas, according to the testimony of Sgt.
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1 Michael Groves, and was not transmitted to the officers who shocked Mr. Heston.
2

This warning was introduced by plaintiffs as Exhibit 148:

3

The application of the TASER is a physically stressful event. Although

4

there is no predetermined limit to the number of cycles that can be

5

administered to the subject, officers should only apply the number of cycles

6

reasonably necessary to allow them to safely approach and restrain the subject.

7

Especially when dealing with persons in a health crisis such as excited

8

delirium, it is advisable to minimize the physical and psychological stress to

9

the subject to the greatest degree possible.

10

Further, TASER applications directly across the chest may cause

11

sufficient muscle contractions to impair normal breathing patterns. While this

12

is not a significant concern for short (5 sec) exposure, it may be a more

13

relevant concern for extended duration applications. Accordingly, prolonged

14

applications should be avoided where practicable.

15

Although the warning cautions against prolonged TASER applications under certain

16 circumstances, it is also contradictory and misleading by its inclusion of the statement that
17 “there is no predetermined limit to the number of cycles that can be administered to the
18 subject.” More importantly, the words “metabolic acidosis” do not even appear in this
19 warning. By TASER’s own admission, this is the only warning it issued concerning the risks
20 of prolonged TASER discharges prior to Mr. Heston’s death. Thus, the jury heard
21 evidence that no warning was ever issued by TASER regarding the risks of metabolic
22 acidosis caused by prolonged TASER discharges even though this possibility was recognized
23 in the scientific community prior to the initial manufacture and marketing of the Model
24 M26 ECD, and known to TASER prior to Mr. Heston’s demise.
25

Based on the clear weight of the evidence, the jury came to the obvious and

26 inescapable conclusion that TASER failed to adequately warn that TASER ECDs were
27 dangerous or likely to be dangerous because repeated or prolonged ECD exposures
28 potentially cause metabolic acidosis to such a degree that it poses a risk of cardiac arrest.
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1 The reason, the jury obviously surmised, was that such warnings would adversely affect
2 sales by contradicting TASER’s exaggerated claims of safety and its principle marketing
3 slogan, “Saving lives every day.”
4

Apart from the conclusory statements made in its moving papers, TASER has offered

5 no evidence to establish that the jury’s verdict is against the clear weight of the evidence or
6 is based upon evidence which is false, or that the verdict will result in a miscarriage of
7 justice, or that a mistake has been committed by the jury. For these reasons, TASER’s
8 Motion for a New Trial should be denied.
9
10
11

a.

Plaintiffs’ witnesses were well-qualified to provide expert
testimony concerning Robert C. Heston’s cause of death.

TASER contends that the Court erred when it overruled its objections to the

12 testimony of Dr. Myers and Dr. Terri Haddix. The admissibility of an expert witness’
13 testimony is governed by Fed. R. Evid. 702, which states as follows:
14

If scientific, technical, or other specialized knowledge will assist the

15

trier of fact to understand the evidence or to determine a fact in issue, a

16

witness qualified as an expert by knowledge, skill, experience, training, or

17

education, may testify thereto in the form of an opinion or otherwise, if (1)

18

the testimony is based upon sufficient facts or data, (2) the testimony is the

19

product of reliable principles and methods, and (3) the witness has applied

20

the principles and methods reliably to the facts of the case.

21

The Ninth Circuit has stressed that “care must be taken to assure that a proffered

22 witness truly qualifies as an expert, and that such testimony meets the requirements of Rule
23 702” because such status allows the witness “to testify based on hearsay information, and
24 to couch his observations as generalized ‘opinions’ rather than as first-hand knowledge.”
25 (Jinro Am., Inc. v. Secure Inv., Inc., 266 F.3d 993, 1004 (9th Cir. 2001)).
26

As the “gatekeeper” under Rule 702, the Court reviewed the proposed expert

27 testimony to insure that it rested on reliable foundation and was relevant to the issues
28 before the trier of fact. (See Daubert v Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579
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1 (1993) (scientific testimony); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
2 (non-scientific testimony)). An expert may only be precluded from testifying at trial on the
3 ground that the witness lacks “specialized” knowledge on the particular subject or that the
4 expert opinion is not based on scientific, technical, or other specialized knowledge.
5

As previously discussed, Dr. Myers is a cardiologist and Board Certified

6 electro-physiologist who is eminently qualified to offer expert opinions concerning
7 metabolic acidosis (a phenomenon well-documented in the medical literature and known
8 to all physicians for many years), its inverse relationship to pH, and the manner in which
9 a sudden drop in pH affects the electrical output of the heart. See, e.g., Hicks, et al.,
10 Metabolic Acidosis in Restraint-Associated Cardiac Arrest: a Case Series (1999).
11

The opinions expressed by Dr. Myers were based, not only on his specialized

12 knowledge, background and experience, but also on peer-reviewed scientific research
13 concerning the psychological effects of TASER electrical discharges. These include
14 Jauchem, et al., Acidosis, Lactate, Electrolytes, Muscle Enzymes, and Other Factors in the
15 Blood of Sus Scrofa Following Repeated TASER Applications (2005), and Dennis, et al.,
16 Acute Effects of TASER X26 Discharges in a Swine Model (2007).
17

TASER, through its own CEO, admitted that TASER discharges cause severe muscle

18 contractions and that these contractions cause the muscle to produce lactic acid. These
19 facts were never in dispute.

TASER’s quibbles about Dr. Myers’ supposed lack of

20 expertise, and his simple misunderstanding (promptly corrected and irrelevant to his
21 opinions) with respect to one aspect of TASER electrical output, were paraded in front of
22 the jury repeatedly. These went to the weight rather than the admissibility of the expert
23 testimony. Dr. Myers’ background and experience as a cardiologist with specific expertise
24 in electro-physiology – the electrical functioning of the heart – was more than sufficient,
25 under Daubert, to permit him to offer his expert opinion that metabolic acidosis caused
26 Mr. Heston’s heart to stop.
27

Dr. Terri Haddix, a board certified forensic pathologist, was the only truly

28 independent expert to testify during the trial. TASER repeatedly and incorrectly claims that
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1 Dr. Haddix was designated as plaintiffs’ “retained” expert. She was not. As the medical
2 examiner who performed the autopsy on Mr. Heston’s body on behalf of the Monterey
3 County Sheriff-Coroner, she was designated by stipulation as a non-retained “percipient”
4 doctor (under other circumstances, she would have been described as a “treating”
5 physician). Dr. Haddix testified that she has performed over 2,500 autopsies during her
6 career. Although she, admittedly, had little experience dealing with TASER deaths – there
7 have been less than 400 throughout the United States in the last decade – she was,
8 nonetheless, eminently qualified to testify regarding her autopsy findings, including the
9 TASER burn marks which she independently analyzed microscopically.
10

Dr. Haddix did not simply conduct an autopsy in this case. She investigated to

11 determine the state of the scientific research concerning the physiological effects of TASER
12 discharges. She was unable to find any published research on this subject since no
13 peer-reviewed scientific studies had been published in February 2005.

She contacted

14 various colleagues about TASER electrical output and burn marks and went so far as to
15 contact TASER itself to gain insight into how TASER ECDs operated. She also requested
16 information regarding the TASER dataport downloads and corresponded with a
17 representative of TASER in an effort to understand the implications of the data. In sum,
18 Dr. Haddix made an exhaustive effort to understand every aspect of the TASER device,
19 going far beyond what medical examiners typically do in such situations.
20

The expert opinions ultimately offered by Dr. Haddix dealt with the observations

21 and conclusions she drew from her autopsy findings, from an analysis of Mr. Heston’s
22 blood, and from medical examinations of his heart and brain.

Her opinion that Mr.

23 Heston’s cardiac arrest occurred simultaneously with the final TASER discharge was
24 supported by testimony that it was exactly then that the officers observed Heston’s head
25 turn blue, and that this tight temporal relationship suggested that Mr. Heston suffered
26 metabolic consequences that may have caused him to develop a fatal heart arrhythmia.
27

Contrary to TASER’s assertion, Dr. Haddix’ ultimate opinion regarding Mr.

28 Heston’s cause of death need not have been predicated on her knowledge of TASER
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1 components, usage or electrical output. As a board certified forensic pathologist, Dr.
2 Haddix was eminently qualified to offer her opinions as to Mr. Heston’s cause of death.
3

TASER’s challenge of Drs. Myers and Haddix on Daubert grounds simply has no

4 merit. The Court was correct to allow the testimony.
5

b.

The court’s instructions and corresponding jury verdict form comport

6

with California products liability law and properly apprised the jury of

7

the claims and defenses raised by the parties.

8

TASER next makes a number of arguments concerning the propriety of the Court’s

9 closing jury instructions. It contends that some instructions were inadequate and others
10 were erroneous, thereby resulting in prejudice to TASER justifying a new trial.
11

Jury instructions are designed to clarify issues for the jury and to educate the jurors

12 about what factors are probative on those issues. Generally, jury instructions should be: 1)
13 relevant, 2) an accurate statement of the law, 3) as brief and concise as possible, 4)
14 understandable to the average juror; and 5) not repetitive. The basic requirement is that
15 the proposed instructions fairly and adequately cover the issues presented, correctly state
16 the applicable law, and not be misleading. (Gulliford v. Pierce County 136 F.3d 1345,
17 1348 (9th Cir. 1998)).
1)

18
19

Instructions re: plaintiff’s failure to warn claim

In the instant case, the jury instructions given by the Court were completely

20 consistent with California products liability law, and, specifically, plaintiffs’ Fourth Claim
21 – Negligence by Manufacturer in Failing to Warn. The elements of plaintiffs’ claim are
22 set out in CACI 1222:
23

1.

That TASER manufactured the model M26;

24

2.

That TASER knew or reasonably should have known that the model

25

M26 was dangerous or was likely to be dangerous when used in a

26

reasonably foreseeable manner;

27
28

3.

That TASER knew or reasonably should have known that users would
not realize the danger;

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1

4.

That TASER failed to adequately warn of the danger;

2

5.

That a reasonable manufacturer under the same or similar
circumstances would have warned of the danger;

3
4

6.

That Robert Heston was harmed; and

5

7.

That TASER’s failure to warn was a substantial factor in causing
Robert Heston’s harm.

6

7 (See Putensen v. Clay Adams, Inc., 12 Cal. App.3d 1062, 1076-77(1970); Anderson v.
8 Owens-Corning Fiberglass Corp., 53 Cal. 3d 987, 1002 (1991)).
9

The Court gave the following instruction, which both comports with California

10 products liability law and mirrors CACI 1222:
11

In order to recover under the Fourth Claim, Plaintiffs must prove the

12

following by a preponderance of the evidence:

13

1.

TASER International was the manufacturer of Taser ECDs which are

14

devices capable of delivering electric shocks to a person against whom

15

they are deployed;

16

2.

At the time TASER International manufactured and sold Taser ECDs,

17

a reasonably prudent manufacturer of an electronic control device

18

knew or reasonably should have known that the M-26 ECD was

19

dangerous or likely to be dangerous because prolonged exposure to

20

electric shock from the device potentially causes acidosis to a degree

21

which poses a risk of cardiac arrest in a person against whom the

22

device is deployed;

23

3.

purchasers of this risk;

24
25

4.

28

TASER International failed to adequately warn purchasers about this
risk;

26
27

A reasonably prudent manufacturer of an ECD would have warned

5.

On February 19, 2005, while using the product in a manner
reasonably foreseeable by TASER International, members of the

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1

Salinas Police Department used a prolonged deployment of Taser

2

ECDs against Robert C. Heston;

3

6.

The failure by TASER International to warn the Salinas Police

4

Officers of the risks of prolonged deployment was a substantial factor

5

in causing the officers to use a prolonged deployment against Robert

6

C. Heston;

7

7.

As a consequence of the prolonged deployment either one or both of

8

the following injuries occurred: (a) prior to his death, Robert C.

9

Heston suffered acidosis to a degree which caused him to have a

10

cardiac arrest; and (b) separately, Plaintiffs Betty Lou Heston and

11

Robert H. Heston, the parents of Robert C. Heston, suffered harm

12

because, as a consequence of the cardiac arrest, Robert C. Heston died.

13

It is clear and apparent from reading the aforementioned instruction that each and

14 every element of plaintiffs’ claim, set forth in CACI 1222, was included in the actual
15 instruction given by the court. While the Court modified the instruction to fit the facts
16 of the case, the substantive law remained intact. Although not obligated to do so, trial
17 courts may modify proposed instructions to make them applicable to the case and therefore
18 more comprehensible to the jury. (Reno-West Coast Distrib. Co., Inc. v. Mead Corp. 613
19 F. 2d 722, 726 (9th Cir. 1979)). That is what the Court did here.
20

TASER’s primary objection focuses on the second element of the instruction that

21 “the M26 ECD was dangerous or likely to be dangerous because prolonged exposure to
22 electric shock from the device potentially causes acidosis to a degree which poses a risk of
23 cardiac arrest in a person against whom the device is deployed.” This element of the claim
24 required that the jury find that TASER “knew or reasonably should have known that the
25 M26 was dangerous or likely to be dangerous.” The thrust of this instruction was not
26 altered by the court’s inclusion of plaintiff’s cause of death theory – metabolic acidosis.
27 The instruction given by the court simply added language identifying the danger and made
28 it clear that the jury had to first find that a danger “existed” or “likely existed” before it
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1 could find that TASER failed to warn about it. TASER was not prejudiced by this
2 instruction, which served simply to focus the jury’s attention where it belonged.
3

TASER’s objection to this instruction incorrectly places the emphasis on the words

4 “poses a risk” and “potentially causes”. The real focus of this instruction is on the
5 knowledge of the danger – that TASER “knew” or “reasonably should have known” that
6 the M26 ECD was dangerous or likely dangerous. Regardless, the plaintiffs proved, by
7 the clear weight of the evidence, that TASER “knew” or “reasonably should have known”
8 of the dangers associated with use of its ECDs. Plaintiffs offered in evidence the Penn State
9 review from 1999 which raised the concern that TASER ECD’s could cause metabolic
10 acidosis to an extent that it could result in cardiac arrest. The Penn State review was
11 included in TASER’s research compendium. TASER’s CEO, Patrick Smith, testified he
12 was aware of the Jauchem test results by November 2004, three months before Robert
13 Heston’s death. In light of this evidence, the jury reasonably concluded that TASER knew
14 or reasonably should have known the M26 ECD was dangerous or likely to be dangerous
15 at the time of Mr. Heston’s death.
16

Indeed, plaintiffs rested their entire case on their metabolic acidosis theory,

17 something that should have been obvious to anyone who listed to the evidence. Had the
18 jury rejected the claim that TASER’s ECDs caused Robert Heston to suffer severe
19 metabolic acidosis which resulted in his cardiac arrest, they clearly would have found in
20 TASER’s favor on the failure to warn claim. The court’s instructions on this point were
21 neither inadequate nor erroneous. Likewise, TASER suffered no prejudice due to the
22 Court’s instruction. TASER’s Motion for a New Trial on this ground should be denied.
23
24

2)

Instructions re: “Substantial factor”

TASER also raises an objection to the court’s instructions and the corresponding

25 questions on the verdict form including questions Nos. 15, 18 and 19. TASER claims the
26 court committed prejudicial error by failing and/or incorrectly instructing the jury on the
27 “substantial factor” test and then including erroneous questions on the verdict form.
28 TASER correctly points out that plaintiffs were required to prove that the defendant’s
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1 failure to warn was a substantial factor in causing plaintiff’s harm (CACI 1222).
As noted above, the court did instruct the jury regarding the “substantial factor” test.
2
3

Its instructions on the failure to warn claim included the following two instructions:

4

6.

The failure by TASER International to warn the Salinas Police

5

Officers of the risks of prolonged deployment was a substantial factor

6

in causing the officers to use a prolonged deployment against Robert

7

C. Heston.

8

7.

As a consequence of the prolonged deployment either one or both of the

9

following injuries occurred: (a) prior to his death, Robert C. Heston suffered

10

acidosis to a degree which caused him to have a cardiac arrest; and (b)

11

separately, Plaintiffs Betty Lou Heston and Robert H. Heston, the parents of

12

Robert C. Heston, suffered harm because, as a consequence of the cardiac

13

arrest, Robert C. Heston died.

14

TASER claims that the Court failed to give a proper instruction on “substantial

15 causation” “because it omits the direct line of causation between TASER’s failure to warn
16 and the decedent’s injuries.” (TASER’s New Trial Memorandum at 16:27-28). But,
17 TASER’s argument is misguided because the instructions must be read together and viewed
18 in their entirety. As TASER correctly points out, all the Court did was take one
19 instruction and divided it into two. When viewed in their entirety, the aforementioned
20 instructions required the jury to find, albeit in two steps, a direct line of causation between
21 the failure to warn and decedent’s death. First, the jury had to decide that the failure to
22 warn was a substantial factor in the officers’ prolonged deployment of their TASERs against
23 Robert Heston, and second to find that as a consequence of the prolonged deployment,
24 Mr. Heston suffered metabolic acidosis to a degree that caused him to suffer a cardiac
25 arrest.
26

The aforementioned instructions mirrored the Verdict form, which also separated

27 the issue into three Questions, Nos. 15, 18 and 19. Once again, the language of the
28 “substantial factor” test was included in Question No. 15. Once again, the simple division
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1 of the question into three parts still required the jury to first find that TASER’s failure to
2 warn of the risks of its device was a substantial factor in causing the prolonged deployment
3 of the ECDs by the Salinas police officers. Only after it answered this question in the
4 affirmative would it then proceed to the next question on the Verdict form – whether Mr.
5 Heston’s death was a consequence of the prolonged deployment.
Once again, the court’s instructions on this point, when considered in their entirety,
6
7 were neither inadequate nor erroneous. The Verdict form submitted to the jury mirrored
8 the Court’s instructions. TASER’s Motion for a New Trial on this ground should be
9 denied.
10
11

3)

Instructions re: “clear and convincing” and “conscious disregard”

TASER next argues that it was prejudiced by the Court’s failure to include the “clear

12 and convincing” standard of proof in Question No. 21 of the Jury Verdict form. It also
13 claims prejudice by the Court’s failure to include in Question No. 21 the requirement that
14 the jury find that TASER’s conduct was in “conscious disregard” of Mr. Heston’s rights.
TASER’s arguments simply have no merit. TASER fails to cite any legal authority
15
16 for the proposition that every single issue must be addressed explicitly in a verdict form.
17 TASER admits that the “clear and convincing” and “conscious disregard” language was
18 contained in the Court’s instructions to the jury. The jury instructions and verdict form
19 are required to be read as a whole, one supporting the other. So long as the jury was
20 properly instructed on the law of the case (which TASER admits it was), it was not
21 necessary for the verdict form to contain the “clear and convincing” and “conscious
22 disregard” language.
TASER’s Motion for a New Trial on this ground should be denied.
23
24
25

4)

Supplemental jury instruction re: sufficient warnings

TASER claims that the Court committed prejudicial error by failing to give a

26 supplemental instruction on the sufficiency of warnings.
27 instruction which was rejected by the court:
28

It proposed the following

“There can be no liability for failure to warn where the instructions or
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warnings sufficiently alert the user to the possibility of danger.”

2 Instead, the Court gave the following instruction, which covered the identical subject
3 matter:
4

“Plaintiffs must prove . . . 4. TASER International failed to adequately warn

5

purchasers about this risk.”

6

The Court was correct in its decision to reject TASER’s proposed instruction

7 because it was simply not supported by the evidence. Throughout its moving papers,
8 TASER consistently refers to a warning being given to users of its ECDs about the risks
9 posed by its operation. However, TASER failed to introduce any evidence that it warned
10 users of its ECDs of the risk that prolonged duration discharges from its devices could
11 cause metabolic acidosis to the extent that it would result in cardiac arrest. In the absence
12 of a warning having been given, there is no merit to the suggestion that the Court erred in
13 failing to instruct the jury on the sufficiency of a warning.
5)
Supplemental Jury Instruction re: foreseeable dangers
14
15

TASER also claims that the Court committed prejudicial error by failing to give a

16 supplemental instruction on foreseeable dangers.
17 which was rejected by the court:

It proposed the following instruction

18

“The duty to warn does not include the duty to warn of known dangers

19

foreseeable or readily known by the user.”

20

This argument has no application to the facts of this case. Acidosis and cardiac arrest

21 are not common knowledge. Each police officer who used a TASER ECD during this
22 incident testified that no training was ever provided to him that his use of the M26 could
Further, it would be unlikely, if not
23 result in an acidosis induced cardiac arrest.
24 impossible, for any police department to be aware of the current state of research in the
25 scientific and medical community regarding the physiological affects of ECDs on humans.
26 Instead, customers such as the Salinas Police Department reasonably relied on TASER to
27 keep them abreast of such research. TASER never warned its customers the potential risks
28 of metabolic acidosis prior to Robert Heston’s death. In fact, it did just the opposite – it
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1 assured users that its ECDs were non-lethal and could not cause serious bodily injury –
2 “Saving lives every day.”
3

Since it was not supported by the evidence, the Court’s failure to give TASER’s

4 supplement instruction on “foreseeable dangers” was not error.
Although TASER argues that the court’s refusal to give each and every one of its
5
6 requested instructions was prejudicial and, therefore, grounds for a new trial, it has not
7 provided any evidence of any prejudice, misstatement of the law or an erroneous
8 instruction given that would require the court to grant their request for a new trial. Since
9 the instructions given by the court more than adequately covered the law and all claims and
10 defenses raised by the parties, all of TASER’s arguments regarding inadequate, misleading
11 or erroneous jury instructions must fail.
12

But, even if some of the jury instructions given by the Court were either inadequate

13 or erroneous, TASER was required to make specific objections to preserve its right to raise
14 this issue at a later time. A party cannot object to jury instructions by using plain error as
15 the basis of raising the issue for the first time in a motion for new trial when it did not
16 make a timely objection to the instructions pursuant to Rule 51(c). (See: Voohries-Larson
17 v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001)).
F. R. C. P. Rule 51 provides that “[n]o party may assign as error the giving or the
18
19 failure to give an instruction unless that party objects thereto before the jury retires to
20 consider its verdict, stating distinctly the matter objected to and the grounds of the
21 objection.” In Palmer v. Hoffman, 318 U.S. 109, 119 (1943), the Supreme Court stated
22 that “objections to a charge must be sufficiently specific to bring into focus the precise
23 nature of the alleged error.” The purpose of Rule 51, and the requirement of specificity in
24 the objection, is to “bring possible errors to light while there is still time to correct them
25 without entailing the cost, delay and expenditure of judicial resources occasioned by
26 retrials.” (See Bertrand v. Southern Pac. Co., 282 F.2d 569, 572 (9th Cir. 1960)).
27 TASER’s objections were not legally sufficient to protect its right to raise this issue in a
28 Motion for New Trial.
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1

c.

No misconduct was committed by Plaintiffs’ Counsel.

2

TASER contends that an animation and training video shown to the jury during

3 plaintiff’s closing argument amounted to prejudicial misconduct.
The Court has discretion to allow counsel to use visual aids in closing argument –
4
5 e.g., diagrams, charts, graphs, etc. – if they illustrate matters already in evidence. Murphy
6 v. National R.R. Passenger Corp. 547 F.2d 816, 818 (4th Cir. 1977). Such visual aids
7 should not go into the jury room or remain before the jury after the conclusion of counsel’s
8 argument. Id. That was the procedure followed.
9

The demonstrative animation used by plaintiff’s counsel relied exclusively on

10 evidence that was already before the jury. First, the animation showed the number of
11 TASER discharges recorded on the dataports. This evidence was introduced through Sgt.
12 Michael Groves of the Salinas Police Department. Second, the animation contained
13 excerpts of the 911 call placed by witness, Clifford Satree, which was also admitted into
14 evidence. Third it showed the duration of the TASER discharges, again framed by the
15 play-by-play description provided by Mr. Satree during his 911 call. Fourth, the animation
16 depicted the names of the officers that entered the Heston living room at the time Mr.
17 Heston was subjected to the TASER discharges. Each of those officers testified. Fifth, the
18 animation included the distinctive clicking sound made by TASER ECDs while they are
19 being discharged. (Throughout the trial, jurors repeatedly heard the sound of the TASER
20 during the playing of various training videos.) And, sixth, the animation depicted the
21 moment in time when Mr. Heston was observed to be in cardiac arrest. This was based
22 on the testimony of various officers involved in the restraint of Mr. Heston that they
23 observed his head turn blue either immediately before or seconds after the completion of
24 Officer Godwin’s final ECD discharge.
In sum, everything contained in the animation was supported by evidence adduced
25
26 at trial. Plaintiffs’ counsel did not “testify” during this portion of his closing argument but,
27 rather, simply commented on the evidence, through the animation. He was legally entitled
28 to do this.
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TASER also claims that plaintiffs’ counsel committed misconduct during his closing

2 argument when he played a particular TASER training video to illustrate a subject’s severe
3 muscle contractions as a result of one 5-second discharge from two TASER ECDs. TASER
4 claims the showing of this video was highly prejudicial because “it had not been admitted
5 into evidence.” TASER’s recollection of what evidence was admitted during the trial is
6 clearly flawed. The video in question was shown to the jury without objection during the
7 direct examination of Officer Fairbanks. In fact, Officer Fairbanks was asked specifically
8 whether the muscle contractions shown in the video mirrored his own experience being
9 tased, and he answered in the affirmative. The video was admitted into evidence, without
10 objection, as plaintiffs’ Exhibit 110 – TASER’s Training Ver. 8.
But, even more disturbing is the fact that TASER’s fails to recall that its counsel
11
12 played the very same video for the jury during its case in chief. TASER suffered no
13 prejudice by the showing of the subject video and, to claim otherwise, is simply
14 disingenuous at best and intentionally misleading at worst.
d.
The jury did not conduct an improper experiment
15
16

TASER contends that it should be granted a new trial because the Court allowed the

17 jury to commit misconduct by test firing the M26 defendants’ introduced into evidence
18 during jury deliberations. TASER argues that 1) it was prejudiced by the so-called “secret”
19 experiment, and 2) the jury obtained or used evidence which had not been introduced at
20 trial.
21

Defendants offered, and the Court admitted into evidence, a fully functional TASER

22 M26 along with a battery back. The jury did not conduct an “experiment” merely by
23 putting the two components together – a task that required no special skill or experience.
24

In Konkel v. Bob Evans Farm Inc., 165 F.3d 275, 282 (4th Cir. 1999) (citing

25 United States v. Beach, 296 F.2d 153, 158 (4th Cir.1961)), the Court of Appeals held that
26 jury experiments that are nothing more than critical examinations of exhibits are not
27 inappropriate. The jury in that case performed an experiment using a coffee pot and carafe,
28 which were both admitted exhibits, and a cup, which had not been admitted into evidence.
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1 The jury read the directions off the packet of detergent that was an exhibit and found that
2 the liquid solution swallowed by the plaintiff was twelve times stronger than it was
3 supposed to be. The court concluded that the jury’s experiment did not constitute jury
4 misconduct.
5

The basis of the decision was that the jury simply examined the coffee pot, carafe,

6 and packet of detergent that were admitted into evidence and applied the testimony to the
7 testing. Since the jury simply applied the testimony concerning the size of the plaintiff’s
8 mug, the jury’s experiment did not place it in possession of evidence not previously
9 presented at trial. This is analogous to what the Court allowed the jury in this case to do.
10 It took evidence already introduced by TASER itself and matched that evidence to the
11 sound the TASER ECD and to the testimony of the police officers.
12

The defendants claim that “TASER only allowed its devices to be submitted to the

13 jury with the understanding they were inoperable.” (TASER’s New Trial Memorandum
14 at 13:1-2). It should be noted that at no time prior to the jury requesting the 8 AA
15 batteries, did any party or counsel advise the Court of any intention to render the ECD
16 inoperable. In fact, defense counsel were asked in open court whether they had advised
17 anyone of the fact that the AA batteries were inoperable and they all admitted they had not.
TASER further claims it was not given the opportunity to provide guidance to the
18
19 jury about the operation of its ECD nor permitted to cross-exam or rebut any information
20 about the operation of the ECD and the test results. TASER had ample opportunity
21 during the course of the trial to explain the ECD’s operational details, and in fact did so.
22 Similarly, TASER claims that the jury was intimidated or somehow psychologically
23 affected because of the test firing, and that these emotional reactions to the TASER caused
24 prejudice. This contention is pure speculation and has no merit. TASER offers no evidence
25 of any kind in this regard, nor any law to support such a wild claim.
Finally, the jury’s stated purpose in test firing the ECD was to “hear” the sound it
26
27 made. It is illogical to think that this inquiry was relevant to the plaintiff’s failure to warn
28 claim against TASER since the sound of the TASER would have nothing to do with such
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1 a claim. More likely, the jury’s reason for wanting to hear the sound of the TASER was
2 directed towards the conduct of the individual police officer defendants. It is reasonable
3 to conclude that once the jury heard the sound of the TASER, it was then able to resolve
4 conflicts in the trial testimony relating to the officers’ actions during their encounter with
5 Robert Heston and, specifically, the extent to which the ECDs were actually discharging
6 electricity during the critical 74-second period.
7

TASER has demonstrated neither impropriety nor prejudice as a result of the Court’s

8 allowing the jury to test fire the ECD. Its Motion for a New Trial on this ground should
9 be denied.
10

e.

The jury’s findings are supported by the evidence and are consistent and
completely reconcilable

11
12

TASER contends that it is entitled to a new trial on the ground that the “Special”

13 Verdict rendered by the jury was inconsistent. According to TASER, if the jury’s verdicts
14 are “ineluctably inconsistent,” the trial court must order a new trial. (TASER’s New Trial
15 Memorandum at 20:14-15. TASER’s Motion for a New Trial on this ground lacks merit
16 for two reasons: 1) the verdict itself is not only consistent but directly reflects the case
17 presented by plaintiffs, and 2) TASER waived its right to contest any inconsistency verdict
18 by failing to object prior to the jury being discharged.
19

When a jury’s verdict answers are inconsistent, the judge has a duty under the

20 Seventh Amendment to “harmonize” or “reconcile” them whenever possible. The trial
21 “court asks, not whether the [inconsistent] verdict necessarily makes sense under any
22 reading, but whether it can be read in light of . . . evidence to make sense.” (White v. Ford
23 Motor Co. 312 F3d 998, 1005 (9th Cir.2002).
1)

24
25

The Jury’s Answers to Questions 13 and 16 are Not Inconsistent

TASER’s specific challenge to the Verdict relies on the jury’s responses to Questions

26 13 and 16 on the Verdict form. TASER claims the responses to these two questions are
27 inconsistent because the questions are the essentially the same but were answered
28 differently.
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1

[W]hen confronted by seemingly inconsistent answers to the interrogatories

2

of a special verdict, a court has a duty under the seventh amendment to

3

harmonize those answers, if such be possible under a fair reading of them. A

4

court is also obligated to try to reconcile the jury’s findings by exegesis, if

5

necessary. Only in the case of fatal inconsistency may the court remand for

6

a new trial.

7 Floyd v. Laws, 929 F.2d 1390, 1396 (9th Cir. 1991) (citing; Gallick v. Baltimore & Ohio
8 R.R. Co., 372 U.S. 108 (1963) (citations omitted).
9

A closer reading of the two questions, in light of the evidence presented in this case,

10 establishes that they are not the same and, indeed, required very different evidence to
11 sustain.
12

Question 13 reads:

13

Do you find that, at the time TASER International manufactured and

14

sold TASER ECDs, a reasonably prudent manufacturer of an electronic

15

control device knew or reasonably should have known that the TASER ECD

16

was dangerous or likely to be dangerous because prolonged exposure to

17

electric shock from the device potentially causes acidosis to a degree which

18

poses a risk of cardiac arrest in a person against whom the device is deployed?

19 (emphasis added).
Question 16 reads:
20
21

Do you find that at the time TASER International manufactured and

22

sold TASER ECDs to the Salinas Police Department, TASER International

23

knew or it was knowable by the use of available scientific knowledge, that

24

prolonged exposure to shocks from TASER ECDs potentially causes acidosis

25

to a degree which poses a substantial danger, namely of causing a person

26

against whom the device is deployed to have a cardiac arrest?

27 (emphasis added).
The distinction between these two questions is obvious. Question No. 13 deals with
28
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1 the negligence aspect of a products liability failure to warn claim. The verdict response to
2 this question was “yes” – a decision based on the clear weight of the evidence
3

“Negligence law in a failure-to-warn case requires a plaintiff to prove that a

4 manufacturer or distributor did not warn of a particular risk for reasons which fell below
5 the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have
6 known and warned about.” (Anderson v. Owens-Corning Fiberglass Corp., supra, 53 Cal.
7 3d at1002)
8

Clearly, the jury concluded, based on the evidence, that acidosis was a theoretical risk

9 from prolonged ECD exposure, and that a reasonably prudent manufacturer before
10 marketing its new, higher powered ECD, should have tested for the possibility that it might
11 cause metabolic acidosis to such an extent that the acidosis could result in cardiac arrest.
12 Had TASER done such testing, the company then might have warned about this risk.
13

Question No. 16 added another component to the plaintiffs’ failure-to-warn claim.

14 Question 16 required plaintiffs to prove that a reasonably prudent manufacturer knew, or
15 it was knowable by the use of available scientific knowledge, of a particular risk associated
16 with the use of its product. “Available scientific knowledge” means the defendant did not
17 adequately warn of a potential risk, side effect, or allergic reaction that was “knowable in
18 light of the generally recognized and prevailing best scientific and medical knowledge
19 available.” (Carlin v. Superior Court, 13 Cal.4th 1104, 1112 (1996) (emphasis added))
20

The jury answered Question No. 16 “No” because it had already decided that

21 TASER unreasonably failed to perform the relevant testing for acidosis, and, therefore, “the
22 best scientific and medical knowledge available” did not exist on this critical issue. In other
23 words, the jury reasonably answered Question No. 16 “No” because the danger was not
24 “known” or “knowable” in the sense that one could research medical publications and
25 determine the effects of prolonged TASER discharges on blood acid. Answering Question
26 No. 16 “Yes” would have contradicted the jury’s finding on TASER’s unreasonable
27 disregard for the acidosis risk.
28 //////////
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Plaintiffs introduced the results of three peer-reviewed independent research studies

2 specifically measuring the physiological effects of TASER discharges on both humans and
3 swine. The first, conducted by Dr. James Jauchem, on behalf of the U.S. Air Force,
4 appeared in the scientific literature in November 2005, approximately eight months after
5 Mr. Heston’s death. Subsequent peer-reviewed research conducted by Drs. Vilke and
6 Dennis, appeared in the scientific literature in 2006 and 2007. Since this scientific
7 knowledge was not knowable to TASER at the time it manufactured and sold the ECDs
8 due to its own negligent failure to do the research, it is easy to understand why Question
9 No. 16 was answered in the negative.
10

It is clear that the answers to Questions 13 and 16 were completely consistent with

11 one another based on the state of the evidence introduced at trial by both plaintiffs and
12 TASER. TASER fails to appreciate the distinction between these two questions – one
13 founded in negligence and the other in strict liability.
The Court should have no trouble reconciling the answers and therefore denying the
14
15 New Trial motion.
Regardless, TASER waived its right to contest any alleged inconsistency in the
16
17 verdict by failing to raise the issue before the jury was discharged. A party waives any
18 objection to an inconsistent general verdict with special interrogatories if he or she fails to
19 object to the inconsistency before the jury is discharged. (Williams v. KETV Television,
20 Inc. 26 F3d 1439, 1442-1443 (8th Cir. 1994); Austin v. Paramount Parks, Inc. 195 F3d
21 715, 726 (4th Cir. 1999); Correia v. Fitzgerald, 354 F. 3d 47, 57 (1st Cir. 2003) (“failure
22 to object to . . . inconsistency while . . . jury is still in the box forfeit’s . . . objection”).
23

But, it is important to emphasize that even though plaintiffs contend that by failing

24 to object to the verdict while the jury was still impaneled, TASER waived its right to raise
25 this issue in its Motion for New Trial, the question need not be resolved inasmuch as there
26 is no inconsistency in the verdict.
27 /////////////
28 ///////
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Expert testimony is not required to prove a failure to warn claim where

2

evidence established that TASER gave no warning of any kind regarding

3

metabolic acidosis.

4

TASER claims that plaintiffs’ failure to call an expert witness in support of their

5 Failure to Warn claim justifies the granting of a new trial. This claim presupposes that
6 expert testimony on the subject was, in fact, necessary. It was not. In every case the court
7 must be guided by the general rules governing the use of expert testimony. If the fact
8 sought to be proved is one within the general knowledge of lay persons, expert testimony
9 is not required. (See: Truman v. Vargas 275 Cal. App. 2d 976 (1969)).
The court in Ewing v. Northridge Hosp. Medical Center, 120 Cal. App. 4th 1289
10
11 (2004), stated that there are circumstances, even if rare, in which negligence on the part of
12 a doctor is demonstrated by facts which can be evaluated by resorting to common
13 knowledge. In such a situation, expert testimony is not required since enhanced scientific
14 testimony is not essential for the determination of an obvious fact. (citing Franz v. Board
15 of Medical Quality Assurance, 31 Cal. 3d 124, 141 (1982)).
The court in Ewing went on to say that in cases where a layperson “is able to say as
16
17 a matter of common knowledge and observation that the consequences of professional
18 treatment were not such as ordinarily would have followed if due care had been exercised
19 . . . no expert testimony is required.” Id at 601. This reiterates the long held view that
20 expert opinion testimony is necessary only where the subject is sufficiently beyond common
21 experience that the opinion of an expert would be necessary to assist the trier of fact.
Here, the undisputed evidence proved that TASER never issued a warning to its
22
23 purchasers concerning the possibility that prolonged TASER discharges might cause
24 metabolic acidosis to such an extent that the acidosis might result in cardiac arrest.
25 TASER admitted as much in a seven-page “Training Bulletin” published on its web site
26 within a week of the verdict. A copy is attached to as Exhibit 1.
27

The jury verdict found a negligent failure to warn of the specific risk

28

of the metabolic effects of TASER device induced muscle contractions in
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1

exhausted, acidotic subjects such as Mr. Heston. On June 28, 2005, TASER

2

International issued revised warnings that included language about the risks

3

of extended, prolonged, or multiple TASER ECD applications on exhausted

4

or otherwise compromised subjects.

5

The Heston case occurred before those warnings were issued, hence a

6

failure to warn case for incidents after June 28, 2005 are highly unlikely to

7

find a failure to warn claim on this issue or any other known risk discussed

8

in those warnings.

9 Exhibit 1 at 5.
As previously discussed, the only warning ever issued by TASER concerning
10
11 prolonged TASER discharges was published in January 2005, approximately one month
12 prior to Mr. Heston’s death. However, this warning, buried deep in a PowerPoint
13 presentation, never mentioned the risk of metabolic acidosis, and was not delivered to the
14 Salinas Police Department, much less seen by the officers who shocked Mr. Heston.
In a case such as this where NO warning of any kind was ever given to its

15

16 purchasers, there was no need for plaintiffs to have called an expert to testify that no
17 warning was ever issued.
18

g.

W here the Jury concluded that acidosis brought on by TASER

19

discharges could cause cardiac arrest, the failure of TASER to give a

20

warning of this potentially life-threatening risk supported an award of

21

Punitive Damages.

22

The defendant incorrectly asserts that since the verdict form did not contain the

23 “clear and convincing” or “conscious disregard” standard applicable to punitive damage
24 awards, the verdict form was improper and a new trial should be granted.
25

The court should consider first whether the jury instructions were legally sufficient.

26 The defendant concedes that “the ‘clear and convincing’ and ‘conscious disregard’
27 standards were included in the Court’s closing instructions.” (TASER’s New Trial
28 Memorandum at 17:20-21) The court did not intend, nor was it necessary, for the verdict
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1 form to list each individual sub-issue and evidentiary burdens relevant to each claim.
The burden of proof for each claim was contained in the written jury instructions,
2
3 a copy of which was given to each and every juror. The verdict form was intended to be
4 read in conjunction with the jury instructions. TASER presents no evidence to suggest this
5 was not done. The instructions were not misleading and taken as a whole properly
6 informed the jury of the applicable law. Furthermore, the jury instructions submitted to
7 the jury allowed all the parties to argue their theory of the case.
In U.S. v. Reed, 147 F. 3d 1178 (9th Cir. 1998) , the court described verdict forms
8
9 as, in essence, additional instructions to the jury.
Here, the jury instructions and verdict from, taken together as a whole, more than
10
11 adequately covered all the issues presented, were not misleading or erroneous, and allowed
12 the parties to argue their theory of the case. Based on the facts presented, the jury
13 reasonably concluded that TASER’s failure to warn was wanton, malicious and in conscious
14 disregard of Robert Heston’s rights. As such, the award of punitive damages to deter
15 TASER from engaging in similar future misconduct should stand.
h.
Compensatory Damages Need Not Be Awarded in Order to Recover
16
17
18

Punitive Damages In Favor of a Decedent’s Estate
The jury was instructed as to the specific standard required to award punitive

19 damages in a case such as this one and rendered its decision according to those instructions.
20 Although this argument is discussed more fully in Plaintiffs’ Memorandum of Law in
21 Opposition to Defendant TASER’s Renewed and Supplemental Motion for Judgment as
22 a Matter of Law (JMOL) or Reduction in Punitive Damages, filed herewith, it should be
23 noted that substantial punitive damages are appropriate in wrongful death cases, because
24 proportionality is based on “harm” rather than pecuniary loss, and there is no “harm”
25 greater than the termination of a human life. (Romo v. Ford Motor Co., 113 Cal. App.
26 4th 738 (2003)).
27

The Romo court explained the rationale for its decision by stating that a small award

28 could simply be written off as a part of the cost of doing business and would have no
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1 deterrent effect. An award which affects the company’s pricing or affects its competitive
2 advantage would serve as a deterrent. More importantly, the court acknowledged the long
3 standing axiom that it would be unacceptable public policy to establish a system in which
4 it is less expensive for a defendant’s malicious conduct to kill rather than injure a victim.
5

TASER fails to cite a single authority for the proposition that “since there was no

6 proven compensatory damages [to the estate], the award of $200,000 in punitive damages
7 also fails.” (TASER’s New Trial Memorandum at 25:4-5) (In fact, compensatory general
8 damages were “proven,” they just did not survive. The burial expenses did and were
9 properly awarded to the estate.)
However, it does cite the case of County of Los Angeles v. Superior Court

10

11 (Schonert) 21 Cal. 4th 292, 304 (1999) ,which holds, contrary to their argument, that
12 “under California’s survival law, an estate can recover not only the deceased plaintiff’s lost
13 wages, medical expenses, and any other pecuniary losses incurred before death, but also
14 punitive or exemplary damages.”
15

TASER’s argument is a legal Catch-22. Punitive damages must be proportional to

16 the compensatory damages actually recovered, but compensatory damages do not survive
17 under California law, therefore neither do punitive damages, although both statute and case
18 law say they do survive. Garcia v. Superior Court (County of Los Angeles), 42 Cal. App.
19 4th 177 (1996), specifically rejects this conundrum. Declining to follow federal law
20 which allows for the survival of general damages in section 1983 death cases (and hence the
21 basis for their inclusion on the Court’s general verdict form), the court of appeal ruled
22 regarding a section 1983 claim in state court “The deterrent purpose of the federal Civil
23 Rights Act is satisfied, we believe, by the fact that Code of Civil Procedure section 377.34
24 expressly allows punitive damages the decedent would have been entitled to recover had he
25 survived,” noting that “though the statute does not permit the estate to recover specific
26 damages for decedent’s pain and suffering, California law permits the estate representative
27 to seek punitive damages for violation of decedent’s rights.” Id. at 185.
28 /////////
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TASER’s claim that the Estate of Robert C. Heston is not entitled to an award of

2 punitive damages has no basis in fact nor law and should be rejected.
i.
Evidence adduced at trial clearly established that TASER Manufactured
3
4

and sold the ECDs used by the Salinas Police Officers during their

5

restraint of Robert C. Heston

6

Finally, as sort of a throw-away line, TASER argues that plaintiffs failed to produce

7 evidence that TASER manufactured and sold the particular ECDs used by the Salinas
8 Police Department during this incident. At no point during the entirety of the trial or
9 litigation did TASER’s counsel ever raise this issue, and it is injudicious for them to do so
10 now.
11

Ample evidence during the course of the trial established that the Salinas Police

12 Department investigated TASER brand ECDs prior to purchasing them.
Sgt. Michael Groves, who was one of the Salinas officers assigned to investigate
13
14 ECDs for the Department, testified that based on his findings and a decision of the City
15 Council the Salinas Police Department proceeded with the purchase of a large number of
16 TASER Model M26s (no other manufacturer produces an ECD known as a Model M26.)
17 The M26s were purchased directly from TASER in 2004, the ECD introduced into
18 evidence had “TASER” written on it, and the Salinas Police Department relied on the
19 training materials provided by TASER to train its own officers how to operate the device.
20
21

No objection was ever made to the introduction of this evidence.
It should also be noted that TASER’s proposed Special Verdict form included the

22 following language:
“The parties have stipulated that TASER International, Inc. (“TASER”)
23
24

manufactured the TASER m26 Electronic Control Device (“M26 ECD”)

25

which was used on Mr. Robert C. Heston, Jr.”

26

The evidence clearly established that TASER manufactured and sold the M26 ECDs

27 used during this incident as well as the approximate date that the ECDs were first delivered
28 to the Salinas Police Department.
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

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1 4.

TASER’S TRIAL STRATEGY WAS INTENDED TO INSULATE THE

2

PO LICE OFFICER DEFENDANTS FROM INDIVIDUAL LIABILITY

3

AND THIS GOAL WAS ACHIEVED.

4

On June 12, 2008, within days of the verdict, TASER published a seven-page

5 “Training Bulletin” on its web site and, presumably, emailed it to customers. A copy of
6 this bulletin is attached to as Exhibit 1. The bulletin explains TASER’s trial strategy as
7 follows:
“TASER International worked carefully and cooperatively with the Salinas
8
9

Police Department in developing a joint litigation strategy to ensure that the

10

most important parties, the police officers involved (who were facing

11

exorbitant personal punitive damages), were not ‘scape-goated’ in any way.

12

This strategy included TASER International taking some additional risks at

13

trial, a strategy that we believe is the right thing to do.”

14 TASER Training and Legal Bulletin 14.0-5, Page 5, ¶ 2.
The Court should take this missive into account when deciding the new trial
15
16 motion. Given TASER’s decision to “fall on the sword” to protect its customer base, any
17 new trial order should include all parties and claims, and not just plaintiffs’ claims against
18 TASER.
19 //////////
20 //////
21 ///
22
23
24
25
26
27
28
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1 5.

CONCLUSION

2

TASER has offered no evidence to establish that the jury’s verdict is against the clear

3 weight of the evidence, is based upon evidence which is false, that the verdict will result in
4 a miscarriage of justice, or that a mistake has been committed by the jury. For these
5 reasons, TASER’s motion for a new trial should be denied, and judgment entered on the
6 verdict.
7 DATED: August 25, 2008
8

Respectfully submitted,

9

THE LAW OFFICES OF JOHN BURTON

10

WILLIAMSON & KRAUSS

11
12
13

BY: /s/ PETER M. WILLIAMSON
Attorneys for Plaintiffs

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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DECLARATION OF PETER M. WILLIAMSON

1
2

I, PETER M. WILLIAMSON, declare:

3

1.

That I am an attorney at law duly licensed to practice before all the Courts of

4 the State of California and am a member of the Bar of this Court. I am co-counsel, along
5 with John Burton, on behalf of the plaintiffs herein.
6

3.

If duly sworn, I could and would testify to the following facts of my own

7 personal knowledge.
4.
That on June 12, 2008, TASER published a seven-page “Training Bulletin”
8
9 (TASER Training and Legal Bulletin 14.0-5) on its web site which I downloaded directly
A copy of this bulletin is attached to plaintiff’s Opposition to TASER’s
10 therefrom.
11 Motion for a New Trial as Exhibit “1”.
5.
I can further attest to the fact the excerpted portions of TASER’s Training
12
13 and Legal Bulletin 14.0-5 are true and correct.
I declare under penalty of perjury, pursuant to the laws of the United States, that the
14
15 foregoing is true and correct.
Executed this 25 th day of August, 2008 at Tarzana, California.
16
17
18

/s/ PETER M. WILLIAMSON
Peter M. Williamson

19
20
21
22
23
24
25
26
27
28
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO TASER’S MOTION FOR NEW TRIAL
– N.D. Cal. Case No. C 05-03658 JW (RS)

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III. Handling Strip Search Cases: Panel Discussion
____________________________________________________
Materials:
Strip Searches and the Fourth Amendment Rights of Prisoners
Howard Friedman
Response to Motion to Dismiss
Order re Plaintiff’s Motion for Partial Summary Judgment
Plaintiff’s Proposed Strip Search Policy
Julia Sherwin

Presenters:
Howard Friedman, Law Offices of Howard Friedman, Boston, MA
Julia Sherwin, Haddad & Sherwin, Oakland, CA
Marian Meier Wang, Emery, Celli, Brinckerhoff & Abadi LLP, New York, NY

Strip Searches and the Fourth Amendment Rights
of Prisoners

by Howard Friedman
Law Offices of Howard Friedman, P.C.
Boston, Massachusetts

The author thanks Mark Hentz, Esq. for his assistance on this paper.

TABLE OF CONTENTS
Page
I.

Introduction..........................................................................................................................1
A. Bell v. Wolfish - Individualized Reasonable Suspicion ....................1

II.

What is a Strip Search? ........................................................................................................3
A.
B.
C.

III.

Correctional Administrator=s Definition ..........................................4
Statutory Definition .........................................................................4
Fourth Amendment Definition.........................................................4
1.
Application of the Fourth Amendment Definition...............4
a.
Complete nudity is not required...............................4
b.
Observation while using bathroom ..........................6
c.
Observation during a changeover, dress-out
or clothing search.....................................................6
d.
Vermin inspection....................................................7
e.
Touching bare body parts.........................................8
f.
Intent Required.........................................................8

Fourth Amendment Standard...............................................................................................8
A.

B.

The Plaintiff=s Status as Pre-Arraignment, Pre-Trial, or
Post-Conviction Changes the Balance .............................................8
1.
Admission to the General Population ..................................9
2.
Before Arraignment or a First Court Appearance................9
a.
Default warrants.....................................................11
b.
Parole or probation violations................................11
2.
Post-Arraignment-Awaiting-Bail.......................................12
3.
Pre-Trial Inmates ...............................................................12
4.
Former Inmates, Released After Court
Proceedings ........................................................................13
5.
Convicted Prisoners ...........................................................14
6.
Juveniles.............................................................................14
Cause to Support a Strip Search.....................................................14
1.
Factors To Be Considered..................................................15
2.
The Nature of the Criminal Charge ...................................15

i

D.

E.

F.
G.
H.
I.
J.
K.
L.
M.

a.
The charge alone may be enough...........................15
b.
Traffic violations and minor offenses ....................15
c.
Drug charges ..........................................................16
d.
Crimes involving violence .....................................16
e.
Misdemeanor/felony distinction ............................18
3.
The Characteristics of the Arrestee ...................................18
a.
Criminal History as a Basis for Reasonable
Suspicion................................................................18
b.
Individual Characteristics of Arrestees..................19
4.
Circumstances of Arrest.....................................................19
5
Contact with Outsiders.......................................................20
6
Stripping Inmates Naked for Suicide Prevention or
Prevention of Rowdiness ...................................................20
Reasonable Manner........................................................................21
1.
No Touching by the Officer...............................................21
2.
Limits on Instructing the Person to Touch Himself...........21
3.
Derogatory Comments .......................................................22
4.
No More People than Necessary........................................22
5.
Strip Search By Opposite Sex Offender ............................23
6.
Videotaping a Strip Search ................................................23
Reasonable Place ...........................................................................24
1.
Outside ...............................................................................25
2.
In a Police Vehicle .............................................................25
3.
Rooms with a View............................................................25
4.
Group Strip Searches .........................................................26
Strip Searches of Convicted Prisoners...........................................26
Physical Body Cavity Searches .....................................................29
Equal Protection.............................................................................29
Effectiveness of Intake Strip Searches...........................................30
Qualified Immunity for Strip Searches ..........................................31
Class Action Challenges to Strip Search Policies..........................33
Damages for Unlawful Strip Searches...........................................34
The Effect of the PLRA on Strip Search Litigation.......................34

ii

FOURTH AMENDMENT RIGHTS OF PRE-TRIAL,
PRE-AND POST-ARRAIGNMENT DETAINEES
I.

INTRODUCTION
In 1984 the Supreme Court held that prisoners have no privacy interest protected by the
Fourth Amendment in their prison cell. Hudson v. Palmer, 468 U.S. 517 (1984). This is
still the law. As discussed below, convicted prisoners have very limited Fourth
Amendment rights. But without saying that a different standard applies, pre-arraignment
detainees, detainees waiting for their first court appearance, and pre-trial detainees have
been found to have a more significant fourth amendment expectation of privacy in their
bodies. The Constitution limits strip searches of these people. These materials discuss the
contours of this right.
A.

Bell v. Wolfish - Individualized Reasonable Suspicion
The Fourth Amendment guarantees that A[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.@ The question is when is a strip search
unreasonable?
The now heavily litigated area of the constitutionality of strip searches began with
Bell v. Wolfish, 441 U.S. 520 (1979). Bell was a challenge to conditions at the
federal detention center in New York City designed to hold pre-trial detainees.
The plaintiffs challenged the policy of strip searching prisoners after contact
visits. The Supreme Court=s majority opinion written by Justice Rehnquist said
the practice Ainstinctively gives up the most pause@ but went on to find these strip
searches to be reasonable under the Fourth Amendment. The Court held:

1

The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In each
case, it requires a balancing of the need for the particular search
against the invasion of personal rights that the search entails.
Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it,
and the place in which it is conducted.
The justification for the search is the most frequently litigated issue, but even if a
strip search is justified, it may be unconstitutional if it is conducted in an
unreasonable manner or place.
Bell held that pre-trial detainees could be strip searched after a contact visit. After
Bell the lower courts began to applying its reasoning to intake strip searches of
people who had just been arrested and had yet to go to court for a determination
of bail l . The first cases after Bell held that blanket strip search policies of
arrestees at a police station or on admission to detention facilities were
unconstitutional. The courts reasoned that most people do not start their day
planning to be arrested. The courts quickly agreed that an admission strip search,
at least of a minor offender can take place if the police or corrections officers has
a reasonable suspicion to suspect the person has concealed contraband. The initial
cases were brought by people charged with minor offenses. Thus, the holdings
were limited to the rights of detainees held on such minor offenses. See Tinetti v.
Wittke, 479 F.Supp 486 (E.D. Wisc. 1979), aff=d, 620 F.2d 160 (7th Cir.
1980)(speeding); Logan v. Shealy, 590 F.2d 1224 (4th Cir. 1981)(operating under
the influence); Tikalsky v. City of Chicago, 687 F.2d 175 (7th Cir.
1982)(disorderly conduct); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th
Cir. 1983)(women charged with traffic, regulatory, or misdemeanor offenses);
Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984)(warrant for an outstanding speeding
ticket and violation of a restriction on driver=s license.); Giles v. Ackerman, 746
F.2d 614 (9th Cir. 1984)(warrant for outstanding parking tickets); Stewart v.
Lubbock County, 767 F.2d 153 (5th Cir. 1985)(arrest for misdemeanors
punishable only by fines, public intoxication and an outstanding warrant for
issuing a bad check, following a routine traffic stop); Jones v. Edwards, 770 F.2d
739 (8th Cir. 1985)(summons for a violation of the local leash law); Weber v.
Dell, 804 F.2d 796 (2nd Cir. 1986)(misdemeanors for false report and resisting
arrest) Watt v. City of Richardson Police Department, 849 F.2d 195 (5th Cir.
1988) (warrant for failing to register a dog violating a city ordinance).
1

This group is referred to as arrestees or pre-arraignment detainees, typically it includes
people arrested on default warrants and those held on non-criminal material witness warrants.
2

The first reported case after Bell to challenge an admission strip search conducted
without any evaluation for cause was Tinetti v.Wittke, 479 F.Supp 486 (E.D.
Wisc. 1979), aff=d, 620 F.2d 160 (7th Cir. 1980). The Tinetti court relied on an
unpublished case from New York, Sala v. County of Suffolk, (E.D.N.Y.
11/28/78), in which one of the plaintiffs had been arrested for failure to pay a
speeding fine and the other plaintiff for failing to respond to a summons which
had been sent to the wrong address. The district judge in Sala, stated:
Here on one side of the balance scale we have the intrusion into personal
dignity and privacy in a way that for some people at least might cause
serious emotional distress. A search of (this) . . . type . . . including the
visual inspection of the anal and genital areas, has been characterized by
various witnesses here, and by judges in some other cases, as demeaning,
dehumanizing, undignified, humiliating, terrifying, unpleasant,
embarrassing, repulsive, signifying degradation and submission . . ..
This language describing strip and visual body cavity searches was repeated in
Tinetti and has become the standard description adopted by most courts.
The decisions in these materials describe well-settled law but in September 2008 a
split developed in the circuit courts which could lead to a decision on this issue by
the Supreme Court. On September 4, 2008, the 11th Circuit sitting en banc broke
with its own precedent in Powell v. Barrett, F.3d , 2008 WL 4072800 (11th Cir
2008) and created a split in the Circuits based on their reinterpretation of the
Supreme Court=s 1979 decision in Bell v. Wolfish, 441 U.S. 520 (1979). The 11th
Circuit has some support from an unlikely place, the 9th Circuit. Bull v. City and
County of San Francisco. 539 F.3d 1193 (9th Cir. 2008). This panel decision
upheld district judge Breyer=s ruling that blanket strip searches are
unconstitutional but a dissent by Judge Tallman argued that the appellate courts
had lost sight of the meaning of Bell, and the concurring opinion by Judge Ikuta
agreed that precedent in the circuit required affirmation but made it clear that she
favored hearing en banc starting his opinion stating: AWhile compelled by Ninth
Circuit case law, the disposition is in tension with Supreme Court precedent.@ll

II.

WHAT IS A STRIP SEARCH?
The term Astrip search@ has different meanings to correctional administrators and officers
than it does to lawyers. It is essential to understand these differences so that lawyers,
clients and witnesses can meaningfully communicate with one another. A corrections
employee may honestly state that a person was not strip searched, although the person

ll

I understand that the defendants will be requesting a rehearing en banc which is likely to be granted in light of
Powell.

3

was required to remove all of his clothing and was viewed while naked, because this
procedure is not defined as a Astrip search@ in the institution=s policies. Further muddling
the definition, many states have statutes that purport to define strip searches. Lawyers can
confuse the issue as well by using the term strip search to refer to any procedure that
requires individualized reasonable suspicion, including, for example, searches of an
individual=s body cavities.
A.

Correctional Administrator=s Definition
When prison or jail administrators refer to a strip search, they are typically talking
about a search that involves the examination of an inmate=s body conducted in a
prescribed order and involving specific areas of the inmate=s body. These areas
usually include the mouth, hair, armpits, fingers, toes, soles of the feet, and groin
area. This is typically the definition contained in the institution=s policy manual.

B.

Statutory Definition
Many states statutorily define strip searches. The plaintiff in Stanley v. Henson,
337 F.3d 961 (7th Cir. 2003), pointed to 14 states= definitions, including Illinois
(725 ILL. COMP. STAT. 5/103-1(d)), Florida (F.S.A. ' 901.211), Ohio (R.C.
'2933.32) and Michigan (M.C.L.A. 764.25a). It is imperative to remember that
just because a department or state has a definition, the definition may not be
constitutionally appropriate.

C.

Fourth Amendment Definition
Under the fourth amendment, the term strip search typically refers to a search that
requires exposure of a portion of a person=s body that is ordinarily private. For
example, one court has stated that Ainclude[d] within the term strip search [is] any
exposure or observation of a portion of a person=s body where that person has a
>reasonable expectation of privacy.=@ Doe v. Calumet City, 754 F.Supp. 1211,
1216 n.9 (N.D. Ill. 1990). The Doe court went on to hold that A[t]here is simply no
question that plaintiffs had a reasonable expectation of privacy in those private
parts. Deeply imbedded in our culture Y is the belief that people have a reasonable
expectation not to be unclothed involuntarily, to be observed unclothed or to have
their >private= parts observed or touched by others.@ Id. at 1218. The parts of a
person=s body where there exists a reasonable expectation of privacy are not
universally agreed upon. Some courts include only the genitals, buttocks and, for
females, breasts, while others include bare skin when it is visible only if forcibly
shown.
1.

Application of the Fourth Amendment Definition
a.

Complete nudity is not required

4

Under the Fourth Amendment, a strip search may take place even
though the person is not required to remove all of his or her
clothing. For example, in Masters v. Crouch, 872 F.2d 1248 (6th
Cir. 1989), the plaintiff was initially required to unbutton her
blouse and expose her chest for inspection and later was required
to completely disrobe and submit to a visual body cavity
inspection. The Sixth Circuit noted that there were two incidents
and that Aeither would be treated as a strip search if it occurred
alone.@ Id. at 1253. See also, Mason v. Village of Babylon, 124
F.Supp.2d 807 (E.D.N.Y. 2001)(The plaintiff was ordered to raise
her shirt and expose her bra. She was then asked to pull out, but
not remove, her bra so as to dislodge anything that might be hidden
underneath. She was also asked to lower her pants to her thighs.
While she was not asked to remove her underwear, she was
required to reposition them. This was analyzed as a strip search.);
Gonzalez v. City of Schenectady. 141 F.Supp.2d 304 (N.D.N.Y.
2001); Huck v. City of Newburgh, 712 N.Y.S.2d 149 (N.Y. App.
2000)(The plaintiff was asked to remove all her outer garments
and, while in her underwear, she was asked to lift her bra exposing
her breasts. The court analyzed this as a strip search.). The First
Circuit noted that Aprecedent does not require that a search be
either prolonged or thorough to be termed a strip search.@ Wood v.
Hancock County, 354 F.3d 57, 63 (1st Cir. 2003). In a case
involving the search of student in a school the Ninth Circuit agreed
that requiring her to strip to her bra and underwear and to shake
her undergarments was a strip search. Redding v. Stafford Unified
School District 541 F.3d 1071, 1081 (9th Cir. 2008).
To make matters more confusing for non-lawyers, the term strip
search is at times used as legal shorthand to refer to any search that
is so intrusive that it requires individualized reasonable suspicion.
See, e.g., Justice v. City of Peachtree, 964 F.2d 188, 191 (11th Cir.
1992)(Requiring a 14 year-old girl to strip down to her underwear
because the officers suspected her of concealing drugs on her
person was found to be a strip search under this definition.). In
Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir. 2000), the
court found that a person has a reasonable expectation of privacy
in the upper body and any tattoos on the upper body. Thus, an
order by a policeman that the plaintiff remove his shirt to permit
photographing of a tattoo on his chest violated his fourth
amendment rights. This was true even though the plaintiff had
been seen wearing a tank top that exposed most of the tattoo in
5

public on numerous occasions. Some courts have generally
referred to a person=s right not to be involuntarily required to
disrobe. See Justice v. City of Peachtree City, 964 F.2d 188 (11th
Cir. 1992). Stanley v. Henson, 337 F.3d 961(7th Cir. 2003) (held
that a policy requiring detainees to strip to their underwear is
analyzed as a strip search but found the policy to be reasonable).
b.

Observation while using the bathroom
Courts have required individualized reasonable suspicion when
police officers observe a detainee using the bathroom, even if the
officer did not ask the person to disrobe. See DiLoreto v. Borough
of Oaklyn, 744 F.Supp. 610, 620 (D.N.J. 1990). Note, however,
that observation may be considered reasonable while a person is
giving a urine sample for a drug test.

c.

Observation during a changeover, dress-out or clothing search
A changeover, or dress-out, is the process during admission, into a
detention facility where a detainee is required to remove his or her
street clothing and get dressed in a uniform. The process may be
accompanied by a strip search and/or delousing. Observation of
inmates during a changeover, or dress-out, may require
individualized reasonable suspicion. For example, in Doan v.
Watson, 168 F.Supp.2d 932 (S.D. Ind. 2001), the observation of
misdemeanor arrestees while showering and delousing prior to
being dressed in prison-issued uniforms by officers who were
specifically instructed to examine the prisoners= entire bodies for
contraband, was found to violate the prisoners= Fourth Amendment
rights. The specific instruction to prison officers to examine the
inmates= bodies was viewed as a blanket strip search policy.
Observation of a detainee while she changed into a jail-issued
uniform was characterized as a strip search in Burns v. Goodman,
2001 WL 498231 (N.D. Tex. May 8, 2001), aff=d, 2002 WL
243248 (5th Cir. Jan. 16, 2002), cert. denied, 537 U.S. 840 (2002).
In Burns, a male corrections officer observed the plaintiff, a female
detainee, change into a prison-issue dress. Such observation was in
violation of the facility=s policy, although there was evidence that
such observation was common practice. The court acknowledged
that if Athis was the customary practice, it would constitute a strip
search.@ Id. at *5.

6

A similar episode ended in a different result in Stanley v. Henson,
337 F.3d 961 (7th Cir. 2003). The plaintiff was arrested for
assaulting a police officer. Jail policy required that all detainees
who were not to be released on their own recognizance be changed
into jail-issue uniforms and for a same-sex officer to observe the
changeover. The policy allowed detainees to leave their
undergarments on. However, the plaintiff was not wearing a
brassiere at the time of her arrest, so the changeover resulted in the
exposure of her bare breasts. The court analyzed the changeover as
a strip search, but found it to be a relatively minimal intrusion,
pointing to the brief period of observation/exposure, the policy that
undergarments may remain on, and the fact that there was no
touching by the officer. The court found this minimal intrusion to
be justified because Stanley was arrested for assaulting a police
officer and her jailers knew nothing of the circumstances of her
arrest. The court focused on the reasonableness of the policy in
general rather than its effect on the plaintiff.
d.

Vermin inspection
Some facilities inspect the bodies of detainees for vermin and/or
delouse new detainees. In Skurstenis v. Jones, 236 F.3d 678 (11th
Cir. 2000), the court upheld as reasonable a physical examination
of the plaintiff by an opposite gender nurse=s assistant. The search
consisted of the male nurse=s assistant running his fingers through
plaintiff=s cranial and pubic hair. The Eleventh Circuit held that Ait
is not inappropriate for medical personnel to conduct a strip search
of an inmate of the opposite sex.@ Id. at 684. Unusual in this case
was the fact that Skurstenis was not searched until shortly before
she left the jail. The court dismissed this oddity as acceptable,
given that the medical personnel were previously unavailable to
perform the examination. Further, the court noted that the Sheriff=s
office was specifically charged by the Alabama legislature to
Aexercise every precaution to prevent the spread of disease among
the inmates.@ Alabama Code '14-6-95. The spread of lice, which
was apparently prevalent amongst inmates in Alabama, was of
particular concern.
One must wonder how effective a disease prevention program is if
detainees are not searched upon admission to the facility. While
physical or visual examinations of detainees= naked bodies for
vermin are generally upheld, the details of the procedure should be

7

carefully examined. Such a search represents a tempting subterfuge
to skirt the limitations on strip searches.

III.

e.

Touching bare body parts
Courts apply the individualized reasonable suspicion standard for
searches in which a detainee is subjected to touching of the
genitals, buttocks or, for women, bare breasts. Courts utilize the
body of law developed for strip searches to analyze such cases,
even though this physical touching is more than a strip search. See
Schmidt v. City of Lockport, 67 F.Supp.2d 938 (N.D. Ill. 1999).
While a pat search through clothing may be conducted as part of an
intake procedure, touching a person=s bare body requires at least
reasonable suspicion.

f.

Intent Required
The fact that a law enforcement officer views a person=s naked
body does not, by itself, mean that a strip search has taken place.
The viewing must be part of a search procedure, rather than
inadvertent or accidental viewing. Accidental viewing, sometimes
called incidental, occurs when an officer who is not involved in a
search unintentionally or unavoidably views a person=s naked
body. For example, an officer may walk past a shower while a
person is exiting. The First Circuit requires an Ainspection,@ which
is defined to include Aformal or official viewing or examination.@
Wood v. Hancock County, 354 F.3d 57 (1st Cir. 2003). Wood held
that the officer=s intent is not controlling. A district court recently
held that the only intent required is the intent to search. See
Blihovde v. St. Croix County, 2003 WL 23139401 (W.D. Wisc.
2003). The fourth amendment applies only to unreasonable
searches, so the viewing must be part of a process aimed at
detecting contraband. Of course, as discussed above, changing the
stated purpose in an attempt to evade the constitutional
requirements is unlikely to succeed.

FOURTH AMENDMENT STANDARD
A.

The Plaintiff’s Status as Pre-Arraignment, Pre-Trial, or Post-Conviction
Changes the Balance

8

The standard for evaluating reasonableness does not change as a detainee=s status
changes, but the balance of interests articulated in Bell does. As the level of
judicial process an inmate receives increases, the balance shifts further in favor of
institutional security concerns. The interaction between the status of the
individual detainee and the nature of the institution where the inmate is being held
must also be kept in mind and will be discussed later in these materials.
At the pre-arraignment and post-arraignment-awaiting-bail stages, the nature of
the crime with which an individual is charged plays a role in establishing the
standard for justifying a strip search, as will be discussed shortly. By the time an
inmate is being held pending trial or serving a sentence, the specifics of the crime
are not a factor and the standard depends more on the detainee=s status and the
nature of the facility holding the detainee.
1.

Admission to the General Population
Typically detainees awaiting a first court appearance are held in a police
lock-up or a county jail separate from other prisoners. Our smallest state,
Rhode Island, established a Aunified@ system in which such detainees were
held in an intake facility, which was classified as a maximum security
prison, and where the detainees were mixed with the general prison
population. The First Circuit rejected the claim that this intermingling
provided a basis for strip searching the detainees because it was
Ainherently limited and avoidable@ and the security interests of a facility do
not always outweigh the privacy interests of detainees. Roberts v. Rhode
Island, 239 F.3d 107 (1st Cir. 2001). Other courts agree. Calvin v. Sheriff
of Will County, 405 F.Supp. 2d 933 (N.D. Ill. 2005); Cruz v. Finney
County, 656 F. Supp 1001 (D.Kan. 1987) However, other courts have
held that pre-arraignment detainees can be strip searched without
evaluating for reasonable suspicion before the detainee is to be placed in
the general population of a jail. Evans. Stephens, 407 F.3d 1272 (11th Cir.
2005) (en banc); Gustafson v. Polk County Wis., 226 F.R.D. 601 (W.D.
Wis. 2005).

2.

Before Arraignment or a First Court Appearance
Policies involving routine strip searches upon admission of people who
have just been arrested and are waiting for bail to be set or for a first court
appearance have been held unconstitutional, in part because such
individuals do not typically plan to be arrested. In Roberts, the First
Circuit noted that Athe deterrent rationale for the Bell search is simply less
relevant given the essentially unplanned nature of an arrest and subsequent
incarceration.@ Id. at 111. The Ninth Circuit expressed a similar view in
9

Giles v. Ackerman, stating Athere is no indication whatsoever that the
county=s strip search policy could or did have any deterrent effect. Visitors
to the detention facility in Bell could plan their visits and organize their
smuggling activities. In contrast, arrest and confinement in the Bonneville
County Jail are unplanned events, so the policy could not possibly deter
arrestees from carrying contraband.@ Id. at 617.
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983),
challenged Chicago=s practice of strip searching women arrested on
misdemeanor offenses before admitting them to city lock-ups to await
bail. The Seventh Circuit acknowledged that strip searches are invasive
stating, Awe can think of few exercises of authority by the state that intrude
on the citizen=s privacy and dignity as severely as the visual anal and
genital searches practiced here.@ Id. at 1272. This extreme invasion of
privacy weighed heavily on one side of the balancing test established in
Bell, requiring the City to demonstrate a strong need for the searches. The
court recognized that Athe more intrusive the search, the closer
governmental authorities must come to demonstrating probable cause for
believing that the search will uncover the objects for which the search is
being conducted.@ Id. at 1273. Authorities must have a specific reasonable
suspicion that an arrestee is concealing contraband to outweigh the
extreme intrusion involved in strip searching an arrestee. See id.
The nature of the reasonable suspicion necessary to constitutionally strip
search a pre-arraignment detainee was discussed in Kelly v. Foti, 77 F.3d
819 (5th Cir. 1996). AA strip search is permissible only if the official has
an individualized suspicion that the arrestee is hiding weapons or
contraband. This suspicion must relate to the individual arrestee, not a
category of offenders and does not arise merely because an arrestee fails to
post bond immediately and police move him to general population. In
short, pure speculation does not create a reasonable suspicion; nor does a
generalized fear of a category of arrestees.@ Id. at 822 (citations omitted).
This general standard has been widely embraced. See, e.g., Wilson v.
Jones, 251 F.3d 1340 (11th Cir. 2001)(holding unconstitutional the strip
search of DUI arrestee detained until blood alcohol level diminished);
Weber v. Dell, 804 F.2d 796, 804 (2nd Cir. 1986) (AWe conclude that a
reasonable suspicion that an accused misdemeanant or other minor
offender is concealing weapons or other contraband B suspicion based on
the particular traits of the offender, the arrest and/or the crime charged B is
necessary before subjecting the arrestee to the indignities of a strip/body
cavity search.@); Chapman v. Nichols, 989 F.2d 393 (10th Cir.

10

1993)(holding unconstitutional the strip searches of women arrested for
traffic offenses and not suspected of having concealed weapons or drugs).
a.

Default warrants
Many cases challenging strip search policies have been brought by
people arrested on default warrants. While some people may have
defaulted after their first court appearance, these individuals are
treated the same as pre-arraignment detainees. See Masters v.
Crouch, 872 F.2d 1248 (6th Cir. 1989)(default warrant for failing
to appear for a traffic hearing); Hill v Bogans, 735 F.2d 391 (10th
Cir. 1984)(arrest on a bench warrant for failing to appear at a
hearing for traffic offenses).

b.

Parole or probation violations
Since many courts have held that, in some instances, a criminal
charge itself can provide reasonable suspicion to support a strip
search, it is necessary to determine how to treat an arrest for parole
or probation violations. An arrest for violating probation or parole
is distinct from the underlying offense that resulted in the
imposition of probation or parole in the first place. A violation can
include a wide range of conduct, including acts that are not crimes,
such as missing an appointment with a parole officer, as well as
acts that could indicate criminal conduct, such as a positive drug
test. The nature of the probation violation itself and not just the
fact that there has been a violation, must play a role in determining
whether reasonable suspicion exists to justify a strip search.
The issue of strip searches of probation violators is discussed in
Silvia v. Clackamas County, 2001 WL34039482 (D. Or. Nov. 14,
2001). Clackamas County argued that strip searches of probation
violators should be evaluated using the standard for convicted
prisoners. The County reasoned that the violation resulted in the
reimposition of the original sentence, rendering the plaintiff a
prisoner. The court rejected this contention, holding instead that
Aprobation violations relate to conduct which is separate and apart
from the conduct underlying the original conviction.@ The court
applied the standard for pretrial detainees in evaluating the strip
search of the plaintiff. The notion that a probation violation alone
is not an automatic justification for a strip search was embraced in
Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002). The
Dodge court granted a preliminary injunction prohibiting the
Orange County Correctional Facility from maintaining its current
11

strip search policy, holding that, based on the information before it,
A[b]eing admitted for a violation of probation or parole does not in
and of itself provide individualized reasonable suspicion.@ Id. at
77. A probation violation is a factor that may be considered in
forming the reasonable suspicion necessary to justify a strip search,
but is not itself automatic justification for a strip search.
2.

Post-Arraignment-Awaiting-Bail
Once bail has been set, individuals may be detained while waiting to post
bail. In Wachtler v. County of Herkimer, 35 F.3d 77 (2nd Cir. 1994), the
plaintiff was arrested for obstructing governmental administration, a
misdemeanor, when he refused to answer an officer=s questions during a
routine traffic stop. Wachtler was taken before the nearest available judge,
bail was set and he was taken to the county jail. As part of processing
Wachtler into the jail, he was strip searched and placed in solitary
confinement. Overturning the district court=s dismissal of Wachtler=s
claim, the Second Circuit applied the basic misdemeanant standard
holding that, Aif the standard procedure included routine strip-searches of
misdemeanor arrestees, absent reasonable suspicion of weapons or
contraband, and if no reasonable suspicion concerning Wachtler=s
possession of such items existed, then Wachtler would prevail.@ Id. at
82.In Shain v. Ellison, 273 F.3d 56, 64 (2nd Cir. 2001) the court affirmed
that, even after an arraignment, a misdemeanor arrestee cannot be strip
searched without reasonable suspicion.

3.

Pre-Trial Inmates
The balance between a detainee=s privacy rights and a detention facility=s
need to strip search detainees shifts when detainees are held pending trial,
as demonstrated by the decision in Bell. Bell addressed challenges to a
variety of prison procedures brought by pre-trial detainees at a short-term
federal detention facility, including strip searches of detainees after
contact visits. The Court emphasized the status of pretrial detainees,
noting that Aa person in the federal system is committed to a detention
facility only because no other less drastic means can reasonably ensure his
presence at trial.@ Bell, 441 U.S. at 1866. The Court further cautioned that
A[a] detention facility is a unique place fraught with serious security
dangers.@ Id. at 1884. Given the deference that must be provided to jail
administrators, it is not surprising that the Court upheld the strip search
policy which was reasonably limited to searching inmates after they had
an opportunity to obtain contraband during contact visits.

12

The importance of taking into account the dangers inherent in a pre-trial
detention facility and inmates held pending trial is highlighted in Shain v.
Ellison, 273 F.3d 56 (2nd Cir. 2001). In Shain, a family court judge
ordered the plaintiff held without bail following his arrest for a
misdemeanor offense, harassment. Upon admission to the Nassau County
Correctional Center (NCCC), Shain was strip searched in accordance with
institutional policy. The court applied the standard for misdemeanor
arrestees in evaluating the strip search. Using this standard, the court
found that Ait was clearly established in 1995 that persons charged with a
misdemeanor and remanded to a local correctional facility like NCCC
have a right to be free of a strip search absent reasonable suspicion that
they are carrying contraband or weapons.@ Id. at 66.
While the strip searches in Bell were upheld by the Supreme Court, it is
not a per se validation of strip searches in a detention setting, or even of
strip searches of pretrial detainees. See Masters v. Crouch, 872 F.2d 1248,
1252 (6th Cir. 1989)(ABell v. Wolfish did not give carte blanche approval
to a practice of strip searching all pretrial detainees.@); Roberts v. Rhode
Island, 239 F.3d 107 (1st Cir. 2001); Dobrowolskyj v. Jefferson County,
823 F.2d 955 (6th Cir. 1987). The plaintiff in Covino v. Patrissi, 967 F.2d
73 (2nd Cir. 1992), was also a pretrial detainee challenging a policy under
which he was subjected to random strip searches. Unlike the plaintiffs in
Bell, Covino was held in a state prison pending trial and intermingled with
convicted inmates. The search policy was upheld under the deferential
Turner standard for evaluating prison regulations. (This standard is
discussed later in these materials, in the sections addressing the
reasonableness standard applied in a prison setting.)
Thus, the constitutionality of strip searches of pretrial detainees is
determined by a balancing of interests. The status of the pretrial detainee
shifts the balance of interests, and the decisions of prison/jail
administrators to strip search detainees is shown greater deference.
4.

Former Inmates, Released After Court Proceedings
Once a person held pre-trial is freed from any pending criminal charges,
he regains his full rights under the Fourth Amendment. As a result, if a
prisoner who was held pending trial goes to court and is found not guilty,
he may not be strip searched on his return to the jail to pick up his
belongings. While this seems obvious, plaintiffs have brought suit to
establish this right in several jurisdictions. See Bynum v. District of
Columbia, 217 F.R.D. 43 (D.D.C. 2003)(class action challenging practice

13

of strip searching court returns after they have been ordered released);
Gary v. Sheahan, 1998 WL 547116 (N.D. Ill. 1998).
5.

Convicted Prisoners
Once a detainee has been convicted and sentenced, the required balancing
of interests is weighted even more heavily in favor of the detention
facility=s security concerns. In Arruda v. Fair, 710 F.2d 886 (1st Cir.
1983), the court upheld a policy of strip searching inmates in the
segregation unit of a state prison every time they left, or entered, the unit.
The court compared the challenged search policy to that in Bell, and found
even greater reasons to justify a search in the prison setting. If the Bell
strip searches were constitutional, the court reasoned, the prison policy
must also be constitutional given the additional justifications for the
searches. Both search policies dealt with searches after inmates had an
opportunity to acquire contraband in settings fraught with serious dangers.
Additional factors justifying the searches in the prison setting included
that the facility was a maximum security prison with the segregation unit
holding only the most dangerous inmates and that there was a long history
of contraband problems in the facility, including a documented history of
guards smuggling in contraband. All of these factors made the prison=s
strip search policy reasonable and outweighed any invasion of the
prisoners= privacy rights.
This result has been reached consistently by courts evaluating strip
searches in the prison setting. See Hay v. Waldron, 834 F.2d 481 (5th Cir.
1988); Goff v. Nix, 803 F.2d 358 (8th Cir. 1986); Michenfelder v. Sumner,
860 F.2d 328, 332 (9th Cir. 1988), Thompson v. Souza, 11 F.3d 694 (9th
Cir. 1997). Strip searches of convicted prisoners should still meet the Bell
requirements. Thus, strip searches designed to humiliate or intimidate
prisoners can be unconstitutional.

6.

Juveniles
Two circuit courts held that juveniles can be strip searched on arrest based
on the doctrine of in loco parentis. N.G. v. Connecticut, 382 F.3d 225 (2nd
Cir.2004). This was followed by the 8th Circuit in a case where the
juvenile was only required to strip to her underwear. Smook v. Minnehaha
County F.3d (8th Cir. 2006) reversing, 353 F.Supp.2d 1059, (D.S.D.
2005.) At least one district court disagreed with this analysis applying Bell
to find such routine strip search unconstitutional. Moyle v. County of Contra
Costa, 2007 WL 4287315 (N.D. Cal. 2007).

B.

Cause to Support a Strip Search

14

1.

Factors To Be Considered
The three broad categories typically considered when evaluating the
reasonableness of a strip search are:
ƒ
ƒ
ƒ

the nature of the criminal charge
the characteristics of the arrestee; and
the circumstances of the arrest.

See Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986); Giles v. Ackerman, 746
F.2d 614 (9th Cir. 1984); Dobrowolskyj v. Jefferson County, 823 F.2d 955,
957 (6th Cir. 1987); Kelly v. Foti, 77 F.3d 819 (5th Cir. 1996).

2.

The Nature of the Criminal Charge
The nature of the crime charged is a factor in making a decision whether a
detainee may be strip searched. Some courts have held that the charge
alone provides reasonable suspicion to conduct a strip search.
a.

The charge alone may be enough
The offense with which a detainee is charged plays a role in
justifying a strip search of the detainee upon arrest or while
awaiting bail. Decisions holding that the criminal charge alone
supports a strip search are based on the view that the charge itself
supplies the needed reasonable suspicion. See Weber v. Dell, 804
F.2d 796 (2nd Cir. 1986); Dufrin v. Spreen, 712 F.2d 1084, 1087
(6th Cir. 1983). Interestingly, the concept that those charged with
more serious crimes or crimes of violence are more likely to be
carrying concealed contraband that could only be detected through
a strip search is not supported by any scientific studies.

b.

Traffic violations and minor offenses
Traffic violations and minor offenses normally preclude a strip
search in the absence of individualized reasonable suspicion that
the detainee is concealing contraband. The prevalence of this
standard is reflected by the court=s remarks in Masters v. Crouch,
872 F.2d 1248, 1255 (6th Cir. 1989), that A[t]he decisions of all the
federal courts of appeals that have considered the issue reached the
same conclusions: a strip search of a person arrested for a traffic
violation or other minor offense not normally associated with
violence and concerning whom there is no individualized
reasonable suspicion that the arrestee is carrying or concealing a
weapon or other contraband is unreasonable.@
15

c.

Drug charges
Because illegal drugs are often in small, easy-to-hide packages,
strip searches are frequently conducted to search for drugs. The
Tenth Circuit held that the fact that a person was arrested for a
drug charge and is going to be placed in the general population
provides reasonable suspicion to support a strip search. See Lusby
v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1434 (10th Cir. 1984),
vacated for reconsideration on other grounds, 474 U.S. 805
(1985), aff=d, 796 F.2d 1307 (10th Cir.), cert. denied, 479 U.S. 884
(1986). In contrast, in the First Circuit, the fact that a detainee is
charged with a drug offense is not, by itself, enough to justify a
strip search. In Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997), the
fact that Swain was alleged to have dropped a baggie of marijuana
at the scene of the arrest was not enough to justify a strip search.
Swain holds that the justification for the search must be legitimate,
rather than pretextual. Swain had been at the police station for
some time before the decision was made to strip search her. During
that time, she had been permitted to use the bathroom unsupervised
and had been left unsupervised in a cell. According to the plaintiff,
it was not until she refused to provide the police with information
regarding her boyfriend that the officer strip searched her. The
court held that there was a possibility that the strip search was
conducted in retaliation for her non-cooperation. Id. at 8. A pretextual justification does not provide the reasonable suspicion
necessary to justify a strip search and, thus, any search based on
such a premise is unconstitutional. See also, Sarnicola v. County of
Westchester, 229 F.Supp.2d. 259 (S.D.N.Y. 2002)(holding that a
drug-related arrest does not automatically justify a strip search).
Similarly in Doe v. Burnham, 6 F.3d 476 (7th Cir. 1993) the court
remanded for trial a claim of an unconstitutional strip search even
though the officers claimed they thought the plaintiff had
marijuana.

d.

Crimes involving violence
A number of courts have found that crimes involving violence
create a presumption that the detainee is concealing weapons or
other contraband and create the reasonable suspicion necessary to
justify a strip search. See Dufrin v. Spreen, 712 F.2d 1084, 1087
(6th Cir. 1983). The court upheld a strip search of Ms. Dufrin
because she was charged with a violent felony, assaulting her
stepdaughter with a broom handle, and because she would
16

potentially be introduced into the general jail population. The court
also found that the search had been conducted in a reasonable
manner. The Sixth Circuit stated that it was not establishing a
bright-line rule, but the opinion has been interpreted to permit strip
searches of people charged with violent felonies.
Two oddities about Dufrin are worth mentioning. First, the assault
at issue occurred two months before Dufrin was arrested, so the
presumption arose from the nature of the charge itself. It had
nothing to do with a close proximity between the crime and the
arrest, which could suggest that the arrestee still possesses the
weapon used in committing the crime. Secondly, although the
court relied on the fact that the potential existed for Dufrin to
mingle with the general jail population, she actually spent her time
in a holding cell by herself. See also, Dobrowolskyj v. Jefferson
County, 823 F.2d 955, 958B59 (6th Cir. 1987)(holding that
A[m]enacing [a violent misdemeanor] is an offense that is
associated with weapons, and may well raise reasonable suspicion
on the part of jail officials that a person detained on that charge
may be concealing weapons or other contraband@).
A similar position is advocated in dicta in Masters v. Crouch, 872
F.2d 1248 (6th Cir. 1989). AIt is objectively reasonable to conduct
a strip search of one charged with a crime of violence before that
person comes into contact with other inmates. There is an obvious
threat to institutional security.@ Id. at 1255.
In an effort to establish a bright-line rule, many courts have
permitted strip searches based on the title given a crime by the
legislature. The theory is that people charged with Aviolent@
offenses are more likely to have hidden weapons or contraband.
However, the title of a criminal offense does not always tell
whether a weapon was actually used, much less whether the person
is likely to have anything hidden on or in his body. AAssault and
battery with a dangerous weapon,@ for example, sounds like a
violent crime involving a weapon that could justify a strip search.
But, if the police report or criminal complaint describes the
weapon as a Ashod foot,@ the claim makes no sense, since a person
who kicks someone while wearing a shoe is hardly more likely
than anyone else to have hidden weapons. In Durfin, the plaintiff
had threatened her stepdaughter with a broom handle. It is
reasonable to assume that the case more likely involved a weapon
17

chosen based on its availability at the time, rather than a weapon
used by a calculating person, who is likely to have hidden other
weapons in her body cavities.
e.

Misdemeanor/felony distinction
Some courts have held that the classification of a crime as a
misdemeanor or a felony charge is not a significant factor in
evaluating the reasonable suspicion necessary to justify a strip
search. Kennedy v. LAPD, 901 F.2d 702 (9th Cir. 1990), is the first
circuit court case to hold that a blanket policy of strip searching all
felony arrestees is unreasonable. Kennedy was charged with grand
theft for stealing her roommate=s television. The court recognized
that the classification of an offense as a felony offered little insight
into the likelihood that the arrestee was concealing weapons or
contraband. In assessing the constitutionality of the strip search,
the court held, A[t]hat this case involves a felony arrest does not
alter the level of cause required to justify a visual body cavity
search.@ Id. at 716.
A number of district courts have likewise found that the
classification of an offense does not provide reasonable suspicion.
See Murcia v. County of Orange, 226 F.Supp.2d 489 (S.D.N.Y.
2002); Mack v. Suffolk County, 154 F.Supp.2d 131, 143 (D. Mass.
2001); Elliott v. Strafford County, 2001 U.S. Dist. LEXIS
1246(D.N.H. 2001); Tardiff v. Knox County, F. Supp. 2d.
(D.Me. 2005) For a scholarly discussion of using the felony/
misdemeanor distinction to justify strip searches, see Gabriel M.
Helmer, Note, Strip-Search and the Felony Detainee: A Case for
Reasonable Suspicion, 81 B.U. L.Rev. 239 (2001).

3.

The Characteristics of the Arrestee
a.

Criminal History as a Basis for Reasonable Suspicion
The Fifth Circuit held that an eleven-year-old minor drug offense
does not provide reasonable suspicion to support a strip search in
Watt v. City of Richardson Police Department, 849 F.2d 195 (5th
Cir. 1988). Ms. Watt was arrested on an outstanding warrant for
failing to register her dog. She volunteered that she had been
convicted of a minor drug offense eleven years earlier. The
conviction had been expunged from her record. The city=s policy
required that any arrestee charged with drug, weapons or
shoplifting offenses, or with a history of such charges, was to be
18

strip searched. Ms. Watt challenged the constitutionality of the
strip search. The court recognized that strip searches of pre-trial
detainees and convicted prisoners have been upheld as
constitutional, but noted that searches of Aminor offense arrestees,
who would be detained pending the posting of bond, often for short
periods of time, have been scrutinized much more closely.@ Id. at
197. The court ruled that justifying strip searches of arrestees
based on prior criminal history can be reasonable. However, based
on the facts presented by Ms. Watt=s case, her strip search was
unconstitutional. See also, Burns v. Goodman, 2001 WL 498231
(N.D.Tex.,2001) (an arrest for marijuana four months earlier could
not justify a strip search since the defendants did not rely on the
arrest at the time of the search). Since a balancing test is applied,
the older the criminal charge, the less likely it could serve as a
basis for a strip search. A better practice, as discussed below, is to
rely on numerous characteristics of the arrestee, with criminal
history being only one of those characteristics. See, Nieves v. State,
2003 WL 23004983 (Md.App.,2003) (Court refuses to allow strip
searches on arrest for a minor offense when person had a prior
drug offense two years earlier.
b.

4.

Individual Characteristics of Arrestees
Any individual characteristic of an arrestee may be considered and
may help create reasonable suspicion. Factors that are considered
include furtive gestures, gang affiliations, signs of recent
intravenous drug use and, most importantly, previous attempts to
bring contraband into a facility. No matter what the charge,
individualized suspicion based on characteristics of the arrestee
may support a strip search.

Circumstances of Arrest
Officials may have reasonable suspicion to strip search a detainee based
on behavior observed during an arrest or processing. An example of this is
seen in Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000), where the strip
search of a DUI arrestee was upheld based on the presence of a handgun in
her car at time of arrest. The Eleventh Circuit ruled that Athis court holds
that possession of a weapon by a detainee provides the reasonable
suspicion necessary to authorize a strip search.@ Id. at 682. In other
situations, a combination of circumstances have created reasonable
suspicion. For example, in Justice v. City of Peachtree City, 961 F.2d 188
(11th Cir. 1992), officers formed reasonable suspicion based on a variety
19

of circumstances, including: that the arrest took place in a parking lot,
where it was suspected that drinking and drug activity regularly occurred;
observation by an officer of one suspect handing something to the suspect
strip searched; and the nervousness of the suspect strip searched.
If the circumstances existing at the time of the arrest are considered,
should the fact that the arresting officers conducted a strip search at the
police station be considered when the prisoner is brought to the holding
facility while waiting for court? In other words, if the arresting officers
have already conducted a constitutional strip search, can the holding
facility officials conduct a subsequent strip search on the same basis? This
question has yet to be decided.
5.

Contact with Outsiders
Bell held that a strip search of pre-trial detainees in federal detention after
a contact visit was reasonable because of the danger that contraband could
be introduced into the facility. Since Bell, courts have generally held that
strip searches after contact visits or other contact with outsiders is
reasonable. See, Wood v. Hancock County Sheriff=s Department, 354 F.3d
57,68-69 (1st. Cir. 2003) (AThe widely acknowledged risk posed by contact
visits furnishes sufficient suspicion to justify a blanket policy.@ Under
Bell, @except in atypical circumstances, a blanket policy of strip searching
inmates after contact visits is constitutional.@) Elliott v. Strafford County,
2001 WL 274827 (N.H. 20001)(dismissing claims for strip searches after
contact visits and court appearances.). If the strip search policy after
contact visits is not applied uniformly or if the strip search is used for the
purpose of harassment, it would be unconstitutional.

6.

Stripping Inmates Naked for Suicide Prevention or Prevention of
Rowdiness
It is unconstitutional under Bell to strip detainees naked and leave them
naked in a cell for refusing to answer intake questions asking whether or
not they feel suicidal. Wilson v. City of Kalamazoo, 127 F.Supp.2d 855
(W.D. Mich. 2000). However, the same court held that placing inmates
who refused to answer if they were suicidal in a cell clad only in their
underwear is constitutional. Johnson v. City of Kalamazoo, 124 F.Supp.2d
1099, 1106 (W.D. Mich. 2000). Similarly, placing detainees naked in
administrative segregation as punishment for rowdy and disruptive
behavior during booking is unconstitutional. Rose v. Saginaw County, 353
F.Supp.2d 900 (E.D. Mich. 2005).

20

Complete nudity has been found acceptable by some courts in certain
situations. See McMahon v. Beard, 583 F.2d 172, 175 (5th Cir. 1978)
(finding permissible the confinement of prisoner completely naked in a
cell where prisoner had previously attempted to commit suicide by
hanging but was cut down by jailers, and had threatened future self harm).
D.

Reasonable Manner
1.

No Touching by the Officer
Many courts upholding challenged strip searches of all classes of prisoners
have mentioned favorably the fact that the search was visual only, with the
searching official never touching the detainee. See Michenfelder v.
Sumner, 860 F.2d 328, 332 (9th Cir. 1988)(AThe searches are conducted
on convicted prisoners in [the] most restrictive unit, and are visual only,
involving no touching.@); Stanley v. Henson, 337 F.3d 961, 965 (7th Cir.
2003)(A[She] was not touched during the search.@); Dufrin v. Spreen, 712
F.2d 1084, 1089 (6th Cir. 1983)(A[T]he search actually conducted was
visual only.@); Fernandez v. Rapone, 926 F.Supp. 255, 262 (D. Mass.
1996)(A[N]or were the prisoners touched during the searches, which lasted
only minutes.@).
Inappropriate touching of the detainee resulted in a search being held
unconstitutional in Amaechi v. West, 237 F.3d 356 (4th Cir. 2001).
Amaechi was searched incident to arrest on the street in front of her house
before she was placed in the patrol car. She was wearing a light house
dress that had no buttons below the chest, leaving her exposed from the
chest down. She alleged that the officer touched her skin with his hand,
penetrated her genitalia and kneaded her buttocks during a pat search. The
officer claimed the Aright to conduct a full search of the person under
Robinson includes the right to briefly >swipe= the arrestee=s outer genitalia
and slightly penetrate the genitalia.@ The court allowed the plaintiff=s claim
to go to trial.
Touching by medical personnel is treated differently. For example, in
Skurstenis v Jones, 236 F.3d 678 (11th Cir. 2000), the court held that it
was appropriate for an opposite gender nurse=s assistant to touch
Skurstenis, by running his fingers through her head and pubic hair, as he
examined her for lice.

2.

Limits on Instructing the Person to Touch Himself
Basic touching to help facilitate the search has not gone unchallenged. In
this category of instructions are orders to open the mouth, move the
21

tongue, run the hands through hair, splay fingers, bend over and spread the
buttocks, lift arms and/or legs, lift and/or move genitals or breasts, and
squat and cough.
As with all features of strip searches, such instructions are subject to the
test for reasonableness. Instructions that are reasonable in the context of
facilitating the search by allowing the officer to conduct the search
without having to touch the inmate, are permissible. These would include
instructions to open the mouth, move the tongue, raise the arms, and so
forth. Instructions that are intended purely to humiliate or embarrass or
those which serve no legitimate penological purpose are likely
unreasonable. So, for example, ordering an inmate to probe her own body
cavities, is likely to be held to be unreasonable. Such an instruction would
serve no purpose, since an arrestee who had drugs hidden in a body cavity
would be unlikely to report this finding to the authorities.
3.

Derogatory Comments
Officers conducting strip searches, regardless of the type of facility or
status of the detainee, should conduct themselves professionally. This
includes refraining from the use of derogatory or abusive language. This
tenet appears in almost all written policies governing how a strip search is
to be conducted. In practice, these policies are not always adhered to.
Verbal abuse alone will not give rise to a constitutional claim. In
examining a claim of qualified immunity involving the use of abusive
language during a strip search, the Eleventh Circuit reviewed cases
dealing with verbal abuse, including cases from the First, Fifth, Eighth and
Eleventh Circuits, and concluded that, A[i]n light of this case law treating
verbal abuse, even vile language and racial epithets, as insufficient to
constitute a constitutional violation, we cannot conclude that it was clearly
established that [the searching officer=s] taunts and threats of prison rape
might so exacerbate the intrusiveness of the strip search as to violate the
appellees= constitutional rights.@ See Evans v. City of Zebulon, 351 F.3d
485, 495 (11th Cir. 2003), vacated for reh'g en banc, 2003 WL 23351898
(11th Cir. March 31, 2004).

4.

No More People than Necessary
To insure that a strip search is no more humiliating and demeaning than
necessary, only those officers required to safely and effectively carry out
the search should be present. The presence of additional officers or others
may violate the Fourth Amendment. A number of cases comment on the
presence, or absence, of unnecessary personnel during a strip search. For
22

example, one of the factors mentioned by the Tenth Circuit in Hill in
finding the search at issue unconstitutional, was the fact that it took place
in a public area where 10 to 12 people were milling about. See Hill v.
Bogans, 735 F.2d 391 (10th Cir. 1984). Similarly, in Abshire v. Wells, 830
F.2d 1277, 1280 (4th Cir. 1987), the court pointed to the presence of Asix
to eight police officers B five who were in the room with [the detainee]
and several others, including a female officer, who witnessed the search
while standing in the adjacent hallway,@ as one of the factors that properly
made the reasonableness of the search at issue a jury question.
The absence of excess personnel is often cited as demonstrating the
reasonableness of a particular strip search. See Dufrin v. Spreen, 712 F.2d
1084 (6th Cir. 1983); Stanley v. Henson, 337 F.3d 961 (7th Cir. 2003)(the
presence of a single same-sex officer listed as a factor in finding the
search was minimally intrusive). See also, Justice v. City of Peachtree
City, 961 F.2d 188 (11th Cir. 1992)(holding that, even though two officers
were present for a strip search of the juvenile, the search was conducted in
the least intrusive manner possible).
5.

Strip Search By Opposite Sex Officer
The fact that a detainee is searched by a same sex officer is often cited as
one factor rendering a search reasonable. See Justice v. City of Peachtree
City, 961 F.2d 188 (11th Cir. 1992)(noting approvingly that the search was
conducted by two officers of the same sex); Stanley v. Henson, 337 F.3d
961 (7th Cir. 2003); Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983). A
strip search by an opposite sex officer is unreasonable, unless it was
unavoidable due to emergency conditions.
In Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), a convicted prisoner
sued seeking damages and injunctive relief, alleging that female guards
strip searched him during a shakedown of his housing unit and regularly
observed male inmates while they slept, showered and dressed. The
Seventh Circuit reversed dismissal of the complaint, ruling that it was
possible for the plaintiff to state a claim for relief on these facts. In Somers
v. Thurman, 109 F.3d 614 (9th Cir. 1997), the Ninth Circuit evaluated a
claim of qualified immunity for female prison guards who regularly
conducted non-emergency strip searches on a male inmate in violation of
prison policy. The court held that, as of October 1993, when the searches
occurred, there was no clearly established right of a male inmate to be free
of opposite gender strip searches.

23

In an emergency situation, presence of an opposite sex officer is likely to
be reasonable under the Fourth Amendment. For example, it is reasonable
to have male officers assist in transferring a naked and unruly female
detainee, who is a danger to herself. Once that inmate has been transferred
and restrained, however, it would be unreasonable to continue to allow
male officers to view her naked body. See Hill v. McKinley, 311 F.3d 899
(8th Cir. 2002).
6.

E.

Videotaping a Strip Search
Videotaping of strip searches is occasionally mentioned, although no
reported cases directly address the constitutionality of the practice.
Cameras at jails are usually said to be either switched off or covered when
a strip search is occurring in the room. See Swain v. Spinney, 117 F.3d 1, 4
(1st Cir. 1997). The majority of taped searches occur in the prison setting,
either for training purposes or when the search takes place as part of a
confrontation with the inmate, e.g., when a response team is sent in to
compel a prisoner to comply with instructions or to remove him from his
cell. In this circumstance, the entire process is taped, not just the search. If
taping the strip search of a prisoner serves a legitimate security interest,
courts allow the taping. For example, in Hayes v. Marriot, 70 F.3d 1144,
1148 (10th Cir. 1996), the court concluded that A[w]e certainly agree with
the prison officials that legitimate security interests, as well as other
interests, may support the videotaping of prisoner searches.@ Searches that
are taped for illegitimate reasons, such as humiliating or punishing a
prisoner, would be unconstitutional. Videotaping presents a danger for
administrators because liability may arise if the tapes are misused.
Because this is a severe invasion of privacy, such tapes must be properly
secured.

Reasonable Place
A detainee should only be strip searched in a location that allows the detainee the
maximum amount of privacy, thus minimizing embarrassment, while still
allowing the search to be conducted safely and efficiently. This principle was
reflected nearly twenty years ago in Jones v. Edwards, 770 F.2d 739 (8th Cir.
1985). Jones was strip searched at the jail in a sheltered alcove off of a hallway,
without a screen. The court advised that, Aalthough the location of the search did
not expose Jones to the scrutiny of other jailers or passersby, this degree of
privacy seems to have been entirely fortuitous; we suggest that where legitimate
security concerns justify this kind of search, jail officials should take precautions
to insure that the detainee=s privacy is protected from exposure to others
unconnected to the search.@ Id. at 742. One way to protect a prisoner=s privacy

24

during a strip search is a privacy screen. This is used in Cook County. Bullock v.
Sheahan, --- F.Supp.2d ----, 2008 WL 2931606 (N.D.Ill.).
Requiring that a strip search be conducted in a reasonable place helps to protect
the privacy concerns previously addressed.
1.

Outside
An obvious example of an unreasonable place to conduct a strip search is
on the side of a road. In Starks v. City of Minneapolis, 6 F.Supp.2d 1084
(D. Minn. 1998), police officers searched a drug suspect by the side of the
road, only three to five minutes away from the police station. This was
held to be an unreasonable place. In ruling on the issue of qualified
immunity for the searching officer, the court held that Aa reasonable police
officer would not be justified in assuming an on-street strip search was
within the constitutional boundaries defined by the Fourth and Fourteenth
Amendments of the United States Constitution.@ Id. at 1088. The court
remarked that it was difficult to find case law explaining that a public strip
search is inappropriate because the principle is so self-evident, such
searches simply do not take place.
In Amaechi v. West, 237 F.3d 356 (4th Cir. 2001), an officer searched the
plaintiff on the street in front of her house. The court found this to be
unreasonable because she could be viewed by her Afamily, the public, and
the officers.@ Id. at 361. Even if an officer has reasonable suspicion to
conduct a strip search, the search will be unconstitutional if it takes place
outside, where the person could be viewed by others.

2.

In a Police Vehicle
Strip searching a suspect in a drug bust in a police van was upheld in
United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997). Police were
searching for marked currency used to purchase drugs from the suspect
earlier in the day. The court concluded that Athe search in question was not
an unconstitutional strip search. The search did not occur on the street
subject to public viewing but took place in the privacy of the police van.@
Id. at 256. Obviously it is important that the vehicle was private. A police
car would be inappropriate because the person being searched could be
viewed through the windows.

3.

Rooms with a View
Strip searches should not be conducted in rooms that allow the naked
detainee to be seen by those outside the room. The door to a strip search
room should be closed and any windows should be covered. Logan v.
25

Shealy, 660 F.2d 1007 (4th Cir. 1981), demonstrates this premise. Logan
was searched in a holding cell off of the booking area, in which she
claimed the blinds were either broken or not closed. In discussing the
officer=s claim of qualified immunity at this early date, the Fourth Circuit
stated, Awe think that, as a matter of law, no police officer in this day and
time could reasonably believe that conducting a strip search in an area
exposed to the general view of persons known to be in the vicinity
whether or not any actually viewed the search is a constitutionally valid
governmental >invasion of (the) personal rights that (such a) search
entails.=@ Id. at 1014 (citation omitted). See also, Iskander v. Village of
Forest Park, 690 F.2d 126, 129 (7th Cir. 1982). The Massachusetts
Appeals Court held that even for convicted prisoners Aa strip search
conducted in nonprivate areas viewed by nonessential persons
(particularly of the opposite sex), violate the Fourth Amendment to the
United States Constitution unless justified by legitimate penological
interests.@ Sabree v. Conley, 62 Mass. App. Ct. 901 (2004).
4.

F.

Group Strip Searches
Since strip searches should be conducted in a manner that minimizes the
embarrassment and humiliation of the detainee being searched, detainees
should not be strip searched in groups. See Gary v. Sheahan, 1998 WL
547116 (N.D. Ill. Aug. 20, 1998)(female inmates returning from court
ordered to spread out in a line for strip searches without any privacy).

Strip Searches of Convicted Prisoners
The balancing of interests required by Bell is heavily weighted in favor of prison
administrators when evaluating strip searches in a prison setting. Remember that
the typical prison inmate is a convicted, sentenced offender.
Most courts reason that since the strip searching of pretrial detainees was upheld
by the Bell Court, then the strip searching of convicted inmates serving sentences
in prison should likewise be upheld. The rationale for deferring to administrators=
expertise in Bell is more compelling when dealing with convicted prisoners; a
prison is at least as dangerous a setting as a short-term detention center and the
dangers of contraband being smuggled into the facility are likewise at least as
serious. As the Seventh Circuit said, Agiven the considerable deference prison
officials enjoy to run their institutions it is difficult to conjure up too many reallife scenarios where prison strip searches of inmates could be said to be
unreasonable under the Fourth Amendment.@ Peckham v. Wisconsin Department
of Corrections, 141 F.3d 694 (7th Cir. 1998).

26

In Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983), cert. denied, 464 U.S. 999
(1983), the plaintiff was an inmate in the segregation unit of a maximum security
facility with a history of contraband problems. He challenged the legality of a
prison regulation requiring inmates in the segregation unit to be strip searched
every time they left the unit. The court upheld the policy, reasoning that if
contraband concerns in Bell justified strip searching pretrial detainees after
contact visits, the justification in Arruda was even more compelling. Given the
dangerousness of the inmates held in the segregation unit and the history of
contraband problems experienced by the facility, Athese searches [were] more, not
less, reasonable than those in Wolfish.@ Id. at 887. The court reasoned that,
leaving the tier presented an opportunity for inmates in the segregation unit to
acquire contraband and, thus, strip searches were justified to prevent the
introduction of weapons or other contraband into the segregation unit.
Courts have affirmed strip searches of convicted prisoners in groups in some
circumstances. Fernandez v. Rapone, 926 F.Supp.255 (D.Mass. 1996), involved a
challenge by state prisoners to a policy of strip searching inmates in groups of up
to ten prisoners following contact visits. A provision in the policy provided that
an inmate could opt out of the group strip search and insist on being searched
individually. The court upheld the searches, ruling that Athe fact that plaintiffs
were often searched in the presence of other inmates being searched does not
render the searches unreasonable.@ Id. at 262.
There have been situations where a strip search policy has been struck down due
to abuse during the search. In Hurley v. Ward, 584 F.2d 609 (2nd Cir. 1978), an
inmate housed in the special housing unit of the state prison refused to comply
with portions of the facility=s strip search policy and was forcibly searched on
several occasions as a result. These forcible searches included verbal abuse. The
court upheld a preliminary injunction barring searching Hurley in this manner,
stating Ait is clear to us that here also the gross violation of personal privacy
involved in the anal/genital searches of Hurley especially in view of the physical
and verbal abuse incident to the procedure far outweighed the evidence adduced
by the State at the preliminary hearing to justify the searches as a prison security
measure.@ Id. at 611. The specific physical and verbal abuse referred to by the
court is not contained in the record, so it is impossible to know what the threshold
is, or if verbal abuse alone could rise to a level at which the court would find a
search unreasonable.
A similar case challenging strip searches of state prisoners in a location exposing
them to viewing by other inmates is Franklin v. Lockhart, 883 F.2d 654 (8th Cir.
1989). Franklin addressed the reasonableness of searches of groups of inmates as
they returned to the barracks. Inmates were returned four at-a-time and were
27

brought just inside the barracks to be strip searched. The location of the searches
exposed the nude inmates to observation by other inmates already inside the
barracks. The search policy was upheld based on security concerns of the prison,
which had insisted that conducting the searches in this way was necessary to
insure safety.
A different standard applies in emergency situations, for example, following a riot
or other disturbance. See Elliot v. Lynn, 38 F.3d 188 (5th Cir. 1994)(upholding the
strip searching of inmates in the most efficient way possible when the prison was
in a state of emergency).
Turner v. Safley, 482 U.S. 78 (1987), established a deferential standard of review
for prison regulations. A[W]hen a prison regulation impinges on inmates=
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.@ Id. at 89.
The Court provided four factors to guide lower courts in the application of this
rule:
1)
Is there a rational relationship between the regulation and alleged
governmental interest?
2)
Is there an alternative means of exercising the right? (Note that this
factor is not applicable in the strip search context.)
3)
What impact would the accommodation of the asserted right have
on prison guards, inmates and other prison resources?
4)
Does the absence of alternatives provide evidence of the
reasonableness of the policy?
In the prison setting, a strip search policy that serves a legitimate penological
purpose outweighs the invasion of a prisoner=s privacy rights.
However, Anot all strip search procedures will be reasonable; some
could be excessive, vindictive, harassing or unrelated to any legitimate
penological interest.@ Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.
1988). A search carried out for any of the reasons mentioned above would
lack a valid penological interest and thus, would fail the test set forth in
Turner v. Safley, 482 U.S. 78 (1987). The Massachusetts Appeals Court
held that Aa strip search conducted in nonprivate areas viewed by
nonessential persons (particularly of the opposite sex), violate the Fourth
Amendment to the United States Constitution unless justified by
legitimate penological interests.@ Sabree v. Conley, 62 Mass. App. Ct. 901
(2004).

28

Despite this limitation, most strip searches in a prison setting are upheld as
serving a legitimate penological interest. Examples include rulings that:
ƒ

Strip searching inmates in the administrative segregation unit of a
maximum security prison every time they leave their cells is
rationally related to the penological interest of maintaining internal
security. See Rickman v. Avaniti, 854 F.2d 327 (9th Cir. 1988).

ƒ

Strip searching inmates in maximum security every time they leave
their tier, even when the search is conducted in view of other
inmates and extraneous opposite gender correctional officers, is
reasonably related to a legitimate penological interest.
Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988).

ƒ

Williams v. Price, 25 F.Supp.2d 605 (W.D.Pa.,1997). The strip
search of convicted prisoners after a non-contact visit was upheld
under Turner.

ƒ

The strip search of an inmate during a search for drugs in the
institution based on the fact that the inmate shared a cell with an
inmate who had a history of drug use while in prison was upheld.
See Thompson v. Souza, 111 F.3d 694 (9th Cir. 1997).

ƒ

The strip search of a pretrial detainee being held at the prison and
commingled with sentenced inmates, pursuant to a policy where
each night two cells were randomly selected for search, including
strip searches of the inmates in the cells in order to help control
contraband at the facility was upheld. See Covino v. Patrissi, 967
F.2d 73 (2nd Cir. 1992).

G.

Physical Body Cavity Searches
Physical body cavity inspections of non-convicted prisoners should be conducted
when there is probable cause. They should be conducted by medical personnel.
For a physical examination of the body cavity of a prisoner, the facility needs
reasonable suspicion and a valid penological need for the search. Vaughan v.
Ricketts, 950 F.2d 1464, 1469 (9th Cir. 1991); Tribble v. Gardner, 860 F.2d
321,325 (9th Cir. 1988). Such a search must be conducted in a reasonable manner.
Bonitz v. Fair, 804 F.2d 164 (1st Cir. 1986).

H.

Equal Protection

29

The equal protection clause has been held to require that strip search policies be
applied equally to men and women. There have been a number of cases where
blanket strip searches were conducted on women, but not to men in similar
circumstances. Courts have consistently found such practices unconstitutional.
The leading case is Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1983). Starting in 1952, Chicago had a policy of conducting strip and visual body
cavity searches of every woman who was arrested, but not of men. Four women
arrested for minor offenses challenged Chicago=s policy of subjecting all female
detainees to a strip and visual body cavity search, while similarly situated male
detainees were only thoroughly hand searched. In analyzing the city=s policy, the
court stated, Athe party seeking to uphold a policy that expressly discriminates on
the basis of gender must carry the burden of showing an exceedingly persuasive
justification for the differing treatment. The burden is met only by showing at
least that the classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of
those objectives.@ Id. at 1273B74 (citations omitted). Attempting to justify the
disparate treatment, the city claimed that the strip searches were necessary due to
women=s ability to conceal weapons in the vaginal cavities. The court rejected this
justification, pointing to the fact that men were also able to conceal contraband in
their anal cavities, and that the city produced no evidence to show that women
were more likely to conceal contraband in their body cavities than men.
In another case from Illinois, Gary v. Sheahan, 1998 WL 547116 (N.D. Ill. Aug.
20, 1998), female court returns were strip searched while male court returns were
not. The defendant=s policies required a strip search of men and women, but men
were not strip searched because there were too many of them. This practice was
held unconstitutional. Ironically the same county was sued again when it stopped
strip searching women but sent male court returns to their housing units while
waiting to be released and thus strip searched all of the male court returns.
Bullock v. Sheahan, --- F.Supp.2d ----, 2008 WL 2931606 (N.D.Ill.). Similarly, in
Ford v. City of Boston, 154 F.Supp.2d 131 (D. Mass. 2001), the city was found to
be violating the equal protection clause by sending female arrestees to jail, where
they were routinely strip searched, while male arrestees were held in city lockups, where they were not strip searched. The city did not have an important
governmental objective that this policy was substantially related to achieving. See
also, Wilson v. Shelby County Alabama, 95 F.Supp.2d 1258, 1264, n.3 (N.D. Ala.
2000).
I.

Effectiveness of Intake Strip Searches
The statistics cited in the case law indicate that strip searches of newly admitted
detainees only rarely discover contraband. In Dodge v. County of Orange, 209
30

F.R.D. 65 (S.D.N.Y. 2002), jail records submitted to the court covering a fiftymonth period encompassing the admission of approximately 23,000 inmates,
showed only five incidences where contraband was discovered in the body cavity
or undergarments of a detainee. Of those five incidents, the judge determined that
Athere may have been reasonable suspicion to strip search four of these five
detainees, based upon either the nature of the offense or the characteristics of the
detainee.@ Id. at 70. Thus, in the absence of the blanket strip search policy, if the
correct reasonable suspicion standard had instead been employed, there was one
instance in the processing of 23,000 detainees where contraband would have
entered the facility. These numbers are consistent with what other courts have
reported. See, Bull v. City and County of San Francisco, 2006 WL 449148
(N.D.Cal.) affirmed in part, 539 F.3d 1193 (9th Cir. 2008).
Statistics examined in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1983), showed nine incidences of contraband discovered in 1800 searches over a
two-month period. Other cases support a very low incidence of Ahits.@ See Giles v.
Ackerman, 746 F.2d 614 (9th Cir. 1984)(only 11 persons out of 3,500 searched
had concealed anything warranting a report); John Does 1-100 v. Boyd, 613 F.
Supp. 1514 (D. Minn. 1985)(13 incident reports of contraband over an 11-year
period and all of the items were found in clothing, not through a strip search);
Shain v. Ellision, 1999 U.S. Dist. Lexis 8401 (June 1, 1999)(over a two-year
period, with approximately 14,000 inmates admitted per year, there were six
instances in which a weapon was discovered during the intake strip search and
eight instances where drugs were discovered).
J.

Qualified Immunity for Strip Searches
When considering qualified immunity, courts are challenged to strike a balance
between protecting the public=s constitutional rights and affording governmental
officials the protection to reasonably react in confrontational situations without
fear of subsequent individual liability. The fundamental justification for the
defense of qualified immunity is that public officials performing discretionary
functions should be free to act without fear of punitive litigation except when they
can fairly anticipate that their conduct will expose them to liability. See Davis v.
Scherer, 468 U.S. 183 (1984).
The Supreme Court established the standards for qualified immunity over two
decades ago in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) stating,:
Government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or

31

constitutional rights of which a reasonable person would have
known . . . .
The standard of inquiry is an objective one and the inquiry into the reasonableness
of a governmental official=s conduct should focus on the discernable case law at
the time of the alleged occurrence. See Savard v. Rhode Island, 338 F. 3d 23, 27
(1st Cir. 2003). The law governing strip-searches has changed significantly over
the last thirty years. For example, the First Circuit case of Swain v. Spinney, 117 F
3d 1 (1st Cir. 1997), stands for the proposition that strip and visual body cavity
searches cannot be conducted without individualized reason to suspect that a
person is harboring weapons or contraband. Prior to Swain, a review of relevant
case law in the First Circuit could have allowed a reasonable person in a position
of authority over persons in custody to believe that a routine strip search policy
was within constitutional boundaries.
Qualified immunity is generally granted and the defendant shielded from liability
if the defendant did not violate plaintiff=s constitutional rights or if there is no
Supreme Court or relevant circuit court case law clearly establishing the plaintiff=s
right at the time of the event in controversy. Harlow, 457 U.S. at 818. However, a
public official=s hands-off approach to his job does not absolve him of the
responsibility for unconstitutional policies developed and promulgated by his
underlings. See Ford, 154 F.Supp.2d at 146. The threshold inquiry a court must
undertake in a qualified immunity analysis is whether the plaintiff=s allegations, if
true, establish a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201
(2001). In the absence of a constitutional violation, the need for further analysis is
over. Generally, courts will decline to consider whether the right was clearly
established before granting qualified immunity and releasing the defendant from
liability on this issue.
Even if a plaintiff=s rights are violated, defendants will be entitled to qualified
immunity if an objectively reasonable officer in the defendant=s position could
argue that the action taken was within the boundaries of permissible behavior
under existing law. Harlow, 457 U.S. at 818. For a constitutional right to be
clearly established, its contours must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. See Hope v.
Pelzer, 536 U.S. 730, 739 (2002). This is a purely objective standard; the
defendant=s subjective intent is irrelevant.
The theory of qualified immunity is that if a public official is to be punished by
the imposition of damages against him personally, the punishment must be for
violating some clear, legal duty he plainly already had at the time of the event.
See Hope, 536 U.S. at 737. He should not be punished for violating what is, in
32

effect, some new legal duty recognized or announced by the judge and jury in the
official=s trial. Preexisting case law that is materially similar to the circumstances
facing an official, when the specific current circumstances are enough like the
facts in the prior precedent, might make a difference to the conclusion about
whether the official=s conduct was lawful or unlawful, in light of the precedent.
See id., at 744.
Officers are protected by qualified immunity from 42 U.S.C.A. '1983 claims
unless a constitutional violation occurred; a reasonable officer similarly situated
would have known the right was clearly established; and, the officer acted
objectively unreasonable in light of the clearly established constitutional right.
One area where an officer might successfully claim a qualified immunity defense
in the area of strip searches is routine strip searches of felony arrestees. Most of
the case law on strip searches of arrestees has involved individuals charged with
minor offenses. The Ninth Circuit in Kennedy v. LAPD, 901 F.2d 702 (9th Cir.
1990) and district courts in Murcia v. County of Orange, 226 F.Supp.2d 489
(S.D.N.Y. 2002); Mack v. Suffolk County, 154 F.Supp.2d 131, 143 (D. Mass.
2001); Elliott v. Strafford County, 2001 U.S. Dist. LEXIS 1246 (D.N.H. 2001)
have held that a blanket policy of strip searching all felony arrestees is
unreasonable, an officer, in a different jurisdiction could argue that law was not so
clearly established at the time that his actions could be found to be objectively
unreasonable. If successful, he would be entitled to qualified immunity for his
actions.
K.

Class Action Challenges to Strip Search Policies
Most courts that have considered whether a class action is appropriate in strip
search cases have certified the class where plaintiffs are challenging a policy or
custom of conducting strip searches of pre-arraignment detainees without
evaluating for reasonable suspicion. See, Tardiff v. Knox County, 365 F.3d 1
(1st Cir. 2004) (April 9, 2004); Eddleman v. Jefferson County, 96 F.3d 1448
(Table), 1996 WL 495013 (6th Cir. 1996); Johnson v. District of Columbia, 248
F.R.D. 46, (D.D.C. 2008); Blihovde v. St. Croix County, 219 F.R.D. 607 (W.D.
Wisc. 2003); Bynum v. District of Columbia, 217 F.R.D. 27 (D.D.C. 2003);
Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002); Dodge v. County
of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002); Mack v. Suffolk County, 191 F.R.D.
16 (D. Mass. 2000); Doe v. Calumet City, 754 F.Supp. 1211 (N.D. Ill. 1990);
Smith v. Montgomery County, 573 F.Supp. 604 (D. Md. 1983). However, a few
courts have disagreed. See Klein v. DuPage County, 119 F.R.D. 29 (N.D. Ill.
1988); Bledsoe v. Combs, 2000 WL 681094 (S.D. Ind. 2000); Augustin v.
Jablonsky, 2001 WL 770839 (E.D.N.Y. March 8, 2001); Rattray v. Woodbury
County, Iowa, --- F.Supp.2d ----, 2008 WL 4099880 (N.D.Iowa 2008). Most of
33

the cases in which a class was certified, involved damages class actions under
Federal Rule of Civil Procedure 23(b)(3). Some were certified for injunctive relief
under (b)(2) only, or for both damages and injunctive relief.
L.

Damages for Unlawful Strip Searches
Most strip search cases involve visual searches without any touching by the
correctional officer. Some cases have resulted in large verdicts, particularly when
the plaintiff was arrested on a minor charge or a warrant for a minor offense that
had been recalled, and was subjected to a search that was not private. Some of
these plaintiffs have had significant psychological trauma as a result of the search.
See Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985)(plaintiff who suffered
depression, sexual dysfunction and post traumatic stress disorder, awarded
$177,040 for three manual body cavity searches). In Martinez v. Tully,1994 U.S.
Dist. LEXIS 20935 (E.D. Ca. 1994), four women arrested for disturbance of a
public assembly and other offenses, including one woman who was charged with
assault with a deadly weapon, an egg, which could be a misdemeanor or a felony,
received verdicts of $175,000 in compensatory damages for three of the women,
and $225,000 for the remaining woman, who was menstruating at the time of the
search.
Levka v. City of Chicago, 748 F 2d 421 (7th Cir. 1984), reviewed strip search
cases with judgments ranging from $112,000 to $3,300 (the $112,000 judgment
was reduced by the district court to $75,000). In Young v. City of Little Rock, 249
F.3d 730 (8th Cir. 2001), a jury awarded $65,000 for an unlawful 2 2 hour
detention and strip search. The plaintiff in Watt v. Richardson, 849 F.2d 195 (5th
Cir. 1988) was awarded $20,000 in compensatory damages. She had been strip
searched following her arrest on a warrant for failing to register her dog and was
searched based on an 11 year-old drug conviction. In Abshire v. Wallis, 830 F.2d
1277 (4th Cir. 1987), the plaintiff received a total award of $7000 based on his
unconstitutional strip search following his arrest for disorderly conduct. In
contrast, the plaintiff in Foote v. Spiegel, 2001 U.S. App. LEXIS 2405 (10th Cir.
2001), was awarded only $1.00 and, in Stewart v. Lubbock County, 767 F.2d 153
(5th Cir. 1985), one plaintiff received only $1.00, while the other received
$15,000.

M.

The Effect of the PLRA on strip search litigation
The Prison Litigation Reform Act (PLRA) prevents damage suits for
unconstitutional visual strip searches from being filed by current inmates because
the act requires a physical injury to file suit. 42 U.S.C. Sec. 1997e(e). However,
the PLRA does not apply to cases brought by people who are not incarcerated
when the suit is filed. See Doan v. Watson, 168 F.Supp.2d 932 (S.D. Ind. 2001),
and Kerr v. Puckett, 138 F.3d 321 (7th Cir.1998), Cf, Milledge v. McCall, 2002
34

WL 1608449 (10th Cir. July 22, 2002) (prisoner cannot bring a strip search claim
while confined under the PLRA). One reason strip search cases are filed for
people who were temporary detainees is because they were only in custody for a
short time so they can file after release.

35

1
2
3
4
5
6
7
8
9

JULIA SHERWIN (State Bar No. 189268)
MICHAEL J. HADDAD (State Bar No. 189114)
HADDAD & SHERWIN
505 Seventeenth Street
Oakland, California 94612
Telephone: (510) 452-5500
Fax: (510) 452-5510
JOHN L. BURRIS (State Bar No. 69888)
LAW OFFICES OF JOHN L. BURRIS
7677 Oakport Street, Suite 1120
Oakland, CA 94621
Telephone: (510) 839-5200
Fax: (510) 839-3882
Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12
13
14

MARIE DOE, a minor, through her mother and
Next Friend, MELBA DOE, on behalf of herself
and all others similarly situated,
Plaintiff,

15
16

vs.

17

CITY AND COUNTY OF SAN FRANCISCO, et
al.,

18
19
20

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. C-04-4914 MJJ
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS CITY AND
COUNTY OF SAN FRANCISCO,
JUVENILE PROBATION
DEPARTMENT, AND TIM
DIESTEL’S MOTION TO
DISMISS PURSUANT TO
F.R.CIV.P. 12(b)(6)
Date: March 15, 2005
Time: 9:30 a.m.
Place: Courtroom 11, 19th Floor

21
22
23
24
25
26
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28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

I

1

TABLE OF CONTENTS

2
3
4

Page

TABLE OF AUTHORITIES ------------------------------------------------------------------------------ii
INTRODUCTION-------------------------------------------------------------------------------------------1

5

STATEMENT OF FACTS --------------------------------------------------------------------------------1

6

ARGUMENT------------------------------------------------------------------------------------------------4

7

I.

STANDARD OF REVIEW-----------------------------------------------------------------------4

II.

PLAINTIFFS’ FOURTH AMENDMENT CLAIMS ARE PROPER ----------------------5

8
9

A.

The Ninth Circuit Has Never Held that an Accusation of “Violent Crime”
Permits Blanket Strip Searches of All Accused Arrestees --------------------------7

B.

Given the Extreme Invasion a Strip Search Entails, Defendants
Must Have At Least an Individualized, Reasonable Suspicion
that a Child Is Concealing Weapons or Contraband Before Strip
Searching Her ----------------------------------------------------------------------------12

10
11
12
13
14

III.

PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIMS ARE PROPER------------15

15

IV.

DEFENDANTS REMAIN LIABLE FOR THEIR UNCONSTITUTIONAL
CUSTOMS, POLICIES, AND PRACTICES-------------------------------------------------16

V.

PLAINTIFFS HAVE A CLAIM UNDER CAL. PEN. CODE § 4030--------------------18

VI.

DEFENDANTS ARE NOT IMMUNE FROM PLAINTIFFS’ CLAIMS----------------19

16
17
18
19

A.

Cal. Gov. Code § 844.6 Does Not Apply --------------------------------------------20

B.

There Can Be No Legislatively Created Immunity for Violations of
Constitutional Rights --------------------------------------------------------------------21

C.

Defendants Do Not Enjoy Cal. Gov. Code § 820.2 Immunity --------------------22

20
21
22
23

VII.

DEFENDANTS ARE LIABLE FOR THE WRONGS OF THE “DOE”
DEFENDANTS-----------------------------------------------------------------------------------24

CONCLUSION --------------------------------------------------------------------------------------------25

24
25
26
27
28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

i

TABLE OF AUTHORITIES

1
2

Cases

3

Albright v. Oliver, 510 U.S. 266 (1994)----------------------------------------------------------------16

4

Barner v. Leeds, 24 Cal.4th 676, 102 Cal.Rptr.2d 97 (2000)-----------------------------------------24

5

Becerra v. County of Santa Cruz, 68 Cal. App. 4th 1450,
81 Cal. Rptr. 2d 165 (1998)-------------------------------------------------------------------------------24

6
7
8
9
10
11
12
13
14
15
16
17

Page

Bell v. Wolfish, 441 U.S. 520 (1979)-----------------------------------------------------------------5-15
Bradford v. State of California, 36 Cal. App. 3d 16, 11 Cal. Rptr. 852 (1973)--------------------20
Branch v. Tunnell, 937 F.2d 1382, 1385-88 (9th Cir. 1991)------------------------------------------5
Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992)-----------------------------4-5
Calabretta v. Floyd, 189 F.3d 808, 819 (9th Cir. 1999)-----------------------------------------------13
Caldwell v. Montoya, 10 Cal. 4th 972, 897 P.2d 1320, 1325 (Cal. 1995)-------------------------23
Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993)----------------------------------------------11-12
Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994)----------------------------------------------------------17
City of Los Angeles v. Heller, 475 U.S. 796 (1986)--------------------------------------------------17
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)-----------------------------------------------------------4
Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th Cir. 1987)-----------------------------------12

18

Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980),
cert. den. 451 U.S. 1022 (1981)--------------------------------------------------------------------------14

19

Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995)-----------------------------------------------------------5

20

Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983)-------------------------------------------------------12

21

Eddings v. Oklahoma, 455 U.S. 104 (1982)------------------------------------------------------------14

22

Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002)--------------------------------------------------------17

23
24

Fenton v. Groveland Community Services District, 135 Cal.App.3d 797, 185 Cal.Rptr. 758
(1982), disapproved in part on other grounds, Katzberg v. Regents,
29 Cal.4th 300, 328, 127 Cal. Rptr.2d 482 (2002)-----------------------------------------------------21

25

Flores v. Meese, 681 F. Supp. 665, 667 (C.D. Cal. 1988)-------------------------------------6, 13-14

26

Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004)-------------------------------------------21

27

Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991)---------------------------------------------7-15

28

Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002)---------------------------5
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

ii

1
2

Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002)----------------------------------------17

3

Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984),
cert. den. 471 U.S. 1053 (1985)-----------------------------------------------------------------------7-15

4

Gilligan v. Jamco Devel. Corp., 108 F.3d 246, 248 (9th Cir. 1997)-----------------------------------5

5

Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989)-------------------------------------5

6

Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984)----------------------------------------------------------11

7

Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992),
cert. denied, 513 U.S. 1148 (1995)----------------------------------------------------------------------17

8
9

Johnson v. California, 69 Cal. 2d 782, 447 P.2d 352,
73 Cal. Rptr. 240 (Cal. 1968)-----------------------------------------------------------------------------23

10

Johnson v. Meltzer, 134 F.3d 1393 (9th Cir. 1998)----------------------------------------------------16

11

Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985)--------------------------------------------------------11

12

Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir. 1992)------------------------------------15

13

Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1989)---------------------7-15

14

Kirpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir. 1986)------------------------------------17

15

Lander v. Summit County School District, 109 Fed. Appx. 215 (10th Cir. 2004)------------------6

16

Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981),
cert. den. 455 U.S. 942 (1982)---------------------------------------------------------------------------12

17
18
19
20
21

Martinez v. City of Los Angeles, 141 F.3d 1373 (1998)---------------------------------------------23
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983)-------------------------------11, 13
Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 285 Cal. Rptr. 99 (1991)----------------------22
Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989)---------------------------------------------12

22

McCorkle v. City of Los Angeles, 70 Cal. 2d 252, 449 P.2d 453,
74 Cal. Rptr. 389 (1969)----------------------------------------------------------------------------------23

23

McDougal v. County of Imperial, 942 F.2d 668, 676 n.7 (9th Cir. 1991)----------------------------4

24

McQuirk v. Donnelley, 189 F.3d 793 (1999)----------------------------------------------------------22

25

Meek v. County of Riverside, 982 F.Supp. 1410, 1414 (C.D. Cal. 1997)---------------------------5

26

Michael J. v. Los Angeles County Dept. of Adoptions,
201 Cal. App. 3d 859; 247 Cal. Rptr. 504 (1988)-----------------------------------------------------19

27
28

Michael J. v. Los Angeles County Dept. of Adoptions,

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

iii

1

201 Cal. App. 3d 859, 247 Cal. Rptr. 504 (1988)-----------------------------------------------------25

2

Monell v. Department of Social Services, 436 U.S. 658 (1978)---------------------------------16-17

3

Newkirk v. Sheers, 834 F. Supp. 772 (E.D. Pa. 1993)------------------------------------------------12

4

New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)-------------------------------------------------------6

5

Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260
(9th Cir. 1998)-----------------------------------------------------------------------------------------------16

6
7
8
9

Owen v. City of Independence, 445 U.S. 622 (1980)-------------------------------------------------17
Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 521 (9th Cir. 1994)-----------------------4
People v. Aguilar, 16 Cal. 4th 1023, 68 Cal. Rptr. 2d 655 (1997)-----------------------------passim

10

Perez v. City of Huntington Park, 7 Cal. App. 4th 817,
9 Cal. Rptr. 2d 258 (1992)--------------------------------------------------------------------------------25

11

Quintanilla v. City of Downey, 84 F.3d 353 (9th Cir. 1996)-----------------------------------------17

12

Ramos v. Madera, 4 Cal.3d 685, 94 Cal. Rptr. 421 (1971)-------------------------------------------19

13

Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc)-----------------------------19, 22

14

Rose v. State of California, 19 Cal.2d 713 (1942)-----------------------------------------------------22

15

Salgado v. Garcia, 384 F.3d 769 (9th Cir. 2004)-------------------------------------------------------21

16

Schmerber v. California, 384 U.S. 757 (1966)---------------------------------------------------------16

17

S.E.C. v. Seaboard Corp., 677 F.2d 1315 (9th Cir. 1982)----------------------------------------------4

18

Smook v. Minnehaha County, 340 F. Supp. 2d 1037 (D. S.D. 2004),
upheld on recons., 2005 U.S. Dist. LEXIS 1228------------------------------------------------------14

19
20

Stewart v. Lubbock County, 767 F. 2d 153 (5th Cir. 1985),
cert. den. 475 U.S. 1066 (1986)--------------------------------------------------------------------------11

21

Sullivan v. County of Los Angeles, 12 Cal. 3d 710, 117 Cal. Rptr. 241 (1974)------------------20

22

Terry v. Ohio, 392 U.S. 1 (1967)-----------------------------------------------------------------------5-6

23

Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989)------------------------------11, 13

24

United States v. Fish, 368 F.3d 1200, 1205 (9th Cir. 2004)------------------------------------------21

25

United States v. Redwood City, 640 F.2d 963 (9th Cir. 1981)-----------------------------------------5

26

Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986),
cert. den. 483 U.S. 1020 (1987)--------------------------------------------------------------------------11

27
28

Watt v. Richardson Police Dep’t, 849 F.2d 195 (5th Cir. 1988)-------------------------------------12

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

iv

1
2
3
4
5
6
7

Weber v. Dell, 804 F. 2d 796 (2nd Cir. 1986),
cert. den. 483 U.S. 1020 (1987)--------------------------------------------------------------------------12
White v. County of Orange, 166 Cal. App. 3d 566, 212 Cal. Rptr. 493 (1985)-------------------19
Wilson v. Shelby County, 95 F. Supp. 2d 1258, 1262 (N.D. Ala. 2000)-----------------------12-13
Woods v. Young, 53 Cal. 3d 315, 279 Cal. Rptr. 613 (1991)----------------------------------------21
Young v. County of Marin, 195 Cal. App. 3d 863, 869 (1987)--------------------------------------22
Statutes, Court Rules, and other Authorities

8

U.S. Const. Am IV--------------------------------------------------------------------------------------5-15

9

U.S. Const. Am XIV---------------------------------------------------------------------------------------15

10

FRCivP 12(b)(6)------------------------------------------------------------------------------------------4-5

11

FRCivP 8(a)--------------------------------------------------------------------------------------------------5

12

California Civil Code § 52.1--------------------------------------------------------------------------20-21

13

California Government Code § 815.2-------------------------------------------------------------------24

14

California Government Code § 815.6-------------------------------------------------------------------20

15

California Government Code § 820.2---------------------------------------------------------------22-24

16

California Government Code § 844---------------------------------------------------------------------20

17

California Government Code § 844.6-------------------------------------------------------------------20

18

California Penal Code § 245(a)(1)-----------------------------------------------------------------passim

19

California Penal Code § 853.6-----------------------------------------------------------------------------4

20

California Penal Code § 4030-----------------------------------------------------------------------passim

21

15 California Code of Regulations § 1360--------------------------------------------------------passim

22

Cal. Att’y Gen. Opp’n. No. 88-1201, 7/6/89, pp. 6-7-------------------------------------------------18

23

5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure (1990)---------------5

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25
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Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

v

INTRODUCTION

1
2
3
4

This civil rights class action arises out of Defendants’ unconstitutional policy of subjecting
every child who is detained at San Francisco’s Juvenile Hall to strip searches, urine tests, and
other medical tests and procedures, regardless of whether there is any reasonable suspicion that the

5
6

child is concealing weapons, drugs or other contraband.
Defendants’ policy requiring these suspicionless strip searches and tests flies in the face of

7
8

the U.S. and California constitutions, years of case law, California statutes, and basic dignity.

9

Plaintiff Marie Doe brings this case on behalf of herself and other similarly situated

10

individuals for damages, injunctive and declaratory relief. Plaintiff, a 12-year-old girl, was falsely

11
12
13
14

arrested on a legally invalid charge and taken to Juvenile Hall. There, she was subjected to a
visual strip search during a shower, and later a “squat and cough” strip search, in addition to
nonconsensual urine and blood testing, and inquiries about her sexual history.
At no time was there any suspicion that Plaintiff was hiding weapons, drugs, or other

15
16

contraband, and there was never any legal basis for any of these searches or inquiries. Rather,

17

Plaintiff was strip searched pursuant to Defendants’ blanket policy of strip searching all children

18

who are detained at Juvenile Hall, regardless of whether there is any justification for the search.

19
20
21
22

Three Defendants – the City and County of San Francisco, the Juvenile Probation
Department, and Director of Juvenile Hall Tim Diestel – have now filed a motion to dismiss.1
The motion of these three Defendants [hereafter “Defendants’ motion”] must be denied.
STATEMENT OF FACTS

23

At all relevant times, Plaintiff Marie Doe was a 12-year-old girl and a student at Luther

24
25

Burbank Middle School. Complaint ¶ 18.2 On October 21, 2003, a male student kicked Plaintiff

26
27

1

The remaining Defendants have neither filed an answer nor joined in this motion.

28

2

All references to the Complaint will be by paragraph number only, e.g. “¶ 19.”

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

1

1

and engaged in horseplay at school with Plaintiff and another female student. The other female

2

student allegedly brought the male student to the ground and kneed him in the stomach. ¶ 19.

3
4

The male student later claimed that he sustained a temporary, non-incapacitating
stomachache that did not require medical treatment. There was no evidence or allegation that

5
6
7

Plaintiff caused any injury to the male student or to anyone else in that incident. ¶¶ 20-21.
The school administration reported the incident to the San Francisco Police approximately

8

one week after the incident, on October 28, 2003. The next day, on October 29, the school

9

administration provided statements from Plaintiff Marie Doe and the two other students involved

10
11
12
13
14
15

in the horseplay incident that had taken place eight days earlier to Defendants CCSF and Police
Officer Jacqueline Selinger. ¶¶ 22-23.
Defendant Selinger interrogated Marie Doe and the other students, without the knowledge,
presence, or consent of their parents. ¶ 24.
Defendant Selinger and other officers decided to arrest Marie Doe and the other female

16

student for violation of Cal. Penal Code § 245(a)(1), alleging the factual basis for the charge

17

against Plaintiff as “assault with a deadly weapon (feet).” Defendants then decided to incarcerate

18

Marie Doe at Juvenile Hall. ¶¶ 25-26.

19
20
21
22
23
24
25
26
27

Defendants performed a thorough physical search of Marie Doe at the school, including
searching her bra, before removing her from the school premises. ¶ 27. This search revealed no
weapons, drugs, or other contraband.
At no time prior to Defendants’ interrogation, arrest, search, and removal of the students
from school premises did any Defendant or school official contact Plaintiff’s mother. ¶ 28.
After Defendants took Plaintiff to Defendants’ “Youth Guidance Center” (Juvenile Hall),
Defendant Selinger contacted Plaintiff’s mother, Melba Doe, for the first time and informed her
that Marie had been arrested and taken to Juvenile Hall for “assault with a deadly weapon.” ¶ 29.

28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

2

1
2
3
4

At Juvenile Hall, Defendants booked Marie Doe into custody for alleged “assault with a
deadly weapon (feet)” under California Penal Code § 245(a)(1). ¶ 30.
Any reasonable law enforcement officer would have known at that time that there was no
legal basis for Marie Doe’s arrest or incarceration under these circumstances. Among other

5
6
7
8
9
10
11
12
13
14
15

things, the law was clearly established that a person’s feet, or any part of a person’s body, as a
matter of law cannot constitute a “deadly weapon” under Cal. Penal Code § 245(a)(1). ¶ 31; See,
People v. Aguilar, 16 Cal. 4th 1023, 68 Cal. Rptr. 2d 655 (1997).
Nonetheless, Defendants booked Marie Doe, photographed and fingerprinted her, ordered
her to take a shower, took her clothes and gave her jail clothes to wear. On information and belief,
during Plaintiff’s shower, Doe Defendants conducted a visual strip search of Plaintiff. ¶ 32.
A probation employee took blood and urine samples from Marie Doe, interrogated her
about her sexual history, and conducted other non-consensual medical testing on her. ¶ 33.
Defendants allowed Marie Doe to see her mother for a supervised visit in the early evening

16

on October 29, 2003. ¶ 35. After Marie’s visit with her mother, a Doe Defendant who is

17

employed by these Defendants ordered Plaintiff to pull her pants and underpants down to reveal

18

her naked genital area, and to squat and cough. Marie complied with that order. ¶ 36.

19
20
21
22
23
24
25
26
27

At all times, Plaintiff had no drugs, weapons, or other contraband. At all times, no
Defendant had any evidence, reasonable suspicion, or reason to believe that Plaintiff was hiding
any drugs, weapons, or other contraband anywhere, including on her person. ¶¶ 37-38. At all
times, Plaintiff was peaceful and did not threaten any person. ¶ 40.
Defendants never obtained any proper consent for any interrogation, search, tests, or strip
search of Plaintiff. ¶¶ 34, 39. Defendants’ interrogations, searches, seizure, arrest, incarceration,
and medical testing/procedures conducted on Plaintiff were all without Warrant, probable cause,
reasonable suspicion, or other legal right. ¶ 41.

28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

3

Defendants held Plaintiff in custody overnight in a cell, and released her to her mother the

1
2

next day, October 30, 2003. ¶ 43. Marie Doe was never charged with any crime. ¶ 44.

3
4

Defendants’ policy requiring strip searches and/or visual body cavity searches of minors
who are pretrial detainees at Juvenile Hall is without regard to: the nature of the alleged offense;

5
6
7

whether or not the minor is eligible for cite and release under Cal. Penal Code § 853.6; whether or
not the minor is eligible for release on her own recognizance or to her parents; and whether or not

8

the Defendants have any reasonable belief that the minor possesses weapons or contraband, or that

9

there are facts supporting a reasonable belief that the search would produce contraband. ¶ 52.

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Defendants’ strip and/or visual body cavity searches of pretrial detainees at Juvenile Hall
routinely violate Cal. Penal Code § 4030, 15 C.C.R. § 1360, and other laws. ¶ 53.

12

ARGUMENT

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14

I.

STANDARD OF REVIEW.

15

“It is axiomatic that the motion to dismiss for failure to state a claim is viewed with

16

disfavor and is rarely granted.” McDougal v. County of Imperial, 942 F.2d 668, 676 n.7 (9th Cir.

17

1991)(citation omitted). A court may not dismiss a complaint under Rule 12(b)(6) unless it

18

appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which

19

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (emphasis added).3

20

All allegations of material fact are taken as true and construed in the light most favorable

21
22

to the plaintiff. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Courts must

23

assume that all general allegations “embrace whatever specific facts might be necessary to support

24

them.” Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 521 (9th Cir. 1994).

25
26
27
28

See also, S.E.C. v. Seaboard Corp., 677 F.2d 1315, 1316 (9th Cir. 1982) (no dismissal unless it
appears “to a certainty” that Plaintiff can prove no set of facts entitling him to relief).
3

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

4

“Civil rights complaints are to be liberally construed.” Buckey, supra; Gobel v. Maricopa

1
2

County, 867 F.2d 1201, 1203 (9th Cir. 1989).

3
4

“Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires ‘a short and
plain statement of the claim showing that the pleader is entitled to relief.’ 5A Charles A. Wright &

5
6
7

Arthur R. Miller, Federal Practice and Procedure, p. 1356 (1990).” Meek v. County of Riverside,
982 F.Supp. 1410, 1414 (C.D. Cal. 1997), quoting Gilligan v. Jamco Devel. Corp., 108 F.3d 246,

8

248 (9th Cir. 1997). Indeed, Rule 8(a) requires pleading to be “simple, concise, and direct.” See,

9

Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002) (Supreme Court overruled

10

heightened pleading requirement of Branch v. Tunnell, 937 F.2d 1382, 1385-88 (9th Cir. 1991)).

11
12
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“The notice pleading standard set forth in Rule 8 establishes ‘a powerful presumption
against rejecting pleadings for failure to state a claim.’” Meek, 982 F.Supp. at 1414; Gilligan, 108
F.3d at 248. In keeping with this liberal pleading standard, the district court should grant the

15

plaintiff leave to amend if the complaint is found deficient and can possibly be cured by the

16

inclusion of additional factual allegations. Meek, 982 F.Supp. at 1414, citing, Doe v. U.S., 58

17

F.3d 494, 497 (9th Cir. 1995). Dismissal without leave to amend is proper only in “extraordinary”

18

cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

19
20
21
22

II.

PLAINTIFFS’ FOURTH AMENDMENT CLAIMS ARE PROPER.
Even a limited search of a person is a substantial invasion of privacy. Terry v. Ohio, 392

U.S. 1, 24-25 (1967). The United States Supreme Court set forth the standard for determining

23

whether a particular search is unreasonable in violation of the Fourth Amendment in Bell v.

24

Wolfish, 441 U.S. 520 (1979). In Bell, the Supreme Court held that visual body-cavity searches

25

could, in some circumstances, be conducted on less than probable cause, and set forth the test:

26
27

The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. It requires a balancing of the need for the
particular search against the invasion of personal rights that the search entails.

28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

5

Courts must consider the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted.

1
2
3

441. U.S. at 559, 560.4
As will be discussed below, cases that have engaged in the balancing test mandated by Bell

4
5

have routinely required that strip searches be conducted only on individualized, reasonable

6

suspicion that a person is concealing weapons or contraband.

7
8
9
10
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12

“Exceptions to the requirement of individualized suspicion are generally appropriate only
where the privacy interests implicated by a search are minimal and where other safeguards are
available to assure that the individual’s reasonable expectation of privacy is not subject to the
discretion of the official in the field.” New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)(emphasis
added, internal quotations and citations omitted).
“The more intrusive the search, the more justification for the search must come.” Flores v.

13
14

Meese, 681 F. Supp. 665, 667 (C.D. Cal. 1988), citing Terry v. Ohio, 392 U.S. at 18 n. 15.

15
16

Even a search of a fully-clothed child’s person is “undoubtedly a severe violation of
subjective expectations of privacy.” New Jersey v. T.L.O., 469 U.S. 325, 337-338, 341 (1985).

17
Defendants would have this Court dispose of the balancing test required by the Supreme

18
19

Court in Bell. Defendants provide no justification for their suspicionless strip-searches of Plaintiff

20

and other children. Rather, they simply assert that any time a child is accused of a crime involving

21

“violence,” a strip search is always allowed. Defendants’ argument ignores the need for the

22

search, the scope of the intrusion of personal rights the search entails, the manner in which it is

23

conducted, and the place in which it is conducted, all factors Bell requires courts to consider.

24
25
26
27
28

4

Cases such as this one, which require a careful balancing of interests, are particularly ill-suited to
motions to dismiss. “[A] balancing test … is inappropriate in evaluating a dismissal under Fed. R.
Civ. P. 12(b)(6) as no countervailing state interest could have been alleged since the claim is
evaluated solely upon the pleadings of the plaintiff.” Lander v. Summit County School District,
109 Fed. Appx. 215, 221 (10th Cir. 2004).
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

6

1
2
3
4

Additionally, Defendants’ assertion that Plaintiff was accused of “violence” ignores the
facts set forth in the Complaint, that Plaintiff, a 12-year-old-girl, was falsely accused of
“violence,” and falsely arrested on a legally invalid charge, essentially for engaging in horseplay
with other schoolchildren. The facts of this case make clear that Defendants’ proposed new rule –

5
6
7

they may strip search any child accused of “violence” – will trap many children whose only
“crime” is the overreaction of adults to rambunctious 12-year-old behavior. Those children will

8

then be subjected to urine and blood tests, along with the extreme indignity of being forced to

9

strip, squat and cough while revealing their naked bodies to complete strangers.

10
11
12
13
14
15
16
17

Furthermore, Defendants fail to address the fact that their policy calls for strip searching
all children, not just those accused of “violent” crime, and that Plaintiff Doe was strip searched
pursuant to that blanket strip search policy. “A ham-handed approach to policy making runs the
serious risk of infringing upon detainees’ constitutional rights.” Kennedy v. Los Angeles Police
Department, 901 F.2d 702, 713 (9th Cir. 1989).
A.

The Ninth Circuit Has Never Held that an Accusation of “Violent Crime”
Permits Blanket Strip Searches of All Accused Arrestees.

Contrary to Defendants’ assertion, the Ninth Circuit has never held that an accusation of

18
19
20

“violent crime” permits the wholesale strip-searching of all those accused, regardless of whether
they are suspected of concealing weapons, drugs, or contraband. Giles v. Ackerman, 746 F.2d 614

21

(9th Cir. 1984), cert. den. 471 U.S. 1053 (1985), Kennedy v. Los Angeles Police Department, 901

22

F.2d 702 (9th Cir. 1989), and Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991), which

23

Defendants cite for their new rule, did not involve people accused of ‘violent crime.’ Rather, the

24
25
26
27
28

lack of an accusation of ‘violence’ was cited as one of many factors the court weighed in
determining that the Fourth Amendment prohibited the strip searches of the plaintiffs in each of
those cases, where there was not a particularized reasonable suspicion that they were concealing
weapons or other contraband.

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

7

In Giles, the Ninth Circuit held that a policy of strip searching all people booked into

1
2
3
4

county jail on minor traffic offenses violated the Fourth Amendment. Of the 3,500 adults strip
searched during an 18-month period, only 11 people had concealed anything, including cigarettes,
warranting a report. 746 F.2d at 617.5

5
The court balanced the jail’s interest in institutional security against the privacy interests of

6
7

the arrestees, and held “that arrestees charged with minor offenses may be subject to a strip search

8

only if jail officials possess a reasonable suspicion that the individual arrestee is carrying or

9

concealing contraband. Reasonable suspicion may be based on such factors as the nature of the

10

offense, the arrestee’s appearance and conduct, and the prior arrest record.” 746 F.2d at 617.

11
12
13

Thus, the nature of the offense was only one of the factors to be considered in determining
whether there was reasonable suspicion to justify the strip search.
The adult plaintiff in Giles had committed a minor traffic offense that was not related to

14
15

drugs or weapons; had no prior record; was cooperative and orderly. 746 F.2d at 618. She was

16

strip searched “with all due courtesy” pursuant to the blanket strip search policy, and the Ninth

17

Circuit held that her Fourth Amendment rights were violated. Here, Plaintiff Doe, was a 12-year-

18

old child with no record, who was arrested from school more than a week after a student horseplay

19
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22
23

incident, on a legally invalid charge [assault with a deadly weapon (feet), when as a matter of law
feet cannot be a deadly weapon], was not alleged to have injured anyone, had no contraband, was
not suspected to possess any contraband, had already been subjected to a thorough pat-down and
clothing search that revealed no weapons or contraband, and was peaceful and non-threatening.

24
25
26
27
28

5

Of course, Defendants here have not yet produced any discovery relating to the justification for
their strip searches, and what those searches have produced, a further indication that their
dispositive motion is premature.

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

8

1
2
3
4

And, unlike the plaintiff in Giles who was placed with the general population – which the
defendant put forth as further justification for the strip search -- Plaintiff Doe was kept in a
separate cell overnight. Complaint, ¶ 43.
In Kennedy v. LAPD, the plaintiff was arrested for grand theft and subjected to the

5
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7
8
9
10
11
12
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LAPD’s policy requiring a visual body-cavity search on all felony arrestees. The Ninth Circuit, in
affirming that the policy violated the Fourth Amendment, noted:
“The intrusiveness of a body-cavity search cannot be overstated. Strip searches
involving the visual exploration of body cavities is dehumanizing and humiliating.
The Supreme Court has commented: “Admittedly, this practice instinctively gives
us the most pause.” Bell v. Wolfish, 441 U.S. 520, 558 … see also id. at 576-577
(“In my view the body-cavity searches … represent one of the most grievous
offenses against personal dignity and common decency.”)(Marshall, J., dissenting).
901 F.2d at 711 (internal citations omitted).
The Kennedy court rejected making a distinction between felony and misdemeanor
arrestees, noting “A glaring omission from the LAPD’s justification is any documentation (or

15

even assertion) that felony arrestees have attempted to smuggle contraband into the jail in

16

greater frequency than misdemeanor arrestees. … [T]he felony/misdemeanor classification

17

alone indicates little about the likelihood of the arrestee’s concealing drugs, weapons, or

18
19

contraband.” 901 F.2d at 713, 714.
Likewise, Defendants’ proposed new rule that they be given blanket permission to strip

20
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search all juvenile arrestees accused of “violence” bears no relationship to the likelihood that the
individual child will conceal or attempt to smuggle drugs, weapons, or contraband into Juvenile

23

Hall. Especially in cases like this one, where the alleged crime of “violence” involves the

24

unarmed conduct of a 12-year-old, and the child is arrested unexpectedly from school more than a

25

week after the incident, the likelihood of such concealment of weapons or contraband is nil.

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Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

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1

The Kennedy court found that “the classification of the offense in some cases might

2

inform the presence of suspicion, but it does not inform the level of suspicion required.” 901 F.2d

3
4

at 716 (emphasis added and emphasis in original).
Indeed, the nature of the crime is just one factor – not the only factor – in determining

5
6
7

whether there is a reasonable suspicion that the arrestee is concealing weapons or contraband.
Other factors include the arrestee’s appearance and conduct, and prior offense record. Id. In this

8

case, Marie Doe’s arrest for an unarmed crime of “violence” had to be considered along with other

9

factors heavily weighing against strip searching her [12-year-old child with no offense record,

10

behaving in a non-threatening and peaceful manner, falsely arrested unexpectedly from school

11
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more than a week after the incident, who was already subjected to a thorough pat-down search
which revealed nothing untoward].
In Fuller, at 1447, the Ninth Circuit reviewed the caselaw since Bell and observed, “These

15

decisions suggest that strip and body cavity searches of detainees may be conducted based on

16

reasonable suspicion only where such searches are necessary to protect the overriding

17

security needs of the institution – that is, where officials have a reasonable suspicion that a

18

particular detainee harbors weapons or dangerous contraband.” (Emphasis added).

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The plaintiffs in Fuller were arrested for grand theft of a ring from a jewelry store, and
were strip searched both pursuant to a Los Angeles Police Department policy requiring the strip
searching of all felony arrestees, and to find the ring the plaintiffs were accused of stealing.
The Fuller court, agreeing with Kennedy, held the distinction between felony and
misdemeanor arrestees in earlier cases was “of no consequence.” 950 F.2d at 1446.
In Fuller, the Ninth Circuit observed the rationale underlying Bell and Kennedy -- that strip
searches of detainees are allowed on less than probable cause when the objective is to discover
weapons or contraband – did not apply to that grand theft case. The court refused to allow a strip

28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

10

1

search on reasonable suspicion to look for the stolen ring, and instead held that such a search still

2

required probable cause. 950 F.2d at 1448-1449.

3
4

Defendants’ reliance on Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989),
is misplaced. Thompson did not validate a blanket strip search policy, but rather considered that

5
6
7

policy “in the context of the particular circumstances of this case.” 885 F.2d at 1445. That case
involved an adult male who was arrested while he was in the act of felony grand theft of an

8

automobile, and strip searched before being placed the general jail population. The Thompson

9

court specifically limited its holding to the facts before it: “We emphasize, however, that our

10

decision is extremely narrow and only applies to theft of an automobile.” 885 F.2d at 1447

11
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13
14

n.6. And, the plaintiff in Thompson had no valid false arrest claim. Id. at 1442 n.1. Moreover,
Thompson was decided before the Ninth Circuit’s decisions in both Kennedy and Fuller.
In addition to Giles, Kennedy, and Fuller, discussed above, numerous courts both in and

15

outside the Ninth Circuit have invalidated blanket, suspicionless strip search policies. Ward v.

16

County of San Diego, 791 F.2d 1329, 1333 (9th Cir. 1986), cert. den. 483 U.S. 1020 (1987)

17

(reversing summary judgment in case involving strip search of arrestee before hearing to

18

determine whether she was eligible for an own recognizance (“O.R.”) release: “In most

19
20
21
22

instances, the unreasonableness of a strip search conducted prior to an O.R. release
determination is plain”); Chapman v. Nichols, 989 F.2d 393, 399 (10th Cir. 1993); Hill v.
Bogans, 735 F.2d 391, 394 (10th Cir. 1984)(noting the plaintiff’s alleged crime was not commonly

23

associated by its very nature with the possession of weapons or contraband and “almost anything

24

that the examining officer could have found through this [strip search] procedure would already

25

have been discovered during the pat down search conducted on the plaintiff’s arrival at the jail);

26

Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Mary Beth G. v. City of Chicago, 723 F.2d

27

1263, 1273 (7th Cir. 1983); Stewart v. Lubbock County, 767 F. 2d 153, 156-157 (5th Cir. 1985),

28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

11

1

cert. den. 475 U.S. 1066 (1986); Weber v. Dell, 804 F. 2d 796, 801 (2nd Cir. 1986), cert. den. 483

2

U.S. 1020 (1987); Watt v. Richardson Police Dep’t, 849 F.2d 195, 199 (5th Cir. 1988); Logan v.

3

Shealy, 660 F.2d 1007 (4th Cir. 1981), cert. den. 455 U.S. 942 (1982); Newkirk v. Sheers, 834 F.

4

Supp. 772, 789-790 (E.D. Pa. 1993)(noting lack of evidence to support a belief that the plaintiffs

5
6
7

were dangerous or threatening to the security of the prison); Wilson v. Shelby County, 95 F. Supp.
2d 1258, 1262 (N.D. Ala. 2000)(any “mechanical” application of a strip search policy, such as the

8

one proposed by Defendants here, “is the very antithesis of a balancing of the interests involved”);

9

Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989).6

10

B.

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12
13
14
15
16

Given the Extreme Invasion a Strip Search Entails, Defendants Must
Have At Least an Individualized, Reasonable Suspicion that a Child Is
Concealing Weapons or Contraband Before Strip Searching Her.

Courts are uniform in recognizing the egregious violation of privacy strip searches
entail. In Giles, the strip search -- conducted in an appropriate place and “with all due
courtesy” -- was a “frightening and humiliating” invasion of privacy. 746 F.2d at 617. In
Chapman v. Nichols, 989 F. 2d at 395-396 (10th Cir. 1993), the court stated:
There can be no doubt that a strip search is an invasion of personal rights of the
first magnitude. It is axiomatic that a strip search represents a serious intrusion
upon personal rights. The experience of disrobing and exposing one’s self for
visual inspection by a stranger clothed with the authority of the state, in an enclosed

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23
24
25
26
27
28

6

Defendants cite Masters v. Crouch, along with Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983),
and Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th Cir. 1987), to support their new rule that
any time a child is accused of a crime involving violence, she can be subjected to a blanket,
suspicionless strip search. However, in Masters v. Crouch the court found the defendants were not
entitled to qualified immunity for the suspicionless strip search of the plaintiff, noting “We have
found no authority approving a practice of conducting a strip search of a person arrested for a
simple traffic violation in the absence of at least reasonable suspicion that the person might be
carrying a weapon, illegal drugs, or other contraband.” 872 F. 2d 1248. The Masters court
observed that the Dufrin strip search was approved because the adult male was arrested for
felonious assault and because he would ultimately come into contact with the general jail
population. Dobrowolskyj was charged with an offense associated with weapons and other
contraband, and a “combination of factors,” including not only the weapons-related offense but the
fact that he was going to be in contact with the general population, justified the strip search. 872
F. 2d at 1255, 1256. Here, Plaintiff Doe’s alleged crime involved no weapons or contraband, and
she was never placed in the general population.
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

12

1
2
3
4
5

room inside a jail, can only be seen as thoroughly degrading and frightening.
Moreover, the imposition of such a search upon an individual detained for a lesser
offense is quite likely to take that person by surprise, thereby exacerbating the
terrifying quality of the event. (citations omitted).
See also, Thompson v. City of Los Angeles, 885 F.2d at 1446 (9th Cir. 1989)(“The feeling of
humiliation and degradation associated with forcibly exposing one’s nude body to strangers for

6

visual inspection is beyond dispute”); Mary Beth G. v. City of Chicago, 723 F.2d at 1272 (7th Cir.

7

1983)(strip searches described as “demeaning, dehumanizing, undignified, humiliating, terrifying,

8

unpleasant, embarrassing, repulsive, signifying degradation and submission”); Kennedy v. LAPD,

9

901 F.2d at 711 (9th Cir. 1989)(citations omitted)(visual body-cavity searches described as

10
11
12
13

“dehumanizing and humiliating” and “one of the most grievous offenses against personal dignity
and common decency”); Wilson v. Shelby County, 95 F. Supp. 2d 1258, 1264 (N.D. Ala.
2000)(“there is no greater expectation of privacy than that associated with our bodies; far more

14

than any other expectation of privacy in a free society, we expect to avoid being required to strip

15

naked, squat, spread our buttocks apart, and cough. At the very least, to intrude upon that privacy

16

there must be some reason to do so.” Id. at 1266).

17
18

And, courts are particularly sensitive to the additional harm children can suffer from strip
searches. “It does not require a constitutional scholar to conclude that a nude search of a

19
20
21

thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than
that: it is a violation of any known principle of human dignity.” Calabretta v. Floyd, 189 F.3d

22

808, 819 (9th Cir. 1999)(citations omitted). Thus, the Ninth Circuit held that there was no

23

qualified immunity for the strip search of a 3-year-old child to investigate suspected child abuse,

24

conducted without a warrant or special exigency.

25
26
27
28

Similarly, in Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988), the District Court
granted summary judgment in favor of the plaintiffs, who were children detained at various
facilities, including Juvenile Halls, on suspected immigration violations. The children, like

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

13

1

Plaintiff Doe here, were subjected to a blanket visual strip search policy without any reasonable

2

suspicion that they were concealing weapons or contraband. The court observed:

3

That plaintiffs are children under the age of eighteen is also a factor we must
consider. Children are especially susceptible to possible traumas from strip
searches. As the Supreme Court has noted, “youth is more than a chronological
fact. It is a time and condition of life when a person may be most susceptible to
influence and to psychological damage. Eddings v. Oklahoma, 455 U.S. 104, 115
(1982). It follows that a nude search of a child is an invasion of constitutional
rights of some magnitude. See, e.g., Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.
1980), cert. den. 451 U.S. 1022 (1981).

4
5
6
7
8

681 F. Supp. at 667 (emphasis added, internal parallel citations omitted).7
In striking down the blanket strip search policy, the District Court noted that

9
10

approximately 7,300 children were strip searched per year. In 1987, only one item of

11

“contraband,” a broken mirror, was discovered in a strip search; and only four weapons or

12

contraband items were discovered in any searches of the children. Id. at 668.

13

In Doe v. Renfroe, 631 F.2d 91, 92-93 (7th Cir. 1980), cert. den. 451 U.S. 1022 (1981), the

14
15

Seventh Circuit found school officials’ suspicionless strip search of a junior high school student to

16

determine whether she possessed drugs or contraband was not only unconstitutional but

17

“outrageous under settled indisputable principles of law:”

18

We suggest as strongly as possible that the conduct herein described exceeded the
‘bounds of reason’ by two and a half country miles. It is not enough for us to
declare that the little girl involved was indeed deprived of her constitutional and
basic human rights. We must also permit her to seek damages from those who
caused this humiliation and did indeed act as though students ‘shed at the
schoolhouse door rights guaranteed by any constitutional provision.’

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21
22

631 F.2d at 91.

23

In Smook v. Minnehaha County, 340 F. Supp. 2d 1037, 1046 (D. S.D. 2004), (upheld on

24

recons., 2005 U.S. Dist. LEXIS 1228), the minor plaintiff was arrested for a curfew violation and

25
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27
28

7

Flores has been appealed on various unrelated issues. However, the defendants did not appeal
the district court’s order that the INS cease strip searching children unless there was an
individualized reasonable suspicion that a child was concealing weapons or contraband. See,
Flores v. Meese, 934 F.2d 991, 1014 (9th Cir. 1990).
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

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1

strip searched to her bra and underwear. The court held the defendant juvenile hall’s policy of

2

requiring strip searches of all juveniles regardless of their offense, and regardless of whether there

3
4

was reason to believe they had weapons or contraband, unconstitutional. The court balanced the
intrusiveness of the strip search against the minimal showing of a need to conduct the

5
6

indiscriminate search, and held the search of the minor unconstitutional.
Defendants incorrectly rely on Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir.

7
8

1992) to state that a strip search of a 14-year-old girl arrested for truancy and loitering supports

9

Defendants’ suspicionless strip searches of Plaintiff Doe and the other class members here.

10

(Defs’. Brief, p. 3:15-16). To the contrary, the strip search of the plaintiff in that case was

11
12
13
14

constitutional precisely because there was “reasonable suspicion” in that case – the officers
possessed “a particularized and objective basis for suspecting [the plaintiff] of hiding contraband
on her person.” 961 F.2d at 194.
Reasonable suspicion is “the least protective constitutional standard.” Kennedy, 901 F.2d

15
16

at 716 n. 8. Certainly children such as Marie Doe and the class members should be accorded at

17

least this modest constitutional protection before they are subjected to the extreme invasion of

18

their bodies and privacy caused by a strip search.

19
20
21
22
23

III.

PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIMS ARE PROPER.
Defendants incorrectly assert that Plaintiffs’ substantive due process claims are

“superfluous” and must be dismissed. Defendants do not address their urine testing, blood
testing, sexual inquiries, and other nonconsensual medical testing and inquiries in their

24

motion. All of that conduct was a violation not only of the Fourth Amendment, but also of

25

the Due Process clause of the Fourteenth Amendment. “The constitutionally protected

26

privacy interest in avoiding disclosure of personal matters clearly encompasses medical

27

information and its confidentiality. … The tests at issue in this case [blood and urine tests

28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

15

1

for sickle cell anemia] thus implicate rights protected under both the Fourth Amendment

2

and the Due Process Clause of the Fifth or Fourteenth Amendments.” Norman-Bloodsaw

3

v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998).8 “Extension of the

4

right to confidentiality to personal medical information recognizes there are few matters

5
6

that are quite so personal as the status of one’s health.” Id. at 1269 (citation omitted).
“[I]t is well established that a person’s liberty interest in bodily integrity is one of

7
8

the personal rights accorded substantive protection under the Due Process Clause.”

9

Johnson v. Meltzer, 134 F.3d 1393, 1397 (9th Cir. 1998)(citing Albright v. Oliver, 510 U.S.

10
11

266, 272 (1994)(substantive due process protections accorded to matters relating to
marriage, family, procreation, and the right to bodily integrity).

12

It is premature to dismiss Plaintiffs’ due process claims at this point, as they have

13
14

had no discovery into the justification for and extent of the tests and inquiries, and what is

15

done with the medical and personal information collected.

16

IV.

17

DEFENDANTS REMAIN LIABLE FOR THEIR UNCONSTITUTIONAL
CUSTOMS, POLICIES, AND PRACTICES.
As set forth above, Defendants’ assertion that Plaintiff Doe’s Fourth Amendment rights

18
19
20
21

were not violated as a matter of law is both premature and legally unfounded. Defendants
incorrectly assert that they cannot be held liable for their unconstitutional customs, policies, and
practices if individual employees have not been found to violate the Fourth Amendment.

22
23

Defendants’ strip search policy, practice, and custom, as set forth in the complaint is
unconstitutional on its face, and subjects Defendants to municipal liability under Monell v.

24
25
26
27
28

8

Blood tests require probable cause under Schmerber v. California, 384 U.S. 757, 769-770 (1966),
which Defendants did not have in this case. Furthermore, to the extent that Defendants performed
any visual body cavity searches on any of the plaintiff class members, they were required to have
probable cause and a warrant beforehand. Fuller, 950 F.2d at 1448-1449; Cal. Pen. Code § 4030.

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

16

1

Department of Social Services, 436 U.S. 658 (1978). Fuller, supra, 950 F. 2d at 1452; Kirpatrick

2

v. City of Los Angeles, 803 F.2d 485, 492 (9th Cir. 1986).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

In addition, municipal entities can be held liable under Monell even if individual public
employees are not found liable. See, Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002); Gibson v.
County of Washoe, 290 F.3d 1175 (9th Cir. 2002). In Gibson, the Ninth Circuit stated:
The municipal defendants … assert that if we conclude, as we do, see infra, that
the individual deputy defendants are not liable for violating Gibson's
constitutional rights, then they are correspondingly absolved of liability. Although
there are certainly circumstances in which this proposition is correct, see, City of
Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571
(1986) and Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996), it
has been rejected as an inflexible requirement by both this court and the
Supreme Court.
For example, a municipality may be liable if an individual officer is exonerated on
the basis of the defense of qualified immunity, because even if an officer is
entitled to immunity a constitutional violation might still have occurred. See, e.g.,
Chew v. Gates, 27 F.3d 1432, 1438-39 (9th Cir. 1994). Or a municipality may be
liable even if liability cannot be ascribed to a single individual officer. Owen v.
City of Independence, 445 U.S. 622, 652, 63 L. Ed. 2d 673, 100 S. Ct. 1398
(1980) (a "'systemic' injury" may "result not so much from the conduct of any
single individual, but from the interactive behavior of several government
officials, each of whom may be acting in good faith.") (citation omitted). And in
Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002), we explicitly rejected a
municipality's argument that it could not be held liable as a matter of law
because the jury had determined that the individual officers had inflicted no
constitutional injury. Id. at 916. "If a plaintiff established he suffered
constitutional injury by the City, the fact that individual officers are exonerated is
immaterial to liability under § 1983." Id. (emphasis in original); see also, Hopkins
v. Andaya, 958 F.2d 881 (9th Cir. 1992).

21
22
23

290 F.3d at 1186, f.n. 7 (emphasis added).
In Gibson, even if the individual named defendants were found to have not violated

24

the plaintiff’s rights, the County could still be liable due to its lack of appropriate policies

25

and procedures, while ignoring an obvious need for such procedures, that should have

26
27
28

prevented the plaintiff’s death in jail. 290 F.3d at 1186-1187, 1194-1196. See also,
Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir. 1992), cert. denied, 513 U.S. 1148 (1995).

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

17

Here, Defendants have a blatantly unconstitutional policy of strip searching and testing all

1
2
3
4
5

children who are detained at Juvenile Hall, regardless of whether those children are suspected of
concealing any weapons or contraband. Defendants remain liable for that policy under Monell.
V.

PLAINTIFFS HAVE A CLAIM UNDER CAL. PEN. CODE § 4030.
As set forth above, Defendants incorrectly assert that Plaintiff was “charged with a violent

6
7
8
9
10

crime.” (Def. Brief, p. 4:13). To the contrary, the uncontroverted facts for Defendants’ motion
are that Plaintiff Doe was falsely arrested and booked on a legally invalid and obviously
factually incorrect charge that can be either a felony or a misdemeanor. Cal. Penal Code §
245(a)(1); People v. Aguilar, 16 Cal. 4th 1023 (feet cannot be a deadly weapon).

11
12
13
14

California law requires that strip searches of minors be conducted only with prior
supervisory approval, and only upon the reasonable suspicion of a “peace officer” that a minor is
in possession of a weapon or contraband. 15 Cal. Code. Regs. § 1360.9
Cal. Pen. Code § 4030(e) provides that a person who is arrested and taken into custody

15
16

“may be subjected to patdown searches, metal detector searches, and thorough clothing searches in

17

order to discover and retrieve concealed weapons and contraband substances prior to being placed

18

in a booking cell.”

19
20
21
22
23
24

Pen. Code § 4030 only permits strip searches prior to placement in the general jail
population, and only with prior written authorization of the supervising officer on duty, setting
forth specific and articulable facts and circumstances upon which a “reasonable suspicion”
determination was made by the supervisor, and stating the time, date, place of the search, person
conducting the search, and results of the search. Pen. Code § 4030(f), (h), (i).

25
26
27
28

9

A custodial officer cannot have the requisite reasonable suspicion under § 4030; rather, a law
enforcement officer must have and document the suspicion. Pen. Code §§ 4030(f), 831(a); Cal.
Att’y Gen. Opp’n. No. 88-1201, 7/6/89, pp. 6-7.
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

18

1

Plaintiff Marie Doe was thoroughly searched, including having her bra searched, before

2

she was removed from the premises of her school. At Juvenile Hall, Defendants ordered Marie to

3
4

take a shower where they performed a visual strip search of her, took away her clothes, and gave
her jail clothing to wear. Marie Doe was never put in the general jail population, but kept

5
6

overnight in a cell by herself. ¶¶ 27, 32, 43.
Despite the facts that 1) Defendants’ thorough patdown, clothing, and shower searches of

7
8

Marie revealed no weapons or contraband, 2) she was wearing jail-issued clothing, 3) she was not

9

placed in the general population, 3) she was peaceful and non-threatening, and 4) there was no

10
11

reason to suspect that she was concealing weapons or contraband, Defendants then subjected
Marie to a further “squat and cough” strip search. ¶¶ 32, 37-40, 43.

12

Numerous questions of fact remain as to whether Defendants’ strip search of Plaintiff

13
14

Doe, strip searches of other class members, and policies regarding strip searches, violate Penal

15

Code § 4030 and 15 C.C.R. § 1360.

16

VI.

17

DEFENDANTS ARE NOT IMMUNE FROM PLAINTIFFS’ CLAIMS.
When considering immunity under California law, the starting point is that “in

18

governmental tort cases, the rule is liability, immunity is the exception.” Robinson v.

19

Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002) (en banc), citing White v. County of

20
21
22
23

Orange, 166 Cal. App. 3d 566, 570, 212 Cal. Rptr. 493 (1985). "Unless the Legislature has
clearly provided for immunity, the important societal goal of compensating injured parties
for damages caused by willful or negligent acts must prevail." Michael J. v. Los Angeles

24

County Dept. of Adoptions, 201 Cal. App. 3d 859, 867; 247 Cal. Rptr. 504, 507 (1988),

25

citing Ramos v. Madera, 4 Cal.3d 685, 692, 94 Cal. Rptr. 421 (1971).

26
27
28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

19

1

A. Cal. Gov. Code § 844.6 Does Not Apply.

2

Defendants incorrectly seek immunity from Plaintiffs’ state law claims. Cal. Gov. Code §

3
4

844.6 provides municipalities, not their employees, with immunity from state law claims for injury
“to any prisoner.” However, a “prisoner” is “a lawfully arrested person” who is brought into a

5
6

law enforcement facility to be booked. Cal. Gov. Code § 844 (emphasis added).
In this case, Plaintiff Marie Doe was unlawfully arrested on a legally invalid charge. ¶

7
8

31. As a matter of law, feet cannot constitute a “deadly weapon” under Cal. Penal Code §

9

245(a)(1). People v. Aguilar, 16 Cal. 4th 1023. By the very terms of Cal. Gov. Code § 844, the

10

immunity does not apply.

11
12
13
14

In Sullivan v. County of Los Angeles, 12 Cal. 3d 710, 117 Cal. Rptr. 241 (1974), the
California Supreme Court held that Gov. Code § 844.6 immunity does not apply when the
“prisoner” has been falsely imprisoned.10 12 Cal. 3d at 722. The court in Sullivan noted that Cal.

15

Gov. Code § 815.6 and Bradford v. State of California, 36 Cal. App. 3d 16, 11 Cal. Rptr. 852

16

(1973) provide that a public entity cannot claim immunity from liability for damages arising out of

17

its failure to perform a mandatory duty imposed by statute. 12 Cal. 3d at 715, 716.

18
19
20
21

In this case, Plaintiff Doe was falsely arrested and imprisoned, and her injuries also flow
from those wrongs for which there is no immunity. Furthermore, Defendants’ violations of the
mandates of Pen. Code § 4030 create an independent basis of liability under Gov. Code § 815.6.
Moreover, Cal. Gov. Code § 844.6 is a general immunity statute that was enacted in 1963

22
23

and last amended in 1977. Plaintiffs’ state law claims include claims for violations of detailed,

24

specific statutory obligations set forth in statutes enacted in 1984 (Cal. Pen. Code § 4030) and in

25

1987 (Cal. Civil Code § 52.1), and a regulation enacted in 1997 (15 C.C.R. § 1360).

26
27
28

10

Sullivan was decided before the Legislature defined “prisoner” to limit the definition to a
“lawfully arrested” person.

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

20

1

It is a general rule of statutory construction that “a later, more specific statute controls over

2

an earlier, general statute.” Woods v. Young, 53 Cal. 3d 315, 324, 279 Cal. Rptr. 613 (1991). See

3

also, Salgado v. Garcia, 384 F.3d 769, 773-774 (9th Cir. 2004)(specific statute will not be

4

controlled or nullified by a general one); United States v. Fish, 368 F.3d 1200, 1205 (9th Cir.

5
6
7
8

2004)(“fundamental principle of statutory construction” is that “the specific trumps the general”);
Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1158 (9th Cir. 2004).
Both Penal Code § 4030 and Civil Code § 52.1 set forth specific statutory mandates, and

9

specifically provide that a person whose rights under those sections have been violated may bring

10

“a civil action” for damages, injunctive relief, and other appropriate relief. Civ. Code § 52.1(b);

11
12
13
14
15
16
17

Pen. Code § 4030(p). Allowing Defendants the general immunity they seek directly contravenes
these specific statutory provisions and would render them meaningless.
B.

There Can Be No Legislatively Created Immunity for Violations of
Constitutional Rights.

The law is clear that there can be no immunity from Plaintiff’s claims that are founded on
provisions of the California or United States Constitutions. These claims are in cause of action III
(Direct Violation of California Constitution) and IV (Civil Code §52.1, based on violation of the

18
19
20

California and United States Constitutions).
In Fenton v. Groveland Community Services District, 135 Cal.App.3d 797, 185 Cal.Rptr.

21

758 (1982), disapproved in part on other grounds, Katzberg v. Regents, 29 Cal.4th 300, 328, 127

22

Cal. Rptr.2d 482 (2002), the court found that the plaintiff’s direct damages claim under the

23

California Constitution (Article II, Section 2) was not barred by governmental immunity under

24
25
26
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28

Cal. Gov. Code §§ 815 or 820.2. 135 Cal. App. 3d at 803-805 and 806-807. The California
Legislature has recognized that there is no governmental immunity “where the state or federal
Constitution requires liability.” 135 Cal. App. 3d at 803, citing Leg. Committee, West’s Ann.
Gov. Code (1980 ed.) §815, p. 168.

Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

21

1
2
3
4

See also, Young v. County of Marin, 195 Cal. App. 3d 863, 869 (1987) (“public entities …
are not immune from constitutionally created claims”).
In Rose v. State of California, 19 Cal.2d 713, 725 (1942), the California Supreme Court
observed, “it is … elementary that the legislature by statutory enactment may not abrogate

5
6
7

or deny a right granted by the Constitution.” Thus, the Supreme Court held that Article I,
Section 14 of the California Constitution was self-executing, and provided a damages claim that

8

could not be barred by any immunity. 19 Cal.2d at 726, 729. The court in Rose eloquently stated:

9

Immunity from suit cannot avail in this instance, and, if no statute exists, liability
still exists, because as to this provision the Constitutions are self-executing.

10
11
12
13
14
15
16

‘To hold otherwise would be to say that the Constitution itself gives a right which
the legislature may deny by failing or refusing to provide a remedy. Such a
construction would indeed make the constitutional provision a hollow mockery
instead of a safeguard for the rights of citizens.
No court has ever applied the doctrine of immunity from suit to cases like the one
at bar, nor can they, for to do so would absolutely annul the provision of article I,
section 17, of the Constitution.’
19 Cal. 2d at 726. There can be no immunity to Counts III or IV of Plaintiffs’ Complaint.

17

C.

18

Defendants seem to assert, but not clearly, that they enjoy discretionary acts immunity

19
20
21
22
23

Defendants Do Not Enjoy Cal. Gov. Code § 820.2 Immunity.

under Cal. Gov. Code § 820.2. First of all, the only moving Defendant that might have standing to
assert such an immunity is Defendant Tim Diestel, as he is the only “public employee” movant.
However, Mr. Diestel does not enjoy § 820.2 immunity.
The only non-constitutional or statutory claim Plaintiffs bring is for assault and battery, for

24

which there can be no immunity under Gov. Code § 820.2. Robinson, supra at 1016; Mary M. v.

25

City of Los Angeles, 54 Cal. 3d 202, 216 n.9, 285 Cal. Rptr. 99 (1991).

26

In McQuirk v. Donnelley, 189 F.3d 793 (1999), the Ninth Circuit held,

27
28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

22

1
2
3
4
5
6
7
8
9
10
11
12
13

The California Supreme Court still applies the analysis it set forth over thirty years
ago in Johnson v. California, 69 Cal. 2d 782, 447 P.2d 352, 73 Cal. Rptr. 240 (Cal.
1968), the first case in which it construed § 820.2. See Caldwell v. Montoya, 10
Cal. 4th 972, 897 P.2d 1320, 1325 (Cal. 1995). In Johnson, the court was
confronted with the issue of whether a parole officer was immune from liability
arising from his failure to warn foster parents of the dangerous propensities of a
youth placed in their care. See 447 P.2d at 354. The court found the parole officer's
decision not to warn the foster parents to be ministerial and therefore concluded
that there was no immunity. See id. at 361-63. In reaching this conclusion, the
court rejected a literal interpretation of the term "discretion" in § 820.2. The
California Supreme Court has since remarked, "our opinion [in Johnson]
reasoned as follows: Almost all acts involve some choice among alternatives,
and the statutory immunity thus cannot depend upon a literal or semantic
parsing of the word 'discretion.'" Caldwell, 897 P.2d at 1325. Instead, the
Johnson court distinguished between "the 'planning' and 'operational' levels of
decision-making." Johnson, 447 P.2d at 360. Only the former are immune from
liability. …
The [Johnson] court concluded that section 820.2 confers immunity only with
respect to those "basic policy decisions" which have been committed to
coordinate branches of government, and does not immunize government entities
from liability for subsequent ministerial actions taken in the implementation of
those basic policy decisions. This distinction is sometimes characterized as that
between the "planning" and the "operational" levels of decision-making. [citation
omitted].

14

189 F.3d at 798-799 (emphasis added). The critical distinction is between the official’s decision

15

to undertake an act, versus his subsequent decisions concerning how to act.

16
17

Likewise, in Martinez v. City of Los Angeles, 141 F.3d 1373 (1998), the Ninth Circuit
recognized,

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19
20
21
22
23
24
25
26

There is no immunity "if the injury ... results, not from the employee's exercise of
discretion vested in him to undertake the act, but from his negligence in performing
it after having made the discretionary decision to do so." McCorkle v. City of Los
Angeles, 70 Cal. 2d 252, 261, 449 P.2d 453, 460, 74 Cal. Rptr. 389, 396 (1969)
(internal quotation and citation omitted). Applying this rule, the California
Supreme Court has held that even if a police officer exercises his discretion in
deciding to investigate an automobile accident, he may be liable for negligently
conducting that investigation. Id.
141 F.3d at 1379 (emphasis added).
In refusing to apply a literal application of the term “discretionary,” the Johnson Court
noted, “[It] would be difficult to conceive of any official act, no matter how directly ministerial,

27
28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

23

1

that did not admit of some discretion in the manner of its performance, even if it involved only the

2

driving of a nail.” [citations omitted]. 69 Cal.2d at 788.

3
4

In Barner v. Leeds, 24 Cal.4th 676, 102 Cal.Rptr.2d 97 (2000), the court held that deputy
public defenders are not immune from malpractice lawsuits, even where their professional

5
6
7

judgment is at issue. Thus, a deputy public defender’s decisions concerning whether and how to
investigate a particular case, and even whether to file a particular motion in court, while certainly

8

calling for the exercise of professional judgment and discretion, are not “discretionary” under

9

section 820.2. Id., at 682. “Not all acts requiring a public employee to choose among alternatives

10
11
12
13
14

entail the use of “discretion” within the meaning of section 820.2.” Id., at 684-685.
Here, obvious questions of fact remain and discovery is required as to Mr. Diestel’s
involvement in the operational decisions to implement strip search and medical testing policies
that violate both constitutional protections and the nondiscretionary mandates of Penal Code §

15

4030 and 15 C.C.R. § 1360; the content of those policies; the extent of violation those policies

16

present; and the role they played in the violations here. He does not enjoy § 820.2 immunity.

17
18
19

VII.

DEFENDANTS ARE LIABLE FOR THE WRONGS OF THE “DOE”
DEFENDANTS.

These three moving Defendants – the City and County of San Francisco, the Juvenile

20

Probation Department, and Director of Juvenile Hall Tim Diestel incorrectly assert in the

21

“immunity” section of their brief that they are not liable for the wrongs committed by “Doe”

22

defendants. (Defendants’ Brief, p. 7:9-11).

23
24
25
26

All that is necessary for a public entity to be liable for the wrongful conduct of its unnamed
employees “will be to show that some employee of the public entity tortiously inflicted the injury
in the scope of his employment under circumstances where he would be personally liable.” Legis.

27

Com. Com., West’s Ann. Govt Code, foll. § 815.2; Becerra v. County of Santa Cruz, 68 Cal. App.

28

4th 1450, 1462, n. 5, 81 Cal. Rptr. 2d 165, 171, n. 5 (1998) (consistent with the legislative
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

24

1

comment to the § 815.2, identification of a specific employee tortfeasor is not required for

2

vicarious liability of a municipality under that section); Michael J. v. Los Angeles County Dept. of

3
4

Adoptions, 201 Cal. App. 3d 859, 867, n. 2, 247 Cal. Rptr. 504, 507, n. 2 (1988); Perez v. City of
Huntington Park, 7 Cal. App. 4th 817, 820-821, 9 Cal. Rptr. 2d 258, 260 (1992).

5
6
7

Furthermore, these Defendants remain independently liable for their unconstitutional and
illegal customs, policies and practices that caused Doe defendants to violate the Plaintiffs’ rights,

8

as well as for their failure to properly hire, train, instruct, monitor, supervise, evaluate, investigate,

9

and discipline their employees and subordinates, and for their unconstitutional orders, approvals,

10

ratification and toleration of wrongful conduct.

11
12
13
14

CONCLUSION
For the foregoing reasons, Plaintiffs request that Defendants’ Motion to Dismiss be
DENIED in its entirety.

15
16

Dated: February 22, 2005

HADDAD & SHERWIN

17
18
19

/s/
Julia Sherwin

20

Attorneys for Plaintiffs

21
22
23
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25
26
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28
Case No. C04-4914 MJJ: PLFS’ OPPO. CCSF, JUV. PROB. DEPT., DIESTEL MOT. TO DISMISS

25

Case 3:06-cv-02426-MHP

Document 28

Filed 03/27/2008

Page 1 of 24

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
DARNELL FOSTER, et al.,

OPINION

10
Plaintiffs,
12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

v.

No. C 05-3110 MHP

CITY OF OAKLAND, et al.,
Defendants.

13
14

This Document Relates To:
15
JAMES TAYLOR, et al.,
16

No. C 04-4843 MHP
Plaintiffs,

17
v.
18
CITY OF OAKLAND, et al.,
19
Defendants.
20
JIMMY RIDER, et al.,
21

No. C 05-3204 MHP
Plaintiffs,

22
v.
23
CITY OF OAKLAND, et al.,
24
Defendants.
25
26
27
28

Case 3:06-cv-02426-MHP

1

No. C 06-2426 MHP
v.
CITY OF OAKLAND, et al.,
Defendants.

5

JEFFRIE MILLER, et al.,
No. C 07-1773 MHP
Plaintiffs,

7
v.

8
9

Page 2 of 24

Plaintiff,

3

6

Filed 03/27/2008

TYRONE MOORE,

2

4

Document 28

CITY OF OAKLAND, et al.,
Defendants.

10

/

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20
21

Plaintiffs Darnell Foster, Rafael Duarte and Yancie Young have brought this action pursuant
to 28 U.S.C. section 1983 against the City of Oakland (“Oakland”); Richard Word, individually and
in his capacity as the Oakland Chief of Police; Oakland police officers J. Festag and William
Bergeron, individually and in their official capacities as police officers; and Does 1–25, alleging that
defendants violated plaintiffs’ constitutional rights through a policy and practice of performing strip
searches and body-cavity searches in public. Plaintiffs seek both injunctive relief and damages.
Foster v. City of Oakland, Case No. C 05-3110 MHP, has been related to four similar cases pending
in the Northern District of California, and this order applies to each of them.1 Now before the court
is plaintiffs’ motion for partial summary judgment. After considering the parties’ arguments and
submissions and for the reasons set forth below, the court rules as follows.

22
23
24
25
26
27

BACKGROUND2
I.

The Parties
The following order pertains to all of the parties in Foster and the related cases. A

description of the claims brought by the three plaintiffs in Foster is included below and is
representative of the claims in the related cases brought by plaintiffs James Taylor, Robert Forbes,

28
2

Case 3:06-cv-02426-MHP

Document 28

Filed 03/27/2008

Page 3 of 24

1

Jimmy Rider, Tyrone Moore, Deandre Wash, Jason Cagler, Jomal Reed, Curtis Freeman, Glenn

2

Lovely, Jeffrie Miller, Kevin Bradley and Richard Tillman.

For the Northern District of California

UNITED STATES DISTRICT COURT

3
4

A.

Plaintiff Darnell Foster

5

Plaintiff Foster is an African-American man. On February 27, 2004 Foster was visiting a

6

friend in Oakland, California. At that time, he had served all but two months of a five year

7

unsupervised probation sentence without incurring any violations.

8

At around 3 p.m. of that day, Officer Festag and another unknown officer stopped Foster

9

outside the School Market on Oakland’s School Street near Pleitner Avenue. The officers asked

10

Foster for identification, which he showed to them. The officers also asked whether Foster was on

11

probation or parole, which he answered affirmatively. Officer Festag then handcuffed Foster and

12

forced him against the back of his patrol vehicle parked in front of the School Market. Foster was

13

ordered to spread his legs and Officer Festag searched Foster’s pockets. No contraband was found.

14

Officer Festag then guided Foster into the rear of the patrol vehicle. The officers ran a warrant

15

check and searched the area for evidence of illegal activity. The searches revealed no warrants or

16

evidence of wrongdoing.

17

Foster was then removed from the patrol vehicle by Officer Festag, who forced Foster over

18

the hood of the vehicle. Wearing a latex glove retrieved from the vehicle’s trunk, Officer Festag

19

pulled Foster’s pants and underwear down to his knees. Officer Festag proceeded to search around

20

Foster’s testicles using his gloved hand. The officer also spread Foster’s buttocks and visually

21

searched Foster’s anus, stating “I’m going to do a butt-crack search, see if you got crack in your

22

butt-crack.” Foster Compl. ¶ 5. No contraband was discovered.

23

The officers then pulled Foster’s pants and underwear back up and returned him to the rear of

24

the vehicle. Officer Festag drove about two blocks and stopped the patrol vehicle to request that

25

Foster make an undercover drug purchase. Foster refused to work undercover for the officers and

26

repeatedly denied wrongdoing. The officers then issued Foster a citation for loitering with the intent

27

to sell narcotics before releasing him.

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1

Several months later, in May, Foster received a Notice to Appear in criminal court in

2

Oakland on the citation issued by Officer Festag. The charge was subsequently dismissed due to the

3

absence of both the officers to substantiate the allegation against Foster. Foster filed an Internal

4

Affairs complaint against Officer Festag in July 2004. On August 1, 2005 Foster and another

5

plaintiff filed a complaint alleging violations of their civil rights under 42 U.S.C. section 1983.

6
7

B.

8

Plaintiff Duarte is an Hispanic-American man. On the afternoon of March 9, 2005, while

9
10

For the Northern District of California

UNITED STATES DISTRICT COURT

11

Plaintiff Rafael Duarte

driving, Duarte and a friend were forced to a stop on Oakland’s Baker Street, between 62nd and
63rd Streets.
Unknown officers emerged from two vehicles and pulled Duarte from the friend’s car

12

without giving any orders. Duarte was handcuffed and forced against the hood. Duarte was then

13

escorted by the first officer to the front of a nearby house, where several other unknown officers

14

were also present. The first officer repeatedly pat-searched Duarte, but the search yielded no

15

contraband.

16

A second officer then informed the first officer that he thought he had seen Duarte “stuff

17

something down his pants.” Foster Compl. ¶ 7. The officers pulled down Duarte’s pants and

18

ordered him to bend over. Duarte’s buttocks were spread, permitting visual inspection of his anus.

19

No contraband was found, but Duarte was placed in the rear of a police vehicle. The officers then

20

performed a strip and visual body cavity search on Duarte’s friend. That search also yielded no

21

contraband. During the searches of the two men, a crowd had begun to gather around the scene,

22

including some people with whom Duarte was acquainted. The individuals witnessed the searches

23

of both men.

24

Duarte was taken to Oakland City Jail and cited after about two hours in custody. No

25

charges were ever filed against Duarte. On August 1, 2005 Duarte and other plaintiffs filed charges

26

alleging violations of their civil rights under 42 U.S.C. section 1983.

27
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C.

2

Plaintiff Young is an African-American man. At approximately 11:30 p.m. on September

Plaintiff Yancie Young

3

30, 2003 Young was pulled over by Officer Bergeron around the 2800 block of West Street in

4

Oakland. Officer Bergeron opened Young’s car door, pulled him out of the car and handcuffed him.

5

Officer Bergeron asked Young if he was on probation or parole, which Young denied. Officer

6

Bergeron insisted that he smelled marijuana in Young’s car and suggested that Young was

7

smuggling large quantities of the drug.

9

For the Northern District of California

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Officer Bergeron then took Young to the back of a police car. While facing Young, he
pulled down Young’s pants and underwear, revealing Young’s genitalia. Then Officer Bergeron

10

shined a flashlight directed at Young’s genitalia, visually inspecting Young for up to a minute.

11

Officer Bergeron next performed a pat-search of Young, ordered Young to remove his shoes and felt

12

Young’s private area through his pants. Another officer searched Young’s car during the search of

13

Young’s person. No contraband was found.

14

Officer Bergeron seated a handcuffed Young in the back of a police car, where he sat for

15

over one hour. During that time, Officer Bergeron, other officers and a police canine searched

16

Young’s car. That search produced no evidence of criminal activity.

17

No charges were filed against Young. Young subsequently filed a complaint with the

18

Citizens’ Police Review Board. The Board found that Officer Bergeron performed an unlawful strip

19

search of Young. Young filed a complaint on August 1, 2005.

20
21

D.

Defendants

22

Defendant Oakland is a municipal corporation, which operates the Oakland Police

23

Department (“OPD”) and employs the additional defendants named below. Defendant Richard

24

Word is Chief of Police for Oakland. Plaintiffs have sued him in both his individual and official

25

capacities. Defendants Brett Estrada, Steven Nowak, Chris Moreno, Leonel Sanchez, Sven

26

Hamilton, B.J. Festag, William Bergeron, Malcolm Miller, Douglas Keeley, Douglas Aitchison,

27

Gregory Loud, Sean Bowling, Wayne Tucker, R. Alcantar, O. Crum, J. Foreman, L. Leonis, S.

28
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Valle and Does 1-25 were police officers for Oakland at all times mentioned herein. They have been

2

sued in both their individual and official capacities.3

4

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3

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Document 28

1.

Oakland Police Department’s Policy Before 2004

The Oakland Police Department’s 1998 policy, entitled “Strip Searches, Visual Body-Cavity

5

Searches, and Physical Body-Cavity Searches” appears in the OPD’s 1998 Training Bulletin.4

6

Defs.’ Opp., Exh. A (“1998 Policy”). The policy begins by defining the terms “strip search,”

7

“visual body-cavity search” and “physical body-cavity search.” Id. at 8. A strip search is “any

8

search that requires the officer to remove or arrange some or all of a person’s clothing to permit a

9

visual inspection of the subject’s underclothing, breasts, buttocks, or genitals.” Id. A visual body

10

cavity search is “a search which consists of the visual inspection of the subject’s rectal cavity and, if

11

the subject is a female, vagina. A visual body-cavity search does not include a search of the mouth.”

12

Id. A physical body cavity search is “a search which consists of the physical intrusion into a body

13

cavity for the purpose of discovering a concealed object.” Id. The policy next stipulates that four

14

requirements must be met before a strip search or a visual body cavity search may be performed: (1)

15

“[t]he person to be searched must be under arrest and ultimately booked;” (2) “[t]he arrest must be

16

for an offense involving weapons, controlled substances, or violence;” (3) “[t]he person conducting

17

the search must be of the same sex as the person searched;” and (4) “[t]he search must be conducted

18

in a private area where it cannot be observed by persons not participating in the search.” Id.

19

Additionally, the policy specifies that a physical body cavity search requires a warrant. Id.

20

The Bulletin also discusses the permissible scope of pat searches and the requirements for

21

searches incident to arrest. Id. at 2–8. To perform a search incident to arrest, three requirements

22

must be met: (1) “[t]he arrest must be legal;” (2) “[t]he search must be contemporaneous with the

23

arrest;” and (3) “[t]he arrest must be custodial.” Id. at 7. The policy on searches incident to arrest

24

also states that an officer may search a person for contraband with probable cause. Id.

25
26
27

2.

Oakland Police Department’s Amended Policy

In 2004 the Oakland Police Department amended its policy on strip and body-cavity
searches. The amendments came in response to public concerns regarding the Department’s practice

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1

of carrying out such searches. The Department publicly identified a “long-standing and problematic

2

practice of conducting strip searches in the field.” Burris Dec., Exh. C at 4.

3

Similar to the 1998 Policy, the 2004 Training Bulletin defines the three types of strip

4

searches, discusses the permissible scope of pat searches and outlines the requirements for searches

5

incident to arrest. Id., Exh. G (“2004 Policy”) at 1–6. Specifically, the 1998 requirements for

6

performing a strip search were significantly amended in 2004. Id. at 6. In the 2004 Bulletin, the

7

section relevant to strip searches is entitled “Strip Searches in the Field.” Id. The policy stipulates

8

that a “strip search incident to an arrest” may only be performed when: (1) “[i]t is reasonable to

9

believe that the arrestee is concealing a weapon;” or (2) “it is reasonable to believe that the arrestee

10

is concealing evidence or contraband;” and (3) “that evidence may be destroyed or ingested unless it

11

is immediately recovered.” Id. (emphases omitted). The policy goes on to say that warrantless strip

12

searches “are not justified by the arrest itself,” and that one must have “reasonable suspicion that the

13

arrestee has concealed a weapon, contraband or evidence.” Id. (emphasis omitted).

14

Additionally, the 2004 Policy states that a strip search in the field may not be performed

15

unless the following requirements are met: (1) the officer has “reasonable suspicion to believe the

16

arrestee is hiding or concealing evidence, a weapon, or contraband;” (2) the officer is “of the same

17

sex as the arrestee unless there is an exigency and an officer of the same sex is not available to

18

respond;” (3) the officer “may not have physical contact with the arrestee except contact that is

19

reasonably necessary to search for and recover items and to control or direct the arrestee;” (4) “the

20

search must be conducted so that the search cannot be easily observed by the public,” and

21

“reasonable efforts must be made to provide as much privacy as possible;” and (5) the officer “must

22

document the search and the need to conduct the search in the field in the appropriate report.” Id.

23

at 7 (emphases omitted). Notably, the 2004 Policy explicitly prohibits officers from ever conducting

24

a physical or visual body cavity search in the field. Id.

25
26
27
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Oakland Police Department’s Alleged Practice

Plaintiffs allege that there is a widespread practice of public strip and body cavity searches

3

within the Oakland Police Department that deviates from the Department’s recently revised policy.

4

Plaintiffs claim that this practice occurs without regard to the privacy of subjects being searched.

5

Subjects’ genitalia, buttocks, and/or anuses are exposed, often without any screen from public view.

6

This practice allegedly targets racial minorities—especially Hispanic- and African-Americans.

7

For the Northern District of California

UNITED STATES DISTRICT COURT

8

II.

Procedural History

9

Plaintiffs Foster and Duarte filed the present action on August 1, 2005. Pursuant to

10

stipulations, plaintiffs filed an amended complaint on September 22, 2005 adding plaintiff Young.

11

Additionally, the following actions were related to this action: (1) Rider v. City of Oakland, No. C

12

05-3204 MHP, related on October 6, 2005; (2) Taylor v. City of Oakland, No. C 04-4843 MHP,

13

related on October 6, 2005; (3) Moore v. City of Oakland, No. C 06-02426 MHP, related on July 12,

14

2006; and (4) Miller v. City of Oakland, No. C 07-1773 MHP, related on April 17, 2007.

15

Plaintiffs’ motion to certify a class was denied on January 27, 2007 for failure to satisfy the

16

requirement of numerosity. Docket No. 42. Plaintiffs now move for partial summary judgment on

17

the following grounds: 1) declaratory relief that the 1998 Policy is unconstitutional; 2) declaratory

18

relief that the 2004 amended Policy is unconstitutional; 3) judgment that any search in accordance

19

with either of the policies is unconstitutional; 4) summary judgment on the issue of liability in favor

20

of plaintiffs. Plaintiffs have not moved for summary judgment on claims related to the OPD’s

21

alleged practice.

22
23
24

LEGAL STANDARD
Summary judgment is proper when the pleadings, discovery and affidavits show that there is

25

“no genuine issue as to any material fact and that the moving party is entitled to judgment as a

26

matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the

27

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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1

genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

2

party. Id. The party moving for summary judgment bears the burden of identifying those portions

3

of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material

4

fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party

5

will have the burden of proof at trial, the moving party need only point out “that there is an absence

6

of evidence to support the nonmoving party’s case.” Id.

7

Once the moving party meets its initial burden, the nonmoving party must go beyond the

8

pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

9

genuine issue for trial.” Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving

10

party’s allegations. Id.; Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.

11

1994). The court may not make credibility determinations, and inferences to be drawn from the

12

facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New

13

Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.

14

The moving party may “move with or without supporting affidavits for a summary judgment

15

in the party’s favor upon all [claims] or any part thereof.” Fed. R. Civ. P. 56(a). “Supporting and

16

opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be

17

admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the

18

matters stated therein.” Fed. R. Civ. P. 56(e).

19
20
21

DISCUSSION
Plaintiffs seek partial summary judgment on four grounds: 1) declaratory relief that the 1998

22

Policy is unconstitutional; 2) declaratory relief that the 2004 amended Policy is unconstitutional;

23

3) judgment that any search in accordance with either of the policies is unconstitutional; 4) summary

24

judgment on the issue of liability in favor of plaintiffs. The thrust of plaintiffs’ argument is that the

25

OPD policies should be found unconstitutional as a matter of law because the policies: 1) do not

26

allow for individualized suspicion; 2) permit invasive searches of an arrestee’s person upon less than

27
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1

probable cause; 3) do not adequately protect a suspect’s constitutionally protected right to physical

2

privacy; and 4) permit warrantless searches in circumstances in which a warrant is required.

3
I.

Fourth Amendment Requirements

5

The instant action presents an issue of first impression to the extent that it implicates Fourth

6

Amendment restraints on strip searches performed outside the traditional setting of a police station

7

or detention facility. Before addressing the constitutionality of the OPD’s 1998 and 2004 strip

8

search policies, it is useful to review the case law describing the requirements of the Fourth

9

Amendment in similar contexts. The Supreme Court has noted that there is no precise formula for

10

reconciling the competing interests of law enforcement and individual privacy with respect to

11

searches and seizures:

12
For the Northern District of California

UNITED STATES DISTRICT COURT

4

13
14

The test for reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case it requires a
balancing of the need for the particular search against the invasion of
personal rights that the search entails. Courts must consider the scope of
the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.

15
Bell v. Wolfish, 441 U.S. 520, 559 (1979).
16
“State law is also relevant in analyzing the reasonableness of a search under the Fourth
17
Amendment.” Edgerly v. City and County of San Francisco, 495 F.3d 645, 656 (9th Cir. 2007).
18
The Ninth Circuit has had occasion to determine the constitutionality of various strip search
19
policies employed by law-enforcement agencies. See, e.g., Giles v. Ackerman, 746 F.2d 614 (9th
20
Cir. 1984); Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702 (9th Cir. 1990); Fuller v. M.G.
21
Jewelry, 950 F.2d 1437 (9th Cir. 1991). There are two significant differences between the policies
22
examined in this line of cases and the policy at issue in the instant action. First, the policies
23
considered in those cases were blanket strip search policies requiring that an arrestee be subjected to
24
a strip search if the arrestee met certain criteria, e.g., if the arrestee was arrested on suspicion of
25
committing a felony. See, e.g., Kennedy, 901 F.2d at 713 (holding that the Los Angeles Police
26
Department’s blanket cavity search policy for felony arrests was unconstitutional). The OPD
27
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1

policies do not require that a strip search be performed at any time; they only define when a strip

2

search is permissible. 1998 Policy at 8; 2004 Policy at 6–7. Where the Ninth Circuit has found

3

blanket strip search policies to be unconstitutional, they have done so pursuant to the Supreme

4

Court’s balancing test articulated in Bell. To be clear, the OPD policies are not blanket strip search

5

policies, and therefore do not risk violating the Supreme Court’s balancing test on that ground.

6

Second, the previous cases have all considered strip search policies that contemplate searches

7

occurring post-arrest and pre-booking at a police station or other detention facility. See Giles, 746

8

F.2d at 617 (strip search of woman at county jail pursuant to a blanket jail policy held

9

unconstitutional); Kennedy, 901 F.2d at 713 (strip search of woman at jail pursuant to a blanket jail

10

policy held unconstitutional); Fuller, 950 F. 2d at 1449–50 (strip search of woman at Los Angeles

11

Police Department central station pursuant to a blanket policy held unconstitutional). None have

12

considered strip searches occurring in the field.5

13

The term “strip search” has been variously defined by applicable law. It is specifically

14

defined by the California Penal Code, section 4030(c) as “a search which requires a person to

15

remove or arrange some or all of his or her clothing so as to permit a visual inspection of the

16

underclothing, breasts, buttocks, or genitalia of such person.” (emphasis added). It is this definition

17

the court uses here. In fact, the Ninth Circuit in Edgerly described California’s definition of “strip

18

search” as reasonable and instructed that it “informs our Fourth Amendment Analysis.” 495 F.3d at

19

656.

20

Section 4030(d) of the California Penal Code defines other searches that are more instrusive:

21

“(2) ‘[v]isual body cavity search’ means visual inspection of a body cavity [defined as stomach,

22

rectal cavity or vagina]. (3) ‘[p]hysical body cavity search’ means physical intrusion into a body

23

cavity for the purpose of discovering any object concealed in the body cavity.”

24

Courts have taken note of the intrusive nature of strip searches, especially body cavity

25

searches, on numerous occasions. The Ninth Circuit observed that “[t]he intrusiveness of a body-

26

cavity search cannot be overstated. Strip searches involving the visual exploration of body cavities

27

is [sic] dehumanizing and humiliating.”6 Kennedy, 901 F.2d at 711. Justice Marshall remarked in

28
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1

Bell that visual body cavity searches “represent one of the most grievous offenses against personal

2

dignity and common decency.” 441 U.S. at 576–77 (Marshall, J., dissenting). The majority in Bell

3

commented that “[a]dmittedly, this practice instinctively gives us the most pause.” Id. at 558.

4

The constitutional requirements for performing the three types of strip searches differ.

5

Physical body cavity searches are the most invasive, and, therefore, are subject to the strictest

6

requirements. California Penal Codes section 4030(k) requires that a physical body cavity search be

7

performed by an authorized medical professional. The Supreme Court has commented in the

8

context of searches and seizures that “serious questions . . . would arise if a search involving use of a

9

medical technique, even of the most rudimentary sort, were made by other than medical personnel or

10

in other than a medical environment—for example, if it were administered by police in the privacy

11

of the stationhouse.” Schmerber v. California, 384 U.S. 757, 771–72 (1966). The Ninth Circuit has

12

found physical body cavity searches of inmates to be unreasonable where they were performed by

13

inadequately trained medical assistants, holding that “issues of privacy, hygiene, and the training of

14

those conducting the searches are relevant to determining whether the manner of the search was

15

reasonable.” Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988). It is clear in this Circuit that

16

physical body cavity searches may only be conducted upon probable cause and, absent an

17

emergency, a search warrant is ordinarily required. Fuller, 950 F.2d at 1449. In Fuller, the Ninth

18

Circuit held that the Schmerber requirement that a warrant be obtained prior to performing a blood

19

test on an arrestee should apply with equal force to physical body cavity searches. Id. The court

20

concluded that “‘[t]he interests in human dignity and privacy’ invaded when a public official peers

21

inside a persons’s body cavity are at least as great as those invaded by a needle piercing the skin.”

22

Id. at 1449 (quoting Schmerber, 384 U.S. at 769–70).

23

With respect to visual body cavity searches, such searches may be conducted upon

24

reasonable suspicion that a particular arrestee harbors weapons or dangerous contraband. The

25

purpose of this policy is to ensure that weapons, drugs or other contraband that would pose a threat

26

to the safety or the security of the penal institution are not introduced into the facility. Thus, the

27

question of such a search arises when the arrestee is brought into a jail or similar institution. Here,

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1

courts have distinguished among those being admitted into the general inmate population and those

2

who are awaiting bail or release. See, e.g., Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th

3

Cir. 1987) (strip search upheld where detainee was not searched until he was going to be moved to

4

general jail population); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981) (strip search of detainee

5

was held unconstitutional where he was not to be admitted to general jail population).

6

UNITED STATES DISTRICT COURT

Document 28

In Fuller, the Ninth Circuit noted that institutional considerations—such as the safety of the

7

broader inmate population—justified visual body cavity searches on less than probable cause. 950

8

F.2d at 1447 (“[S]trip and body cavity searches of detainees may be conducted on reasonable

9

suspicion only where such searches are necessary to protect the overriding security needs of the

10

institution”). The court declined to extend the reasonable suspicion standard to body cavity searches

11

for stolen property, which did not implicate these institutional concerns. Id. at 1448. Thus, in Fuller

12

smuggling a ring into a detention facility was not considered a security concern, and, therefore, the

13

Ninth Circuit held that probable cause was required for such a search. Most recently the Ninth

14

Circuit reaffirmed in Edgerly that arrestees charged with only minor offenses may be subjected to

15

strip searches “‘only if jail officials possess a reasonable suspicion that the individual arrestee is

16

carrying or concealing contraband.’” 495 F.3d at 656 (quoting Fuller, 950 F.2d at 1446).

17

Courts have not often discussed the requirements for performing strip searches that do not

18

rise to the level of physical or visual body cavity searches. However, they often lump them all

19

together with visual body cavity searches as the court did in Fuller, finding that such searches may

20

be conducted in an institutional setting where there is reasonable suspicion that the arrestee

21

possesses weapons or dangerous contraband such as drugs but that probable cause is required for

22

body cavity searches for ordinary evidence. Most cases dealing with strip searches have involved

23

such searches occurring at a jail, police station or other place where the arrestee will be held in

24

custody. Courts have also made a distinction between arrestees being admitted into the general jail

25

population and those simply awaiting bail or other custodial arrangements requiring less security

26

concerns. Very few have involved strip searches performed in the field. Furthermore, all of the

27

cases speak to strip searches of persons who have been arrested. Courts have authorized what is

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called a “full search of the person” in the field, however, when that search has been incident to

2

arrest. United States v. Robinson, 414 U.S. 218, 235 (1973). The extent of the search in Robinson

3

was limited to a pat-down and examination of the arrestee’s pockets, with the Court noting that the

4

search was after a “full-custody arrest.” Id. at 237 n.6.

6
7
8
9

For the Northern District of California

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UNITED STATES DISTRICT COURT

Document 28

What is clear from a review of the case law is that a strip search may be conducted under the
following circumstances:
1) the subject has been arrested, brought to a jail or similar custodial situation and will be
placed in the general custodial population or under similar housing conditions;
2) there is a reasonable suspicion that the subject is secreting drugs or weapons and that

10

reasonable suspicion is based on the nature of the offense, the subject’s appearance and conduct and

11

the subject’s prior arrest record; and

12

3) the search complies with the necessary privacy and health precautions discussed above.

13

What is not clear is the extent to which a strip search may be conducted in the field. There is

14

no case law suggesting that such a search may be performed in the absence of an arrest. All of the

15

cases are premised on there being an arrest, not merely a detention or a stop for questioning. An

16

arrest must be based on probable cause and may thus justify some type of search depending on the

17

circumstances. However, detentions and stops that are short of an actual arrest will not support a

18

strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v.

19

Ohio, 392 U.S. 1 (1968), justify a Terry stop. Given the limits on strip searches even in a jail

20

setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.

21

It is clear that the “full search” authorized by Robinson is ordinarily conducted for the officers’

22

safety. A “full search” incident to arrest, however, does not permit a strip search or bodily intrusion.

23

Like the searches in Fuller, the searches in the instant case are unrelated to prison security. Field

24

strip searches by definition occur before a suspect has arrived at a detention facility. And even after

25

the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive

26

searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population

27

or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at

28
14

Case 3:06-cv-02426-MHP

Page 15 of 24

a detention facility does institutional security become a factor, thereby permitting searches for

2

weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an

3

arrestee poses no threat to prison security, and officers in the field are adequately protected by their

4

ability to perform security searches incident to arrest.
Therefore, the court concludes that officers in the field are generally limited to a search

6

incident to arrest as described in Robinson and that strip and more invasive searches in the field may

7

only be performed under exigent circumstances and with probable cause which may, consistent with

8

the above, require a warrant. In sum, the court concludes that the Fourth Amendment requirements

9

for the three types of strip searches performed in the field—strip search, visual body cavity search

10

and physical body cavity search—are as follows:

11

1) there must be exigent circumstances;

12
For the Northern District of California

Filed 03/27/2008

1

5

UNITED STATES DISTRICT COURT

Document 28

2) the search may only be performed on persons who have been lawfully arrested on

13

probable cause and may not be performed on anyone for whom there is no

14

probable cause to arrest;

15
3) the search requires probable cause that is independent of the probable cause found

16

for the arrest;7

17

4) the search may only be performed when there is probable cause to believe that the

18

arrestee is in possession of weapons, drugs or dangerous contraband; and

19
20

5) additionally, physical body cavity searches require a warrant authorizing the

21

search and must be administered by an authorized medical professional.

22
23
24

II.

1998 Policy
Plaintiffs contend that the 1998 OPD Policy does not pass constitutional muster for four

25

reasons: 1) the policy fails the balancing test required by the Supreme Court in Bell; 2) the policy

26

permits invasive searches of an arrestee’s person upon less than probable cause; 3) the policy does

27
28
15

Case 3:06-cv-02426-MHP

Page 16 of 24

not adequately protect a suspect’s constitutionally protected right to physical privacy; and 4) the

2

policy permits warrantless searches in circumstances in which a warrant is required.
Plaintiffs’ first argument is unpersuasive. As discussed above, only blanket policies

4

requiring strip searches at detention centers have been found unconstitutional under Bell, and the

5

1998 OPD Policy contains no such requirement. See, e.g., Giles, 746 F.2d at 617; Kennedy, 901

6

F.2d at 713; Fuller, 950 F.2d at 1449–50. Because the 1998 Policy outlines when a strip search may

7

be performed and requires individual determinations of suspicion, it allows for the balancing of

8

security and privacy interests required by Bell.

9

For the Northern District of California

Filed 03/27/2008

1

3

UNITED STATES DISTRICT COURT

Document 28

Plaintiffs’ second argument is that the 1998 Policy allows for strip searches on less than

10

probable cause. Plaintiffs claim that the policy allows strip searches to be performed upon the

11

satisfaction of only the four requirements outlined in the OPD’s Training Bulletin section entitled

12

“Strip Searches, Visual Body-Cavity Searches, and Physical Body-Cavity Searches:” (1) “[t]he

13

person to be searched must be under arrest and ultimately booked;” (2) “[t]he arrest must be for an

14

offense involving weapons, controlled substances, or violence;” (3) “[t]he person conducting the

15

search must be of the same sex as the person searched;” and (4) “[t]he search must be conducted in a

16

private area where it cannot be observed by persons not participating in the search.” 1998 Policy at

17

8. Defendants claim that the strip search section of the training bulletin cannot be read

18

independently of the entire bulletin; specifically, defendants claim that a strip search may be

19

performed only after the requirements of searches incident to arrest are met. The section entitled

20

“Searches Incident to an Arrest” of the OPD Training Bulletin, which appears on the page previous

21

to the section on strip searches, states that “[w]hen an officer has probable cause to believe that

22

contraband is on a person, an officer can search that person.” Id. at 7. Plaintiffs provide no support

23

for their argument that the sections of the training bulletin may be, or necessarily are, read

24

independently of one another. The court finds that the sections of the bulletin must be read together,

25

and therefore the 1998 OPD Policy does not violate the requirement that strip searches be performed

26

only with probable cause.8 The court notes, however, that pursuant to Way v. County of Ventura,

27

445 F.3d 1157 (9th Cir. 2006), and Edgerly, 495 F.3d at 656 n.17, this Circuit has clearly held since

28
16

For the Northern District of California

UNITED STATES DISTRICT COURT

Case 3:06-cv-02426-MHP

Document 28

Filed 03/27/2008

Page 17 of 24

1

2006 that the inclusion of all drug offenses, without an attempt to distinguish under the influence

2

charges from distribution charges, would not pass muster.

3

Plaintiffs next argue that the OPD’s 1998 Policy permits strip searches of arrestees in public,

4

and therefore, fails to protect an arrestee’s Fourth Amendment right to physical privacy. The “place

5

in which [a search] is conducted” is one of the factors the courts must consider in determining the

6

reasonableness of a search. Bell, 441 U.S. at 559. Plaintiffs cite to a number of cases outside the

7

Ninth Circuit that found public strip searches to be unconstitutional for want of privacy. See, e.g.,

8

Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir. 1982); Logan v. Shealy, 660 F.2d 1007

9

(4th Cir. 1981); Timberlake by Timberlake v. Benton, 786 F. Supp. 676 (M.D. Tenn. 1992). The

10

issue of whether the OPD has conducted strip searches in public, and whether OPD officials

11

interpret the policy as permitting strip searches in public, is not before the court at this time. The

12

court must consider only whether the 1998 Policy itself violates an arrestee’s privacy interests as a

13

matter of law. The evidence suggests that an arrestee’s privacy interests are adequately protected by

14

the policy. The Training Bulletin’s fourth requirement when performing strip searches clearly states

15

that the search must be conducted in a private area, where it cannot be observed by persons not

16

participating in the search. 1998 Policy at 8. This requirement comports with California Penal Code

17

section 4030(m) and does not justify a finding that the policy violates privacy interests as a matter of

18

law. However, to the extent that field strip searches are inconsistent with the principles set forth

19

above, they are violative of the Fourth Amendment.

20

Plaintiffs’ final argument is that the 1998 Policy is unconstitutional because it permits

21

warrantless strip searches where a warrant is required. A warrant is required for physical body

22

cavity searches, absent exigent circumstances. Fuller, 950 F.2d at 1449–50; Schmerber, 384 U.S. at

23

770. Only physical body cavity searches require a warrant; other strip searches may be performed

24

without a warrant. See, e.g., United States v. Cameron, 538 F.2d 254, 259 (9th Cir. 1976); People v.

25

Wade, 208 Cal. App. 3d 304, 307 (1989). Defendants’ 1998 Policy plainly states that a physical

26

body cavity search requires a warrant. 1998 Policy at 8. Therefore, the 1998 Policy is not

27

unconstitutional on these grounds.

28
17

Case 3:06-cv-02426-MHP

Filed 03/27/2008

Page 18 of 24

As an additional matter, although the 1998 Policy requires warrants for physical body cavity

1
2

searches, it does not state that such searches must be performed by a medical professional.

3

California Penal Code section 4030(k) and federal common law require that a physical body cavity

4

search be performed by a medical professional. See Schmerber, 384 U.S. at 771–72; Vaughan, 859

5

F.2d at 741. Given the policy’s silence on the issue, the court must conclude that the policy contains

6

no such requirement. In this respect, the 1998 OPD Policy is unconstitutional and in violation of

7

California law.

8
9

In sum, the OPD 1998 strip search Policy is not unconstitutional for any of the reasons put
forth by plaintiffs in their motion for partial summary judgment. It is, however, unconstitutional

10

insofar as it allows physical body cavity searches to be performed by someone other than a medical

11

professional.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

Document 28

13
14

III.

2004 Policy
Plaintiffs argue that defendants’ 2004 strip search Policy is unconstitutional for the same

15

reasons they believe the 1998 strip search Policy is unconstitutional. The court considers these

16

arguments with respect to the 2004 Policy in turn.

17

Plaintiffs’ argument that the 2004 Policy fails to allow for individual suspicion is again

18

unpersuasive. Like the 1998 Policy, the 2004 Policy is not a blanket strip search policy, and

19

therefore allows for the balancing of interests as required by Bell.

20

Plaintiffs contend that the 2004 Policy similarly allows for strip searches on less than

21

probable cause. While defendants contend that the field strip search section of the 2004 Training

22

Bulletin must be read together with the requirements of the other sections, the language of the 2004

23

Policy is somewhat contradictory. The Training Bulletin states that “[w]hen an officer has probable

24

cause to believe that contraband is on a person, an officer can search that person.” 2004 Policy at 5.

25

However, the section entitled “Strip Searches in the Field” states that a strip search in the field may

26

be conducted when it is “reasonable to believe” that an arrestee is carrying a weapon or contraband.

27

Id. at 6. This language appears to require only reasonable suspicion to conduct a strip search of an

28
18

For the Northern District of California

UNITED STATES DISTRICT COURT

Case 3:06-cv-02426-MHP

Document 28

Filed 03/27/2008

Page 19 of 24

1

arrestee. While reasonable suspicion is adequate to justify a strip search in the context of a detention

2

facility when institutional security is a concern, in accordance with the above holding, it is

3

insufficient to justify a strip search in the filed. Because the language of the 2004 policy is unclear,

4

the court assumes that the policy requires only reasonable suspicion. In this respect the 2004 OPD

5

strip search Policy is unconstitutional.

6

Plaintiffs next argue that the 2004 Policy fails to protect an arrestee’s Fourth Amendment

7

right to physical privacy. Again, the court considers the “place in which [a search] is conducted”

8

when determining the reasonableness of a search. Bell, 441 U.S. at 559. The 2004 OPD strip search

9

Policy differs from the 1998 Policy with respect to an arrestee’s privacy. While the 1998 Policy

10

states that a strip search must be conducted in a private area where it cannot be observed by others,

11

the 2004 Policy states that “reasonable efforts must be made to provide as much privacy as possible

12

given the circumstances.” 2004 Policy at 7 (emphasis omitted). Although this language seems to

13

protect an arrestee’s privacy less effectively, the 2004 Policy also states that visual and physical

14

body cavity searches may never be conducted in the field. Id. Therefore, the only type of strip

15

search that is permitted in the field by the 2004 Policy is one that does not rise to the level of a

16

cavity search, and that is only a rearrangement of the clothing. The test for the constitutionality of a

17

strip search is reasonableness under the circumstances.9 Bell, 441 U.S. at 559. Because the 2004

18

Policy limits field searches to strip searches and requires “reasonable efforts” to protect a suspect’s

19

privacy, the policy does not violate an arrestee’s right to privacy as a matter of law.

20

Plaintiffs again argue that the 2004 Policy is unconstitutional because it permits warrantless

21

strip searches where a warrant is required. A warrant is required for physical body cavity searches,

22

absent exigent circumstances. Fuller, 950 F.2d at 1449–50; Schmerber, 384 U.S. at 770. Other strip

23

searches may be performed without a warrant. See Wade, 208 Cal. App. 3d at 307; Cameron, 538

24

F.2d at 259. Defendants’ 2004 Policy plainly states that a physical body cavity search requires a

25

warrant.10 2004 Policy at 7. Therefore, the 2004 Policy is not unconstitutional on these grounds.

26
27

In sum, the 2004 OPD strip search Policy is unconstitutional to the extent that it allows strip
searches of any kind in the field to be performed on less than probable cause.

28
19

Case 3:06-cv-02426-MHP

For the Northern District of California

UNITED STATES DISTRICT COURT

1

IV.

Document 28

Filed 03/27/2008

Page 20 of 24

Constitutionality of Individual Searches

2

Plaintiffs seek summary judgment declaring any search in accordance with either of the OPD

3

policies to be unconstitutional. The constitutionality of an individual search, however, does not turn

4

solely on the constitutionality of the policy pursuant to which it was performed. See Kennedy, 901

5

F.2d at 715. The Ninth Circuit observed in Kennedy that “a search, although not supportable under

6

an institutional policy, is not per se unconstitutional.” Id. And in Fuller, the court noted that “[t]he

7

fundamental question under the fourth amendment is whether ‘the grounds for a search . . . satisfy

8

objective standards’ of reasonableness.” 950 F.2d at 1446 (quoting Torres v. Commonwealth of

9

Puerto Rico, 442 U.S. 465, 471 (1979)) (emphasis omitted). Thus, even if a policy permitting a

10

search passes constitutional muster, an individual search must be evaluated based upon the above

11

standards. Where a policy permits searches that may be unconstitutional, an individual search must

12

still meet constitutional standards. Where the officer claims to rely on an unconstitutional policy,

13

the rules regarding qualified immunity apply and liability must depend upon the facts of the

14

particular case.
To the extent that the OPD policies are inconsistent with the foregoing standards, the court

15
16

must determine the appropriate relief.

17
18

V.

19

Liability
Plaintiffs seek summary judgment on the issue of liability in favor of the plaintiffs. As noted

20

in the previous section, the court is presently unable to determine the constitutionality of any

21

particular search in the instant case until further evidence is submitted. To the extent that the court

22

has found certain policies do not meet constitutional standards, defendant Oakland must bring its

23

policies into compliance.

24
25
26
27

VI.

Objections to Related Case
Defendants argue in one sentence in a footnote that the defendants in Miller v. City of

Oakland have not been served or have not yet appeared in the case, and therefore should not be

28
20

Case 3:06-cv-02426-MHP

Document 28

Filed 03/27/2008

Page 21 of 24

1

included in this motion for partial summary judgment. Plaintiffs note that defendants Oakland and

2

Richard Word filed an answer in Miller on April 19, 2007. The court therefore finds that the parties

3

in Miller are proper parties to this motion.

4
5

VII.

For the Northern District of California

UNITED STATES DISTRICT COURT

6

Evidentiary Issues
Defendants ask the court to take judicial notice of two separate sets of documents: 1) the

7

1998 and 2004 OPD strip search policies, and 2) documents in this case and in Cammerin K. Boyd

8

v. City of Oakland, Case No. 03-3391 JL (N.D. Cal.). Pursuant to Federal Rule of Evidence 201, the

9

court takes judicial notice of the 1998 and 2004 OPD policies as they are capable of accurate and

10

ready determination by resort to sources whose accuracy cannot reasonably be questioned. See Fed.

11

R. Evid. 201(b)(2); see also Hott v. City of San Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000)

12

(Fogel, J.) (holding the court may take judicial notice of relevant documents). Plaintiffs have not

13

objected to defendants’ request for judicial notice. Accordingly, the court GRANTS the defendants’

14

request for judicial notice of the OPD policies. The court declines to take judicial notice of the

15

second set of documents because it has not considered them here.

16

Defendants have submitted a separate statement of genuine issues to which plaintiffs object.

17

Because the court has not considered this statement, the court need not address plaintiffs’ objections

18

at this time.

19

/////

20

/////

21

/////

22

/////

23

/////

24

/////

25

/////

26

/////

27
28
21

Case 3:06-cv-02426-MHP

1

Filed 03/27/2008

For the reasons stated above, the court GRANTS IN PART plaintiffs’ motion for partial

3

summary judgment with respect to the request for declaratory relief that the 1998 and 2004 OPD

4

policies are unconstitutional in certain respects, and DENIES the motion for summary judgment on

5

liability and declaratory relief on the individual searches at issue.

6

The parties shall arrange a case management conference with the court to discuss the

7

remedies necessary to comply with this order and for further proceedings in this and the other related

8

cases.

9
10
11

IT IS SO ORDERED.
Dated: March 27, 2008
MARILYN HALL PATEL
United States District Court Judge
Northern District of California

12
For the Northern District of California

Page 22 of 24

CONCLUSION

2

UNITED STATES DISTRICT COURT

Document 28

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26
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28
22

Case 3:06-cv-02426-MHP

1
2
3

Document 28

Filed 03/27/2008

Page 23 of 24

ENDNOTES
1.
The four related cases are Taylor v. City of Oakland, C 04-4843 MHP; Rider v. City of
Oakland, C 05-3204 MHP; Moore v. City of Oakland, C 06-2426 MHP; and Miller v. City of
Oakland, C 07-1773 MHP.

4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

2.
Unless otherwise noted, all facts are taken from the first amended complaint (the
“Complaint” or “FAC”).
3.
This list of defendants includes defendants from Foster v. City of Oakland, Case No. C 053110 MHP; Taylor v. City of Oakland, C 04-4843 MHP; Rider v. City of Oakland, C 05-3204 MHP;
Moore v. City of Oakland, C 06-2426 MHP; and Miller v. City of Oakland, C 07-1773 MHP.
4.
The words “Training Bulletin,” “Bulletin” and “policy” are used interchangeably in this
order.
5.
The court understands “in the field” to mean a search conducted outside the privacy of a
police station or detention center, contrary to plaintiffs’ repeated implication that “in the field” is
synonymous with “in public.” Former OPD Chief Richard Word’s internal communication indicates
that an appropriate place for a field search would be inside an unoccupied private or public
restroom; it would be a stretch to characterize a search conducted in such surroundings as a search
“in public.” Nisenbaum Dec., Exh. A at 33.
6.
Since, as can be seen from this sentence, the term “strip search” has been used to denote a
wide variety of search practices varying in their degree of intrusiveness, this court, as stated above,
uses the California Penal Code definitions.
7.
In some rare instances, the probable cause for the arrest will also provide probable cause for
the invasive search.
8.
Despite the contradictory language with respect to the requisite level of suspicion in the 2004
Policy discussed below in section III of this order, the 2004 Policy more clearly suggests that the
separate sections of the Training Bulletin must be read together by defining the requirements for
“strip searches incident to arrest.” 2004 Policy at 6 (emphasis added). This suggests that strip
searches may only be performed when the requirements for searches incident to arrest are met.
While the 1998 Policy does not make this clear on its face, plaintiffs have presented no evidence to
the contrary, and the court accepts defendants’ argument that the sections must be read together.
9.
While the Fourth Amendment requirement for conducting a strip search is reasonableness
under the circumstances, California Penal Code section 4030(m) appears to require strict privacy:
“[a]ll strip, visual and physical body cavity searches shall be conducted in an area of privacy so that
the search cannot be observed by persons not participating in the search.”
10.
The 2004 OPD Policy notes in the same sentence that a physical body cavity search can only
be conducted by an authorized medical professional. 2004 Policy at 7.

28
23

Case 3:06-cv-02426-MHP

Document 28

Filed 03/27/2008

1
2
3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

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Page 24 of 24

4

JOHN L. BURRIS, Esq./ State Bar #69888
BENJAMIN NISENBAUM, Esq./State Bar #222173
LAW OFFICES OF JOHN L. BURRIS
Airport Corporate Centre
7677 Oakport Street, Suite 1120
Oakland, California 94621
Telephone: (510) 839-5200
Facsimile: (510) 839-3882

5

Attorneys for Plaintiffs

6

MICHAEL J. HADDAD (State Bar No. 189114)
JULIA SHERWIN (State Bar No. 189268)
HADDAD & SHERWIN
505 Seventeenth Street
Oakland, California 94612
Telephone: (510) 452-5500
Fax: (510) 452-5510

1
2
3

7
8
9
10

Attorneys for Plaintiffs

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

JAMES TAYLOR, et. al.,

14
15

Plaintiffs,
vs.
CITY OF OAKLAND, et. al.,

16
17
18

Defendants,
AND ALL RELATED CASES
JIMMY RIDER,

19
20
21

Plaintiff,
vs.
CITY OF OAKLAND, et. al.,
Defendants,_____________________

22
23

(Case No. C-05-3204 MHP)

DARNELL FOSTER AND CLASS MEMBERS, et.
al.,

24
Plaintiffs,
25
26
27
28

vs.
CITY OF OAKLAND, et al.,
Defendants,
(Case No. 3:05-cv-3110 MHP)

)
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Related Case No. C-04-4843 MHP
Hon. Marilyn Hall Patel

PLAINTIFFS’ PROPOSED STRIP
SEARCH POLICY

TAYLOR V. CITY OF OAKLAND, (Related Case No. C-04-4843 MHP):
PLAINTIFFS’ PROPOSED STRIP SEARCH POLICY

1

1
2
3

JOINT CAPTION CONTINUED ON NEXT PAGE
__________________________________________
TYRONE MOORE, et al.,
Plaintiffs,

4

vs.

5
6

CITY OF OAKLAND, et. al.
Defendants,

7
8

(Case No. C-06-2426 MHP)

9

JEFFRIE MILLER, et. al.,

10
11
12

Plaintiffs,
vs.
CITY OF OAKLAND, et al.,

13
14

Defendants.
(Case No. C-07-1773 MHP)

15
16
17
18

WARD, et. al.,
Plaintiffs,
vs.
CITY OF OAKLAND, et al.,

19
Defendants.

20
21
22

(Case No. C-07-4179 MHP)
SMITH, et. al.,

23
24
25
26
27

Plaintiffs,
vs.
CITY OF OAKLAND, et al.,
Defendants.
(Case No. C-07-6298 MHP)

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28
TAYLOR V. CITY OF OAKLAND, (Related Case No. C-04-4843 MHP):
PLAINTIFFS’ PROPOSED STRIP SEARCH POLICY

2

Plaintiffs, by and through their counsel, HADDAD & SHERWIN and THE LAW OFFICES

1
2
3
4

OF JOHN L. BURRIS, hereby submit the following proposed strip search policy in response to
Defendants’ proposed policy (Foster, 07-4179 MHP, Dkt. No. 30-2):
[NOTE: Sources for policy language are listed at the end of each clause in brackets as follows:

5
6
7
8

Oakland Police Department [OPD]; International Association of Chiefs of Police [IACP];
Lexington, KY, Police Department [LEX]; Plaintiffs in consultation with their police practices
experts [PLFS] or as underlined below].

9
10
11

STRIP SEARCHES INCIDENT TO ARREST
I.

PURPOSE

12
13
14

The purpose of this policy is to provide officers with guidelines for determining if and under what
conditions the use of strip searches and body cavity searches are legally permissible outside of jail,
and to establish guidelines for the appropriate conduct of such searches. [IACP]

15

II.

16

“Strip search” means a search that requires a person to remove or arrange some or all of his or her
clothing so as to permit a visual inspection of the underwear, brassiere, breasts, buttocks, or
genitalia of such a person. [OPD]

17
18

DEFINITIONS

19

“Body cavity” means the rectal cavity of a person, and vagina of a female person. The ear canals,
nostrils, and throat are not body cavities. [OPD]

20

“Visual body cavity” search means visual inspection of a body cavity (rectum or vagina). [OPD]

21

“Physical body cavity” search means physical intrusion into a body cavity for purpose of
discovering any object concealed in the body cavity. [OPD]

22
23
24
25

“Exigent circumstances,” for purposes of this policy, exist only where an officer has probable cause
to believe the arrested subject can defeat the restraint mechanism (including handcuffs and vehicle
seat belts) and use a weapon/contraband or ingest drugs hidden in or around the subject’s
underwear, brassiere, breasts, buttocks, or genitalia, causing a threat to officers, others, or to the
subject. [PLFS]

26
27
28
TAYLOR V. CITY OF OAKLAND, (Related Case No. C-04-4843 MHP):
PLAINTIFFS’ PROPOSED STRIP SEARCH POLICY

3

POLICY

1

III.

2

A. Strip Searches.

3
4
5
6
7

A strip search in the field may only be conducted incident to a lawful arrest supported by probable
cause or a warrant, and only when:
1. (a) there is probable cause to believe that the arrestee is concealing a weapon in or around their
underwear, brassiere, breasts, buttocks, or genitalia, and that the weapon will be recovered by a strip
search; or (b) there is probable cause to believe that the arrestee is concealing controlled drugs or
dangerous contraband in or around their underwear, brassiere, breasts, buttocks, or genitalia, and
that the drugs/contraband will be recovered by a strip search; [OPD/PLFS]

8
AND
9
10
11
12

2. There is probable cause to believe exigent circumstances require the immediate recovery of the
weapon, controlled drugs, or dangerous contraband and that the search cannot wait until the
prisoner is transported to the Jail. For the purposes of this policy, exigent circumstances exist only
where an officer has probable cause to believe the subject can defeat the restraint mechanism
(including handcuffs and vehicle seat belts) and use the weapon/contraband or ingest the drugs,
causing a threat to officers, others, or to the subject. [OPD/PLFS]

13
14
15

AND
3. ALL of the following requirements are also met:

16

a.

17

b.

18
19

c.
d.

20
e.

21
22
23
f.

24
g.

25
26
27

h.
i.

Prior to conducting the strip search, the officer must obtain the authority to conduct the
search from a supervisor on duty as described more fully below. [OPD]
The officer shall secure the prisoner with proper handcuffing techniques prior to beginning a
search; [LEX]
The search shall be conducted by an officer of the same gender as the prisoner [LEX], unless
threat of serious harm to the officer, citizens, or the arrestee is imminent [OPD];
The search shall be witnessed by a second officer that is also of the same gender as the
prisoner; [LEX]
The search shall be conducted in an area of privacy so that the search cannot be observed by
persons not participating in the search. [Cal. Pen. Code § 4030(m)] (the “V” of the car door
does not provide adequate privacy, and will almost never be a permissible location to
conduct a field strip search except in the most extreme, life-threatening situations, and with
specific prior approval from a supervisor); [PLFS]
The search shall be limited only to the location on the body of the prisoner where the officer
conducting the initial pat-down felt the presence of a weapon, drugs, or contraband; [LEX]
Only clothes required to obtain access to the weapon, drugs, or contraband shall be loosened
and/or removed in order to retrieve the item; [LEX]
You may not have physical contact with the arrestee except contact that is reasonably
necessary to search for and recover items and to control or direct the arrestee; [OPD]
You must document the search and the need to conduct the search in the field in the
appropriate report as described more fully below. [OPD/PLFS]

28
TAYLOR V. CITY OF OAKLAND, (Related Case No. C-04-4843 MHP):
PLAINTIFFS’ PROPOSED STRIP SEARCH POLICY

4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Warrantless strip searches are not justified by the arrest itself. You must be able to articulate
probable cause that the arrestee has concealed a weapon, controlled drugs, or contraband, and
probable cause that an exigency exists such that the search cannot wait for the arrestee to be
searched in the Jail. [OPD/PLFS]
Warrantless strip searches solely to recover evidence (as opposed to potentially dangerous weapons,
drugs, or contraband) are never permitted, unless the evidence is of a nature that would be likely to
pose a serious threat of death or serious injury if handled by the subject (such as certain controlled
drugs), and there is probable cause to believe exigent circumstances require the immediate recovery
of the evidence. [PLFS]
Officers may seek to obtain a warrant to conduct a private strip search of an arrestee where the
officer has probable cause to believe that the arrestee is concealing a weapon, drugs, evidence, or
contraband in or around their underwear, brassiere, breasts, buttocks, or genitalia, and that the
item(s) will be recovered by a strip search, and provided all requirements of any warrant and of
subsection A.3, above, are also followed. [PLFS]
Before conducting any strip search, officers shall seek authorization from a supervisor of the need
to make a strip search of a prisoner. The officer shall fully inform the supervisor of the facts
constituting probable cause to believe the subject is concealing weapons, drugs, or dangerous
contraband in a private place on his or her person, and the facts constituting probable cause to
believe that exigent circumstances require the strip search to be conducted outside of the jail. The
officer shall also inform the supervisor of the private location where the strip search is to be
conducted. In the event the prisoner’s actions warrant an immediate search, the supervisor shall be
notified immediately following the search and apprised of the circumstances.

16
17
18
19
20
21
22
23
24
25
26
27

Following a strip search, the officer performing the search shall submit a written report to the
supervisory authority that details, at a minimum, the following:
a.
b.
c.
d.
e.
f.

Time, date and place of the search; [IACP]
Identity of the officer conducting the search; [IACP]
Identity of the supervisor who authorized the search; [PLFS]
Identity of the individual searched; [IACP]
Identity of those present during the search; [IACP]
A detailed articulation of the probable cause required to conduct the search, including all
exigent circumstances; [PLFS]
g. A detailed description of the nature and extent of the search; [IACP]
h. A complete listing of any weapons, drugs, or contraband found during the search. [IACP]
The immediate supervisor of the officer initiating a strip search shall review the documentation
forwarded by the officer.
The documentation shall be maintained at the Bureau level with a copy forwarded to the Bureau of
Internal Affairs. [LEX] The Bureau of Internal Affairs shall maintain a database record of all
searches governed by this policy and prepare administrative reports based on the data on an asneeded basis. [LEX]

28
TAYLOR V. CITY OF OAKLAND, (Related Case No. C-04-4843 MHP):
PLAINTIFFS’ PROPOSED STRIP SEARCH POLICY

5

1
2

When officers have probable cause to believe that a suspect has ingested a controlled drug, the
suspect may be charged with tampering with physical evidence. Officers shall obtain emergency
medical attention for the arrestee. [LEX]

3
4

B. Physical and Visual Body Cavity Searches.

5

Officers shall never conduct a visual body cavity search (i.e., visual inspection of the rectum or
vagina) without a warrant or extreme exigency involving imminent threat to life. [PLFS]

6
7
8

Officers shall never conduct physical body cavity search (i.e., physical penetration of the rectum or
vagina) [OPD] A search warrant or an extreme exigency is required for a physical body cavity
search and can only be conducted by an authorized medical professional and only at a medical
facility or other approved facility. [OPD]

9
10
11

Strip and visual body cavity searches may, depending on the circumstances, be conducted in
conjunction with the booking and incarceration process at the jail (Penal Code § 4030), or when
authorized by a proper warrant and otherwise done in accordance with all requirements of
subsection A.3, above. [OPD/PLFS]

12
13
Respectfully submitted,

14
15

Dated: June 16, 2008

Haddad & Sherwin

16
____/s/_____________________
Michael J. Haddad
Attorney for all Plaintiffs in all
related cases

17
18
19
20
21
22
23
24
25
26
27
28
TAYLOR V. CITY OF OAKLAND, (Related Case No. C-04-4843 MHP):
PLAINTIFFS’ PROPOSED STRIP SEARCH POLICY

6

IV. Settlement of Police Misconduct Cases with Fee Claims
____________________________________________________
Materials:
Avoiding the Roll of the Dice: Strategies for Settlement
Richard A. Soble and Mary R. Minnet

Presenters:
Richard Soble, Soble Rowe Krichbaum, Ann Arbor, MI
Roger Smith, Garan Lucow, Detroit, MI

_..L

..LJ;"1.L ..L .L:I.L'\. "'- V

Avoiding the Roll of the Dice:
Strategies for Settlement

Civil Rights Litigation
and Attorney Fees
Annual Handbook
Volume Nine

I.

INTRODUCTION

Statistics tell us that as many as 95 percent of all cases settle before verdict. Thus, while we spend much of our time preparing a case for trial:
researching the law, conducting our investigation, and taking lay, expert
and medical depositions, we rarely get a chance to use the information
we have uncovered at trial. Our training is in the trial of cases, but our
usual practice is to settle them.
The purpose of this article is to outline, from a practitioner's view-

point, an approach to settlement of police misconduct claims. If negotiations were a science, all we would need to do is to insert the variables of
litigation into an equation that would give both sides a predictable result.
While the authors are working on such an equation, it was not ready in
time for this article.
Instead, we will describe the art of negotiation. Like many other art
forms, there are principles to follow but in the end it takes discipline,
preparation, advocacy and experience to become proficient. Every
lawyer cannot become a great negotiator but every lawyer can become a
competent one.

Steven Saltzman and
Barbara M. Wolvovitz
Editors

A.

Reasons to Consider Settlement

There are several reasons why settlement of a 1983 claim, rather than
trial, is in your client's best interest.
Settlement achieves a certainty of result. Section 1983 cases seek redress where a citizen has been abused by the power of the state. The use
of state power is a wild card for both parties. The defendant fears that the
jury, as the conscience of the community, will speak out in strong monetary terms to express its outrage. After all, the jury cannot fire, reprimand

*

*Reprinted with the permission of Thomson Reuters.

by National Lawyers Guild
Civil Liberties Committee

Richard A. Soble and Mary R. Minnet

•

CLARK
BOARDMAN
CALLAGHAN®
DEERFIELD, It • NEW YORK,NY • ROCHESTER, NY
Customer Service: 1-800~323-1336

389

390

CNIL RIGHTS LITIGATION HANDBOOK

or retrain the police officers; it can only award money. Plaintiffon
other hand, fears that the jury will approve the use of force and find:th'
officer's conduct reasonable.
Your client has only one case: he or she cannot average out a 10,s,~.lb'
way the defendant can. The client's resources are more limited ili~j
those of a municipality. If you try the case, in all likelihood a fa\,pr~b"
verdict will be appealed by the defendant, who remains in control ofJh
money.
The defendant often elects to settle cases because of fears tl:l~tt.,
verdict will exceed the plaintiff's settlement demand and publicity-ge
erated by a trial. That publicity exposes wrongdoing on the part ofj
police force and in the process encourages more lawsuits as well
negatively affects the public's confidence in and perception of the;'j1qli,
department.
A settlement that is agreeable to both parties means that neither;,~i,
needs to gamble with a jury verdict. It provides the plaintiff wilh'c"
pensation more quickly and with fewer litigation costs for both sides.

STRATEGIES FOR SETTLEMENT

391

tli'e,Jegal and factual defenses to the case. All these factors will be as~~ssed as the case proceeds to trial and the assignment of a dollar value
'F,e,ven a range of figures at the initial interview would be inappropriate.
PREPARAnON FOR SETTLEMENT
eparation for settlement is no different from preparing for oral arguent, You are not ready until you have learned all that you need to
ow.to make an effective presentation. Adequate preparation requires
egathermg of sufficient information before you are able to assess the
alue of the case. Only then will you be in a position to persuade the de'idant to adequately compensate your client. Your compilation of that
'9i:mation begins with the client interview and continues as you search
r;the records and evidence that support and lend credibility to your

:lient'scase.

Client Interview
B.

A View of the Negotiation Process

The negotiation and settlement of a case must be treated with thesa
energy and focus as your preparation for trial. As with trial, the lief
your preparation, the better the result.
There is a difference between settlement and "settling." Negotiatio.
not a singular event nor is it a matter of splitting the difference, Rathe
is a process that begins with the initial client interview and ends.w
you have received a settlement offer that is a reasonable compromise
the case's verdict potential.
C.

"What Is My Case Worth?"

You will need to orient your client's expectations regarding the valJie
his or her case. In all likelihood, the client will have heard or rea~;i!p,
police misconduct cases involving large jury verdicts. The client wiilno
however, be as aware of the number of defense verdicts in these.ca
and the fact that defendants win far more often than is reportedin
press. It is no wonder that clients have a skewed view of the value
their cases.
When your client asks what his or his or her case is worth (amj.
question is usually raised) tell the client that you are not yet in.a.posi
to make such a determination. Tell the client that there are manY'fa~t'
that go into the evaluation of a case: the judge assigned to the casl!,
composition of the jury, the evidence that will be presented, includi
information about the client's other damages that is still developing.art

t. '. ;Focus of the Interview
'pr,client is a major SOurce for factual information about the case. The

"a~iiihe or she provides will be the starting point for your investigation.

~le the collection of this information is generally viewed as necessary
'9Ftrial preparation, it is especially useful for your settlement prepara?~;'¥OU can significantly increase the value of the settlement by thor.~?~ly exploring and developing information that reflects well on your
lie,l1'1 and illustrates the client's special qualities.
,-y£u will develop this material in two ways. First, begin by asking the
"T about his or her personal background, try to discover distinctive
.ahties. Those qualities which you believe make your client special are
OSf)vhich will motivate the defendant and the jury to like your client.
'qrtd, ask your client about people or places which can provide corq¥ative or other useful information about him or her. Follow up by
'~il1ing relevant documentary and physical evidence. Insofar as these
'P,r(1s document or corroborate various aspects of your client's life,
will provide you with another body of information about your

nl

;Checklist for Factual Information
find it helpful to work from the following checklist:
Name, age, social security number.

STRATEGIES FOR SETTLEMENT
392

393

CIVIL RIGHTS LITIGATION HANDBOOK

2. Marital history: if divorced, find out about custody arrah'g~'
ments and child support; your client's continued relationslW
with and support of his or her children will speak volumes abou
your client.
.
3. Children/ other dependents: find out about your client's clj,g.
dren: their names and ages, the activities in which they partki
pate; you are looking for an anchor in the client's life.}
strengthen credibility, e.g., religious activity, sports, school.' •
4. Medical history:
(a) Names, dates of treatment and conditions treated for;;'.~
dresses of all doctors and hospitals client has seen during·ro
her lifetime, including treatment for the present injury;
(b) All medications client has taken for injury and the name-a
address of the pharmacy filling these prescriptions; and .' •
(c) Names and addresses of all therapists, including physl'
therapists, psychologists, vocational rehabilitationists ana oe
pationel therapists.
lq
5. Employment: get the names of all employers, dates of emw
merit, type of work, rate of pay, and reason for leaving. Alsof,,~
your client if he or she underwent a pre-employment phy~ic~
suffered any work-related injuries and/ or filed a related ~O.~;
ers' compensation claim and what your client's record l1ia~ .
terms of absences, sick time, and vacation time.
..y
6. Education: find out the names of all the schools your
attended, dates of graduation, degrees received, and any sfes'
interests, activities, or honors; also, ask about any on-tItf-j
training or specialized vocational education in which youd1l]
has been a participant.
.
7. Special interests: what interests your client-ask about his or
activities, hobbies, participation in sports, family activities•.o:;.
involvement, social, political or union activism, or church ",9fl
These interests are often an integral part of your client's l1f~~11'i
l
will provide a great deal of insight into what makes yourcli
unique.
'::,:.'
8. Military service: find out your client's branch of service, date
enlistment, and discharge rank, military job performancel'a
service awards.~<
9. Prior arrests/convictions/lawsuits: no matter how minor ot;
significant, ask about all prior convictions and incarcerat;q
anywhere. Explain to the client that the police will know.of,a
prior encounters the client has had with the criminal justice..S;
tern and will use such encounters to undermine and impeaCh
or her credibility. You should also inquire into your client's

clie~r.~·

volvement in prior lawsuits: find out the nature of the litigation,
where and when it was filed and how the case was resolved.
Applications made for insurance, unemployment compensation,
or other governmental benefits: the dates and places of any such
applications should be determined as well as the result of these
applications.
Attorney Investigation
Obtain All Relevant/Corroborative Records
copies of all records that are likely to contain information about
the.case. A careful review of those records serves two purposes. It will
flesh out and corroborate your client's past, and you will learn
negative facts that are documented and probably available to the
information contained in the records will be useful in corroborat,;he client's claim and the extent of his or her damages. If the records
,):lot confirm your client's statements it will be much easier to make the
Rptopriate disclosures with an explanation rather than have your client
;etFaught in a misstatement because the defendant obtained these backnmd records and you did not. The records will also help you form
pressions about and get a sense of your client's history, as well as his
p~dife, values, priorities, and dreams.

'Medical Records

<D Records of the injury. The primary value of medical records is their
pC1.lmentation of the complained-of injury. The history given by the
entin this record should be checked to determine how it squares with
':i~ccount the client gave you about the incident. Were any physical
di[1gssuch as bruises or abrasions noted by the examining physician?
ese.may corroborate a claim of use of excessive force.
I£;'fdmission to the hospital was required, additional medical records
generated. Look at the admitting history and physical, nurse's notes,
dication records, and laboratory and x-ray findings. The discharge
Ti!'ary will provide you with an overview of the entire hospitaliza,Ii/iI/will summarize the most important aspects of the client's medical
ilion and provide a final diagnosis at the time of discharge.
oh 'should also look at the records to determine and evaluate the
},anency of your client's injury as well as the potenlial for latent ef,l/your client was struck in the head by the police, is there any poaHor post traumatic epilepsy that may emerge later in his or her
'J/your client fractured his or her ankle, will your client develop
'ilis in the future?

394

CNIL RIGHTS LITIGATION HANDBOOK

STRATEGIES FORSEITLEMENT

(ii) Prior medical records. The state of your client's health prior tolh'
injury is important in determining the impact of the injury. If the records
show your client has a life-shortening illness or disability, the extent-of
future damages caused by the defendant may be diminished. Arthritis,
heart conditions, nervousness, and psychological problems are examples
of medical conditions a client may have had prior to the injury
Documentation of increased symptoms, medication, and medical vis*
subsequent to the injury are all indications that a preexisting condition
.
has worsened.

b. Police Records. Obtain all reports and investigation records arisi
from the incident that precipitated the misconduct claim and note~
inconsistencies between the records, the client's statements, and th""ap
counts given by the defendants. The defendant will have diffictilgr'{~~]:
tacking its own records. Thus, any inconsistencies in records and s,fat'r;
ments that tend to corroborate your client's version of the eventswill
considerably weaken the defendant's case.
.'.
Secure mug shots of your client to establish the presence and ext'rnf
any physical injuries. If the client has been transported to the hosl?it~l
otherwise detained by the police, injury reports or conveyance sliPsm~
also provide helpful information. Subpoena any physical evidence sei2;~'
by the police, such as clothing. Tom or bloody clothes may help t~s4
stantiate elements of the claim. If appropriate, take photos of the client':
Jer
the initial interview.
Lastly, obtain personnel records and all internal affairs informatii
about the defendant officers and any other claimed and/or litigated. all
.:
gations of misconduct ever made against them.
c. Employment records. Your client's work history is the equivalent of
or her curriculum vitae. A long-term employment history enhancesyo
client's credibility. Review your client's employment records forrepu
of medical problems or work-related injuries, attendance, special trainiri
or awards, advancement within the company, and the names of superv
sors or coworkers who can talk about your client in a favorable light", '

.

d. School records. School records provide information about the kii)d
student your client was, whether your client experienced any %!s
plinary problems, what his or her particular areas of achievementa
interests were, and will provide the results of any medical (vision,~,
ing), personality, intelligence, or aptitude testing. These records can,"
be a source for your development of the symbols of your client's se~s¢
responsibility.
'

395

e. Otherrecords
,'Ji) Pre-employment and life insurance applications. These applications

'aIld the examinations done in connection with them serve as a general
it):dicator of the client's prior health. They also generally include extensiVe checklists that are instructive regarding the client's personal habits
and life style.
"''(ii) Military records. These records should be obtained to determine

~og: client's rank, branch, years of service, job and any service-connected
.~r.frie~. Also helpful wil! be reco;ds relating to medical examinations
~"a history, psychologIcal testing, aptitude assessments, earned
~1¥ards/citations,promotions, and reasons for discharge.

'i.,(iii) Prior criminal proceedings. If criminal proceedings arising out of

~",police misconduct were filed against your client, obtain the entire file,
,it):~luding transcripts of any testimony. Also, follow up on and obtain
tfl9's.e records pertaining to your clients's prior criminal record.
. FOIA Requests

,~:'ihose states that have a Freedom of Information Act, a FOIA request

)'I'm

provide you with access to certain public records. In a police misconduct case, FOIA requests are useful to obtain information about your
,Ii",nt's criminal records and records and logs relating to the incident in
ue"stion.
Considerations in Filing Suit/Early Settlement
enerallv, if your client's damages are serious, you will want to start
uit, A lawsuit will be necessary to access formal discovery and to more

2c~:ately evaluate your client's

injuries. You may, however, wish to
":Isider an early settlement if there are extenuating circumstances.
.,e~e might include a situation where your client has a decreased life
Jl~~tancy
or where your client's financial condition dictates early resotidn.

":,A1lother factor to consider is the willingness of defense counsel to deid fhe case. Early on, defense counsel may be reluctant to get into the
se-eithar because of the strength of your case, counsel's dislike for his
:rherclient, or counsel's schedule. The prospect of having to conduct or
ttend a number of depositions, wade through a series of documents, or
yolve expert witnesses may strike counsel as particularly unappealing
the case can be settled instead. If you pick up on any of these signals,
ike every effort to resolve the case at this juncture because defense
'(!risel's motivation to settle will disappear once the depositions are
lsen, the records requested, etc.

396

CIVILRIGHTSLITIGATIONHANDBOOK
STRATEGmSFORSETTLEMENT

In cases where your client is not seriously injured, consider whetnet
file the suit at all. If suit is filed, certain litigation costs may be unaik!"
able. If you incur $2,500 in costs for investigation, depositions, and~ii
cal records and reports, it will be very difficult to settle a case',hih
value is $5,000. Alternative forums that will minimize these costs'JiRo
be explored. These include taking the client's case before the civil~~g
commission, a city ombudsman, or a small claims court (dependirig
'
the jurisdictional amount).

D.

Wrongful Death Cases

'i;

If your state's Wrongful Death Act permits recovery for the loss,p'~i
decedent's love, society and companionship, the case will invol'l~,,'s81

special consideration on your part. Your investigation should,'fqq,,~
J
" '
two clients-the decedent and his or her heirs.
The decedent cannot help you establish the facts of the inciderihJ
will be important, however, is the decedent's past. Is the decen5e~\
history consistent or inconsistent with what the police have sald,,~?O
him or her? The decendent's background will also be a key in an~W'~
the question, "did the decedent deserve to die?" The informatip~
records you obtain and compile about the decedent will flesh 0,,1,'
answer to that question.
,:;;
The second client in a wrongful death case is the decedent'sheirs:
the heirs whom the jury will hear and it is the heirs whom the jury';
want to compensate. They may be the decedent's spouse, chil&7'i1.!
parents. In any event, the jury must be able to connect with thelr\.'
need to meet with them to determine their relationship with the d!C:~~\f'
and whether they appear sympathetic or overreaching.
,"
If there are six heirs who can claim under the wrongful deathi~<;:l,'
there are six separate losses. Each requires and deserves separa~7';'
opment. In your negotiations with defense counsel, talk about 1'.'1'
of the loss of each of the heirs: do not lump them together. The defl
will try to focus the discussion around a single number, therebync
the individuality of each of the claims. A damage chart detailin]
claims of each of the heirs will be helpful in focusing the defendaiJ.t'
tention on the full extent of the loss.
"

",a~ioUs meetings and depositions where you and defense counsel will be
,r!sent, at mediation or some other form of alternate dispute resolution
;c\..at the settlement conference or pre-trial meeting between the parties
'di,the judge.

'Db not engage in any such discussions until you are ready to do so.
J:liirense counsel may initiate settlement discussions after a motion or deI?qsition. Defense counsel may ask you what you are looking for to settle
fueicase. You will not be ready to answer that question until your factual
ig,legal research into the case is complete, the issues have been narrgw;ed and framed, and you are focused on settlement. And, if you are
~tteady, there is no harm in telling defense counsel that you have more
~tkto do on the case Or that you prefer to take the matter up later,
pen you can sit down with counsel and discuss the case at length. The
,way of a court house is not the place to have serious settlement dis~tt1l1S unless you are there for trial.
ow that once you give the defense a settlement demand you will be
~to compromise that demand at each subsequent juncture. You
,,ti'give yourself room to negotiate. Thus, settlement demands are
'1' 'to be made in an off-the-cuff fashion or without consideration of
ffects the demand will have Onfuture discussions.
iPre-Suit Resolution
1ii,fitent discussions with an insurance adjuster or risk manager will

'tJ;'··be Successful. They should be avoided unless you have a case that
g~perated a significant amount of publicity and is so highly charged
l!\e defendant will take the discussions seriously. Absent that, the
pOlicy is to file suit and proceed with your case as if it will be tried.
Post-filing and Discovery
Development of Theories of Liability
ipfqrmation you need to conduct settlement negotiations is the same
,rl11ation you need to prepare your case for trial. You will also want to
i~;~ome additional information that is designed to assist you in the
;o\iation process.

',oil. will first need to develop the factual and legal basis on which to
III.

TIMING AND SEQUENCE OF NEGOTIATIONS

A.

Preliminary Considerations

As your case proceeds to trial, you will have a number of opporitini
for settlement discussions to occur. These opportunities will i·,Ll: ..:"

pec"

397

"ygur theory of liability. The discovery you conduct on these issues
include interviews with witnesses, interrogatories designed to iden'gurces of factual and recorded information about the incident and
ground information about the defendants, requests to produce docntsand other pertinent records, depositions of the parties and all
:~.relevant actors, meetings with and depositions of treating doctors

398

CIVIL RIGHTSLITIGATION HANDBOOK

STRATEGIES FOR SETTLEMENT

and the retention of expert witnesses. There should be no difference.in
the way you prepare the factual and legal issues of the case for settl~,f
ment versus trial. In fact, you will always get more money in the settl~'
ment of the case if you assume the case will be tried rather than settled
and you prepare accordingly.
"\

I>.. Noneconomic damages

Once you address the issues of liability and causation, you will wantto
focus on damages. The monetary recovery in a § 1983 case includes economic and noneconomic damages, punitive damages, and attorney fees;

Economic damages

'ti> Where the client will require future medical care, the following infor.!italion should be elicited from the physician: the nature of future medi'eat,care, frequency, if it is elective, the probability of it being necessary,
andthe cost. Future medical care increases the defendant's jury verdict
',exposure because the jury can take these expenses into account in award;'i'qg,damages provided evidence of the necessity of such care is provided.
"f

2. Addressing Damages

a.

399

h;,

(i) Lost wages. If your client was employed at the time of his or he~,~,t,
jury and as a result missed so many days of work, a simple mathematic~l
calculation will yield the total income lost. Normally, a business reClJrg
from the client's employer will suffice to establish this claim. If, how~,~~,
you cannot document such a claim because your client did not pay ~~*;
on his or her wages or if your client was not working at the time '11,\11:
injury, do not put in a claim for lost wages. Attempting to prove.tl.f
your client worked for undeclared income will have a negative imP~5\
on his or her credibility and may be viewed as overreaching. S'1~iai
Security records can provide you with a list of your client's employers
there is any doubt as to whether taxes were p a i d . ,
(ii) Loss of earning capacity. Loss of earning capacity becomes unp
tant if a disability temporarily or permanently limits your client's ~pi
to work. It is in this area that your client's life becomes an open 1;':'9
While you stress the positive aspects of your client's life (work histor
education, initiative), the defendant will stress those factors which wc!"
have impaired your client's earning capacity independent of the'lrtf,
(absenteeism, alcoholism, arrests, convictions, imprisonment, poor,t\'()
record). Do not abandon this claim simply because your client is l'tllm
and not perfect. Remember that everyone is capable of earning'~6ih
t h i n g . " "
(iii) Medical expenses. Medical expenses that are reasonable and",
essary and are incurred as a result of the injury are another element
economic damages. These expenses will include bills for hospitalsrdo
tors, medications, in-home nursing care, therapy, travel costs, rehabili
tion, modification to house or car, and medical equipment includ
prosthetic devices, crutches, canes, walkers, and cervical collars. The:ta
expenses will provide you with a hard number that establishes the,];>a:
line value for this portion of the case.

:;"(i) Pain and suffering. Once you have developed the client's economic
pamage picture, you will want to turn to noneconomic damages. This
'¢~tegory of damages includes those areas of damages in which there
114ve been physical or emotional changes in your client's life as a result of
police misconduct and generally include pain and suffering and psyshological harm. Where there is an objective basis to correlate injury with
Bam; jurors are more likely to adequately compensate your client for this
element of damage. Without objective medical corroboration, the testimony of your client and of lay witnesses are of key importance. Pain befl?mes an issue of credibility and the information you have discovered
about your client's background will be very instructive.
);.(ii) Emotional distress. Whether they be categorized as emotional distress, outrage, humiliation, or embarrassment, these elements of damage
must be considered. The emotional impact of fracturing an arm when
f~iJing on an icy sidewalk is fundamentally different than the same inj~ty incurred from a police nightstick. The police are not only assaulting
l1'~,person's arm; they are assaulting his or her dignity. Note: this area of
gamages is considered suspect by defense counsel because of its subjecg"'~nature. If the claim is that your client now has a fear of the police, the
e"t"cnt of his or her prior contact with the police should be explored.
Many times, the client is not the best person to recount the impact of
h~,police misconduct On his life. Family members, teachers, coworkers,
misters, and business associates may be in a better position to talk
(~~$l1t the changes in your client's life. You should also consider having a
p~jrchologist examine your client. The psychologist could then explain to
yop (and a jury) the nature and extent of the client's behavioral Or emo!6;tal difficulties following the injury and the client's prognosis.

tire

Punitive damages. Punitive damages can be a powerful weapon in the

r case. These damages may provide the largest avenue of recovery
'r'the person who may be otherwise limited in calculable compensatory
983

~m~ges such as lost wages or medical expenses.

The focus of punitive damages is on the defendant's conduct; they will
e/assessed when the conduct is shown to be prompted by evil motive or
intent or when it involves reckless or callous indifference to the constitu-

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CIVIL RIGHTS LITIGATIONHANDBOOK
STRATEGIES FOR SETTLEMENT

tionally protected rights of others. If defense counsel doesn't like.hi$9
her client, if the defendant was disciplined for his or her conductbr!~'
police department or there are corroborating eyewitnesses as to thej,"pr.
giousness of defendant's conduct, punitive damages will become·fa.",
part of the negotiation process. You should determine at the outset,;~o
ever, whether the municipality will pay a judicially imposed pun!ti",
damages award against the officer.
Settlement negotiations on the issue of punitive damages will shift{th
focus of the negotiations away from your client's injury, which t1)",:,,'
fendant may feel is of little value, to the conduct of the defenda)1~X'
will be able to talk about how the jury will view defendant's condjlct..
the manner in which the jury may respond, as the conscience,p(J
community, to punish the conduct and to deter similar conduct inf]'ie,
ture, Thus, a case on which defense counsel placed a settlement V~tU;¢
$2,500 may increase significantly when the potential for punitiverd:
ages is factored into the equation.
.

d. Attorneyfees. Attorney fees may be awarded in a § 1983 caser"
through settlement or trial, you achieve the benefit sought on any$igrii
cant issue. The attorney fee will be determined by multiplying the'(rr
ber of hours reasonably expended on the case by a reasonable hi)
r a t e . ;
Attorney fees are particularly significant in the settlement,~f;l
smaller case because the fees can be used to shift the focus away fni'J,'ll
client's injuries while still increasing the defendant's exposure'l!\
case. For example, the defendant may feel that your case would re.t[cle
verdict of $500 at trial. However, if the case indeed proceeds to tri~,l,
defendant may also incur $10,000 additionally in attorney fees aWf~r,
to you. A reasonable compromise of that figure could produce ase
ment acceptable to both parties.
,'"
In discussing attorney fees with the defendant, it is helpful to ~~~"',
a chart that details those fees, costs and expenses incurred to dat~!i~l91
with the anticipated future fees, costs and expenses throughy"rgi.
While both counsel may agree that the jury will return a low verl;l!~t
the client, the defendant now has a disincentive to face you at trial'.'l
here that you can persuade the defendant of the economic foolhardin
in trying a small case.
e. Role ofexperts. The experts generally used in a police misconduEt,~
are the police expert to address the appropriateness of the defep'~ari
conduct; the medical doctor to detail the medical history, diagnoses
prognoses; the psychologist to discuss your client's emotional da'~.
the vocational rehabilitation counselor to talk about the impact 9f
iniurv on your client's previous career choice and what accommodatio

401

~:,)10W necessary in that regard; and the economist to explain your
lent'S wage loss and projected loss of income.
'T£Ihe damages warrant, retain the experts and get them involved in
h~.3,ase. This is a strong signal to defense counsel that you believe the
~s~lohave significant value. In effect, you have put your money where
g9~r.mouth is. And, the better the case and the better your case is preB~~"il,the better the settlement.
'{/iSettlement" Discovery

'ie'Information about the defendant. In addition to developing the basic el-

,m~hts of your cause of action through traditional forms of discovery,

)~:Will want to use the discovery phase of litigation to elicit additional

£6rrnationto help in the negotiation process. This will include informa:,f!p.i].apout the named defendants, their attorney, and with whom you
,\);Hl,pe negotiating when the times comes. Just as the defense wants to
f21s~:about your client, you want to know everything there is to know
abq{;i the individual defendants. Find out about their work record and
.tbry, education, and whether they have been the subject of citizen
"plaints or lawsuits alleging police misconduct.

(.(Iff/ormation about defendant's view ofthe case. Take a critical view of the
efendant's Case: look at the witnesses and experts they will be relying
,h!tpdefend their actions and to attack your client's credibility and damII",S" Also, listen to defense counsel to get a sense for what he or she feels
re'lhe weaknesses in the case. Just as you tend to talk about the cases's
.'e,~knesses with your client, so does defense counsel. And it is that
eakness that will motivate the defendant to settle.

';l~formation about defense counsel. Learn as much as you can about the
.ense attorney on the case. Find out what you can about his or her ex'i¢nce and trial record. But, perhaps more importantly, get to know a
eabout the attorney at a personal level. Ask about his or her family
"whether the attorney has any special hobbies or interest.
'ihd out what is going on with the defense attorney's schedule: is he
Ming a vacation? how has his trial schedule been? what is his
seload like? Learn, if you can, how defense counsel feels about the derdant: does he like the defendant? Does he have the "stomach" to degrlhe case? The goal is to connect with the attorney on as many levels
R9ssible because you want defense counsel to be your advocate with
,~i\fecisionmakerat the time of negotiations.

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CIVILRIGHTS LITIGATION HANDBOOK

d. Information about the settlement decisionmaker. Depending on lhev~hi,
of the case, the decisionmaker may be the attorney, a committee cOn'si$[
ing of the defendant's insurers, or a city council In any case you need
give the decisionmaker the information needed to evaluate the cas<l;,@
your access comes through defense counsel. In the appropriatecase'x?
may want to address the decisionmaker personally. No one can maki;'8
effective a presentation as you. If the defendant agrees to the meeting;'i'
signals a willingness to change his or her past position.
D.

Before the Filing of Dispositive Motions

Dispositive motions on governmental immunity and other iss",~$,
being filed and won with increasing frequency. This is especiallytrue
the federal level given the conservative nature of the bench,
','}'
Defense counsel may ask you if the case can be settled before 's1,)C
motion is filed. You should first determine if the defendant is setjci
about negotiating at this time. Look for language from defense c~«D~'
that he or she has "authority to settle" or wants to "resolve the caS~!!be
fore the motion is filed.
You should then evaluate the likelihood of the defendant prev:l\ili
on the motion because you must take this into account before you ni,!~,
demand. If you believe the defendant has little chance of winniI1~'~
motion, give the opening demand you would have made absent,we"
ing of a dispositive motion. Avoid reducing your demand if the,defi!
counters that you are not taking the motion into account. Remember
have taken the motion into account but made a determination thaG
unlikely to be successful. You will have difficulty increasing y()!Jf
mand with credibility when the defendant, in fact, loses the motion,
cause you expected them to lose.
If, on the other hand, you feel the defendant has a 50/50 ch"nc~
prevailing on the motion, reduce your demand accordingly and)et;,1
defense know you have done so. Should the defendant lose the !l'tgt,i,
you will then be able to increase your demand with credibility beca
your initial demand took into account an assessment of the motion"s',s
cess.

E.

Alternate Dispute Resolution

There are some police misconduct cases that are very difficult for PD'
both of the parties to evaluate. Because the judge does not have the;li
or inclination to work at settlement, another third party may be uS~f",
helping to resolve the case. While there are many formats availableje
mediation, arbitration, binding versus nonbinding, summary juryfria

STRATEGIES FOR SETTLEMENT

403

JiY~,Jestimony versus summaries, etc., any agreed upon process will
,9r4.'g ,y ou closer to settlement. The fact that a defendant agrees to an al!~rpative dispute resolution mechanism reflects their desire to resolve the
iii!,

'/::roe"example of alternate dispute resolution is a mediation where the

ai(i'1s have a role in selecting the mediators and pay them for their time
)v;,c'rking on the case. The fact that both sides participate in molding
e,environment in which the mediation takes place and are there on a
olimtary basis wili increase the likelihood that a settlement will result.
"ell· side will be able to select not only the mediators but the others who
~ribe present at the hearing (clients, lienholders, claims adjusters) and
ie'!ype and format of information that wili be presented. Keep in mind
."}ithe greater effort you can get the defendant to expend on this form
'f~ispute resolution, the greater the likelihood the hearing will produce
se,Ulement figure that is acceptable to both parties.
','!cUse of Polygraph Examination
RDsider the polygraph examination as another possible tool for settle~nrof your client's case. This approach is particularly helpful in the
allidamage case where continued expenditure of litigation costs will
,ki!"settlement very difficult.
'Ihese examinations are often used by the police department to deter~whether criminal charges should be filed in a Case and, thus, the dei"Amt considers them to be helpful in limited circumstances. While the
efendant officers will not be required to submit to such an exam, your
'lInt's offer to do so wili say a great deal to defense counsel. Before sug'Sfutg·this approach to defense counsel, make Sure your client has taken
(~Iygraph and passed.
. telermine the areas of factual dispute between your client and the de'<\nt(s). Propose to defense counsel that both clients be polygraphed
lh~agreed-upon factual disputes. If your client passes, and the defenlcdoes not, the case would then settle for a predetermined sum. If
f client fails and the defendant passes, the case would be dismissed.
.practical matter, the defendant will not agree to be polygraphed and
'r~lore your client will be the only one submitting to the test.
erefore, the settlement will only depend on whether your client

sses.

>CasesYou Cannot Win

h",'"

!/s'Pme point, you may come to the conclusion that it will be extremely
'fi~l1ltto win your case if it proceeds to trial. This does not mean, how'erYthat the case cannot be settled.

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STRATEGIES FOR SETTLEMENT

9f

Tell defense counsel your assessment of the case but give hirrt
the flip side. Tell counsel that they have a case they cannot 10se.,If,¢V~,
thing goes as it has so far in terms of the facts, the evidence and.the.]
the defendant will win.
,I,
This discussion puts defense counsel in an awkward positionp~9'"
no one wants to try a case they cannot lose. The reason: therll,!is
chance in a million he could very well lose it. Use transaction ,coS'ls!,?
and effort, attorney fees, and potential professional embarrassments
leverage to get your client a settlement.
'i"
·

IV.

SETILEMENT PRESENTATION

A.

Prepare for Your Presentation

1.

Keep Your Goals in Mind

,.~.:,

Your settlement presentation should work at two levels. First, yOll';Ji,
to give the defendant a reason to want to settle the case, whether'itIl,,,,
ducing his or her transaction costs or limiting his or her expOSUr",('
sum certain. Second, you need to expand the plaintiff's verdict pole!)
You will maximize your recovery by humanizing your clientand
suading the defendant as to the nature and extent of your client's
juries. The information you have obtained thus far becomes theke
reaming your settlement goals.
',
2. Compare to Opening Argument
Again, the key to obtaining an effective settlement is preparation;
should prepare to give your opening demand as you would prepare
your opening argument at trial. If you truly intend to reach your-set
ment goal, it will be your job to persuade and motivate defense COJ,IIj:
to be your advocate with his or her client. This means you must~e'
command of the facts of the case; you must know specific details-ab
the case and have learned the "language" of the case. You wilh~1
about your client, his or her background and the damages he or s1\".1:).
suffered because of the defendant's misconduct. You will also knowt
names and ages of your client's spouse and his or her children, the,na
of the defendant, the height and weight of the parties (if relevant/Jail'
the names of all witnesses and treating doctors.
Learning the language of the case includes being well versed ol'!;r",
vant case law and recent jury verdicts in your area as well as knoWleq
of the applicable technical and medical terms and jargon. For exalIjjJ
you should be able to relay what treating doctors have told youcab
your client's injuries in the terms used by the doctors. It is morepersu

405

~ty~to talk about back pain that is a result of an L4 radiculopathy than to

1~1Js"about back pain itself, and to refer to your client as experiencing
IW%t·traumatic vascular headaches rather than simply headaches. Using
,usJ'lJanguage with defense counsel tells him or her that you are compe·nt.Mdwell prepared.

;·F,~r.9Ceed Only When Ready

Bi'J>Jake the first demand.

You will give the defense an opening demand

:rvh~rlYoU are ready. By making the first demand in the case, you will set
'a,point of reference as well as the tone for further negotiations. Try to
rll,sent that demand at a face-to-face meeting with defense counsel. The
cation of the meeting is not as important as the fact that it is a personal
e",ting. Such a meeting allows you to pick up on defense counsel's
'l1y,erbal cues and signals; a telephone conversation will distance you
'T-,those additional pieces of information.

,VDetennining what your opening demand will be. The opening demand
ill,be' a reasonable compromise of the case's verdict potential. Tell the
(¢r,side what a jury could potentially award in your case and why
Ir',-demand represents a compromise of that verdict. If the demand
alsor exceeds the verdict potential, you have created no incentive for
epunteToffer: your demand had not created any risk for the defendant.
U~/the demand must be a compromise, but remember: the defense ex'~ts',the demand to be inflated and will view it as such. Rarely is an oft'p:ccepted without a counteroffer. A realistically high initial demand
'l):,startnegotiations; an unrealistically high demand will shut them off.
trJ;lfortunately, there is no arithmetic equation to get you to a Com,n'i~se figure. Instead, it will be based on your experience and your
§\,;,)edge of the case. Some factors that will affect the settlement value
flT~"case include your competence as an attorney; the likability of your
It;the extent of your client's damages; the likability of the individual
"p#ants; venue; and publicity. Unlike other personal injury cases, in, nee coverage will not place an artificial cap on settlement discusIUS",

There may be a small group of lawyers in your community specializ,in police misconduct cases. A few phone calls to them will give you a
ge'at which the case is likely to settle.
Itls up to you, however, to show the defendant Why the average set,lIjentvalue for your type of case should represent the floor rather than
'ceiling.

'.rustify your demand. Once the demand is made you must be able to
,tify the figure to the person with whom you are negotiating. A settle-

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CNIL RIGHTS LITIGATION HANDBOOK

STRATEGIES FOR SETTLEMENT

ment figure that is explained has a lot more power behind it. It
where you must use your knowledge and skill to persuade defense
counsel to accept your figure as reasonable.
If the defendant responds to your demand telling you to be
istic, or if he or she asks you what you will "really" take, you mustma
a disciplined response. Ask: why is the demand too high? Engage
discussion. Defend your figure. Do not be tempted to give out anojj:Yeri
lower figure without a response from the defendant. You must refr~i.I}
from making a demand if the other side has not made an offer in orderto
avoid creating a situation where you are negotiating against yourself"

40/

l)i}vealready set the tone for the manner in which the negotiations are to

proceed.

~&;'iFight against categorization. You must then put together what you
/laYe learned about your client and his or her case to maximize the settle,ri'tent recovery. Fight against categorizing your client and his or her
#ljitries. The case should not be discussed in general terms, such as "a
~,ooting case," or "a false arrest case," and your client's damages should

P9t be loosely defined as one involving"a fractured elbow" or "an eye
put:" Instead, you must talk about how your client and his or her case

~l'~ldifferent and, therefore, worth much more.
B. Presenting Your Opening Demand
1.

~'ii

Increase the Defendant's Exposure

a.

Uncertainty of trial. Part of your settlement presentation will
geared to the course the case will take if it should proceed to trial. Let.t
defense know you can try the case. You may discuss the strength Ofilia
bility, the outrageousness of defendant's conduct, or the favorable.jur
pool where the case will be tried. Or, perhaps given the lack of an i}qE
quate settlement offer by the defendant, you have no real alternativebt
to put your case before a jury, i.e., the client does not have much tOilO
by going to trial. Also, remind defense counsel that in addition toJ
jury verdict, the defendant will be responsible for paying your client's a
tomey fees as well as counsel's own fees and costs (if applicable) ifhe.;i
she must prepare for and try the case.
i'-

b. Motivation of jury to help your client. You can then talk aboutth<1~
facts in your case that will motivate the jury to help your client
Examples might be your client's appearance and credibility or his orne
documented medical injuries, or facts showing outrageous conduct]:",
the police such as an aggravated assault, or the police's failure to obt'ai
medical treatment for your client. Talk about elements of your client's-ii
juries that may appear in the future and that the jury will be free
sider such as traumatic arthritis, epilepsy, or closed head injury.
2. Humanize Your Client
It is your job to give the case an aura of importance and uniqueness;
you have prepared your case well, the defense will have already gotten
sense that you are taking this case seriously and with every intent of Pl'0'
ceeding to trial should you not obtain a reasonable settlement. Thus,.yp

b:, Stress your client's uniqueness. The defense needs to know what your
syent was like before the injury. Talk about your client's family, work
history, and his or her lack of a criminal record Or difficulties with the
p~lice. Talk about how your client's life has changed as a result of his or
h~t1.encounter with the police.
.IUs a difficult task to describe the impact of an injury where your
client has not suffered a dramatic and obvious physical change, such as
p~ralysis or loss of a limb. If your client's injury permits him or her to returnto work, but leaves him unable to do other activities of daily living,
sychas gardening, knitting, playing basketball, playing with children,
r~i}ding, etc., your task is made even harder.
.'rbs at this point that you will reap the dividends from your earlier eff9Ffto know defense counsel on a personal basis. Your knOWledge about
hi~or her interests, hobbies, and family can permit you to draw linkages
?~*een aspects of his or her life and that of your client, so that you can
('piirsonalize" your client's loss. Perhaps defense counsel is an avid bicy.¢llSfor golfer: ask them to imagine the impact on the quality of their life
iftl)('Y were unable to enjoy these interests, even though they could oth"'Vise perform work tasks.
c. Turn weaknesses into strengths. Know too that the defense views cerin.facts as buttons it will be sure to press before a jury. These might inde evidence that your client was intoxicated at the time of his or her
prest, was in possession of a weapon, or unjustifiably resisted arrest. Be
hJe to counter these facts with some positive information about your
£llent-exemplary probation record since the incident or success in a
qrq.g. treatment program.

iI''! Use physical evidence. Where you have photographs of your client and
His"or her injuries, use them. A photograph of bruises or a scar will have
more impact than a verbal description. Other important pieces of phvsi-

STRATEGIESFOR SETTLEMENT

409

CNIL RIGHTS LITIGATION HANDBOOK

408

(Look At Where You Are In the Case

cal evidence might include x-ray studies, emergency room
topsy reports. The defendant's own internal documents can also
to highlight your presentation. The advantage of using selected pieces.of
physical evidence is that this evidence can then be used by the settlemeryl'
decisionmaker to get a better sense of your client and the drpn"th
or her case.

.$~ftlement

discussions are most likely to occur near the end of the case.
stage of negotiations will be with the court. It will be the judge's
role to help the parties settle the case. You should plan your negotiations
sp';'Jat the judge has some room within which to conduct these negotiatid"s. This cannot occur if you have already given the defendant your
~'gttom line figure. Thus, you should leave room in your demand to negptiate in the event the case is not resolved before you meet with the
jt1~ge.
1f~'last

RESPONDING TO DEFENDANT'S OFFER

V.

By touching on both the uncertainty of trial and those unique facts
your client and his or her case which justify your settlement demand,
you will have provided defense counsel with sufficient
permit an offer to be made. You must now assess the settlement
that follows your demand and respond accordingly.
A.

Factors to Consider Before Responding

1.

Make Sure Further Negotiations Are Possible

You should not reduce your demand in response to defendant's
.
less you have made a determination that negotiations will contmt1¢)
Otherwise, you will be in a position of bargaining against yourself.
For example, suppose that shortly before trial you make an initiaf~~7'
mand of $75,000. Defendant's counsel responds, saying that defenol!Ilt
will not pay more than $20,000. This is not an agreement to continuen~'
gotiations. If you respond to this statement by reducing your demand,.•
you have only succeeded in lowering the settlement ceiling (to
advantage) and have obtained no compromise from the defendant.
if you had reduced your demand from $75,000 to $50,000 and the
dant never countered your last demand, the judge would be negotialii;hi
the difference between $20,000 and $50,000 rather than
$75,000.
If you are at an impasse, you can try to separate the lawyer from

her client for purposes of continuing the negotiations. Tell defense
sel that you understand he or she does not have authority to offer
money and that you do not have authority from your client to .. ,.i'Lc
than your demand but that you would like to keep talking because
two of you may come up with a number that both could recommeng.'tg
your respective clients. This approach allows negotiations to continue
with a commitment from counsel to work towards settlement but
gives the parties an out should the negotiations not proceed as you
anticipa ted.

.3': Review What You Have Learned About the Case
):;8ur settlement discussions with defense counsel will provide you with

41~ormation about the defendant's view of your case as well as the man-

ties in which he or she will be conducting the defense of the case. You
~jget a feel for those parts of your case that counsel accepts as strong
and those he or she believes are suspect. You should get a corresponding
.~~!}se of those factors the defense will stress (or minimize) in presenting

:~~ff:ase.

.J;yvhenthe defendant presents its offer do not simply reject it, but
ra.fuer ask defense counsel to justify the offer that has been made. Listen
sfgsely to defense counsel's explanation, for it will suggest his or her perceptions of the strengths and weaknesses of your case. If there is a way to
prqyide counsel with additional information or to redirect his or her
tllinking on a particular issue, do so in your next discussion.
{/'''Evaluate the Offer Itself
>

'Ij;e;..offer itself will tell you a great deal about defendant's view of the
S.~~e. Remember, the defendant expects your demand to be infiated. At
fuesame time, the mid-point between your demand and the defendant's
mitial offer may signal the figure defendant is looking to as the settlement figure.
",Jf defendant meets your demand with a nuisance offer, the defendant
is.lelling you to try the case. For example, suppose you receive an offer of
$2;500 in response to your $100,000 demand. While you should determine if further negotiations are possible, it is likely they are not. At this
pOint, you should break off negotiations but note the reasons given by
defense counsel for the offer. There may be issues in the case you have
~F't previously considered or developed; you should now take the time
tl)'foCUS on these issues.
,
<,On the other hand, an offer of $100,000 to your demand of $1,250,000
may not be a nuisance offer, but it may be an offer to which you should

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CNIL RIGHTS LITIGATION HANDBOOK

STRATEGIESFOR SETTLEMENT

..

not respond. Defense counsel may ask you to come down, or tell you,t1)~t
your demand is unreasonable. Tell him that you believe your figJ.lr~j~
more realistic and that this is not a case where splitting the differe 9j
will do it. Present your arguments on liability and damages agair'i;;al1,
help defense counsel with any issues he or she has expressed difficu~ty,'
accepting. Get the defendant to make the first move up. If the defenqa
does so and moves up to $250,000, the midpoint is $625,000. Howey~r,j
the defendant declines to move, the midpoint stays at $550,000 ana:~C\
have not lost any ground.
"
An offer of $20,000 to a $100,000 demand may seem low but it maY2 e
no farther away from your goal of $60,000 than you are. Such a respollse
tells you that settlement is possible and worth continuing.
·'F·

rr

rr

B.

Presenting Your Response

Your response to defendant's initial offer should test your assumpfio .
about where you are going in the case. Therefore, the figure you giVe.. i
response should exceed the figure you have set as your settlement gO~I:
You will give the defendant that figure after revising your previ0l.l~
settlement presentation in two ways. First, you will reaffirm:'tp'
strengths of your case and, second, you will respond to the arguI1):eJ;\)
raised by defense counsel. Acknowledging and accepting some ofith
defendant's arguments allows you to decrease your original dema
with credibility, i.e., you have reduced your demand in consideration,g
these factors. Thus, in the previous example where you made a dem~rr(
of $100,000 and defendant offered $20,000 and assuming a settlem¢j)f
goal of $60,000, your next demand may be $85,000.
'
The defendant's response to your counter-demand will be significant
because it will tell you if negotiations should continue or break off·'Th~
defendant has three choices in responding to your counter-demartd,'!t
can increase its offer by less than you have decreased your demand,r
counteroffer of $30,000); it can increase its offer at the same amountsf
counteroffer of $35,000); or it can increase its offer in an amount that'ex
ceeds the decrease in your demand (a counteroffer of $40,000).
At this point, you will probably have as much information as youvIi'ill
ever have about your case. You will know the strengths and weaknesso
the case as well as the defendant's position on these same issues. The
question then becomes whether you can reach or exceed your settlemen
it:
goal given the defendant's response to your counter-demand.
If the defendant comes back at $30,000, the likelihood of your reachiit:
your goal is low because there has been a departure from the symmetr
of the negotiations. You should freeze the negotiations at these figures,
i.e., $85,000 and $30,000. Tell defense counsel that settlement looksunlikely given where the clients appear to be. At this point it is important.to

411

(I~termine whether your goal of $60,000 can be reached.

While acknowleqgingthat the clients are far apart, try to determine whether the lawyers
can agree to $60,000, even if clients may ultimately reject it. This permits
@t,exploration of obtaining your goal while still maintaining your formal
demand of $85,000 in the event that negotiations terminate.
You must be able to leave a negotiating session without reaching an
agreement if a break in negotiations is warranted. There will be other
qpportunities to resolve the case. These opportunities may be naturally
9fcurring given the litigation process or they may be brought about by a
$'lange in circumstances that allows you to take up defendant's concerns
1ft another session.
In those cases where the defendant tracks your counter-demand, you
want to stop the negotiations from marching ahead. Tell defense counsel
that if the negotiations continue to follow its course it will be difficult for
liou to settle the case at that figure. While the two of you are not far off,
tell counsel that the $60,000 is inadequate for the case and tell him or her

why,

Counsel's response will then signal you as to whether a settlement of
'!lore than $60,000 is possible. If there are any signals from defense counsel that he or she is grappling with your frame of reference, you should
be able to settle the case for more than $60,000.
If you decide that you want to resolve the case at $60,000, be careful to
pring the defendant to that point without conceding the figure. Indicate
that you would recommend the figure to your client if counsel could do
lJ;e same. Let them know that you understand that they do not have aufhority for that figure but get counsel to work to get you that amount.
When the defendant increases its counteroffer in greater proportion
!,han your counter-demand, it is a signal that the defendant has given
your arguments more merit than you have given theirs. This is also a sitiiation where you may want to freeze the negotiations. The symmetry of
e negotiations tells you that the mid-point is $62,500. The question is
whether you can obtain more than that figure. You do so by telling defense counsel that this is not a case where "splitting the difference" will
do it. Tell defense counsel that your figure is closer to the value of the
c~se than his figure. You must then listen to defense counsel's response
Jodetermine whether you will be able to exceed your settlement goal.

tl1

Closure
Reaching closure in settlement negotiations requires you to balance getting the last available dollar against taking the defendant's last offer.
Factors that go into the balance are your client's needs, and the recognition that the facts and/or the law can change at any time and those
'(jhanges wiJI impact on your negotiations. As a general rule, you should

412

CNIL RIGHTS LITIGATION HANDBOOK

take the figure offered by the defendant if you truly believe it to be
defendant's last best offer and is otherwise acceptable to your client.
VI. CONCLUSION

No competent lawyer would ever try a case unprepared or without
detailed game plan. So too with the negotiations.
We have attempted to detail an approach to negotiations that worksfor us. While the percentage of cases you settle may not increase,
will increase the overall settlement value of your cases by applying
principles outlined here.

V. Investigating a Deadly Force Case
____________________________________________________
Materials:
Investigating Wrongful Death in Police Shootings
David Robinson

Presenter:
David Robinson, David A. Robinson & Associates PC, Southfield, MI

INVESTIGATING WRONGFUL DEATH IN POLICE SHOOTINGS
BY ATTORNEY DAVID A. ROBINSON
1. STATE OF THE LAW
A. Police use of deadly force standard from the United States Supreme Court
Brosseau v. Haugen, 125 S. Ct 596 (2004) Qualified immunity shields an officer
from suit when she makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she confronted. Qualified immunity operates
to protect officers from the sometimes hazy border between excessive and acceptable force.
Because the focus is on whether the officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at
that time did not clearly establish that the officer's conduct would violate the Constitution, the
officer should not be subject to liability or, indeed, even the burdens of litigation.
FACTS: The officer was attempting to arrest the victim, who had locked himself in his
vehicle. The victim ignored the officer's commands, issued at gun point, to get out of the vehicle.
The officer shattered the driver's side window by hitting it with her handgun. She unsuccessfully
attempted to grab the keys and struck the victim on the head with her gun. The victim, still
undeterred, succeeded in starting the vehicle and began to move away. The officer fired one shot
through a window of the vehicle, hitting the victim in the back. She later explained that she shot
him because she was fearful for other officers she believed were in the immediate area on foot, as
well as for the occupied vehicles in the victim's path and any other citizens who might have been
in the area. The Supreme Court held that the appellate court was wrong on the issue of qualified
immunity. Case law clearly showed that this area was one in which the result depended very
much on the facts of each case. Furthermore the cases suggested that the officer's actions fell in
the hazy border between excessive and acceptable force and did not clearly establish that the
officer's conduct had violated the Fourth Amendment
1

B. Police use of deadly force standard in the Sixth Circuit
Sample v. Bailey, 337 F. Supp 2d. 1012 (2005) In reviewing a claim for qualified
immunity, the United States Court of Appeals for the Sixth Circuit employs a three-step inquiry:
First, the court determines whether, based upon the applicable law, the facts viewed in the light
most favorable to the plaintiff show that a constitutional violation has occurred. The second step
of the qualified immunity analysis is whether the constitutional right at issue was clearly
established. If the law at that time was not clearly established, an official could not fairly be
said to "know" that the law forbade conduct not previously identified as unlawful. The
constitutional right cannot simply be a general prohibition, but rather the right the official is
alleged to have violated must have been clearly established in a more particularized, and hence
more relevant, sense: The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. This is not to say that an
official action is protected by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent. 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. In inquiring whether a constitutional right is clearly
established, the United States Court of Appeals for the Sixth Circuit must look first to decisions
of the United States Supreme Court, then to decisions of the court and other courts within its
circuit, and finally to decisions of other circuits.
Third, the court determines whether the plaintiff has offered sufficient evidence to
indicate that what the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights. Qualified immunity must be granted if the plaintiff cannot
establish each of these elements.
FACTS: While attempting to make an arrest during a burglary, the police officer shot the
2

arrestee several times while the arrestee was hiding in a cabinet. The arrestee filed suit under §§
1983, alleging that the officer used excessive force. On appeal of the district court's judgment
denying the officer summary judgment, the court affirmed. The arrestee's rights under the Fourth
Amendment were violated because his mere action of moving his arm to grab the top of the
cabinet in attempting to climb out would not cause a reasonable officer to perceive a serious
threat of physical harm to himself or others. The factual context of the case, the darkness, the
unfamiliar building, the arrestee's intoxication and unresponsiveness, was sufficiently similar to
the court's body of case law applying the Robinson rule so as to give the officer fair warning that
shooting a suspect who was not perceived as posing a serious threat to the officer or others was
unconstitutional. It was objectively unreasonable for the officer to order the arrestee to remove
himself from the cabinet and then to perceive the arrestee's movement of his right arm outward as
a threat that necessitated the use of deadly force.
Sova v. City of Mt. Pleasant, 142 F. 3d 898 (1998). Sova, supra, maintains that
police officers are afforded qualified immunity for their discretionary functions...provided their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Discovery in Sova clearly demonstrated that the two sides
did not agree on the facts which gave rise to the death of Mr. Sova. In that case the officers’
claimed Mr. Sova threatened to get a gun and then charged at them through a kitchen door with
knives drawn. Sova’s parents deny what the officers stated and argue that their son never said
anything about a gun and was shot before their son ever stepped out of the kitchen door frame.
The 6th Circuit determined that its resolution of the case turned upon whether it was proper for
the District Court to grant the officers qualified immunity in the face of such a factual dispute.
The Court argued that “qualified immunity in cases involving claims of deadly force is difficult
to determine on summary judgment because liability turns upon the 4th Amendment’s
3

reasonableness test....the proper application of 4th Amendment reasonableness requires careful
attention to the facts and circumstances of each particular case, including severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” “This is an
objective test, to be judge from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight...In a civil suit arising from the use of deadly force, the police
will not be immune if, on an objective basis, it is obvious that no reasonably competent officer
would have shot the victim.” Id at 902. The court went on to say “this Court has established that
summary judgment is inappropriate where there are contentious factual disputes over the
reasonableness of the use of deadly force. When the legal question is completely dependent upon
which view of the facts is accepted by the jury, the District Court cannot grant a defendant police
officer immunity from a deadly force claim....this is because the reasonableness of the use of
deadly force is the linchpin of the case. If the jury determines the officer shot the suspect
without a reasonable belief that he posed a significant threat of death or serious physical injury to
the officer or others, then the officer’s actions were legally unreasonable under the 4th
Amendment.” The Sova Court reversed the trial Court’s grant of summary judgment and held,
“Where, as here, the legal question of qualified immunity turns upon which version of the facts
one accepts, the jury, not the judge must determine liability.”
FACTS: Defendant police officers shot and killed son within fifteen minutes of arriving
on the scene of his attempted suicide. The lower court granted summary judgment because it
ruled that the officers had acted reasonably, as a matter of law, because the threat son posed to
himself justified the use of deadly force. The court agreed that parents failed to show that any
government policy or custom caused the injury and that the officers had been properly trained.
4

However, it found there was a jury issue as to whether the officers who actually shot the son had
qualified immunity. Although qualified immunity was a threshold issue, the use of deadly force
required a showing that the police had probable cause to believe that the suspect posed a
significant threat of death or serious physical injury to the officers or others, as viewed by the
officers at the time. Because there was a dispute as to the facts which occurred, it was for the
jury and not the judge to determine liability.
Leong v. City of Detroit, 151 F. Supp. 2d 858 (2001) The law does not require that
a suspect pose a direct, imminent, and unmistakable threat of serious injury or death before an
officer may use deadly force in defense of himself or others.
FACTS: After the officers signaled for the decedent to stop due to a traffic violation, the
decedent led them on a chase. Upon cornering the decedent, he fired his shotgun into the roof of
his truck and emerged from his vehicle with the weapon. The decedent disregarded repeated
warnings that he put down his gun, and instead racked his gun and invited the officers to shoot
him. The officers shot and killed the decedent. In the estate representative's civil rights action, the
court granted defendants' summary judgment motion because the officers were entitled to
qualified immunity for their reasonable use of deadly force. The officers had probable cause to
believe that the decedent posed a threat of serious physical harm to the officers. The court
determined that the law does not require that a suspect pose a direct, imminent, and unmistakable
threat of serious injury or death before an officer may use deadly force in defense of himself or
others. The representative's arguments regarding the positions of the decedent and the officers did
not raise an issue of material fact as to the reasonableness of the officers' use of deadly force.
C. Qualified Immunity
Saucier v. Katz, 533 U.S. 19 (2001) Under the qualified immunity analysis, the
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. The relevant, dispositive inquiry in determining whether a

5

right is clearly established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted. The right allegedly violated must be defined at the
appropriate level of specificity before a court can determine if it was clearly established.
FACTS: At about the time the Vice President of the United States began speaking at a
public gathering, respondent protestor raised a banner and walked toward the speakers' platform.
Petitioner officer arrested the protestor and shoved him into a van. The protestor sued the
officer, alleging excessive force. The district court denied the officer's summary judgment motion
on the grounds of qualified immunity. The appellate court affirmed, finding that qualified
immunity was duplicative in an excessive force case. On certiorari, the Supreme Court reversed
because the inquiries for qualified immunity and excessive force remained distinct and the officer
was entitled to qualified immunity. The initial inquiry should have been whether the facts alleged
showed the officer's conduct violated a constitutional right. The next question should have been
whether the right was clearly established in the context of the case. In the circumstances
presented to the officer, which included the duty to protect the safety and security of the Vice
President, there was no clearly established rule prohibiting the officer from acting as he did.
2. OVERCOMING THE MISTAKE OF FORCE EXCUSE IN YOUR WORK UP
OF THE CASE TO AVOID QUALIFIED IMMUNITY
In order to overcome the leeway given the offending police officer by the Courts the
plaintiff must demonstrate the police officer’s articulation for his use of deadly force to be
incredible, or not really possible, given that which is alleged by the officer to be the conduct of
the deceased prior to the seizure.
I. Live witness who saw and can dispute the version of the shooting officer(s)

6

In the cases that survive SJ the Courts tend to rely on the testimony of live witnesses who
dispute the plaintiff or deceased posed any threat to the police officer at the time of the seizure.
These witnesses must clearly dispute the officer’s articulation that he was in fear of his life or the
life of another. This is the best evidence to dispute the officer’s excuse for the use of deadly
force. This type of evidence is often rare. Officers can rely on their version being given great
weight if there are no witnesses and the deceased can not speak. If no live witness to dispute
the officer’s version the next best evidence is the forensic.
II. Forensic and other evidence in order to dispute the version of the
shooting police officer(s)
a. Ballistics
b. Gun shot residue
c. Scene of shooting
d. Photos
e. Autopsy
f.. Scene sketch/diagram
g. Incident reports
h. Department policy
I. Officer’s background
j. Department investigation into the use of deadly force
k. Training in deadly force and firearms
a. Ballistics testing concerns the scientific and non scientific examination of the involved
firearm, spent bullets, live rounds, spent cartridges, magazine or chamber, holster and clothing.
In investigating all cases of the use of deadly force where the police shoot a person, whether the
7

person lives or dies, justification must be established for each bullet fired from an officer’s gun.
An account of each bullet should be made by the use of deadly force police investigators. Often,
this is not done. It must be done by the plaintiff.
EXAMPLE:
Ballistics also concerns the path the bullet takes once fired from the gun. This is called
trajectory. In the case of Cora Bell Jones the path the bullet took was depicted to demonstrate
the relative positions of the shooter and the deceased at the time he shot. This illustration
demonstrates a scenario consistent with the physical condition of an elderly women who suffered
from arthritis, dementia and other diseases at the time she was shot by the young spry officer.
The officer attempted to claim the elderly women was a threat to the other officers present at the
time he shot Ms. Jones.
In the Leong case an illustration of the scene was used to depict the officers versions of
what actually took place. The examination of the scene suggested the position of the officers
when they shot Mr. Leong was not supported by where the spent shell casings were found. The
ejection pattern of the Glock weapon is to the right and to the back. By examining the evidence
technicians scene depiction the spent shells were collected and marked. Microscopic examination
of the tool markings on the casings matched the casing to the officer’s gun. Comparing this to the
officer’s version of where he claims he was did not match.
b. Gun shot residue is the deposit of stippling left on an object after a gun discharges. The
amount of stippling can determine distance of the muzzle to the target. It can also be used to
suggest if a person handled a weapon at the time the weapon was fired. A caveat is that residue
spreads and can deposit easily. So one can be affected without having fired a weapon if they are
in the zone of coverage.
8

c. Scene of shooting. Evidence at shooting scene is to be preserved. The exact state of
things at the time of the seizure is to be preserved in order to recreate and corroborate the
justification for the use of deadly force. Where it is apparent things were not preserved a
question may be raised as to the version given by the officer.
d. Photos are taken by the evidence technicians to also document justification or
corroboration. Careful examination of photos is important as a picture can be worth a thousand
words.
e. The autopsy is used to document the manner and cause of death. The examiner
attempts to portray the entrance and exit wounds, bullet paths, injury types, and other signatures
of the offense.
f.. Scene sketch/diagram is another way of documenting justification.
g. Incident reports by the officer are summaries of the purpose for the officers actions.
h. Department policy can be used to determine if the officers actions are consistent with
law and shooting policy.
I. Officer’s background is helpful to determine pattern and notice to the department.
j. Department investigation into the use of deadly force should be examined for whether
the department looks objectively at it’s officers claims for the use of deadly force.
k. Training in deadly force and firearms should be regarded to determine the
department’s overall attitude toward the officers use of force.
3. PRACTICAL CONSIDERATIONS IN ANALYZING LIABILITY IN ANY
POLICE SHOOTING

In every police shooting circumstance, police have the benefit of 20/20 hindsight. While
9

the courts limit the plaintiff’s analysis of the use of deadly force to the officer’s perspective at
the time of the shooting, the courts condone the officer’s use of 20/20 hindsight in justifying a
person’s death. [ “This is an objective test, to be judge from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight...Sova, supra. Therefore, it is
imperative that in analyzing a claimed use of deadly force you resist the temptation to buy into
the police officers version of events. A rule of thumb is to distinguish the “constants” from the
“variables.” The constants are the immutable things that you can rely on in your search for the
truth. The variables are the things that may or may not be true. What the officer writes in his
report is a variable. Consider that within minutes of the shooting the officer will have the benefit
of support personnel in the form of the union Stewart, the union attorney, a sympathetic
supervisor and a partner. In the case where the person shot is deceased and there are no
witnesses, this becomes even more critical. In general, the shooting officer will not make any
account of what took place in the shooting event until huddling with his group of co-horts.
Scenarios are played out before the official report or version is documented. Officers are
protected under the 5th amendment following any use of deadly force. As a formal protocol a
department attempts to take a recorded statement in which the shooter is advised by counsel not
to make a statement. When the variable his been played out and practiced, then the officer will
come forward and make his formal statement. Often days to weeks have passed since the time of
the shooting. The old adage, “if you tell yourself something long enough you will begin to
believe it,” becomes true . This is what happens. Even when the official interview takes place
the so called shooting examiners ask questions with a blue tint. In a real case the deceased was
shot in the back. At the Garrity statement interview of one of the police officer witnesses the
following exchange took place:
10

Officer: I honked the horn. My partner moves to the side. I start
proceeding up here were I’m going to stop the cruiser and get out
and continue the chase. At that point he starts reaching in his
waistband what I believe is going to be a weapon. He had the
elbows out chains(sic) going down he starts pulling something out
what I can’t see is the weapon but I am pretty sure he’s pulling
something out to harm me
Examiner: From your years of experience on the street in situations
like this
Officer: Exactly
It was no search for the truth. It was a sympathetic examiner seeing through blue
spectacles in an effort to determine the outcome of the shooting.
It becomes ever so important that you look for the constants. Sometimes constants can be
found in the officers reports. If, for instance, all officers to the shooting agree on a point that
helps your case, that fact becomes a constant. Other examples of constants are evidence. The
forensics don’t lie. In a real case where all the shooting and witness officers agreed the three
shooting officers shot standing up and from a distance, the forensic evidence demonstrated that
one of the 14 shots to the deceased was a contact shot. This evidence clearly disputed the
officers’ version and could not be challenged. In order to exploit such a point an illustration
depicting the officers’ version came in handy. In this case there were two constants. The
agreement of the officers and the forensic evidence.
Prove your case through the constants and don’t buy into the attempting to prove your
case by disproving what most likely is a fairy tale version of what took place.
i. Cops are human beings first.
A fundamental flaw in judging police is the assumption that they are supermen. Police
dodge bullets, which clearly is a hazardous occupation. However, to suggest that in doing so they
11

are not scarred, just as you or I would be, is a mistake. Cops are given hero status by juries and
by judges. In analyzing use of deadly force cases a rule of thumb is to presume the cop who shot
was “scarred.” Being scarred and being in fear of his life are two different things. However,
even when the cop is actually scarred he can always claim in his report that he, “feared for his
life.” This incantation becomes the script after the fact. This is not a distinction without a
difference. Scenario: B& E run. Cop has his gun out. Suddenly, 15 year old kid pops out and
startles the cop who shoots the kid. No gun is found or other dangerous weapon. In this scenario
the cop does not admit he was scarred and that’s why he shot. Nor is it likely the cop would say
the discharge was accidental. In the report you will find incantations such as, “ I shouted to the
suspect to put his hands so that I could see them and he refused;” “ As I looked at the suspect he
had a look which lead me to believe he had been drinking or using drugs;” “The suspect refused
to remove his hand from beneath his shirt.” If the officer admitted he shot because he was
scarred it was a wrongful use of deadly force by 4th amendment standards. If the officer was in
fear of this life it was a justified shooting. The courts condone the officers’ use of these
incantations which become the excuse to an officer who, in reality, is scarred with rhetoric in
decisional law which says, “officers must make split second decisions.” So, if in reality, there
was actually an interval of time, no matter how brief, which should have been used which would
have preserved the constitutional rights of this individual then that interval of time should not
have been avoided. The officer knows of himself, of this interval of time. Shooting review
boards fail to seek this interval of time. They are in the best position to find the interval. They
can ask the right questions and get the real answers. They don’t. At least, they don’t document
it.

Look to the officers training in your analysis. Cops tend not to think outside of the

training regimen box. Departments may not train to make an officer think his way around the
12

“split second” phenomenon. In that case the officer defaults to what ever training he has
received.

13

VI. Ask the Experienced Trial Lawyer: Panel Discussion
____________________________________________________
Materials:
Representative Recent Appellate Cases
Michael Avery
Sample Discovery Request
Psychological Evaluation Report (§1983 wrongful conviction case 02/2008)
Jury Consultant Outline of Services (wrongful conviction trial 02/2008)
Full set of jury instructions submitted to jury, wrongful conviction trial 02/2008 [§1983
False Arrest, Malicious Prosecution, Brady Violation cause of action]
Julie Hurwitz
Ensuring Rights for All: Realizing Human Rights for Prisoners
Deborah LaBelle
Why I Call Defendants First
Amos Williams

Presenters:
Michael Avery, Professor, Suffolk University Law School, Boston, MA
Julie Hurwitz, Goodman & Hurwitz, P.C., Detroit, MI
Deborah LaBelle, Law Offices of Deborah LaBelle, Ann Arbor, MI
Amos Williams, Amos E. Williams, P.C., Detroit, MI

Representative Recent Appellate Case
Arrest and Detention
Stufflebeam v. Harris, 521 F.3d 884 (8th Cir. 2008) (Arkansas
law does not permit arrest for refusing to identify oneself
where person is not suspected of other criminal activity and
identification is not necessary to protect officer safely or to
resolve whatever suspicions prompted the officer to make a
Terry stop).
Jewett v. Anders, 521 F.3d 818 (7th Cir. 2008) (reasonable
suspicion existed for detention of person who peered out of
door of store where murder suspect was thought to be and
then ran when approached by police).
Mondragon v. Thompson, 519 F.3d 1078 (10th Cir. 2008)
(applying Wallace v. Kato the court remands false
arrest/malicious prosecution claim to find whether plaintiff
ever received legal process that justified his imprisonment in
order to determine when claim accrued; court expresses
doubt, but does not decide, that forged arrest warrant
constitutes legal process).
Seymour v. City of Des Moines, 519 F.3d 790 (8th Cir. 2008)
(where officers had no reason to suspect criminal actions by
father that might have caused child (who ultimately died from
Sudden Infant Death Syndrome) to stop breathing, detention
of father at home rather than permitting him to go to hospital
violated his 4th Amendment rights, but officers entitled to
qualified immunity).
Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008) (Terry stop was
justified where plaintiffs matched radioed description of stolen
vehicle suspects; officer’s brandishing of firearm and holding
plaintiffs handcuffed on ground for brief period was not
justified although they originally failed to comply with
command to lie down, but officer’s mistake was reasonable,
entitling him to qualified immunity).

Tekle v. United States, 511 F.3d 839 (9th Cir. 2007)
(handcuffing eleven year old boy who was unarmed and not
resisting in the presence of 23 officers rendered unreasonable
his detention for 15-20 minutes during arrest of his father,
detention of children raises particular concerns that must be
taken into account with other circumstances; officers not
entitled to qualified immunity).
Brockinton v. City of Sherwood, 503 F.3d 667 (8th Cir. 2007)
(analyzing failure to conduct an adequate investigation as a
due process violation, court requires evidence that failure to
investigate was intentional or reckless, thereby shocking the
conscience).
Peet v. City of Detroit, 502 F.3d 557 (6th Cir. 2007) (Exculpatory
evidence gathered by police post-arrest does not vitiate
probable cause that existed at time of arrest, nor does it
trigger obligation to release suspect from custody).
Sands v. McCormick, 502 F.3d 263, 269 (3d Cir. 2007)
(allegation that officer knew statute of limitations on criminal
offense had expired is not sufficient for claim of false arrest;
statute of limitations is an affirmative defense and due to
potentially disputed issues in applying statute of limitations,
plaintiff’s claim “would place far more responsibility on police
officers than is required by their calling”).
Powers v. Hamilton Co. Public Defender, 501 F.3d 592 (6th Cir.
2007) (affirming certification of class and recognizing plaintiff
had cause of action for claim that his due process rights were
violated by public defender’s policy of failing to seek indigency
hearings on behalf of defendants facing jail time for unpaid
fines; court finds claim not barred by Heck v. Humphrey, not
barred by Younger abstention doctrine, not barred by RookerFeldman doctrine, public defender acted under color of law).
Sides v. City of Champaign, 496 F.3d 820 (7th Cir. 2007)
(appropriate standard for determining whether keeping
plaintiff standing against his hot car on a hot asphalt parking
2

lot for one hour during an investigation violated his rights is
not whether officers were deliberately indifferent to his serious
medical needs, but whether the seizure of the plaintiff was
objectively reasonable; court concludes that deliberate
indifference standard applies only to convicted prisoners, also
concludes that plaintiff’s discomfort was not so extreme as to
render the detention unreasonable).
Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2007) (“‘arguable’
probable cause must not be misunderstood to mean ‘almost’
probable cause, citing Jenkins v. City of New York; 20 or 30
second conversation between activist and police officer in
charge of the scene could not reasonably objectively be
interpreted as an obstruction of governmental administration).
Logsdon v. Hains, 492 F.3d 334, 343 (6th Cir. 2007) (in
assessing probable cause an officer must consider the totality
of the circumstances, including both the inculpatory and
exculpatory evidence known to him; “officers initially assessing
probable cause to arrest may not off-handedly disregard
potentially exculpatory information made readily available by
witnesses on the scene”).
Fox v. DeSoto, 489 F.3d 227 (6th Cir. 2007) (under Wallace
statute of limitations for false arrest claim begins to run at the
time of the arrest; court recognizes that Wallace abrogates
previous circuit precedent to the contrary, Shamaeizadeh v.
Cunigan, 182 F.3d 391 (6th Cir. 1999); court recognizes that
malicious prosecution claim does not accrue until favorable
termination of the criminal proceeding).
Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007) (where
plaintiffs ignored officers pointing guns at them and issuing
verbal commands by running away or pushing gun away, they
were not seized within meaning of Fourth Amendment).
McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007) (deputy who
reached through plaintiff’s open doorway to pull plaintiff, who
was completely inside house, out to porch to arrest him
3

without a warrant, violated Payton’s “firm line” at threshold of
home, but officer was entitled to qualified immunity because
issue had not been previously decided).
Coercive Interrogation
Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007) (use of
coerced statement against accused in bail hearing violates his
Fifth Amendment right to be free from self-incrimination).
Complaint
Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008) (district court
did not abuse its discretion in denying leave to amend after
the close of discovery and after dispositive motions had been
filed).
Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008) (court uses a
“course of the proceedings” test to determine whether
defendants in a § 1983 action have received notice of plaintiff’s
claims where complaint is ambiguous, court finds questions
asked by plaintiff’s counsel during a deposition were sufficient
to put defendants on notice of claim).
Iqbal v. Hasty 490 F.3d 143, 157 -158 (2d Cir. 2007) (These
conflicting signals create some uncertainty as to the intended
scope of the Court's decision. FN6 We are reluctant to assume
that all of the language of Bell Atlantic applies only to section
1 allegations based on competitors' parallel conduct or,
slightly more broadly, only to antitrust cases. FN7 Some of the
language relating generally to Rule 8 pleading standards
seems to be so integral to the rationale of the Court's parallel
conduct holding as to constitute a necessary part of that
holding. See Pierre N. Leval, Judging under the Constitution:
Dicta about Dicta, 81 N.Y.U. L.Rev. 1249, 1257 (2006) ("The
distinction [between holding and dictum] requires recognition
of what was the question before the court upon which the
judgment depended, how (and by what reasoning) the court
resolved the question, and what role, if any, the proposition
4

played in the reasoning that led to the judgment.")
Jorge T. v. Fla. Dep't of Children & Families, 250 Fed. App. 954,
955-956 (11th Cir. 2007) (“Because the district court
dismissed Jorge T.'s § 1983 claim on qualified immunity
grounds, however, we must also apply a heightened pleading
requirement. GJR Invs., Inc. v. County of Escambia, Fla., 132
F.3d 1359, 1367 (11th Cir. 1998) (citing Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1485 (1992) (overruled on other
grounds)). Accordingly, while Fed. R. Civ. P. 8 gives plaintiffs
considerable leeway in framing complaints, we require that, in
response to the qualified immunity defense, a § 1983
complaint allege its supporting facts with some specificity.
Id.”).
Deadly Force
Kirby v. Duva, 530 F.3d 475 (6th Cir. 2008) (although officers
claimed decedent was attempting to run them over with his
vehicle, under plaintiff’s version that decedent was slowly
driving around officers and had stopped vehicle before officers
began shooting, officers would be liable for use of excessive
deadly force and not entitled to qualified immunity).
Davenport v. Causey, 521 F.3d 544 (6th Cir. 2008) (citing Scott
v. Harris, there are no rigid rules to determine when deadly
force is permissible; officer who shot motorist stopped for
traffic infraction behaved reasonably where suspect was a
large man who resisted officers, was not felled by taser, and
who struck officers rapidly and repeatedly with close-fisted
blows that knocked one officer down and appeared to be
defeating second officer with blows to head).
Floyd v. City of Detroit, 518 F.3d 398, 406-407 (6th Cir. 2008)
(where neighbor had told officers that plaintiff threatened him
earlier while armed with shotgun, one officer claimed he
thought plaintiff had a handgun, other officer claimed he
believed plaintiff had shot first officer, taking facts in light
most favorable to plaintiff qualified immunity is denied on
5

summary judgment where plaintiff alleged that officers fired at
him in his backyard while he was unarmed; officer who fired
at plaintiff and missed was liable for seizure where plaintiff
was not fleeing and “halted in his tracks” when officer fired,
officer was also liable for seizure caused by second officer’s
shot which felled plaintiff, because first officer’s shot
“escalated the situation by unambiguously signaling that such
force was called for”).
Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008) (bystanders are
not seized for Fourth Amendment purposes when struck by an
errant bullet, but summary judgment was inappropriate where
there was a factual dispute about whether plaintiff was
officer’s target).
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th
Cir. 2008) (officer entitled to qualified immunity for shooting
plaintiff’s decedent where he had already threatened violence
against himself and others, officers were responding to
emergency call late at night, decedent was armed with a knife
with a blade over a foot in length, officers repeatedly told him
to put down the knife but he refused to do so, decedent held
the high ground vis-a-vis the officers, he raised knife blade
above his shoulder and pointed tip towards officers and took a
step toward officer who shot and the distance between
decedent and officer was between 7 and 20 feet).
Long v. Slaton, 508 F3d 576 (11th Cir. 2007) (citing Scott v.
Harris, court concludes that Tennesee v. Garner provided
examples of when deadly force is permissible, but did not
establish rigid rules; officer’s decision to fire at emotionally
disturbed decedent who was not violent but was driving away
in officer’s cruiser was a reasonable use of force in order to
protect the public; dissent argues there was no imminent
threat of harm in the rural area where incident took place).
Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007) (shooting
was justified where officer stated that car accelerated towards
him, driver had a “determined look,” officer realized he could
6

not get out of the way, decided to fire, unholstered his gun,
was struck, and fired his weapon, all so quickly that officer
could not remember whether he fired his gun before, during,
or after he was struck; court distinguishes cases holding it
was unreasonable to fire at automobiles after they had clearly
passed by officer allegedly threatened by them).
Williams v. City of Grosse Pointe Park, 496 F.3d 482 (6th Cir.
2007) (where police blocked vehicle containing people
suspected of tampering with cars, but driver collided with
cruiser, then drove away from officer who pointed gun at
driver through side window, knocking officer down, second
officer was reasonable in firing at vehicle as it accelerated
away).
Beshers v. Harrison, 495 F.3d 1260 (11th Cir. 2007) (citing
Scott v. Harris, court concludes that even assuming officer
intentionally rammed decedent’s vehicle to force it off road,
such use of deadly force was reasonable where decedent was
believed to be intoxicated, was driving erratically, forcing other
cars off the road and thus causing a serious danger to others).
Ngo v. Storlie, 495 F.3d 597 (8th Cir. 2007) (facts were
sufficient to conclude officer violated plaintiff’s clearly
established rights when he shot plaintiff plainclothes officer,
who was already the victim of shooting by civilian, several
times as he was lying in street, having dropped his weapon,
with sweatshirt pulled down off his shoulders partially
revealing bullet-proof vest and microphone hanging from it,
despite his knowledge that there was a plainclothes officer in
area and defendant officer took no time to assess situation
and gave no warning he was about to fire).
Abney v. Coe, 493 F.3d 412 (4th Cir. 2007) (relying on Scott v.
Harris, assuming deputy intentionally rammed decedent’s
motorcycle, use of deadly force was reasonable where
decedent’s driving during eight mile chase put lives of other
motorists at risk).

7

Excessive Force
Johnson v. District of Columbia, 528 F.3d 969 (D.C. Cir. 2008)
(repeatedly kicking prone and submissive subject in the groin
violated his clearly established rights).
Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008) (even
de minimus force will violate Fourth Amendment if officer is
not entitled to arrest or detain plaintiff).
Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008) (punching
plaintiff in stomach when he was handcuffed and not resisting
constituted excessive force; plaintiff’s conviction for resisting
arrest would not bar claim if he was not resisting at time he
was punched).
Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (“it would
be apparent to a reasonable officer that the use of force
adequate to tear a tendon is unreasonable against a fully
restrained arrestee”).
Gregory v. Co. of Maui, 523 F.3d 1103 (9th Cir. 2008) (officers’
use of force against trespassing subject who died of heart
attack, caused in part by narrowed arteries and marijuana
use, after encounter was reasonable, even assuming they
should have recognized he was in excited state of delirium,
where force was proportionate to threat that decedent posed
by holding pen in threatening manner and resisting officers).
Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008) (excessive force
claim by one under arrest and being transported to jail in
police cruiser is analyzed under due process clause, which
requires infliction of “unnecessary and wanton pain and
suffering”; reasonable juror could concluded that use of taser
against woman who was handcuffed and hobbled, locked in
back seat cage of cruiser, was wanton, sadistic and not a good
faith effort to restore discipline; “torment without marks”
inflicted by taser was not a de minimus injury).

8

Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) (officers
not entitled to qualified immunity on motion to dismiss
excessive force claim where plaintiff alleged that officers beat
decedent with batons without provocation and without giving
him any opportunity to comply with their demands, chemically
sprayed him while handcuffed and used their combined weight
to hold him prone on ground after he stopped struggling, and
failure to provide medical attention claim where officers failed
to provide CPR when he stopped breathing).
Gilbert v. Cook, 512 F.3d 899 (7th Cir. 2008) (prisoner’s claim
based on allegation that guards used excessive force against
him after he punched them was not barred by Heck v.
Humphrey and Edwards v. Balisok).
Richman v. Sheahan, 512 F.3d 876 (7th Cir. 2008) (morbidly
obese man who had been held in contempt of court died from
positional asphyxia when deputies attempted to remove him
from courtroom and sat on his back while he was in prone
position, court cites cases and articles for proposition that
reasonably trained officers would have known compressing
morbidly obese person’s lungs could kill him, hence officers
required to use care and avoid unnecessary haste in taking
him into custody; whether this was an 8th Amendment or 4th
Amendment violation depends upon whether deputies were
punishing him or merely attempting to remove him from
courtroom).
Holmes v. Village of Hoffman Estate, 511 F.3d 673 (7th Cir.
2007) (that plaintiff suffered only minor injuries does not
preclude an excessive force claim).
Tekle v. United States, 511 F.3d 839 (9th Cir. 2007) (eleven year
old boy who was unarmed, handcuffed and not resisting
entitled to trial with respect to excessive force claim based on
evidence that officers pointed a gun at his head and pointed
guns at him for duration of incident during which they
arrested his father; officers not entitled to qualified immunity).

9

Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th
Cir. 2007) (use of taser was unreasonable against alleged
misdemeanant who was being tackled by another officer
although he was not violent and not resisting arrest; court
concludes, “it is excessive to use a Taser to control a target
without having any reason to believe that a lesser amount of
force-or a verbal command-could not exact compliance.”).
Marvin v. City of Taylor, 509 F.3d 234 (6th Cir. 2007) (citing
Scott v. Harris, court concludes it need not credit plaintiff’s
version of facts on summary judgment where it is contradicted
by video).
Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008) (officer
seized plaintiff, already handcuffed and in patrol car, “through
means intentionally applied” even though she accidentally
shot him with her Glock rather than the taser she had
intended to pull from its holster; reasonableness of use of force
depended upon “(1) the nature of the training the officer had
received to prevent incidents like this from happening; (2)
whether the officer acted in accordance with that training; (3)
whether following that training would have alerted the officer
that he was holding a handgun; (4) whether the defendant's
conduct heightened the officer's sense of danger; and (5)
whether the defendant's conduct caused the officer to act with
undue haste and inconsistently with that training”).
Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007) (officer seized
plaintiff “through means intentionally applied” even though he
accidentally shot him with his Glock rather than the taser he
had intended to pull from its holster; court articulates same
five reasonableness factors later relied upon in Torres).
Jennings v. Jones, 499 F.3d 2 (2007) (court reverses judgment
of qualified immunity entered after jury verdict in plaintiff’s
favor - following general verdict facts must be viewed in light
most favorable to verdict; clearly established rights were
violated where officer applied “ankle turn control technique”

10

and increased force after he stopped resisting and told officer
he was hurting a previously injured ankle).
Excessive Force – substantive due process
Williams v. Berney, 519 F.3d 1216, 1224 (10th Cir. 2008)
(business license inspector who struck and pushed business
owners without provocation did not violate their substantive
due process rights where he was not authorized to use force in
his position and he did not leverage or abuse his position to
further the assault; requisite abuse of power in excessive force
claims requires that “(1) the harm results from misconduct by
a government official; (2) the official has some authority over
the victim but is not authorized to use force as a part of the
official's position; (3) the official abuses that authority to
further the attack; (4) the abuse exceeds run-of-the-mill
negligent conduct, rising to the level of reckless or intentional
conduct; and, finally, (5) the injury is ‘so egregious, so
outrageous, that it may fairly be said to shock the
contemporary conscience.’”).
Failure to Protect
Leary v. Livingston County, 528 F.3d 438 (6th Cir. 2008) (jail
officer who told other inmates that plaintiff was in custody for
raping nine-year old girl was deliberately indifferent to
plaintiff’s clearly established right to safety).
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008)
(officer’s failure to enforce plaintiff’s permanent restraining
order because she was a lesbian violated her rights to equal
protection of law; where officer ordered plaintiff not to return
to her property upon pain of arrest, thus allowing her
domestic partner to take her property, he sufficiently aided in
the deprivation of her property to violate her Fourth
Amendment rights).
Burella v. City of Philadelphia, 501 F.3d 134 (3d Cir. 2007)
(under Castle Rock abused wife did not have procedural due
11

process right to police protection under state Protection from
Abuse Act and protection orders issued by court, despite
mandatory language requiring arrest in statute; equal
protection claim failed because evidence failed to demonstrate
unlawful custom or discriminatory motive).
Mudrow v. Re-Direct, Inc., 493 F.3d 160 (D.C. Cir 2007)
(affirming jury verdict against halfway house for recklessly
allowing vulnerable juvenile with mental health problems who
had previously been threatened and beaten to leave facility
unsupervised).
Familial Relationship
Lowery v. County of Riley, 522 F.3d 1086, 1092 (10th Cir.
2008) (under Trujillo v. Bd. of County Comm’rs, 768 F.2d 1186,
1189 (10th Cir. 1985), “an allegation of intent to interfere with a
particular relationship protected by the freedom of familial
association is required to state a claim under section 1983”).
First Amendment
Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) (plaintiff was
arrested based on statements written on his van, including “I
AM A FUCKING SUICIDE BOMBER COMMUNIST
TERRORIST;” court holds statements were political hyperbole
and not threats, arrest violated plaintiff’s First Amendment
rights, but officers were protected by qualified immunity
because previous case law would not have put them on notice
that this language was protected by First Amendment).
Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (with
respect to First Amendment retaliatory prosecution claims,
previous case law describing factors that could rebut
presumption of independent judgment by prosecutor are
overruled in light of Hartman, plaintiff need only show
retaliatory motive on part of official urging prosecution and
absence of probable cause to rebut presumption of regularity
and overcome defense of independent intervening cause; with
12

respect to Fourth Amendment claims, court notes that
Hartman may be inconsistent with previous law but does not
overrule the latter in this case because plaintiff overcame
presumption of independent judgment by prosecutor under
previous case law where such presumption could be rebutted
where prosecutor was pressured by police or was given false
information, the police “act[ed] maliciously or with reckless
disregard for the rights of an arrested person,” the prosecutor
“relied on the police investigation and arrest when he filed the
complaint instead of making an independent judgment on the
existence of probable cause for the arrest,” the officers
“otherwise engaged in wrongful or bad faith conduct that was
actively instrumental in causing the initiation of legal
proceedings”, or the evidence to overcome the presumption
was not available because of an assertion of privilege by the
government; and once plaintiff introduces evidence to rebut
presumption, burden remains on defendant officer to prove
that an independent intervening cause cut off his tort liability).
Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008) (resident placed
tombstones on his front yard insulting neighbors by name and
referring to their fictional deaths; officer who ordered resident
to remove them upon pain of arrest violated First Amendment
because tombstones did not amount to “fighting words”
because they merely inflicted emotional injury but did not
provoke an immediate breach of peace; but officer was entitled
to qualified immunity because he could reasonably have been
mistaken about post-Chaplinsky developments in the law)
York v. City of Las Cruces, 523 F.3d 1205 (10th Cir. 2008) (law
was clearly established that loudly saying “bitch” in parking
lot, where comment was not directed to anyone in particular
and plaintiff was several parking spaces away from driver to
whom the word made reference, did not constitute disorderly
conduct).
Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (taking
facts in light most favorable to plaintiff, including evidence
that protestors were peaceful and witness who stated it was
13

police response not drumming that was inciting the crowd,
police did not have probable cause to arrest him for disorderly
conduct for drumming during anti-war protest; law requires
probable cause that plaintiff in particular violated the law, not
merely that he “was a participant in an antiwar protest where
some individuals may have broken the law”).
King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (in questionable
opinion and over thoughtful dissent, court concludes officer
did not violate First Amendment rights of plaintiff arrested for
disorderly conduct for obstructing officer in performance of his
duty, based on plaintiff‘s repeated statements to third party
being questioned by officer that he did not have to speak to
officer).
Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 2008) (court
reverses dismissal of claim that prosecutor, allegedly in
retaliation for civil suit filed against her by plaintiff, told
Marine Corps she still suspected juvenile plaintiff of murder
and there were no other suspects, despite reversal of plaintiff’s
conviction on grounds that confession was involuntary; court
finds that plaintiff’s filing and maintenance of suit did not
undermine 1st Amendment claim, “First, the issue is whether a
person of ordinary firmness would be deterred, not whether
[the plaintiff] himself actually was deterred … Second, if
subsequently challenging [the state action] ipso facto
demonstrated that the challenged action was not sufficiently
adverse to undermine constitutional rights, no case alleging
retaliation for exercising First Amendment rights could ever be
brought.”)
Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) (detaining,
interrogating, fingerprinting, photographing and searching
Muslim U.S. citizens upon return from Islamic conference in
Canada placed a burden on associational rights sufficient to
implicate First Amendment protections, even though some
Muslims expressed a willingness to attend future conference,
where others who had not attended conference were not
subject to such measures, but means adopted constituted
14

least restrictive means to achieve government’s compelling
interest in protecting nation from terrorism where government
had information that individuals associated with terrorism
would be at conference, even though it had no individualized
suspicion that plaintiffs were engaged in terrorist activity).
Logsdon v. Hains, 492 F.3d 334, 346 (6th Cir. 2007) (arresting
anti-abortion protestor on public sidewalk based upon the
content of his speech would violate his First Amendment
rights).
Becker v. Kroll, 494 F.3d 904, 926 (10th Cir. 2007) (recognizing
cause of action for retaliatory prosecution against official who
influences bringing of prosecution by withholding exculpatory
evidence from prosecutor in retaliation for plaintiff’s exercise of
First Amendment rights).
Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007) (officers who
suppressed exculpatory evidence post conviction may be held
liable for Brady violation even though they were not involved
in the trial, where evidence was known to state at time of trial).
Malicious Prosecution
Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (with
respect to First Amendment retaliatory prosecution claims,
previous case law describing factors that could rebut
presumption of independent judgment by prosecutor are
overruled in light of Hartman, plaintiff need only show
retaliatory motive on part of official urging prosecution and
absence of probable cause to rebut presumption of regularity
and overcome defense of independent intervening cause; with
respect to Fourth Amendment claims, court notes that
Hartman may be inconsistent with previous law but does not
overrule the latter in this case because plaintiff overcame
presumption of independent judgment by prosecutor under
previous case law where such presumption could be rebutted
where prosecutor was pressured by police or was given false
information, the police “act[ed] maliciously or with reckless
15

disregard for the rights of an arrested person,” the prosecutor
“relied on the police investigation and arrest when he filed the
complaint instead of making an independent judgment on the
existence of probable cause for the arrest,” or the officers
“otherwise engaged in wrongful or bad faith conduct that was
actively instrumental in causing the initiation of legal
proceedings”; and once plaintiff introduces evidence to rebut
presumption, burden remains on defendant officer to prove
that an independent intervening cause cut off his tort liability).
Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) (§ 1983
cause of action for malicious prosecution may be based on
procedural due process violations, or violations of other
constitutional rights, not merely Fourth Amendment
violations) (Treatise cited).
Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) (whether
nolle prosequi constitutes favorable termination for malicious
prosecution depends upon stated reasons for dismissal as well
as surrounding circumstances)
Kjellsen v. Mills, 517 F.3d 1232, 2008 WL 451882 (11th Cir.
2008) (plaintiff had been arrested for DUI and state’s original
blood analysis showed alcohol level of .10, sufficient for a “per
se” violation; state analyzed the samples on two subsequent
occasions and got results below the per se threshold, but did
not reveal results to defense; at trial on cross of gov’t expert he
revealed subsequent results for first time and trial court
granted directed verdict on per se charge and jury returned
verdict of not guilty on DUI; court holds that first results were
sufficient to supply probable cause, a complete defense to
plaintiff’s 4th Amendment malicious prosecution claim and
that later results did not vitiate the probable cause required to
continue the prosecution because scientific evidence shows
that blood levels most often decrease, rather than increase,
over time).

16

Mondragon v. Thompson, 519 F.3d 1078 (10th Cir. 2008) (10th
Circuit recognizes a procedural due process constitutional
claim for malicious prosecution).
Harris v. Bornhorst, 513 F.3d 503, 521 (6th Cir. 2008) (under
Ohio law a conviction, even though subsequently reversed, is a
complete defense to malicious prosecution unless obtained by
fraud or unlawful means; court finds that failure to disclose
exculpatory evidence suffices to establish fraud; malice
required for malicious prosecution may be inferred from lack
of probable cause).
Holmes v. Village of Hoffman Estate, 511 F.3d 673 (7th Cir.
2007) (probable cause on one charge will defeat a false arrest
action with respect to all charges brought against plaintiff, but
a malicious prosecution action may go forward for any charge
on which there was no probable cause; case involved Illinois
state law claim for malicious prosecution, but and court
concludes Illinois would follow cases cited from across the
country for this proposition).
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) (where plaintiff
was neither arrested, incarcerated or otherwise placed under
the direct physical control of the state, although she was
charged criminally, she was not “seized” and could not make a
4th Amendment malicious prosecution claim; court declines to
accept Justice Ginsburg’s “continuing seizure” analysis, citing
cases from other circuits that have rejected the theory).
Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007) (10th
Circuit uses common law elements of malicious prosecution as
the “starting point” of its analysis, but ultimate question is
whether plaintiff has proved the deprivation of a constitutional
right).
Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007)
(police officers may be held liable under § 1983 for malicious
prosecution to the extent defendants’ actions caused the
plaintiff to be “seized” without probable cause in violation of
17

the Fourth Amendment (in accord with decisions from other
circuits listed), but officers not liable in this case because right
had not been clearly established in D.C. Circuit; police were
liable for common law malicious prosecution where they had
no probable cause for prosecution because the two victims of a
mugging told police plaintiff was not the person who had
robbed them; malice may be “established from the existence of
a willful, wanton, reckless, or oppressive disregard for the
rights of the plaintiff” (504); evidence of malice was sufficient
where arrest report and affidavit submitted to prosecutors
contained material misstatements and omissions, including no
mention of the negative identifications; intentional infliction of
emotional distress verdict against District of Columbia was
justified by officers’ omissions and false statements in their
affidavit and other evidence of evidence tampering; under D.C.
law plaintiff’s wife could recover for IIED only if she were
present, in the sense of physical proximity, when the
outrageous conduct took place; punitive damages awards
against in the amount of $1000 each are affirmed).
Fox v. DeSoto, 489 F.3d 227 (6th Cir. 2007) (noting that 6th Cir.
recognizes a § 1983 claim for malicious prosecution under the
4th Amendment, although its contours remain uncertain).
Becker v. Kroll, 494 F.3d 904, 915 (10th Cir. 2007) (rejecting
“continuing seizure” theory, court hold that plaintiff who was
neither arrested nor incarcerated in connection with Medicaid
fraud charges was not “seized”).
Medical Needs
Sides v. City of Champaign, 496 F.3d 820 (7th Cir. 2007)
(appropriate standard for determining whether keeping
plaintiff standing against his hot car on a hot asphalt parking
lot for one hour during an investigation violated his rights is
not whether officers were deliberately indifferent to his serious
medical needs, but whether the seizure of the plaintiff was
objectively reasonable; court concludes that deliberate
indifference standard applies only to convicted prisoners, also
18

concludes that plaintiff’s discomfort was not so extreme as to
render the detention unreasonable).
Gish v. Thomas, 516 F.3d 952 (11th Cir. 2008) (officer was not
deliberately indifferent to risk of suicide of pretrial detainee he
knew to be suicidal, transported in police cruiser with hands
cuffed in front of him, with loaded firearm on front seat, where
officer was under erroneous impression that security screen
between front and back seats was locked and detainee shot
himself with that gun when officer stepped out of cruiser).
Privacy
Lambert v. Hartman, 517 F.3d 433 (6th Cir. 2008) (publication
of driver’s personal identifying information on web site in
connection with traffic citation, leading to victimization by
identity theft, did not violate a fundamental right to privacy, a
reputational interest in credit rating recognized as
fundamental, or any property interest in personal information;
Eighth Circuit limits right to privacy based on release of
personal information to cases where it might cause bodily
harm, or where information is of a sexual, personal and
humiliating nature).
Procedural Due Process
Brown v. Miller, F.3d , 2008 WL 509078 (5th Cir. 2008)
(laboratory technician may be held liable for a due process
violation for obtaining a conviction based on information he
knew was false, and is not protected by qualified immunity, for
knowingly creating a misleading and scientifically inaccurate
serology report and for suppressing exculpatory blood test
results).
White v. McKinley, 519 F.3d 806 (8th Cir. 2008) (evidence was
sufficient to hold officer liable for procedural due process
violation for suppressing exculpatory evidence, circuit
precedent requires bad faith and evidence here showed that
officer suppressed information based on his relationship with
19

complainant, whom he later married; officer not entitled to
qualified immunity).
Kjellsen v. Mills, F.3d , 2008 WL 451882 (11th Cir. 2008)
(plaintiff had been arrested for DUI and state’s original blood
analysis showed alcohol level of .10, sufficient for a “per se”
violation; state analyzed the samples on two subsequent
occasions and got results below the per se threshold, but did
not reveal results to defense; at trial on cross of gov’t expert he
revealed subsequent results for first time and trial court
granted directed verdict on per se charge and jury returned
verdict of not guilty on DUI; court holds that first results were
sufficient to supply probable cause, a complete defense to
plaintiff’s 4th Amendment malicious prosecution claim and
that later results did not vitiate the probable cause required to
continue the prosecution because scientific evidence shows
that blood levels most often decrease, rather than increase,
over time; plaintiff also alleged that failure to disclose
exculpatory results violated his 6th Amendment right to
compulsory process; court holds that evidence was not
“material” because plaintiff was acquitted at trial and hence
disclosure could not have changed the result, reasoning that
materiality must be determined post-trial; court notes in fn.
that plaintiff did not claim a Brady due process violation for
failure to turn over exculpatory evidence).
Johnson v. Dossey, F.3d , 2008 WL 364590 (7th Cir. 2008)
(plaintiff alleged that defendants who prosecuted her for arson
had suppressed exculpatory report of County Fire
Investigation Task Force; court holds that cause of action
based on due process Brady violation accrued upon acquittal
under Heck v. Humphrey, not upon appearance before
magistrate under Wallace v. Kato; accrual date for state causes
of action is determined by state law, unaffected by Wallace).
McGhee v. Pottawattamie Co., Iowa, 514 F.3d 739 (8th Cir.
2008) (prosecutors who obtain, manufacture, coerce and
fabricate evidence before filing of charges may be held liable
for violating the substantive due process rights of suspects;
20

court rejects defendants’ argument that there is no liability for
gathering evidence, only for its introduction in evidence and
they have absolute immunity for introduction of evidence).
Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008) (vacating
dismissal of Brady claim against county based on prosecutor’s
failure to disclose exculpatory evidence).
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) (plaintiff cannot
make a claim based on a failure to disclose exculpatory
evidence where she does not go to trial, the right is a fair trial
right, plaintiff cannot establish materiality where the case does
not go to trial).
Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007)
(suggestive identification procedure does not itself violate
suspect’s constitutional rights, the introduction in evidence of
suggestive identification is the constitutional violation; officer
is not liable for introduction of identification in evidence
absent evidence that he misled or pressured the prosecution
or trial judge, the constitutional violation is caused by acts of
prosecutor and judge; with questionable reasoning, court
concludes that error by judge in admitting improper
identification is not reasonably foreseeable and not the “legally
cognizable result” of the investigative misconduct).
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) (no claim for
Brady “fair trial” violation where criminal case does not go to
trial because plaintiff cannot establish materiality unless
suppression of exculpatory evidence affects outcome of trial).
Porter v. White, 483 F.3d 1294 (11th Cir. 2007) (without
determining whether failure to disclose exculpatory evidence is
a procedural or substantive due process violation, court
concludes officer’s mere negligent or inadvertent failure to turn
over Brady material to prosecution does not amount to a
“deprivation” in the constitutional sense and does not provide
a basis for a § 1983 action).

21

Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) (fabricating
evidence by coercing false statements from witnesses and
using them to support arrest and prosecution of plaintiffs
would constitute malicious prosecution in violation of
plaintiffs’ Fourth Amendment rights not to be arrested and
detained without probable cause) (Treatise cited).
Search and Seizure
Cuevas v. De Roco, 531 F.3d 726 (9th Cir. 2008) (officers may
not enter home to search for parolee without a warrant unless
they have probable cause to believe that he lives there).
Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir. 2008) (social
worker’s visual observation of children’s stomach and legs
under their clothing to investigate child abuse, without
consent of principal or parents, violated their clearly
established Fourth Amendment rights).
Archuleta v. Wagner, 523 F.3d 1278, 2008 WL 1875195 (10th
Cir. 2008) (officers violated plaintiff’s clearly established rights
when they strip searched her at jail despite fact they knew she
did not match description of person sought and she had been
patted down, was not to be placed in general population and
was not charged with a weapons or drug offense; charge of
domestic violence harassment did not itself justify strip
search).
Bates v. Harvey, F.3d , 2008 WL 565774 (11th Cir. 2008)
(warrantless entry into third party’s home to execute a civil
commitment warrant for her friend’s son violated resident’s
Fourth Amendment rights; exigent circumstances were not
present although affidavit stated subject presented substantial
risk of immediate harm because it also stated he resided at
different address and did not say he could be found at this
home; officer entitled to qualified immunity because law did
not clearly establish that affidavit did not create exigent
circumstances).

22

DeMayo v. Nugent, 517 F.3d 11, 18 (1st Cir. 2008) (officers
lacked exigent circumstances to enter home without warrant
during controlled delivery of package believed, on basis of dog
sniff, to contain drugs, absent case-specific evidence justifying
claim of exigency; warrant requirement for home was clearly
established and “The fact that the doctrine of exigent
circumstances is evolving, however, does not necessarily mean
that every situation implicating the subject touches upon the
supposed nebulous borderline of acceptable conduct.”).
Eidson v. Owens, 515 F.3d 1139 (10th Cir. 2008) (consent to
search premises was coerced when procured by an officer to
had recently represented the property owner and who advised
her that she would be detained until a warrant could be
obtained and that the judge would go harder on her if she
insisted that they seek a warrant, but officer was entitled to
qualified immunity because no previous case had presented
the combination of circumstances present here).
Redding v. Safford Unified School Dist. No. 1, 531 F.3d 1071
(9th Cir., en banc, 2007) (self-serving and uncorroborated
information from other student did not provide reasonable
grounds for strip search of thirteen-year-old student to look
for pills and search was not reasonable in scope; student’s
right to be free from strip search was clearly established).
Campbell v. Miller, 499 F.3d 711 (7th Cir. 2007) (strip search
for drugs including visual anal examination conducted in back
yard in view of houses was unreasonable in its execution, jury
verdict for officer reversed).
Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007) (plaintiff’s
allegations were sufficient to warrant trial on claim that
extensive “administrative search” of auto body shop violated
constitution where it had earmarks of criminal raid).
Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (failure to disclose
in warrant affidavit that suspect had not resided in mother’s

23

home for seven years was fatal to probable cause to search her
home as a matter of law).
Substantive Due Process
Amrine v. Brooks, 522 F.3d 823 (8th Cir. 2008) (reviewing cases
since Lawrence County and holding that reckless investigation
standard was not met here).

24

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIMBERLY SYKES,
Plaintiff,
Case No. 05-71199
Honorable Bernard A. Friedman
Magistrate Judge R. Steven Whalen

vs.
DERRICK ANDERSON, CAROL NICHOLS,
TERRENCE SIMS, PATRICK JONES,
ARTHUR COPELAND and MAURICE
McCLURE, Jointly and Severally and in their
Individual Capacities and CITY OF DETROIT,
Defendants.
_____________________________/
JULIE H. HURWITZ (P34720)
Julie H. Hurwitz, P.C.
Attorney for Plaintiff Sykes
733 St. Antoine, 3rd Floor
Detroit, MI 48226
(313) 963-5400

KRYSTAL A. CRITTENDON (P49981)
Attorney for Defendants
CITY OF DETROIT
LAW DEPARTMENT
1650 First National Building
Detroit, MI 48226
(313) 237-3018
_____________________________________________________________________________/
TEVYA GRACE URQUHART,
Plaintiff,
Case No. 05-73725
Honorable Bernard A. Friedman
Magistrate Judge R. Steven Whalen

vs.
CITY OF DETROIT DETECTIVE SERGEANT
DERRICK ANDERSON, badge no. S-1262;
SERGEANT CAROLYN NICHOLS, badge no.
S-831; OFFICER TERRENCE SIMS, badge no.
3711; OFFICER PATRICK JONES, badge no.
689; OFFICER ALAN COPELAND, badge no.
534; and OFFICER MAURICE McCLURE,
and the CITY OF DETROIT, jointly and
severally,
Defendants.
_____________________________________/
THOMAS M. LOEB (P25913)
Attorney for Plaintiff Urquhart
32000 Northwestern Hwy Ste 170
Farmington Hills, MI 48334
Phone: (248) 851-2020

KRYSTAL A. CRITTENDON (P49981)
Attorney for Defendants
CITY OF DETROIT
LAW DEPARTMENT
1650 First National Building
Detroit, MI 48226
(313) 237-3018
____________________________________________________________________________________/
CONSOLIDATED PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS AND THINGS

CONSOLIDATED PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS AND THINGS
NOW COME consolidated Plaintiffs, KIMBERLY SYKES, by and through her attorney,
LAW OFFICES OF JULIE H. HURWITZ, P.C., by Julie H. Hurwitz, and TEVYA GRACE
URQUHART, by and through her attorney, THOMAS M. LOEB, pursuant to Fed. R. Civ. Pro.
26(a)(1)(D), 26(e)(2), 34, and hereby request that Defendants produce complete, clear, accurate,
legible and authentic copies of any and all of the following documents and tangible things in the
possession, custody or control of Defendants, within thirty (30) days, and as otherwise required
by Fed. R. Civ. Pro. 34 and all other applicable provisions of law. If Defendants choose not to
produce any particular document or thing, please produce a log, citing each specific exclusion
and specific reason, as required by law.
Except as stated otherwise, the relevant time period of these requests is 2002 to the
present.
Definitions and Instructions
A. As used herein, "Individual Defendants" shall refer, individually and collectively, to
named Defendants.
B. As used herein, "Defendant CITY" shall refer to Defendant CITY OF DETROIT.
C. As used herein, the terms "person" or "persons" include natural person, private
corporations, governmental entities, partnerships, associations and joint ventures. The
singular and plural forms are used interchangeably as are the masculine and feminine
forms.
D. "You" or "your" as used herein shall refer to the Defendant and any person acting on her
behalf, including but not limited to her attorneys or other persons acting on behalf of the
attorneys representing the Defendant.
E. "Document" shall have the same meaning as in FR Civ P, 34 and shall mean and include
without limitation, all writings of any kind, including the original and all identical copies,

2

whether different from the originals by reason of any notation made on such copies, or
otherwise (including without limitation correspondence, emails, memoranda, notes,
diaries, contracts, statistics, letters, telegrams, minutes, reports, studies, checks,
statements, receipts, returns, summaries, pamphlets, books, intra-office and inter-office
correspondence, offers, notations of any sort of conversation, meetings or other
communications, bulletins, printed matter, computer printouts, teletype, telefax, invoices,
purchase orders, worksheets, and all graphs, alterations, modifications, changes and
amendments of any of the foregoing), graphic or oral records or representations of any
kind (including without limitation, photographs, charts, graphs, microfiche, microfilm,
videotaped recordings, video footage, motion pictures) any electronic, mechanical or
electrical records or representations of any kind (including without limitation, tapes,
cassettes, disks and recordings) in your possession and/or control or known by you to
exist.
F. If you contend that any document requested is exempt from discovery because it falls
within the attorney-client privilege, it was prepared in anticipation of litigation or in
preparation for trial, or is so exempted by any other privilege or section, you are to
provide the following information in lieu of producing the document:
i. Privilege or protection which you contend applies;
ii. The nature of the document in which the information is contained;
iii. The author or recipient, and date of this document;
iv. The subject matter of the information which you contend is privileged or
protected from discovery;
v. Any other additional description, if necessary, in order to provide the basis for
bringing a proper motion to compel production of documents pursuant to Fed R
Civ P 34.
DOCUMENTS TO BE PRODUCED
1.

All documents reviewed, referred to or utilized by anyone in answering Plaintiffs'
original Complaints and Plaintiffs’ First Amended Complaints.

2.

All documents reviewed, referred to or utilized by anyone in answering Plaintiffs’ First
Sets of Interrogatories to Defendants.

3.

All documents and records arising from the investigation of the armed robbery that took
place at the offices of Sprint PCS, 19191 Telegraph, on or about March 7, 2002, the

3

arrests of Plaintiffs and the respective criminal charges brought against them, prepared by
any agent, servant, or employee of the Detroit Police Department, including but not
limited to:
a. Police reports and PCR’s;
b. Incident Reports;
c. Progress Sheets;
d. Narrative Reports;
e. Activity Log Sheets;
f. Transporting Log Sheets;
g. Witness Statements;
h. Detective Bureau Reports;
i. Arrest Book entries;
j. Warrant Requests;
k. Arrest Warrants;
l. Arrest Cards;
m. Search Warrants;
n. Evidence Records;
o. Complaints and Witness Lists;
p. Prisoner Receipt Book entries;
q. Duty Assignment Sheets;
r. Property Book entries;
s. Inventory Forms or receipts;
t. Interrogation Sheets;
u. Notes;
v. Transcripts of any radio logs or radio runs;
w. Breathalyzer or chemical test results, or the like.
4.

All original notes in the possession of any or all Defendants, their agents, or employees,
4

made by any police officers before they prepared the above-requested documents, if any.
5.

All original Sprint store surveillance videotapes regarding 07 March 2002 robbery and
subsequent investigation.

6.

Every edited, enhanced, altered or otherwise manipulated version of the Sprint store
surveillance videotapes referred to in Request #4 above. As to each version of the
videotape, please identify the purpose and use of each version. This request applies to all
forms of the videotape, whether tape, DVD, captured stills, digitalized, or any other
medium.

7.

All documentation of custody logs documenting the chain of evidence or custody of each
original, copy, edited, enhanced, altered or otherwise manipulated version of the Sprint
store surveillance videotapes referred to in Request Nos. 5 and 6 above, including but not
limited to name, title, address and telephone number, and location of these videotapes.
a. This request includes documentation of all videotapes (original or otherwise),
documents and things in your possession or under your control that were turned over
to or produced by any officers, agents or employees of the Michigan State Police,
including but not limited to Sgt. Everett Torley and/or State Trooper William Gurdy.

8.

All evidence gathered or obtained by Defendants during the course of the investigation of
the March 7, 2002 robbery at the Sprint PCS Store, 19191 Telegraph, including but not
limited to:
a. Evidence Tag #691093, as recorded by Defendants Sims or Nichols in Progress
Sheet, dated 3/7/2002, Case Number 02-170, Incident No. 02-032644;
b. The original Sprint moneybag recovered from the Sprint safe after the robbery on
5

March 7, 2002, at the Sprint store, 19191 Telegraph, Detroit. If you do not possess
that original bag, produce a comparable Sprint moneybag.
9.

All statements, admissions, or confessions, if any, made by the Plaintiffs or either of
them, regarding the criminal charges brought against them.

10.

All statements made by any of the witnesses to the acts complained of in this lawsuit, if
any.

11.

All photographs, video-taped recordings, or motion pictures of any subject or persons
involved in the Sprint store robbery on March 7, 2002, the locale or surrounding area of
the site of the Sprint store robbery on March 7, 2002, or any matter or things involved in
the Sprint store robbery on March 7, 2002, if any.

12.

A copy of any and all rules, regulations, general orders, guidelines, policies and
procedures, training bulletins, personnel policies, or the like utilized by Defendant City of
Detroit that were in effect on March 7, 2002, which governed the actions, duties or
obligations of its police officers, including the following areas:
a. Commercial robbery investigations;
b. Taking statements from witnesses;
c. Identifying and contacting witnesses;
d. Fingerprint lifting from scene of crime;
e. Procuring and securing evidence from scene of crime;
f. Other scene investigation procedures.

13.

A copy of all rules, regulations, general orders, guidelines, policies and procedures,

6

training bulletins, personnel policies, or the like utilized by defendant City of Detroit and
that are currently in effect, which governed the actions, duties or obligations of its police
officers, including the following areas:
a. Commercial robbery investigations;
b. Taking statements from witnesses;
c. Identifying and contacting witnesses;
d. Fingerprint lifting from scene of crime;
e. Procuring and securing evidence from scene of crime;
f. Other scene investigation procedures.
14.

All documentation, whether in the form of acknowledgment forms, signature sheets,
receipts, or in any other form, indicating that any members of the Detroit Police
Department received copies of the materials identified in Request Nos. 12 and 13 above,
during the period from 1998 up through and inclusive of 2002.

15.

All documents that mention, discuss, refer to, describe, or relate to each Plaintiff.

16.

All documents, items, tangible objects, or exhibits that may be introduced by you at trial.

17.

The complete personnel files of each individual Defendant, including but not limited to:
a. The portion that includes his or her complete training and disciplinary record, if any,
including all records, interviews, memoranda, or other documents contained in or
made part of his or her personnel record;
b. All complaints concerning his or her conduct as a police officer or law enforcement
officer;

7

c. All disciplinary or internal law enforcement reviews of his or her activities as a police
officer or law enforcement officer; and
d. All performance evaluations.
18.

All documentation of training that each individual Defendant received by or through
Defendant CITY from their respective dates of hire up to and including March 7, 2002.

19.

All documentation, including, but not limited to, incident reports, investigations and
dispositions pertaining to all citizen complaints, grievances, disciplinary actions, internal
investigations, anything and everything in your possession pertaining to any and all
claims against the Detroit Police Department or any individual Detroit Police Officer
alleging malicious prosecution, false arrest, unlawful detention, based on inadequate or
improper investigative practices, during the period 1997 to the present, inclusive.

20.

Any and all documentation, including but not limited to incident reports, investigations
and dispositions pertaining to all citizen complaints, grievances, disciplinary actions,
internal investigations, anything and everything in your possession pertaining to any and
all claims against the individual Defendants in this matter.

21.

Any and all documentation, including full and complete citations, of all other court
actions in which any of the individual Defendants were named parties.
Respectfully Submitted,

JULIE H. HURWITZ, P.C.

THOMAS M. LOEB

By: s/Julie H. Hurwitz
Julie H. Hurwitz
Attorney for Plaintiff Sykes
Case #05-71199
733 St. Antoine, 3rd Floor
Detroit, MI 48226
(313) 963-5400
hurwitzj@umich.edu
P34720

By: s/with consent of Thomas M. Loeb
THOMAS M. LOEB
Attorney for Plaintiff Urquhart
Case #05-73725
32000 Northwestern Hwy Ste 170
Farmington Hills, MI 48334
Phone: (248) 851-2020
tmloeb1@mich.com
P25913

8

Dated: September 26, 2006
CERTIFICATE OF SERVICE
I hereby certify that on September 26, 2006, I served the foregoing Consolidated
Plaintiffs’ First Request for Production of Documents on all Defendants, through their attorney,
as listed below, by U. S. Postal Service and by e-mail:
KRYSTAL A. CRITTENDON
Attorney for Defendants
CITY OF DETROIT
LAW DEPARTMENT
1650 First National Building
Detroit, MI 48226
(313) 237-3018
critk@law.ci.detroit.mi.us
P49981

_s/Julie H. Hurwitz____
Julie H. Hurwitz, P.C.
733 St. Antoine, 3rd Floor
Detroit, MI 48226
(313) 963-5400
hurwitzj@umich.edu
P34720

9

~R()SALINtJ

"E. ~RlFFIN, M.D.

."

"

31330 Northwestem Highway, Suite C
Farmington Hills, MI 48334
Teleeopier: (248)737-9094

(248)737·9090
DiplOl1llt AmeriCIII Board of Psychiatry and Neurology

Assistant Pmfe.ugr. WayneState Unjyersity College of Medicine

Fellow. American Psychiatric Association
Special OuaIificaPODS in Forensic Psychiatry

December 19,2007
PSYClflATRIC REPORT - PERSONAL AND CONFIDENTIAL

Ms. Julie Hurwitz
Goodman & Hurwitz, P.C.
1394 E. Jefferson Avenue
Detroit, MI 48207

Re:

Kimberly Sykes v Derrick Anderson, et al

Dear Ms. Hurwitz:
This is the report ofthe independentexamination of Ms. Kimberly
Sykes who is currently in a lawsuit against Derrick Anderson and other
individuals including the City ofDetroit. Ms. Sykes was referred to me for
an independentpsychiatricevaluation for the' purpose ofdetermining
whether, and to what extent, she has emotional injuriesrelated to "having
been falsely accused, tried and incarceratedfor a March 7, 2002 robbery of
which she was a victim.
I conducted a mental status examination over the course of four
separate sessions with her between September 17 and December3, 2007. A
mental status examination involvesthe basic sciences of psychopathology
and psychodynamics in delineatingthe psychological significance of
specific emotional conflicts. It is a systematic attempt to understand her
attitude and behavior toward the interview process, her stream, form and
content ofthought processes, her emotional reaction, sensorium, mental
grasp, insight, and judgment. Further, it is a non-judgmental application of
clinical skills of observation and interpretation toward formulating
diagnostic impressions.

Personal and Confidential
P~(7~ 2
.
December23", 2007
-, {

( }.

Ms. Sykes was administered the Minnesota Multiphasic Personality
Inventory (MMPI-2). It was scored by licensed psychologist, Edward
Czarnecki, Ph.D., who had no contact with Ms. Sykes. This is a personality
test whichprovides independent objective data aboutthe subject including
attitudetowards the evaluation, level ofdistress, and presence of
psychopathology. It is useful in detecting malingering and other less
obviousmotivation. It can also be useful in detecting tendencies toward
distortion and misperception ofreality. In general, it provides an objective
assessment of the general personality structure.
I reviewed the following records and found thempertinent to my
analysis:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
II.
12.
13.
14.

15.

Records of Sprint PCS.
Plaintiff's First Amended Complaint for Damages, Declaratory
Relief and Jury Demand dated August30, 2006.
Opinionof StateofMichigan Court of Appeals.
DetroitPoliceRequest for Warrant.
Letter from Motor CityCasinoto Sgt. Carolyn Nichols dated
March20, 2002.
Witness Statement of Kimberly Sykesdated March 7, 2002.
Detroit Police Preliminary Complaint Report.
Constitutional Rights Certification of Notification dated May
11,2002.
Fax to Sergeant Derrick Anderson from TraciRichards dated
May 31, 2002.
Affidavit ofShaun MJ. Neal dated June 26,2002.
Medicalrecords of Henry Ford Health SystemlBehavioral
Health.
Medical records of Amir & Associates.
Letter from Julie Hurwitz to Krystal Crittendon dated
September 5, 2007.
Deposition transcript of Kimberly Sykes dated July 25, 2005.
Trial testimony of Kimberly SykesdatedOctober 8,2002.

I reviewed a DVDof the security tapes ofthe actualrobbery. I saw
Ms. Sykes on four occasions September 17, 2007, November 10,2007,
November 15, 2007and December 3,2007.

.

.'

-;.

Personal and Confidential
.. ~
Page 3
December 23", 2007

After reviewing all ofthe records and having several contacts with
Ms. Sykes, it is my opinion that she is a victim of a Posttraumatic Stress
Disorder as a directresult ofhaving been falsely accused ofa crime she did
not commit - a crime ofwhich she was in fact a victim. My diagnosis and
opinion agrees with the objective data discerned from the MMPI-2
evaluating her personality strengthsand weaknesses. In other words, she is
certainly damaged and continuesto have challengingencounters and
difficulty with maintaining her composure. Her religious experience appears
to help bind her anxiety and depressionby indoctrinating her to be forgiving
as expectant of Christians. At any rate, it is my opinion that her injuries are
emotional and affect potential occupational endeavors. These damages were
directly caused by her experience with the Detroit Police Department.
IDSTORY AS REPORTED BY KIMBERLY SKYES
At the onset of the evaluation, Ms. Sykes was informed of the nature
of the evaluation and the fact that I would be required to report my findings
and might be required to providetestimony at a deposition or at trial in the
future. Ms. Sykes indicatedthat she understoodthe limited confidentiality
involved in the evaluationand that the evaluation was not an evaluation for
purposes of treatment. She indicatedthat she would proceed. The
independent medical examination was. not audio or video taped.
Ms. Sykes, whose date of birth is December 13, 1978,presented as a
28-year-old black female. She has never been married. She has resided for
the past six years with her mother at 14160Piedmont in Detroit Her parents
are alive and well. Her mother is age 60 and her father lives in Chicago.
They were never married. She is the youngest of six siblingsand was raised
with her 39-year-old sister. Ms. Sykes graduated from high school in 1997.
She attended Wayne State University for two and one-halfyears right after
high school, in a computer science curriculum. She stoppedher college
training due to fmancial problems, despite having a GPA of3.0. She
maintains a Christian affiliation. Up until May 2002, she had been
consistently working or attending school and volunteering for her church.
As a child she had dreams of becoming a teacher or lawyer. However,
because her father was not availableto her and provided no support for her,
she realized that she had to be self-reliantand had to be able to support

Personal and Confidential
Page 4
December23, 2007
,I

herself for careergoals which would be the mostprofitable and most
rewarding.
Ms. Sykes stated that she has had sleep disturbances over the last five
years, since the robbery and her arrest and prosecution. Her additional
medical symptoms relate to her allergies. She related that since her
wrongful prosecution and conviction, she has lost contactwith friends and
has not dated. She considers herselfpracticing her faith by not being
sexually active due to the Pentecostal strict doctrines against premarital sex.
She deniedthat she was ever a victim ofchildhood sexual or physical abuse.
The only time she has ever beenarrested was for the incident of March 7,
2002 where she had worked full-time at the Sprintstore franchise that was
robbed by two unidentified burglars. She deniedsubstance abuse and
bankruptcies. She statedthe onlyjob she has ever been fired from was the
Sprint store where she was falsely accused by the policeof filing a false
police reportand larceny, arising from the robbery.
Ms. Sykes startedworking at Sprint pes January 1,2001. Her last
day ofrecord working there was May of 2002. Her position was initially
greeter and then she was promoted to a technical server. At the time of her
termination, she was a service representative earning$13.00 per hour. This
was the highestpayingjob she had ever had and she had everyintentionof
staying with and movingup in the Sprintpes company. She worked at the
7 Mile and Telegraph Roads location. She described that she liked working
at Sprint and liked the co-workers and the management.
On March 7,2002, the day of the robbery, she recalled that her shift
startedat 8:00 a.m. She was scheduled to work that morning with Tevya
Urquhart and Kimberly Holmes. She was in the parking lot, with Ms.
Urquhartand Ms. Holmes, waiting for the cleaning crew that usually came
in the mornings to the store to clean. Then she and the other female
employees would usually enter the building with the cleaning crew before
the store officially opened. That morning, the cleaning crew was late and
they decidedto go into the store without waiting any longer.
Whenthey enteredthe store,they had trouble closingthe door behind
them becauseof a prior problem they had been havingwith maneuvering the
lock on that door. At that point, Ms. Sykes noticedtwo men walking down

Personal and Confidential
. Page 5
December 23 t io07
the street toward the store. They looked like they were going to pass but
when they reached the store, they pushed on the door of the SprintPCS store
and then hit the door when Ms. Sykes said the store was closed. They then
.announcedthat this was a robbery. They pushed openedthe door, pushed
past her and orderedthem all to go to the back room. She stated that they
appeared to have guns. She statedthe money was kept in a room in a safe in
the back ofthe store. Ms. Sykes statedthat Brinks would come daily to pick
up the money. She recalledthat the bags of money had either $14tOOOt
$27
or $47
tOOO

tOOO.

They were all told to lie down on the floor in the hallway outside the
room where the safe was. After learningthat Tevya knew the combination
to the room and the safe, the robbers ordered Tevya to get UPt go in the room
and open the safe. Tevya then tossed a bag of moneyto one of the robbers.
During this timet Ms. Sykes and Ms. Holmes were outsidethe room on the
floor. They were warned not to call the police or "we'd be gotten". Ms.
Sykes stated that she could have describedthem at the time "but at this time
I don't know because I try to erase them from my mind so I cannot recall
what they looked like".
Ms. Sykes stated that immediately after the robbery she went on a
medical leave, while the police investigated the robbery. Ms. Sykes stated
that Lanese Carter, her store manager, told her to take the week off a couple
days later after the robbery. "She called me to come back before the week
ended". Ms. Sykes stated she did not feel she was ready. She was so upset
and shaken by the robbery she felt too much anxiety and fear to return to the
store. She said she would do what she had to do. Her health insurance
referred her to Dr. Joseph Limpicki, a psychotherapist, whose office is
located at Henry Ford Hospital in Dearborn. She stated she had seen him
once and he extended her medical leave of absence for the entire week.
Then she saw Donald Cushingberry at that point. He had been hired by
Sprint to talk to the store employees about the robbery. She saw Dr.
Cushingberrytwo times per week after that until June. She did not return to
work because he extendedher medical leave of absence indefinitely, and
then she was terminated in Mayas a result ofher false arrest. She was fired
by Jerry Seay, her store manager's boss. A letter was sent to her via Federal
Express and she received it the day after she was arrested as an accomplice
in this robbery. She never went back after that.

Personal and Confidential
Page.~
..
December 23, 2007

Ms. Sykes recalled that her symptoms immediatelyafter the robbery
were primarily depression, anxiety, insomnia and a diagnosis by Dr.
Cushingberry ofPosttraumatic Stress Disorder. She recalled that she had
never been robbed before. She noted that her home had been broken into but
she had never been confrontedby the robbers. She recallednow that
subsequent to her arrest, she had a dream of getting ready for work and she
opened the door and someone tried to slit her throat.
Ms. Sykes stated to make matters worse the robbers were never found.
The Detroit Police did not even look for them, which adds to both her fears
from the robbery and her feelings of being victimizedby the police.
Ms. Sykes was arrested May 11, 2002. She stated the police came to
her home and Sgt. Anderson, OfficerMcClure and an unidentified female
officer arrested her. She receiveda phone call 10 minutes before they
arrested her. Her mother answeredthe door and was told that there was an
arrest warrant for Ms. Sykes. She stated she put on her gym shoes and
Officer McClure followed her to handcuff her. Her mother said that it was
not necessary. Her mother said she was going to the police station to get to
the bottom of what was going on. She had been led to believe that she was
going to be allowed to come home that day. She was taken to the 6th
Precinct where they took her identification and personal property, and they
held her overnight without explaining anything to her. On both days that she
was in custody, Sergeant Andersonand Officer McClure interrogatedher.
She stated that Anderson asked what happened during the robbery. He was
interested in why she was under the table. He asked about what Ms. Holmes
had said to her while she was under the table. Ms. Sykes stated that she
explained to them that Ms. Urquhartwho was pregnant and had thrown up,
and Ms. Holmes, were hysterical after the robbers left. The robbers warned
them not to say anything and Ms. Sykes felt that they could still come back
to the store to harm them. She was the one who called 911 feeling that she
was most focused on getting help for this chaotic and hysterical situation.
She stated that Officer McClure was very demeaning and verbally abusive
toward her during these interrogations, calling her names, using profanity,
telling her that she was a criminal, and that she would never get married or
have any children. This continues to haunt her to this day.

.,

Personal and Confidential
P~lgp.1

December 23; 2007

Ms. Sykesrecalled that duringthe interrogations, she was questioned
why Ms. Holmes had gone back into the safe. Ms. Sykes statedshe did not
know why Ms. Holmes went back into safe. She recalled telling the police
at some point that she saw Ms. Holmes toss the something into the safe. The"
police falsely reportedthat the security video showed the womentossing the
money underthe table wherethey were hiding and dividing the money
betweenHolmes, Urquhart and herself. These false statements were part of
the flawed police investigation causing the police not to searchfor the
obvious robbers seen on the videotape.
At the time ofher arrest in May of2002, and beingjailed overnight,
Ms. Sykes described crying and feeling tremendous disbelief. She could not
believethat this was reallyhappening to her. That feeling ofdisbeliefand
powerlessness continued throughout the preliminary exam in July 2002, and
her jury trial in October 2002. At the end ofher trial, which lasted four
days, where she believed the police officers testified dishonestly, she was
convicted. She was immediately remanded to jail for a total oftwo and onehalf months. She was sentenced to ninety days in jail and two years of
probation. She was ordered also to pay restitution. She stated she was in jail
from October 10 to December 5, 2002.
Ms. Sykes' experience in jail was one ofa fear ofharm and anger.
She prayed constantly and she was visitedby her pastorand mother. She
recalled first goingto the county jail. Her sister informed her to sleep with
toilet tissue in her ears withthe coversover her head because ofthe rodents
and roaches. She recalled feeling her freedom was totallygone. She could
not perceivethe end ofher predicament. She recalledcryingfor most ofthe
time that she was incarcerated. Later when she was transferred to Dickerson
she was given the day when she wouldbe released.

After her wrongful conviction, she was recommended to an appellate
attorney, GeorgeChapman. She appealed her conviction and in May 2004,
after serving her jail time, the CourtofAppeals overturned all the charges
and found that there was no evidence to supporther beingconvicted of any
crime.
Ms. Sykes is suingthe City ofDetroit, Sergeant Anderson, Officer
McClure and Sergeant Nichols, becausethese police officers falsely reported

Personal and Confidential
Pagel
December :l,J, 2007
the facts, withheld important information that wouldhave been helpfulto
her defenseand did not botherto really investigate this crime. She believes
that the officerspersuaded the jury that she was the culpritinsteadofthe
victim. She feels relieved that she has been cleared. However, in the
meantime it has been hard for her to go back to work again and she is
suspicious of all police and fearful of being falsely accused again.
Ms Sykeswas not able to work from the time of her arrest in May
2002, until approximately September 2006. For the last sixteenmonths,
however, Ms. Sykes has been employed as a part-time assistantmanager at
Rainbow, an apparel-clothing store,on Shafferin Dearborn.
MENTAL STATUS EXAMINATION
Please recall that this is a summary ofthe mental status examination
provided by the contacts with Ms. Kimberly Sykeson September 17,
November 10,November IS and December 3,2007. Ms. Sykes always
appeared promptlyand alone for the interactions for this evaluation. While
she appeared distressed, and became tearfulat times, she remained calm and
spoke in an even toned and soft-spoken voice. She maintained good eye
contact. At the initial interview, rapport was established to permither
tearfulness and horror as she revealed the events ofthe past five years. She
spoke ofthe horror of beingrobbedand her being shocked that the police
would not follow up on finding the robbers and concluding as a rush to
judgment that she was capable of colluding in a robbery. Her religious
belief system, her background and the facts themselves would be
conspicuous and obviousenough to vindicate her of any wrongdoing. Her
faith was what continued to offer her strength. She spoke in an articulate
voice with an above average level of intelligence. She appeared to have
halting and blockingduring her stream of consciousness. Theredid not
appear to be any internalcues such as psychosis. She often had a stone face
withoutgrimace and affect. Her affect would be described as deeply
depressed and constricted. She appeared to presentherselfas holding most
of her feelings inside and trying not to betray her belief that her religion
should protecther and heal her from the events that had overwhelmed her
for the past severalyears. This dichotomy of expressing feelings polarized
by her belief that religion shouldcalm her fears wouldbe presented as
someone who might appeardistantand detached from the events.

Personal and Confidential
I'~C!c {l -

December 23, 2007

•

j.:.

--

.-

However, at all times Ms. Sykes was logical and showed no evidence
of malingering. Ms. Sykes appeared to minimize the events that had
affected her but spoke plainly that they were in fact tortuous, tormenting and
difficult times that challengedher faith and caused her to be isolated and
alone. She tried not to be hopeless but certainly focused on her helplessness.
She began to talk about her distrust ofthe police and her distrust of a system
meant to protect citizens from such ravages at the hands ofrobbers. In her
current state, she felt robbers and police were equal in the victimization of
her situation. She had no speculation on the innocence or guilt of Ms.
Holmes but knew that all the facts had not been brought out during the trial
or were pursued by the police.
Ms. Sykes had no evidence ofauditory or visual hallucinations. She

denied current suicidal or homicidal ideations. (She did at one point express
that she had had suicidal feelings while all ofthis was going on, but she no
longer has such feelings.) The contact with Ms. Sykes during this
independent medical examination were consistent with Posttraumatic Stress
Disorder in that she experiencedsleep disturbance, restlessness, agitation,
flashbacks of the robbery and preoccupation with feelings of distress caused
by the police. She felt she could not have persuadedthem any further except
to give the straightforward events as they occurred during the robbery. She
was amazed and shocked that giving the true answers that she did in her
interrogation were used to indict her as having the same alibi corroborated
by the stories and facts offered by Ms. Tevya Urquhart.
Sensorium and mental grasp appeared to be consistent with someone
of above average intelligence. Her current insight into her state ofmind
appeared to be appropriate. Her treatmentwith the therapist appeared to be
a reasonable attempt at trying to reconstitute her ego strengths. However,
immediately after the robbery and continuingto the present time she was
experiencing embarrassment, disorientation, distrust and alienation from
participating in a socialized or safe environment. Unfortunately, because
she lost her health coverage when she was fired from Sprint, she has not
been able to afford continuedtreatment since June 2002. Definitely, there
was no evidence of paranoid psychosis but there was suspiciousness of her
safety in all surroundings. She had easy startled responses and a shutdown
or inhibited expression of her feelings for fear that her statements about

'.

Personal and Confidential
1?:w~

10

,0

. December23, 2007
conditions might be interpreted as harmful and ultimately used againsther.
As a result, she feels obsessed and compulsive about avoiding work
situations where she is either entrusted with money or alone, for fear of
again being falsely accused. She fears she needs assurances whereothers
could be there to protectand witness her non-involvement in situations that
might be misconstrued as illegal or dangerous. Suchpreoccupations appear
to be reactions consistent with Posttraumatic StressDisorder.
DIAGNOSIS
Axis I:

Posttraumatic Stress Disorder and MajorDepression
relatedto robbery and subsequent false
accusations/prosecution/conviction.

Axis IT:

Paranoid and depressive personality traits

Axis III:

Allergies, by history.

Axis IV:

Multiple psychosocial stressors relatedto previous false
incarceration.

Axis V:

Global Assessment of Functioning (GAF) SO. Highest
over past year so.

A GAF of so represents serious symptoms or any seriousimpairment

in social, occupational or school functioning.
REVIEW OF RECORDS

The reviewof records support the historyprovidedby Ms. Sykes.
The employment history indicates that SprintPCS was the highestpaid job
Ms. Sykes has held to date. A May 10, 2002 record indicates that John Seay
terminated Ms. Sykes effective May 10, 2002. In a workers' compensation
executive summary from Jerry Seay to June Broderson of SprintPCS based
on the police investigation states that the Detroit Police donot believe that
there is any truth to Ms. Sykes' story. It further insists that the robbery was
staged based on information received exclusively from Sgt. Anderson. The

...

Personal and Confidential
Page 11
December 23, 2007

.

.'

employment records also state that "the police are confidentthat the money
was taken by the three employees". The examination during the trial
testimony referred to the robbers as "so-called robbers". The focus of the
examination was on a presumption that the three women were under the
table dividing the money insteadofwaiting for the police. This formed a
key false testimony to the jury.
OPINlON
Ms. Sykes is an individual who had no criminal background. She had
obtained two and one-halfyears of college before returning later on to get
additional training at Henry Ford CommunityCollege. She was interested in
becoming a lawyer or a teacher. Trying to find finances to payoff her
school loans she workedat Sprint PCS. It was robbedon March 7, 2002.
Since that time she had engaged in psychotherapy to help her deal with the
shock and trauma ofthe incident. To her amazement, she was interrogated
by the police as a suspect insteadof a victim. She denied colluding with
anyone to rob the store and felt that she herselfwas in danger of being
killed. Such evidence of fear of loss of integrity or fear of near fatal events
is consistent with Posttraumatic Stress Disorder.
Ms. Sykes' difficulty in seeking employment or working after she was

released from Dickerson causedher to feel that her future hopes of building
a life would be difficult. Her association with her churchhas added strength
and comfort but she feels herself at times hopeless and helpless in not being
able to conformto the church's doctrines. She nevertheless remained
faithful in these endeavorsand has hopes now of becoming a minister. This
may therefore be the explanation ofhow she attempts to be wise, constrained
and expectant of sufferingthough attemptingto complyand overcome her
past experience with the police which caused her to continually doubt her
future sense of self-integrity. The diagnosis ofPosttraumatic Stress Disorder
is consistent with the MMPI-2 and the several contactsexaminingher
mental status examination. She.remains in a pattern ofneeding to help her
anxiety and having difficulty sleeping. There is no evidence of alcohol or
substance abuseindicating that she has not tried to be in anyway selftreating or in a state of denial.

Personal and Confidential
Page 12
December 23, 2007
It is my opinionthat Ms. Sykes' state of mind,her psychiatric and
emotional injuries, her current work habits and future potential occupational
pursuitshave been irreparably damaged by the disregard, treatment and
management ofthis case by the Detroit Police Department and particularly
Officer Anderson.
The main experiences of psychological traumaare disempowennent
and disconnection from reality. Recovery is baseduponthe empowerment
of the survivorand the ability to createnew occupational, social and
supportive connections. This formula is a normal, reasonable and rational
sequence of events. It is important to note that recovery cannot take place in
isolation, distrust, avoidance of suspicious criminal behavior by association,
unwitting of financial responsibilities subject to blame and accusations. Ms.
Sykes has restricted herselffrom any subtle insinuation that she may again
be falsely accused. Such limited responsibility will affecther future job
assignments. This will limither income and cause non-use of the pathway
of leadership qualitiesshe had acquired pre-morbidly. She formerly
depended on fulfillment of her executive advancement in the workplace.
The normal and reasonable reaction of a traumatized victim of a
robberyis to call the police to not only rescueher but to protect her from
further harm by apprehending the burglars. Ms. Sykes did the reasonable
thing in spite ofher fear for her safety should the burglars come back as the
burglars threatened they would"be gotten". Recovery from this tragic
trauma, as a survivor starts with the psychological faculties that were
damaged or deformed by the traumatic experience. These faculties include
the basic capacities for trust, autonomy, initiative, identity, competence,
assertiveness and intimacy. As a result,of the Detroit police officers' acting
falsely, Ms. Sykeshas not recovered from the trauma. Her prognosis is poor
and guarded.
The poor and guarded prognosis not only involves the trauma but has
been compounded by the betrayal ofthe policelhelperslrescuers whose
duties includedprotection. The Detroit police officers instead of protecting
her, victimized her even more by causing her to be falsely arrested and
tainting her as being complicit withthe robbery. For the Detroit police
officersnon-investigation into the trauma, Ms. Sykes was portrayed as the
perpetratorand not the victim of the robbery of. The Detroitpolice officers

Personal and Confidential
Page 13
December 23, 2007

,.'.

..

I'

proceeded without considering the fundamental injustice of Ms. Sykes'
traumatic experience. In a reasonable tragedy there is need for a resolution
that restores some senseof justice. The Detroit police officer's role
abandoned both intellectual and rational rules, without insight or empathic
connection. The emotional injuries by any person in authority would be
further deformed by the experience ofdisbeliefand error. For this reason,
Ms. Sykes' traumatic attitude has an intense life or deathquality
unparalleled in ordinary experience ofterror. The greater Ms. Sykes'
emotional connection of helplessness, suicidal ideation, isolation and
abandonment, the more desperately she finds herself in a devastated
deteriorated course of recovery. She fearslaw enforcement, the justice
systemand any situation that may causeher responsibility to perform in a
financial position.
If I can be of further assistance, please do not hesitate to contact me.
Verytruly yours,

~UK)
Rosalind ~, ~.D.

cal

Suzen Oliver
& Ass ocia tes, In c .

6245 Brighton Road, Brighton, MI 48116  810-844-0664  FAX 810-844--0665

J A N U A R Y 1 1, 20 0 8

V IA E - M A IL
J UL IE H UR W I T Z- jhurwitz@goodmanhurwitz.com
T OM L O EB – V I A F A C S I M I L E 2 4 8 8 5 1 2 02 0
IT WAS A P LEAS URE SP EAKING WI TH A LL OF YO U T ODA Y REGA R DING THIS CASE .

IN

ANSWER TO YOU R QU ER Y, THERE A RE A NU MBER OF CASE SPE CIF IC RES EARC H AND

I P ROVI DE IN PR EPARAT ION F OR TRIA L, THE J UR Y
TH E FO LLO WING ARE THE KE Y AREAS OF TRIA L
SUPPO RT W ITH SOME GE NERA L GUI DELI NES FO R COSTS AN D F EES.
DEVE LO PMEN T SERV ICES THA T

SELE CTI ON PR OC ESS AND BE YO ND.

TRIA L SI MU LA TIO N - PRO JEC T O VER VIE W :
•

COOR DI NATI ON, FA CI LI TATI ON AN D EVALUA TIO N OF FU LL SPE CT RU M JU RY P ROJ EC TS
INCLU DING FA CI LI TY AP PRO PRIA TION , SCR EENI NG AND RE CR UI TMEN T OF
DEM OGRAP HICA LLY SP ECIF IE D MO CK J UR Y PAR TI CIPAN TS, DIGI TAL OR VI DEO DA TA
PRESERVA TI ON, ANA LYSIS AN D R EPO RT .

•

PRESEN TA TION ASSIS TANCE : REC OMMEN DA TI O NS FOR SU MMARIZ ING P LAINT IFF AN D
DEFEN DAN T PRES ENTA TI ON OF CASE MA TERIA LS IN OR DER TO P ROVI DE JUR ORS
WITH A BA LANCE OF C OMP REHENSIV E TH EMES A ND EVI DEN CE ON W HIC H TO BAS E
DE CISIONS .

•

ADVIC E ON DESIGN AN D PR O DU CT ION O F VISUA L DEMONS TRA TIVE EXHIBI TS T O

•

PREPARA TI ON OF S UPP LEM EN TAL F OC US Q UEST I ONNAIRES , V ER DIC T F ORMS AN D
CONFI DENTIALI TY AGREE MEN TS AND INSTRU CTI ONS.

•

OBSERVA TI ON OF CASE PR ESEN TATI ON AN D DELIBERATION P ROC ESS FO LLOWE D B Y

BOLS TER PAR TICI PANT UN DERS TAN DING O F ISS UES.

JUR OR F OCUS SESSIONS

•

DETAI LE D ANA LYS IS OF THE P ROJ EC T WI TH RE P ORT ON IN DIVI DUAL R ESPONS ES AND
DE LIBE RATI ON GR OUP RATI ONA L (WRI T TEN AN D VERBAL) TO ES TAB LISH ISSU ES
FROM THE JUR OR ’S PERSP EC TIVE AN D DEFI NE T RIAL THEM ES AND S TRA TEGI ES.

•

EVALUATION O F PRES ENTA TI ONS WI TH CO MM UN ICATI ON SUGG ESTI ONS F OR THEMES ,
ANCHORS , LI NGUIS TI CS AND TRIA L EXH IBI TS.

•

FORM ULA TI ON OF JUR OR P ROF ILES, VOIR DI RE STRA TEGIES .

SU PP LEME NTAL TR IAL QUE S TI ON NAIRE S
•

DRAF T AND A DVISE ON PR OPOSA L, C OMP OSI TIO N, A DMI NIST RAT ION AN D
EVALUA TI ON OF PRE- TRIA L J UR OR Q UES TIONNA I RES BASED ON RESEA RCH RESU LTS

CASE P RESE N TA TIO N
•

ASSESSMEN T O F LANG UAGE, AP PEARAN CE AN D PRESEN TATION S TY LE OF ATTORNE Y
OR WI TNESSES

•

ASSISTAN CE WI TH DEVE LO PMEN T O R EVALUA TIO N OF OPE NING AN D C LOSING
STATEMEN TS FO R THEMES , CON TIN UI TY, POIN T OF VIEW AN D C OMM UNICA TI ON
FEAT URES FOR J UR OR UNDERS TAN DING AN D IMP ACT

•

RECOM MEN DA TIONS R EGAR DING EXH IBI T FOR M, C ONT ENT AN D USAGE

•

ASSISTAN CE WI TH WI TNESS OR DER OR EXAM IN ATION S TRA TEG Y.

PRE- SELEC TIO N EVA LUA TI ON AN D JUR Y SE L ECTI ON S TRA TEG Y
•

EVALUAT ION O F JU RY POO L BASE D ON CON TEN T , DEM OGRAP HICS AN D C OMP OSIT ION
OF JU RO R QU ESTI ONNAI RES INC LUDING THE US E OF GRAPH IC P ROJ EC TION
TEC HNIQ UES TO P ROVI DE P ERSONA LI T Y AND M O TIVAT ION IN FOR MAT ION AN D
LEA DERSH IP PO TE NTIA L.

•

DEVELOPM ENT OF CASE S PECI FIC A REAS OF IN Q UIR Y FO R VOIR DI RE DESIGNE D TO
IDEN TI FY AN D DRAW O U T RE LU C TANT JUR ORS A ND IM PENE TRAB LE BIAS. ORGAN IZE
INFOR MATI ON IN A USAB LE F ORM FOR SE LE C TIO N PROC ESS.

VO IR D IRE AT TRIA L
•

ASSISTAN CE WI TH F OR TIF YING THE I NTERVIEW PROC ESS

•

OBSERVA TI ON OF VE RBAL AN D BE HAVIORA L C LU ES FOR IN CONG RUEN T R ESPONS ES,
RECE PTIV ITY.

•

LEADERSHI P EVALUA TION

•

FOR-CA USE AN D PE REMP TO RY CHA LLENGE GU IDANCE

PO S T V OI R DIRE AN D O PEN ING STA TE MEN TS
•

IN CASES WH ERE THE J UR OR Q UES TIO NNAIRES ARE AVAILAB LE AN D ASSESSE D, WE
PROVI DE BE HAVIORA L P ROFI LES OF IM PANE LE D JUR ORS T HAT I NC LU DE
RECO MMEN DA TIONS FOR EX PLICI T THEM ES, LI N GUIST ICS AN D PRES ENTA TI ON
STRA TEGIES .

•

ANALYSIS O F THE OP POSI TIO NS OPEN ING STA TE MENTS F OR CLOSING THEMES .

DEBR IE FIN G
•

CON DU CT P OST -T RIAL INT ERVIEWS OF C ONSEN T ING JUR ORS TO DE TER MINE VE RDIC T
RATI ONALE.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
\

KIMBERLY SYKES,
Case No. 05-71199
Plaintiff(s),
Honorable Nancy G. Edmunds

v.
DERRICK ANDERSON, CAROL NICHOLS,
and MAURICE McCLURE,
Defendant(s).
_ _ _ _ _ _ _ _ _ _ _ _1
AND

TEVYA GRACE URQUHART,
Case No. 05-73725
Plaintiff(s),
Honorable Nancy G. Edmunds

v.
DERRICK ANDERSON, CAROL NICHOLS,
and MAURICE McCLURE,
Defendant(s).
-------

.1

JURY INSTRUCTIONS

Dated: February 21,2008

Faithful Performance of Duties;
Jury to Follow Instructions

Members of the jury, the evidence and argument in this case have been completed
and I will now instruct you as to the law.
Faithful performance by you of your duties is vital to the administration of justice.
The law you are to apply in this case is contained in these instructions, and it is your
duty to follow them. You must consider them as a whole and not pick out one or some

f
_. I
instructions and disregard others.
()n~
~(3if~ & COVrv~1
Following my instructions you will go to the jury room and deliberate and decide on

rw

j\

your verdict.

2

Instructions Apply to Each Party

Unless I state otherwise, you should consider each instruction given to apply
separately and individually to each Plaintiff and to each Defendant in the case.

3

Facts To Be Determined From Evidence

It is your duty to determine the facts from evidence received in open court. You are
to apply the law to the facts and in this way decide the case. Sympathy or prejudice must
'not influence your decision. Nor should your decision be influenced by prejudice regarding
race, sex, religion, national origin, age, handicap, or any other factor irrelevant to the rights
of the parties.

)

4

All Persons Before the Law - Individuals

This case should be considered and decided by you as a dispute between persons
of equal standing in the community, of equal worth, and holding the same or similar
situations in life. All persons stand equal before the law and are to be treated as equals.

5

Admission of Evidence

The evidence you are to consider consists of testimony of witnesses [and exhibits
offered and received ~a~iewcoMhe=(ptemJses/scenef~Gtf»: The admission of
evidence in court is governed by rules of law. From time to time it has been my duty as
judge to rule on the admissibility of evidence. You must not concern yourselves with the
reasons for these rulings, and you must not consider [any exhibit to which an objection was
sustained or] any testimony [or exhibit] which was ordered stricken.

6

Attorneys' Statements Not Evidence;
Admission by Attorney

Arguments, statements and remarks of attorneys are not evidence, and you should
disregard anything said by an attorney which is not supported by evidence or by your own
general knowledge and experience. However, an admission of fact by an attorney is
binding on his or her client.

)

J

7

Admission of a Party

One type of evidence is known as an admission of a party. The admission may be
a statement made in the pleading filed in the case, a statement on the record during
testimony, or a statement in a written exhibit. Attorneys may also make an admission on
behalf of their clients.

\

)
/

8

Stipulation of Facts

When the attorneys on both sides stipulate or agree as to the existence of a fact, you
may accept the stipulation as evidence and regard the fact as proved. You are not
required to do so, however, since you are the sole judge of the facts.

9

Evidence Introduced for a Limited Purpose

Whenever evidence was received for a limited purpose or limited to [one party/certain
parties], you must not consider it for any other purpose or as to any other [party/parties].

10

Judge's Opinion as to Facts Is to Be Disregarded

I have not meant to indicate any opinion as to the facts by my rulings, conduct, or
remarks, during the trial; but if you think I have, you should disregard it, because you are
the sole judges of the facts.
If you inadvertently overheard comments made at sidebar, disregard those
comments, as I did not intend in my discussions with the attorneys to express an opinion
on the merits of this case.

11

Jury to Consider All the Evidence

In determining whether any fact has been proved, you shall consider all of the
evidence bearing on that fact without regard to which party produced the evidence.

12

Direct and Circumstantial Evidence

There are, generally speaking, two types of evidence from which a jury may properly
find the truth as to the facts of a case. One is direct evidence -- such as the testimony of
an eyewitness. The other is indirect or circumstantial evidence -- the proof of a chain of
circumstances pointing to the existence or non-existence of certain facts.
It is not necessary that every fact be proven directly by a witness or an exhibit. A fact
may be proven indirectly by other facts or circumstances, from which it usually and
reasonably follows according to the common experience and observation of mankind. This
is called circumstantial evidence, which you are to consider along with other evidence in
the case.
As a general rule, the law makes no distinction between direct and circumstantial
evidence, but simply requires that the jury find the facts in accordance with the
preponderance of all the evidence in the case, both direct and circumstantial.

13

Opinion Evidence -- Expert Witnesses

The rules of evidence ordinarily do not permit witnesses to testify as to opinions or
conclusions. An exception to this rule exists as to those whom we call "expert witnesses."
Witnesses who, by education and experience, have become expert in some art, science,
profession, or calling, may state an opinion as to relevant and material matters, in which
they profess to be expert, and may also state their reasons for the opinion.
You should consider each expert opinion received in evidence in this case, and give
it such weight as you may think it deserves. If you should decide that the opinion of an
expert witness is not based upon sufficient education and experience, or if you should
conclude that the reasons given in support of the opinion are not sound, or if you feel that
it is outweighed by other evidence, you may disregard the opinion entirely.

14

Jurors May Take Into Account
Ordinary Experience and Observations

You have a right to consider all the evidence in the light of your own general
knowledge and experience in the affairs of life, and to take into account whether any
particular evidence seems reasonable and probable. However, if you have personal
knowledge of any particular fact in this case, such knowledge may not be used as
evidence.

15

Credibility of Witnesses

You, as jurors, are the sole judges of the credibility of the witnesses and the weight
their testimony deserves. You may be guided by the appearance and conduct of the
witness, or by the manner in which the witness testified, or by the character of the
testimony given, or by evidence to the contrary of the testimony given.
You should carefully scrutinize all the testimony given, the circumstances under which
each witness has testified, and every matter in evidence which tends to show whether a
witness is worthy of belief. Consider each witness's intelligence, motive, state of mind,
demeanor, and manner while on the stand. Consider each witness's ability to observe the
facts as to which he has testified, and whether he impresses you as having an accurate
recollection of these matters. Consider also any relation each witness may bear to either
side of the case; the manner in which each witness might be affected by the verdict; and
the extent to which, if at all, each witness is either supported or contradicted by other
evidence in the case.
Inconsistencies or discrepancies in the testimony of a witness, or between the
testimony of different witnesses, mayor may not cause you the jury to discredit such
testimony. Two or more persons witnessing an incident or a transaction may see or hear
it differently; and innocent misrecollection, like failure of recollection, is not an uncommon
experience. In weighing the effect of a discrepancy, always consider whether it pertains
to a matter of importance or an unimportant detail, and whether the discrepancy results
from innocent error or intentional falsehood.
After making your own judgment, you will give the testimony of each witness such

16

weight, if any, as you determine it deserves.
You may, in short, accept or reject the testimony of any witness in whole or in part.
Also, the weight of the evidence is not necessarily determined by the number of
witnesses testifying to the existence or non-existence of any fact. You may find that the
testimony of a small number of witnesses as to any fact is more reliable than the testimony
of a large number of witnesses to the contrary.

\

)
)
./

17

Police Witness

se-vu

fA. )

5

You have heard testimony from ~police office~ That testimony is to be judged by the
same standards you use to evaluate the testimony of any other witness.

18

Witness Who Has Been Interviewed by an Attorney

It has been brought out that an attorney, or a representative of an attorney, has talked
with a witness. There is nothing wrong with an attorney, or a representative of an attorney,
talking with a witness for the purpose of learning what the witness knows about the case
and what testimony the witness will give.

)

)

19

Consideration of Deposition Evidence

During the trial, certain evidence was presented to you by the [reading and/or viewing]
of depositions. A deposition is a record of the sworn testimony of parties or witnesses
taken before an authorized person. All parties and their attorneys had the right to be
present and to examine and cross-examine the [witness/witnesses].
This evidence is entitled to the same consideration as you would give the same
testimony had the [witness/witnesses] testified in open court.

20

Impeachment -- Inconsistent Statements or Conduct -Falsus in Uno Falsus in Omnibus

A witness may be discredited or impeached by contradictory evidence; or by evidence
that at some other time the witness has said or done something, or has failed to say or do
something which is inconsistent with the witness' present testimony.
If you believe any witness has been impeached and thus discredited, it is your
exclusive province to give the testimony of that witness such credibility, ifany, as you may
think it deserves.
If a witness is shown knowingly to have testified falsely concerning any material
matter, you have a right to distrust such witness's testimony in other particulars and you
may reject all the testimony of that witness or give it such credibility as you may think it
deserves.
An act or omission is "knowingly" done, if voluntarily and intentionally, and not
because of mistake or accident or other innocent reason.

21

Prior Inconsistent Statement of Witness

If you decide that a witness said something earlier that is not consistent with what the
witness said in court, you may consider the earlier statement in deciding whether to believe
the witness, but you may not consider it as proof of the facts in this case.
However, there are exceptions. You may consider an earlier statement as proof of
the facts in this case if:
a. the statement was made by a Plaintiff, a Defendant, or an agent
or employee of either party; or
b. the statement was given under oath subject to the penalty of
perjury at a trial, hearing, or in a deposition; or
c. the witness testified during the trial that the earlier statement was
true.

22

Weighing Conflicting Evidence - Number of Witnesses

Although you may consider the number of witnesses testifying on one side or the
other when you weigh the evidence as to a particular fact, the number of witnesses alone
should not persuade you if the testimony of the lesser number of witnesses is more
convincing.

23

All Available Evidence Need Not Be Produced

The law does not require any party to call as witnesses all persons who may have
been present at any time or place involved in the case, or who may appear to have some
knowledge of the matters in issue at this trial. Nor does the law require any party to
produce as exhibits all papers and things mentioned in the evidence in the case.

24

Definitions Introduced

I shall now give you the definitions of some important legal terms. Please listen
carefully to these definitions so that you will understand the terms when they are used
later.

25

Preponderance of the Evidence

The burden is on the plaintiff in a civil action, such as this, to prove every essential

fLvr

element of)J.Hs claim by a preponderance of the evidence. If the proof should fail to
establish any essential element of plaintiff's claim by a preponderance of the evidence in
the case, the jury should find for the defendant as to that claim.
To "establish by a preponderance of the evidence" means to prove that something
is more likely so than not so. In other words, a preponderance of the evidence in the case
means such evidence as, when considered and compared with that opposed to it, has
more convincing force, and produces in your minds belief that what is sought to be proved
is more likely true than not true. This rule does not, of course, require proof to an absolute
certainty, since proof to an absolute certainty is seldom possible in any case.
In determining whether any fact in issue has been proved by a preponderance of the
evidence in the case, the jury may, unless otherwise instructed, consider the testimony of
all witnesses, regardless of who may have called them, and all exhibits in evidence,
regardless of who may have produced them.

26

Deliberately

To act "deliberately" means to act intentionally; that is, knowingly and voluntarily and
not because of mistake or accident.

)

)

27

Deliberate Indifference

"Deliberate indifference" to the rights of others is the conscious or reckless disregard
ofthe consequences of one's acts or omissions. Deliberate indifference requires more than
negligence or ordinary lack of due care.

28

Knowingly

The term "knowingly," as used in these instructions, means that a Defendant was
conscious and aware of his or her actions, realized what he or she was doing, and did not
act because of ignorance, mistake, or accident.

29

Exculpatory Evidence

Exculpatory evidence is evidence which tends to suggest the innocence of a person
suspected of or charged with a crime. It includes evidence which tends to prove that the
defendant did not commit the crime, or evidence which suggests that the crime might have
been committed by someone else, or evidence which might be used to impeach witnesses
who would testify against the person accused.
An officer is not obligated to actively search for exculpatory evidence; however, when
an officer is aware of exculpatory facts and circumstances, he or she has a duty to disclose
those facts and circumstances to the prosecutor.

30

Reckless Disregard

The phrase "reckless disregard," as used in these instructions, means that a
Defendant deliberately closed his or her eyes to what would othpr,",;~-

I

obvious

to him or her. Stated another way, a Defendant's knowledgt

nay be

inferred from a deliberate or intentional ignorance or deliberaf

less to

the existence of that fact.
It is, of course, entirely up to you as to whether you find

IJd@ cs"

deliberate closing of the eyes and the inferences to be drawn ' I " ....... vll evidence,
You may not infer that a defendant had knowledge, however, from proof of a mistake,
negligence, carelessness, or a belief in an inaccurate proposition.

31

Malice and Malicious

The words "malice" and "malicious" mean a wish to vex, annoy, or injure another
person. Malice means that attitude or state of mind which actuates the doing of an act for
some improper or wrongful motive or purpose.
Malice does not necessarily require that the defendant be angry or vindictive or bear
any actual hostility or ill will toward the plaintiff. Malice, like any other fact, may be proved
by direct or circumstantial evidence.

32

Proximate Cause

When I use the words "proximate cause," I mean first, that the conduct must have
been a cause of Plaintiffs' injury, and second, that the Plaintiffs' injury must have been a
natural and probable result of the conduct.
There may be more than one proximate cause. To be a proximate cause, the
claimed conduct need not be the only cause nor the last cause. A cause may be
proximate although it and another cause act at the same time or in combination to produce
the occurrence.

)

33

·Plaintiffs' Claims

I will now instruct you on Plaintiffs' claims in this case.

34

Nature of the Action

Plaintiffs claim damages alleged to have been sustained as the result of a
deprivation, under color of state law, of a right secured to Plaintiff by the Fourth and
Fourteenth Amendments of the United States Constitution and by a federal statute
protecting the civil rights of all persons within the United States.
Each Plaintiff alleges that Defendant police officers subjected each Plaintiff to
deprivation of rights and privileges secured and protected by the Constitution and laws of
the United States. Specifically, Plaintiff Kimberly Sykes alleges that she was deprived of
the Constitutional right to be free from an unreasonable seizure of her person, the
Constitutional right to be free from malicious prosecution, and the Constitutional right not
to be denied due process of law.
)

)

Plaintiff Tevya Urquhart alleges that she was deprived of the Constitutional right to
be free from malicious prosecution and the Constitutional right not to be denied due
process of law.
Defendant police officers deny that any of their actions during the time in question
violated plaintiffs' constitutional rights. Defendant police officers claim that they were acting
in good faith and with probable cause and that their actions were reasonable. Defendant
police officers further claim that they were not guilty of any fault or wrongdoing in regard
to the incident sued upon.

35

Generally

The federal civil rights act under which Plaintiffs bring this suit was enacted by
Congress to enforce the Fourteenth Amendment to the United States Constitution. The
Fourteenth Amendment to the Constitution provides that:
No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
matter of law, under the Constitution of the United States every citizen has the
iberty, that is, the right not to be arrested without probable cause. Additionally,
Ith Amendment's Due Process clause gives all citizens the right to a fair trial.
ses, this right includes the right to be furnished with material exculpatory
~

1hands of the prosecution or police.

Section 1983, the federal civil rights statute under which plaintiffs sue, provides that
a person may seek relief in this court by way of damages against any person or persons
who, under color of any state law or custom, subjects such person to the deprivation of any
rights, privileges, or immunities secured or protected by the Constitution or laws of the
United States.

36

Plaintiff Kimberly Sykes' Claims Generally

In order to prove her claims, the burden is upon Plaintiff Kimberly Sykes to establish
by a preponderance of the evidence each of the following elements:
First:

That Defendant police officers performed acts that operated to
deprive plaintiff Kimberly Sykes of one or more of her federal
Constitutional rights, as defined and explained in these
instructions, by arresting or seizing Plaintiff Kimberly Sykes
without probable cause, or causing or continuing a malicious
prosecution against her, or depriving her of the Constitutional
right not to be denied due process of law;

Second:

That Defendant police officers then and there acted under the
color of state law; and

Third:

That Defendant police officers' acts were a proximate cause of
damages sustained by Plaintiff Kimberly Sykes.

Because Defendants were acting as officials of the City of Detroit at the time of the
acts in question, Defendants were acting under color of state law. In other words, the
second requirement is satisfied.

37

Plaintiff Tevya Urquhart's Claims Generally

In order to prove her claims, the burden is upon Plaintiff Tevya Urquhart to establish
by a preponderance of the evidence each of the following elements:
First:

That defendant police officers performed acts that operated to
deprive plaintiff Tevya Urquhart of one or more of her federal
Constitutional rights, as defined and explained in these
instructions, by causing or continuing a malicious prosecution
aqalnst Plaintiff Tevya Urquhart or depriving her of the
Constitutional right not to be denied due process of law;

Second:

That Defendant police officers then and there acted under the
color of state law; and

Third:

That Defendant police officers' acts were a proximate cause of
damages sustained by Plaintiff Tevya Urquhart.

Because Defendants were acting as officials of the City of Detroit at the time of the
acts in question, Defendants were acting under color of state law. In other words, the
second requirement is satisfied.

38

Civil Rights Act- No Specific Intent Required

Intent is not an element of Plaintiffs' case. Plaintiffs need not show that Defendants
intended to deprive them of their rights. The fact that Defendants had no

s",~_:.t",-

or purpose to deprive Plaintiffs of their civil rights will not absolve Defendants
if they did in fact deprive Plaintiffs of those rights.

39

.

Violation of Internal Policy

The mere fact that a police officer may have violated the police department's internal
policies does not by itself establish a constitutional violation sufficient to establish recovery
under the federal civil rights act under which Plaintiffs bring this suit.

40

Unlawful Seizure

I will now instruct you on Kimberly Sykes' unlawful seizure claim, which arises under
the Fourth Amendment. Kimberly Sykes alone has presented a claim for unlawful seizure.
Tevya Urquhart has not presented a claim for unlawful seizure.
This claim lies only against Defendant Derrick Anderson. This claim does not lie
(M{"o\Yf\

against Defendant-Garol Nichols or against Defendant Maurice McClure.

41

Fourth Amendment

The Fourth Amendment to the United States Constitution states that "the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue but upon
probable cause ... and particularly describing the place to be searched, and the persons
or things to be seized." An individual who has suffered an unreasonable search or seizure
has suffered a violation of his constitutional rights as guaranteed by the United States
Constitution.

42

Unlawful Seizure

Plaintiff Kimberly Sykes claims to have been unlawfully seized. An arrest is a
seizure under the Fourth Amendment. The United States Constitution provides that no
person may be arrested without due process of law. This means that a person may not be
arrested without probable cause for such an arrest. A police officer must have information
that would lead a reasonable person possessing the same official expertise as the officer
to conclude that the person being arrested committed or is about to commit a crime.
Before you can determine whether Plaintiff Kimberly Sykes was deprived by the
defendant police officers of a liberty "without due process of law," you must determine from
a preponderance of the evidence in the case:
First:

Whether defendant police officers committed the acts alleged;
and if so,

Second:

Whether defendant police officers acted under circumstances
within or without the bounds of their lawful authority under
state law.

If defendant police officers acted within the limits of their lawful authority under state
law, then defendant police officers could not have deprived Plaintiff Kimberly Sykes of any
right "without due process of law."
Under the law of the State of Michigan, police officers may arrest a person upon
issuance of an arrest warrant.

Probable cause exists if the facts and circumstances

known to the officer at the time and of which the officer had reasonable, trustworthy
information are sufficient for a prudent person (meaning a person who is careful and

43

sensible) to believe that the suspect has committed a crime.

An individual's mere

presence at a crime scene does not constitute probable cause for an arrest.
In determining whether defendant police officers had reasonable grounds to believe
that a person has committed an offense, the facts known to defendant police officers need
not meet the standard of conclusiveness upon which a conviction must be based. Rather,
the actions of defendant police officers in making a warrant request are to be measured
by the test of what a reasonable person would have believed under the same
circumstances.

44

Unlawful Seizure· Warrant Request

In this case, Kimberly Sykes claims that her Fourth Amendment Right to be free from
an arrest without probable cause was violated. Defendants claim that the seizure of Ms.
Sykes was lawful because it was done pursuant to an arrest warrant. An arrest is lawful if
the Defendants did not act in bad faith when they made the arrest pursuant to a warrant
naming Kimberly Sykes. This is because it is a complete defense to an action for unlawful
seizure under the Fourth Amendment that the prosecutor approving the warrant exercised
independent discretion to initiate the case.
However, Defendants are not entitled to this defense if they obtained an invalid
warrant by making, in the warrant request, material false statements either knowingly or
in reckless disregard for the truth, or by omitting material exculpatory information with the
intent to mislead.
Police officers cannot in good faith rely upon a prosecutor's decision to issue
the warrant when that determination was premised upon the officer's own material
misrepresentations.
To prevail on this claim, Kimberly Sykes has the burden of proving each of the
following:
1. That in the warrant request, Defendants made a false statement or
omitted exculpatory information;
2. That the false statement was made knowingly and intentionally or with
reckless disregard for the truth, or that exculpatory information was omitted
with an intention to mislead; and
3. That if the false statement were set to one side and if the omitted
exculpatory information were included, the content in the warrant request
45

would be insufficient to establish probable cause.

46

Malicious Prosecution

I will now instruct you on Plaintiffs' malicious prosecution claims. Both Plaintiffs have
presented a claim for malicious prosecution.
Plaintiffs' malicious prosecution claims lie against Defendant Derrick Anderson and
against Defendant Carol Nichols. Plaintiffs' malicious prosecution claims do not lie against
Defendant Maurice McClure.

47

Malicious Prosecution

Plaintiffs claim that they were maliciously prosecuted by Defendants for the offenses
of Larceny by Conversion and False Report of a Felony. In order to prove this claim, the
burden is upon Plaintiffs to establish by a preponderance of the evidence each of the
following propositions:
First, that a criminal proceeding was commenced against Plaintiffs;
Second, that Defendants commenced or continued the criminal proceeding
against Plaintiffs;
Third, that the criminal proceeding ended in favor of Plaintiffs;
Fourth, that the criminal proceeding was commenced or continued by
Defendants without probable cause;
Fifth, that Defendants acted with malice; and
Sixth, that Plaintiffs were damaged by the criminal proceeding.
In this case, the first three elements have been met. Therefore, you only need to
determine whether Plaintiffs have established by a preponderance of the evidence the
fourth, fifth, and sixth elements.

48

Fourth Element of Malicious Prosecution Claim

Plaintiffs may establish the fourth element of a malicious prosecution claim, that the
criminal proceeding was commenced or continued by Defendants without probable cause,
by proving by a preponderance of the evidence:
1. That at the preliminary hearing, Defendants stated a deliberate falsehood
or showed a reckless disregard for the truth; and
2. That if the false statement were set to one side, the remaining content
presented at the preliminary hearing was insufficient to establish probable
cause.

Plaintiffs also may establish the fourth element of a malicious prosecution claim by
proving by a preponderance of the evidence:
1. That in the warrant request, Defendants made a false statement or
omitted exculpatory information;
2. That the false statement was made knowingly and intentionally or with
reckless disregard for the truth, or that exculpatory information was omitted
with an intention to mislead; and
~ Y\-h> nv'\ 11\ h.'b"\

3. That if the false -sffitameAt. were set to one side and if the omitted
exculpatory information were included, the content in the warrant request
would be insufficient to establish probable cause.

49

Probable Cause for Prosecution

To constitute probable cause forthe prosecution of a criminal action against Plaintiffs
in this case, the evidence must establish that the facts and circumstances known to
Defendants at the time and of which Defendants had reasonable, trustworthy information
are sufficient for a prudent person (meaning a person who is careful and sensible) to
believe that Plaintiffs had committed the crimes for which they were charged.
If you find from all the evidence that the foregoing facts are true, you must find that
there was probable cause for the prosecution of the criminal action against Plaintiffs.
If you find that such facts are not true, you must find that there was not probable
cause for the prosecution of the criminal action against Plaintiffs.

50

Due Process of Law

I will now instruct you on Plaintiffs' claims that they were denied due process of law.
Both Plaintiffs have presented this claim.
Plaintiffs' due process claims lie against Defendant Derrick Anderson and against
Defendant Maurice McClure. Plaintiffs' due process claims do not lie against Defendant
Carol Nichols.

51

Due Process of Law - Fourteenth Amendment

Plaintiffs claim that they were denied their constitutional right to due process under
the Fourteenth Amendment. To prevail on this claim, Plaintiffs must prove each of the
following elements by a preponderance of the evidence:
First, that Defendants knowingly withheld exculpatory evidence in Plaintiffs'
criminal trial;
Second, that there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different;
Third, that the injuries claimed by Plaintiffs were proximately caused by
Defendants' conduct; and
Fourth, that Defendants were acting under color of state law.
Because Defendants were acting as officials of the City of Detroit at the time of the
acts in question, Defendants were acting under color of state law. In other words, the fourth
requirement is satisfied.

52

Absolute Immunity for Perjured Testimony

Witnesses are granted absolute immunity from suit for all testimony provided in
judicial proceedings. Thus, even if you find that Defendant Anderson provided false
testimony in Plaintiffs' criminal trial, Defendant Anderson may not be held liable on the
basis of that testimony.
Rather, the claim against him for a violation of the due process clause relates to
Plaintiffs' allegation that he withheld material exculpatory evidence.

53

Damages

I will now instruct you on damages.

(

,

','

54

,
i

Defendants Take Plaintiffs as They Find Them

Defendants take the Plaintiffs as they find them. If you find that the Plaintiffs were
unusually susceptible to injury, that fact will not relieve the Defendants from liability for any
and all damages resulting to Plaintiffs as a proximate result of Defendants' conduct.

55

Measure of Damages

If you decide that Plaintiffs are entitled to damages it is your duty to determine
the amount of money which reasonably, fairly and adequately compensates them for
each of the elements of damage which you decide has resulted from the conduct of
Defendants, taking into account the nature and extent of the injury.
You should include each of the following elements of damage which you decide
has been sustained by Plaintiff to the present time:
1. Pain and suffering;
2. Reasonable expenses of necessary medical care, treatment, and services;
3. Mental distress and mental anguish;
4. Fright and shock;

r
-

5. Indignation, aggravation, or outrage;
6. Shame;
7. Embarrassment or humiliation;
8. Loss of liberty and actual imprisonment;
9. Reasonable expenses of the legal representation at criminal trial and
appeal;
10. Loss of income, lost wages.
You should also include each of the following elements of damage which you
decide Plaintiffs are reasonably certain to sustain in the future:
11. Pain and suffering;
12. Reasonable expenses of nec ssary medical care, treatment, and
services;
56

,

13. Mental distress and mental anguish;
14. Fright and shock;
15. Indignation, aggravation, or outrage;
16. Shame;
17. Embarrassment or humiliation;
18. Loss of income, lost wages.
If any element of damage is of a continuing nature you shall decide how long it
may continue. If an element of damage is permanent in nature, then you shall decide
how long Plaintiffs are likely to live.
Which, if any, of these elements of damage has been proved, is for you to decide
based upon evidence and not upon speculation, guess or conjecture. The amount of
money to be awarded for certain of these elements of damage cannot be proved in a
precise dollar amount. The law leaves such amount to your sound judgment. Your
verdict for these damages must be solely to compensate Plaintiffs for t~
and not to punish Defendant.

57

Punitive Damages

In addition to the damages mentioned in other instructions, the law permits you
under certain circumstances to award Plaintiff punitive damages in order to punish the
Defendant for some extraordinary misconduct and to serve as an example or warning
to others not to engage in similar conduct.
If you find in favor of Plaintiff and against a Defendant, and if you find the
conduct of that Defendant was recklessly or callously indifferent to Plaintiffs
constitutional rights, then in addition to any other damages which you find Plaintiff is
entitled, you may award Plaintiff an additional amount as punitive damages, if you find
it appropriate to punish the Defendant or deter the Defendant and others from similar
conduct in the future. Whether to award either Plaintiff punitive damages, and the
amount of those damages, are within your sound discretion.
You may access punitive damages against any or all Defendant police officers,
or you may refuse to impose punitive damages. If punitive damages are accessed
against more than one Defendant, the amounts accessed against such Defendants may
be the same or they may be different.

58

Present Worth of Future Loss

If you should find that Plaintiffs are entitled to a verdict, and further find that the
evidence in the case establishes either: 1) a reasonable likelihood of future medical
expenses, or 2) a reasonable likelihood of loss of future earnings, then it becomes the duty
of the jury to ascertain the present worth in dollars of such future damage, since the award
of future damages necessarily requires that payment be made now for a jgSthat will not
(oS~
actually be sustained until some future date.
Under these circumstances, the result is that Plaintiffs will in effect be reimbursed in
advance of the loss, and so will have the use of money that Plaintiffs would not have
received until some future date but for the verdict.
In order to make a reasonable adjustment for the present use, interest free, of money
representing a lump-sum payment of anticipated future loss, the law requires you to
discount, or reduce to its present worth, the amount of the anticipated future loss, by taking
1) the interest rate or return that Plaintiffs could reasonably be expected to receive on an
investment of the lump-sum payment, together with 2) the period of time over which the
future loss is reasonably certain to be sustained.
Then reduce, or in effect deduct from, the total amount of anticipated future loss
whatever that amount would be reasonably certain to earn or return if invested at such rate
of interest over such future period of time. Include in the verdict an award for only the
present-worth -- the reduced amount -- of anticipated future loss.
Bear in mind that your duty to discount to present value applies to loss of future

59

earnings or future medical expenses only. If you find that Plaintiffs are entitled to damages
forfuture pain and suffering or future mental anguish, then such award is not subject to any
reduction for the present use of such money.

(-

60

Effect of Inflation on Future Damages

If you decide that Plaintiffs will sustain damages in the future, you may consider the
effect of inflation in determining the damages to be awarded for future losses.

61

Mitigation of Damages

If you find each Plaintiff was injured as a result of conduct by Defendant police
officers in violation of Section 1983, you must determine whether each Plaintiff could have
done something to lessen the harm suffered. Defendant police officers have the burden
to prove by a preponderance of the evidence that each Plaintiff could have lessened or
reduced the harm done to each plaintiff and each Plaintiff failed to do so.
If Defendant police officers establish by a preponderance of the evidence that each
Plaintiff could have reduced the harm done to plaintiff but failed to do so, each Plaintiff is
entitled only to damages sufficient to compensate for the injury that each Plaintiff would
have suffered had Plaintiff taken appropriate action to reduce the harm.

62

Avoidance of Double Recovery

If you find Defendant police officers violated more than one of Plaintiffs's rights, each
Plaintiff is entitled to be compensated only for the injuries each Plaintiff actually suffered.
Thus, ifthe Defendant police officers violated more than one of each Plaintiffs rights,
but the resulting injury was no greater than it would have been had Defendant police
officers violated one of those rights, you should award an amount of compensatory
damages no greater than you would award if Defendant police officers had violated only
one of each Plaintiffs rights.
However, if Defendant police officers violated more than one each Plaintiffs rights
and you can identify separate injuries resulting from the separate violations, you should
award an amount of compensatory damages equal to the total of the damages you believe
will fairly and

jus~~ompensate each Plaintiff

suffered.

63

for the separate injuries each Plaintiff has

Deliberations

The following instructions concern the manner of your deliberations.

64

Election of Foreperson •• General Verdict

Upon retiring to the jury room, you will select one of your number to act as your
foreperson.

The foreperson will preside over your deliberations and will be your

spokesperson here in court.
Forms of verdict have been prepared for your convenience.
[Form of verdict read.]
You will take this form to the jury room and, when you have reached unanimous
agreement as to your verdict, you will have your foreperson fill in, date, and sign the form
which sets forth the verdict upon which you unanimously agree; and then return with your
verdict to the courtroom.

65

Verdict - Unanimous - Duty to Deliberate

The verdict must represent the considered judgment of each juror. In order to return
a verdict, it is necessary that each juror agree. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another, and to deliberate with a view to
reaching an agreement, if you can do so without violence to individual judgment. You must
each decide the case for yourself, but only after an impartial consideration of the evidence
in the case with your fellow jurors. In the course of your deliberations, do not hesitate to
reexamine your own views, and change your opinion, if convinced it is erroneous. But do
not surrender your honest conviction as to the weight or effect of evidence, solely because
of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
Remember at all times that you are not partisans. You are judges -- judges of the
facts. Your sole interest is to seek the truth from the evidence in this case.

66

,

,

Communications Between Court and Jury
During Jury's Deliberations

If it becomes necessary during your deliberations to communicate with the Court, you
may send a note, signed by the foreperson, by way of one of the Court staff members.
When you reach an agreement as to the verdict, you should send a note to the staff,
signed by the foreperson, on which you shall state only that a verdict has been reached.

67

Verdict Forms -- Jury's Responsibility

It is proper to add the caution that nothing said in these instructions and nothing in
any form of verdict prepared for your convenience is meant to suggest or convey in any
way or manner any intimation as to what verdict I think you should find. What the verdict
shall be is the sole and exclusive duty and responsibility of the jury.

68

,

'"

I

"

Jury Instructions

I will give you a copy of these instructions for your use while deliberating, It is
available to each of you, If you have questions about the law or your duties as jurors, you
should consult the copy of the instructions as given to you.
I am also sending in all of the exhibits with you for your use while deliberating.

69

.\

Verdict

A verdict form is attached to these instructions. You will take this form to the jury
room and when you have reached agreement as to the answers, in accordance with these
instructions, you will have your foreperson fill in the date and sign the form. You will then
notify the Court's staff that you have reached a verdict, and bring the verdict form with you
upon your return to the Court.
I will now explain the verdict form to you.

70

CHAPTER 5

Ensuring Rights for All:
Realizing Human Rights
for Prisoners *
Deborah LaBelle

W

hen photographs depicted American soldiers, in the spring of 2004,
degrading and torturing Iraqi citizens in the Abu Ghraib prison in Iraq, the
actions garnered worldwide condemnation as human rights abuses. However, attempts by criminal justice advocates in the United States to parley this
condemnation into recognition of the existence of human rights violations in
prisons in the United States were largely unsuccessful. Despite the commonality of the abuse of prisoners in Iraq by American personnel—a number of
whom had employment histories in U.S. prisons—with the abuse taking place
in American prisons, the latter abuse has occasioned little censure, leading
prisoners’ rights advocates to decry the lack of recognition of human rights
violations committed against American prisoners held in prisons and jails in
the United States.
While reports of abuses in the United States have failed to elicit expressions of official outrage and disgust, Secretary of Defense Donald Rumsfeld
responded to photographs revealing naked Iraqi prisoners shackled or
hooded, with smiling American staff looking on, by characterizing the treatment as “fundamentally un-American,” “blatantly sadistic, cruel and inhumane.” Longtime advocate for humane treatment of prisoners and director
of the American Civil Liberties Union National Prison Project Elizabeth L.
Alexander pointed out to the media, in response to the disclosure of abuse
of prisoners in Iraq, that, “Beating prisoners, sexually abusing prisoners all
of those things go on in American prisons.” In contrast to the official response that abuse of Iraqi prisoners constituted human rights abuses, the
official response to allegations of similar abuse in state prisons in Michigan,
*Reprinted with the permission of the Greenwood Publishing Group

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was to focus on the status of prisoners as warranting less humane treatment,
asserting that:
They [prisoners] should have thought before they robbed, raped, and killed
people. I mean, that’s what these prisoners have done. These aren’t people who
have human identity. They are prisoners . . . they have committed sins, cardinal
sins, original sins, against Michigan’s citizens.1

How is it that the mistreatment of prisoners who had officially been labeled
as “enemy combatants” and “terrorists” was recognized as a human rights
violation while the very concept of human rights for incarcerated American
citizens has been routinely rejected based on their lesser status as prisoners?
By focusing on the status of the victim, and not on an objective standard
of humane treatment, prison officials in the United States are all too often
able to avoid adherence to a standard of care that is not mutable based on
circumstances or the object of the abuse. In contrast, international human
rights documents provide standards based on the nondefeasible humanness
of the object of the challenged treatment. Despite the alleged “sins” of the
prisoner, human rights treaties maintain the recognition of the individual as
a human being entitled to basic dignity and rights accorded to all individuals
based solely on their humanity.
Treatment of prisoners in the United States, in contrast, has always been
diminished by the construct that in addition to losing civil and political rights
occasioned by violating laws, those detained in jails and prisons, are reduced
to a lesser human status. Having violated the social contract, they are regarded
as diminished beings, not entitled to the rights that are accorded good citizens.
The common official terms used are “inmate,” “offender,” “prisoner,” or
“criminal,” never the designation of “incarcerated citizen” routinely used by
the Canadian courts, for example, when analyzing claims of rights violations
in Canadian prisons
Over 2 million people are held in prisons, jails, and detention facilities in
the United States, and the last decade saw the prison population more than
double. Many states’ budgets for operating prisons, jails, and parole supervision systems now outstrip all but the general fund, and well exceed budgets
for education and health services. The rising costs are a reflection of rising
numbers of people detained for longer periods of time, not an increase in
expenditures for humane treatment. Without a human rights framework creating a baseline for humane treatment, the increasing numbers of people who
are incarcerated are at the mercy of the changing social doctrines on the origins of crimes and resultant manner of punishment, protected only by equally
varying judicial interpretations of what constitutes the baseline for prohibited
unusual cruelty.
The absence of applicable human rights doctrines also endangers the humanity of those who operate the prisons and jails, a growing workforce in the
United States. Human rights doctrines contain the inherent recognition that
a failure to recognize the humanness of the object ultimately degrades the
humanity of those in control. As the military personnel captured on film in
the Abu Ghraib prison in Iraq were ultimately viewed as having degraded

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themselves and brought shame on the United States, abuses in United States’
prisons demean the officers perpetrating the abuse. The impact of the abuse
extends beyond the object to alter the lives of staff, prisoners’ families, the
system, and our own humanity. The oft quoted reminder by Dostoyevsky
that, “the degree of civilization in a society can be judged by entering its
prisons” encompasses both a recognition of the duality of human rights and
a warning of the cost of ignoring its application to those regarded as least
entitled to its shield.
The example of Abu Ghraib evidences that, while abuses in the United
States are not commonly viewed through the lens of human rights obligations, nor has the language of human rights settled into our domestic justice
lexicon, advocates have begun to recognize this duality and the value of demanding transparency and adherence to international norms. This chapter
explores both the import of realizing human rights as the framework for ensuring humane treatment of prisoners in the United States and analyzes the
impact this strategy has had when used to address the mistreatment of women
prisoners and juveniles incarcerated in this country’s prisons and jails.

PRISONERS’ RIGHTS ADVOCACY IN
THE UNITED STATES
Penitentiaries came into broad use in this country in the 1820s, with a goal
of rehabilitation. Criminal activity was generally believed to be a result of a
failure of upbringing or social influences. As crime increased through the
nineteenth century, empathy waned and punishment replaced rehabilitation.
Both the length of confinement and the harshness of conditions increased
unabated as statutes enacted during the nineteenth century divested prisoners of civil and political rights on the theory that they ceased to exist as legal
persons after their conviction. These “civil death” statutes prohibited persons
convicted of a felony from bringing any civil action and prevented challenges
to the conditions of their confinement or treatment while incarcerated.2 Civil
death statutes had a long reign, lapsing into desuetude a hundred years later
with the concurrent rise of the prisoners’ rights movement. Described by
then as “archaic remnant(s) of an era which viewed inmates as being stripped
of their constitutional rights at the prison gate,”3 the elimination of the civil
death statute and the rise of the prisoner’s rights movement in the 1960s
paved the way for prisoners acting as “jailhouse lawyers” and civil rights lawyers to address mistreatment in U.S. prisons through litigation alleging violations of the Constitution.

The Rise of the Prisoners’ Rights Movement: 1960s–1980s
While most grassroots movements face organizational difficulties, building
a prisoners’ rights movement involved the additional difficulties of a community both disenfranchised and incarcerated. Prisoners’ inability to communicate freely with each other and restrictions on their communications with the
outside world made organization and movement building extremely difficult.

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Challenges to these restrictions were consistently rejected by the courts, which
upheld prison rules prohibiting prisoner unions, limiting meetings and petitions by prisoners, and restricting visitation with the outside world.4 Throughout the early years of the movement, lawyers, who alone (with the exception
of clergy) had ready access to prisoners, became major contributors to the
movement and the call for humane treatment of prisoners.
Prisoners and their families worked with organizations such as the American
Friends Service Committee (which included prisoners in its Quaker mission
since its founding in 1917) and established CURE (Citizens United for
Rehabilitation of Errants) in 1972. However, the revolution in prisoners’
rights in the United States beginning in the 1960s through 1980s has traditionally been linked to a rising assertiveness of prisoners, particularly the black
Muslims, and the development of the civil rights lawyer.5 Prisoners and lawyers alike were influenced by the civil rights movement occurring in the free
world, and the federal courts were becoming responsive to lawyer-assisted
prisoner petitions, raising issues as diverse as freedom to practice religion in
prison to freedom from corporal punishment. Prisoners, most notably with
the riots at the Attica State Prison in New York in 1971, called attention to
their abysmal treatment, which included long-term isolation in dungeon-like
holes, beatings, inadequate food, racial discrimination, and rampant violence.
Government legal services funding and private foundation money made it
possible for lawyers to make expensive and time consuming legal challenges
to violation of the rights of economically and socially marginalized persons.
Armed with such funding, lawyers were able to go to court to argue the
constitutional rights of prisoners.
Early legal victories by lawyers challenging conditions of confinement of
prisoners were brought under the Federal Civil Rights Act, which enabled
prisoners to sue for violations of their constitutional right to be free from
cruel and unusual punishment under the Eighth Amendment. These victories paved the way for judicial intervention in the isolated and secretive prisons and jails of the United States, which had been operating with little oversight and less restraint. One of the early victories, brought initially by jailhouse
lawyers on behalf of prisoners in Arkansas and fought by court-appointed
counsel, concerned the constitutionality of the whip. While formal, authorized
corporal punishment, as a response to minor prison infractions, had been on
the wane in the 1960s, whippings still remained the primary ad hoc disciplinary tool in prisons where few privileges existed to take away and solitary
confinement space was limited. In the 1968 case Jackson v. Bishop, a panel of
three federal court judges held that use of routine whippings as a method of
controlling prisoners violated the Eighth Amendment ban on cruel and unusual punishment.6 The panel found the imposition of uncontrolled whippings to the bare skin of prisoners with a five-foot strap was inhumane and
barbarous. The court rejected the claim that the punishment was necessary
for discipline, noting that, “Corporal punishment generates hate toward the
keepers who punish and toward the system which permits it. It is degrading
to the punisher and to the punished alike.”
The next ten years saw a series of legal challenges to the mode of punishment, mistreatment, and restrictions on the rights of prisoners reach the

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United States Supreme Court. In 1978, the Supreme Court returned to the
conditions of prisoners in Arkansas in Hutto v. Finney.7 Prisoners who had
been successful, ten years earlier, in ending the official use of electric shocks
and physical beatings as methods of discipline and punishment now challenged their incarceration in eight-by-ten-foot windowless cells for indeterminate periods of time as violative of the Eighth Amendment’s proscription
against cruel and unusual punishment. Prisoners were successful in arguing
that the Eighth Amendment prevents more than physically barbarous punishment. The Supreme Court found that the Eighth Amendment prohibits
penalties that are grossly disproportionate to the offense, as well as those that
transgress broad and idealistic concepts of dignity, civilized standards, humanity, and decency. Depending on the infraction, the length of time prisoners were kept in a hole and the conditions under which they were maintained,
nonphysical punishment could contravene the Eighth Amendment’s proscription against cruel and unusual punishment.
The Hutto case followed a series of decisions which recognized that while
imprisonment necessarily made unavailable many rights and privileges of the
ordinary citizen, a prisoner is not wholly stripped of constitutional protections
when he is imprisoned for a crime and edged toward an understanding that
prisoners were entitled to be treated in a nondegrading manner. In a talisman
phrase, the Supreme Court in the 1974 case Wolff v. McDonnell opined that,
“though his rights may be diminished by the needs and exigencies of the institutional environment, there is no iron curtain drawn between the Constitution
and the prisons of this country.”8 In a series of cases from the late 1960s through
the mid-1970s, the Supreme Court expanded prisoners’ rights, recognizing
prisoners’ religious freedom, the right to access to the courts, and protection
from invidious race discrimination. Prisoners were also advised they could
claim the protections of the due process clause in circumstances depriving them
of life, liberty, or property and could not be denied basic medical care.9
The general principle that prisoners do not forfeit all of their rights under
the Constitution upon incarceration was now firmly established. But what
rights remained and how to balance the rights of prisoners with their status and
the needs of security remained to be carved out in a series of fact-dependant
cases. The Supreme Court held that a prisoner retains the right to marry and
some freedom of expression in the case of Turner v. Safely.10 The same year
the Court upheld a prisoner’s’ right to freedom of religion in O’Lone v. Estate
of Shabazz.11 However, both of these significant rulings were five-to-four
decisions, presaging the retrenchment of prisoners’ rights that was on the
horizon. Many states continued to operate systems that were blatantly racist,
with routine reports of beatings, rapes, and intolerable conditions of confinement. Before Supreme Court rulings issued in the 1970s and 1980s could
take force or become institutionalized policy, the judicial pendulum began to
swing the other way.

More Prisoners, Fewer Rights: 1990s Onward
Over the next ten years, just as the U.S. prison population began to soar,
the Supreme Court retreated from protecting prisoners’ rights. The Court

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introduced new legal concepts that undermined Eighth Amendment protections. It also expressed concern about overinvolvement of the federal judiciary in the operation of states’ prisons and showed increasing deference to
prison officials. At the same time, previously effective mechanisms for challenging mistreatment were severely restricted by federal legislation and conservative courts.
In the 1990s, Supreme Court prisoners’ rights cases largely deferred to
arguments that punishments were necessary to maintain a correctional facility. Institutions’ “penalogical objectives” of “security” and “order” became
relevant concerns for determining whether the punishment being challenged
was cruel or unusual. Taking their cue from the Supreme Court, many appellate courts overturned trial court remedial orders based on their lack of deference to prison authorities.12 The decisions raised the specter of inmate violence and concerns for public safety should prison officials be constrained in
the manner they operated prisons, including their ability to restrict prisoners’
rights and the manner in which noncorporal punishment was meted out.
Gone were the acknowledgments of the reality that cruel treatment begot
violence and forgotten was the cause of the violence at Attica prison. Instead,
it was opined that harsh treatment was necessary to prevent future violence.
The Supreme Court also failed to adhere to the Eighth Amendment as an
objective standard for humane treatment in a civilized society. Instead, a new
element crept into the analysis of whether punishment was cruel or unusual—
whether prison officials, in meting out the challenged punishment, had a
culpable state of mind. In the 1991 Supreme Court case Wilson v. Seiter,13
Justice Scalia held that treatment which could objectively be characterized as
abusive, inhumane, or degrading treatment would not violate the Constitution unless the punishment was implemented with a kind of knowingness—a
deliberate and wanton infliction of unnecessary pain.14 This opened the door
to justifying punishment that would otherwise rise to the level of torture or
other degrading treatment based on the motivations of the party inflicting
the punishment or necessities of correctional management. With an increasingly narrow interpretation of what constituted cruel and unusual punishment, prisoners had little left with which to tether their challenges of inhumane treatment.
With one notable exception in the 2002 case of a prisoner in Alabama who
challenged being handcuffed above his head to a hitching post in the sun
without water or breaks for seven hours at a time as punishment for a rule
infraction, following Wilson v. Seiter, the Supreme Court has found little to
chastize as punishment that violates the Eighth Amendment in U.S. prisons.
The hitching-post case also garnered a strong dissent, led by Justice Thomas
who opined that the legitimate penalogical purpose of encouraging compliance with prison rules took the punishment out of the constraints of the
Eighth Amendment. Justice Thomas’s extreme position also advocates for
restricting the Eighth Amendment’s proscription against cruel and unusual
punishment to the sentencing stage of the criminal justice process. He argues
that the Eighth Amendment’s protection is not applicable to claims of mistreatment or even torture during a prisoner’s incarceration. Instead, he argues that cruelty within the context of confinement is best addressed by a

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sort of capitalist system of human rights in which the states would naturally
be concerned about real torture in prisons that lacked any legitimate penalogical purpose and regulate themselves.
Just as the Supreme Court became increasingly tolerant of ill treatment of
prisoners, government funding for legal services declined overall, and prohibitions were placed on the remaining legal service organizations receiving federal funding that specifically forbade representation of prisoners or challenges
to the conditions of their confinement. Foundation funding for direct legal
challenges, never large, became increasingly hard to obtain. New federal statutes created barriers to both prisoners’ and lawyers’ ability to complain about
conditions in America’s prisons.
Edging back to the days of civil death, the conservative majority of the
Supreme Court, in decisions like Lewis v. Casey,15 limited the access of jailhouse lawyers to basic books and tools for litigation. In addition, the federal
Prison Litigation Reform Act (PLRA) was past in 1996 to restrict prisoners’
access to the courts to challenge their treatment. Contrary to its moniker, the
PLRA was more akin to the civil death statutes of 100 years prior than the
provision of reform. Its goal was to strictly limit prisoners’ ability to file federal
litigation challenging the conditions of their confinement, their sentencing,
and their treatment by setting up onerous preconditions for filing lawsuits,
dramatically limiting available remedies and judicial oversight, and creating
disincentives to lawyers representing prisoners. Many states followed the federal legislation to enact their own state laws restricting not just challenges to
conditions, but also challenges to sentences and denials of release, all the
while increasing the length and severity of punishments.
With the loss of the courts as fair arbitrators of mistreatment of prisoners,
many advocates began focusing on education, media, and legislative strategies,
while understanding that the usual corporate concerns of cost-value analysis
are often inapplicable where the issue involves both fears surrounding public
safety and the rise of the prison industrial complex, which provided its own
impetus for continued prison buildups and resistance to outside oversight.
Simultaneously, the rehabilitation corrections mode of the 1980s, which
touted the use of vocational training and educational programs to rehabilitate
prisoners, faded with the increasing numbers and costs of incarceration. It
was replaced with the increased use of cold storage, super maximum facilities,
and increased isolation from the outside world. Prisons in the United States
had become a multibillion dollar industry. In 2006, the budget for state corrections facilities exceeded $50 billion per annum. It was this confluence of
factors that created fertile ground for developing a human rights analysis to
challenging inhumane treatment in U.S. prisons and jails.

Human Rights Response
International human rights documents and treaties establish basic principles for the treatment of individuals and encompass those incarcerated in
prisons, jails, and detention centers around the world. The Universal Declaration of Human Rights and the American Declaration of the Rights and
Duties of Man (1948); the UN Standard Minimum Rules for the Treatment

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of Prisoners (1957); the International Covenant on Civil and Political Rights
(ICCPR) (1976); and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Convention Against
Torture) (1987) are the most frequently cited documents in human rights
reports concerning the treatment of individuals in detention.
However, prior to the 1990s, those documentation reports, created by
international human rights organizations, rarely included the United States
in their worldwide investigations of prison conditions. Either as a consequence
or perhaps as the rationale for their exclusion, international treaties and documents played little part in the advocacy in the United States for prisoners’
rights, which was waged, largely, by attorneys and jailhouse lawyers.
In 1987, however, Human Rights Watch (HRW) began a project which
enlisted several of its divisions in the investigation and documentation of the
treatment of prisoners with the goal of issuing a global report. In 1991,
HRW issued a breakout report titled Prison Conditions in the United States
with the worldwide report, Human Rights Watch Global Report on Prisons,
issued two years later. Similarly, Amnesty International began turning its attention to conditions in U.S. prisons in its investigation of compliance with
international documents in the prison context.
In 1993 when the United States underwent its first UN compliance review
following U.S. ratification of the ICCPR, another opportunity emerged to
use human rights standards to examine U.S. prison conditions. HRW, and
the traditionally American civil rights organization, the American Civil Liberties Union (ACLU), worked together to issue a report on U.S. compliance
with the ICCPR, urging enforcement of the ICCPR’s provisions with regard
to prison conditions in United States courts. The report relied heavily upon
federal judicial rulings, which had found many of the abuses also violated
U.S. constitutional norms, undermining the report’s assertion of the need for
enforcement of the ICCPR. However, the report’s concern with the federal
court’s tendency to diminish protections of prisoners based on their crimes
and its call for recognition of a guarantee of humane treatment irrespective of
the prisoner’s crime, presaged the events of the next decade which heightened
the need for a human rights framework to address abuse in United States’
prisons.
The report contributed to a broader ongoing dialogue on the need to
scrutinize the United States’s compliance with international norms and address “U.S. exceptionalism” with particular emphasis on an area with diminishing protections under domestic constitutional instruments. The focus on
criminal justice issues—with its emphasis on torture, and racial and gender
discrimination of those in detention—provided a strong argument for the
relevancy of human rights documents, which specifically set minimum standards for many of these issues. The report ushered in a series of reports in the
late 1990s by Amnesty International and HRW on a number of prisoners’
rights issues, including custodial sexual abuse of women prisoners in American
prisons: All Too Familiar (1996), No Where to Hide (1998), and Not Part of
My Sentence (1999);16 the human rights violations against prisoners held in
SHU’s or super-maximum holding units examined in Cold Storage: Super Maximum (1997); and the violence endemic in men’s prisons, No Escape: Male

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Rape in U.S. Prisons (1998). Amnesty International addressed many of these
issues in its 1998 report, Rights for All.
These reports created new opportunities for human rights organizations
and activists to collaborate with U.S. litigators and criminal justice advocates
on specific cases in a way that had not occurred previously in the United
States, although consistent with collaborations in other countries. The documentation reports were a crucial vehicle for introducing advocates for prison
reform, prisoners and their attorneys to human rights organizations and individuals working on the international stage and introducing a human rights
language and framework to the issue. For prisoners and their counsel, who had
rarely strayed from attempts to enforce “prisoners’ rights” using U.S. laws that
specifically limited the concept of rights to the diminished status of a prisoner,
the introduction of international rights documents and the glimpse into
other countries’ systems provided a number of insights that were to be instrumental in integrating human rights documents into prison reform work.
By limiting themselves to the concept of “prisoners’ rights,” advocates in
the United States had in some manner accepted a diminished status and standard of rights. This construct had also infected the actions of corrections officials who, viewing prisoners as lesser beings deserving a different standard
of humane treatment, accorded prisoners a degraded treatment in direct proportion to prison administration’s conception of prisoners as lesser beings.
With larger numbers of prisoners serving longer time and with less opportunity to challenge either their treatment or their sentence, prisoners’ rights
advocates from the critical resistance movement to lawyers and grassroots
advocates began to recognize that a different approach was necessary. The
issues being impacted by incarceration could not be encompassed within any
one legal theory or expertise. Incarceration affected youths and educators,
who challenged the school-to-prison pipeline, the disparate impact on children of color, and the loss of education funding which was being usurped by
building and operating prisons; mental health professionals, prisoners, and
family members, who recognized that prisons were increasingly incarcerating
people who were mentally ill as opposed to providing treatment; and activists
working on women’s rights and violence against women, who viewed the
cycle of abuse and self-medication as leading to incarceration and more abuse.
Incarceration posed obvious issues of race discrimination in the administration of the criminal justice system and the perpetuation of discriminatory
treatment inside and social and economic justice issues, including the impact
that incarceration was having on poor people and immigrants in the system.
It also raised concerns with violence targeting gays, lesbians, and transgender
persons incarcerated in jails and prisons.
The common language and the umbrella available in which to have a dialogue for remedial relief existed not in domestic legal theories or case law, but
in human rights treaties. With the recognition that large swaths of American
citizens would spend some part of their life in a prison or jail cell, relying
solely on diminishing “prisoners’ rights law” to challenge inhumane treatment
was neither appropriate nor tenable. The laws and treaties establishing baseline standards applicable to all persons took on a heightened relevance. Both
the difficulties and value of utilizing a human rights framework for domestic

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challenges to the mistreatment of prisoners in the United States is explored
in the following two case studies involving the custodial abuse of women
prisoners in a state prison in Michigan and the sentencing of juveniles serving
life without possibility of parole sentences in American prisons.

HUMAN RIGHTS FOR WOMEN PRISONERS
IN THE UNITED STATES
In 1995, the Fourth World Conference on Women was held in Beijing,
and in April of that year, Felice Gaer of the U.S. delegation spoke the following words at the United Nations Conference on Human Rights: “Our task as
nations is clear; we must make our global human rights machinery expand
and adapt; we must shift from neglecting women’s issues, to mainstreaming
them; we must mobilize the will to stop the abuses facing women throughout the world, establish instruments of accountability and effective domestic
remedies.”
As the international community began focusing on the human rights of
women, domestic remedies for issues facing the rising population of women
prisoners in the United States were becoming progressively more difficult to
come by, and the number of women prisoners was skyrocketing. In 1980
there were 12,300 women in prisons in the United States. This number had
increased ten-fold, to 120,000, by the mid-1990s. By the year 2000, there
would be over 1 million women either behind bars or under the control of
the criminal justice system in the United States.
Groups with widely diverse interests began recognizing the toll on society
resulting from the increase in the incarceration of women, the vast majority
of whom were mothers and family caretakers. Incarceration of these women,
largely for nonviolent property and drug offenses, increased not only the corrections budget but impacted foster care and social services as their children
were placed in foster homes or agencies and chronically ill, disabled, or aged
family members sought replacement services for their caretakers. There was
also a growing awareness of the additional punishments inflicted on women
prisoners in the form of sexual and physical violence and the ripple effect the
resultant trauma had on their communities upon their release. Yet, there had
been neither widespread exposure of the abuse nor significant legal challenges to mistreatment of women prisoners.

Traditional Equal Protection Litigation
Previously, major prisoners’ rights litigation had focused on conditions for
men, who formed the majority of prisoners. Litigation on behalf of women
prisoners was limited to equal protection challenges to their denial of comparable educational and vocational training in prison and denial of gender-based
health care. Throughout the late 1970s and 1980s, rehabilitation and correctional opportunities for prisoners largely benefited male prisoners with the
provision of education, vocational training, and apprenticeships. Education
and skills training were provided based on the belief that rehabilitation of

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prisoners depended on their obtaining bona fide occupational skills and that
such skills would best serve them to reintegrate into society thus decreasing
recidivism.
This approach was not, however, applied equally to women prisoners
based, in part, on a different rationale accepted for women prisoners’ status
as convicted felons. Historical explanations for female lawbreakers as gender
aberrants lingered through the 1980s in the United States, and the belief that
criminal behavior by women could be traced to a failed femininity guided the
rehabilitation programs for women. While male prisoners were receiving skills
dedicated to economic redemption, women prisoners were being schooled in
home economics, parenting classes, and models of obedience to reclaim their
femininity.
The disparity in opportunity led a group of women prisoners in Michigan
to file the first class-action case on behalf of women prisoners. They argued
that their right to equal protection under the United States Constitution was
violated by the absence of similar rehabilitation opportunities as those being
provided to male prisoners. Their 1979 lawsuit, Glover v. Johnson,17 was successful, resulting in improved educational, vocational, and apprenticeship
training for women prisoners. However, it tied women prisoners’ future to
the treatment of male prisoners.
The problem with reliance on an equal protection model became evident
a few years later as programs for male prisoners were eliminated with the
decline of a rehabilitative corrections model in the United States. Because
their legal claim for rehabilitative programs was based on being treated the
same as men, after a few brief years of parity, women prisoners were once
again deprived of participation in any programming that would provide opportunity for rehabilitation. The legal strategy of using equal protection law
and addressing the problems with treatment of women prisoners through a
gender discrimination lens did not advance an independent model for the
treatment of prisoners based upon respect for their dignity and value as
human beings, concepts imbedded in human rights documents.
Moreover, some courts had taken aim at Glover v. Johnson, eroding its finding that women prisoners’ equal protection rights were violated when women
prisoners were provided inferior programming as compared to male prisoners. In Klinger v. Dept. of Corrections, upon review of an equal protection case
in which women prisoners in Nebraska challenged their denial of equal rehabilitation opportunities, the Eighth Circuit Court of Appeals approved the
existence of separate but unequal facilities for male and female prisoners,
reasoning that women prisoners were not similar situated to male prisoners
due to the different profile of women prisoners (being nonviolent) and their
lesser numbers.18 The court noted that women prisoners were generally single mothers with substance abuse histories, as compared to male prisoners
who were most often incarcerated for violent crimes and not the custodians
of children. The court used these gender differences as a basis to deny women
prisoners equal educational and program opportunities, rather than creating
a model of rehabilitative opportunity that addressed differences by enhancing
rehabilitative program choices. The court, after finding the male and female
prisoners to be different, rejected the women prisoners’ equal protection

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claims stating, “dissimilar treatment of dissimilarly situated persons does not
violate equal protection.” Basically, the court asserted that only if two people
were identical and did not receive equal treatment could you challenge the
lesser treatment of one individual. The ruling moved the analysis of constitutional based rights even further away from an inclusive model of human rights
and dignity for all. As a final deterrent to relying solely on the Constitution
as a basis for challenging inhumane treatment of women prisoners, the PLRA
wound its way through the U.S. Congress to be signed into law in April 1996,
further limiting prisoners’ access to the courts.
Just as the limitations of the equal protection model and prisoners’ rights
litigation were becoming evident, human rights standards appeared to provide some models for the minimum standards for treatment of prisoners and
also a new perspective on increasing concern with endemic custodial sexual
abuse in women’s prisons in the United States. In addition to protections in
the ICCPR, the Convention Against Torture, and the UN Standard Minimum
Rules for the Treatment of Prisoners, the UN Declaration on the Elimination
of Violence Against Women prohibited any “degrading treatment or punishment . . . and any gender based violence that results in or is likely to result in
physical, sexual or psychological harm or suffering to women, including threats
of such acts, coercion, or arbitrary deprivation of liberty, whether occurring
in public or private life,” providing a framework based on universal values,
which codified core values of human dignity and equality available to all individuals including prisoners. Human rights documents, based solely on one’s
status of as a human, provided a core set of entitlements that could not be
truncated based upon incarceration, gender, or the changing perception of
how to handle convicted felons in America.

Sexual Abuse of Women Prisoners
It was in this milieu that women prisoners in Michigan decided to file a
class-action lawsuit seeking relief from years of sexual assaults, rapes, sexual
harassment, and retaliation by male guards and staff employed by the Michigan Department of Corrections. In light of the impending implementation
of the federal PLRA, cases were filed both in federal court and in state court
under Michigan’s Civil Rights Act in March 1996, arguing that sexual harassment, degrading treatment, and rapes of women and girl prisoners by male
custodial staff in Michigan had become endemic. The complaints alleged
hundreds of incidents ranging from prurient viewing of women while naked,
routine groping of women’s breasts and genitalia under the guise of security
pat-down searches, the common and constant use of sexually degrading and
demeaning language, and penetrative rapes. The lawsuits challenged the
treatment under standard constitutional and civil rights frameworks and
sought traditional remedies of injunctive relief and damages. Capitalizing on
the recent domestic restrictions on the rights of those in detention, the state
argued that both lawsuits should be dismissed because the federal suit was
impermissible under the newly passed PLRA and the state civil rights act,
which protected “all persons,” should not be read to include prisoners. The
lawsuits seemed destined to make the same arguments and follow a similar

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trajectory as other women prisoners’ rights cases until human rights standards
and organizations began influencing advocacy around and within the lawsuit
itself.
When the Michigan lawsuits were filed, Human Rights Watch was in the
midst of conducting interviews in eleven state prisons for a report on the prevalence of sexual misconduct by male officers in authority over female prisoners. A year after the women prisoners filed suit, the United States Department of Justice joined the fray under its mandate to ensure the constitutional
treatment of institutionalized persons. Thus, three different groups—the
women prisoners themselves, the United States Department of Justice, and
Human Rights Watch—were all on the field at the same time, all utilizing
different frameworks from state to federal to international, to examine the
abusive treatment of women held in detention in Michigan prisons. All three
were to play central roles in the synthesis of the analysis and the resulting
remedies for women prisoners, which, in the end, relied heavily on international standards.
While both uninformed and dubious of the ultimate value of HRW’s
focus on violations of international standards and treaties that appeared unenforceable, the women prisoners and their lawyers cooperated with both
HRW and the DOJ by participating in interviews and responding to fact
finding requests. The DOJ attorneys were wary of HRW’s efforts because
they did not want to appear to concede the legal applicability of the international standards because the international treaties HRW relied upon either
had not been ratified by the United States or were ratified in a manner
that limited their enforceability in U.S. courts. They also viewed domestic
laws and statutes as adequate to ensure the humane treatment of the women
prisoners.
Attorneys for the women prisoners, who were struggling to obtain positive results under familiar state and federal civil rights statutes and constitutional law, were also skeptical of the value of international human rights law
in domestic courts. Historically, international human rights claims in U.S.
courts had been brought primarily by foreign nationals for harms suffered on
foreign soil, and there had been little development of international human
rights law based upon incidents that occurred in the United States against
domestic actors. In a climate where federal courts were increasingly unsympathetic to prisoners’ claims challenging conditions of confinement under
U.S. law, it seemed unlikely, at best, that the courts would be receptive to
challenges based on international laws, treaties, and standards that had heretofore not been enforced in the domestic context.19

Impact of HRW Report on the Litigation
Human Rights Watch concluded its interviews and research after two and
half years resulting in a documentation report released in December 2006
titled All Too Familiar: Sexual Abuse of Women Prisoners in United States Prisons. The report focused on five states including the state of Michigan. The
report found extensive sexual abuse being perpetrated against women prisoners
in U.S. state prisons. With regard to female prisoners in the Michigan system,

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the report found widespread abuse including rape, sexual harassment, forced
abortions, privacy violations, and retaliation, noting that:
In the course of committing such gross misconduct, male officers have not only
used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners, to compel
them to have sex or, in other cases, to reward them for having done so. . . . In
addition to engaging in sex with prisoners, male officers have used mandatory
pat frisks or room searches to grope women’s breasts, buttocks and vaginal
areas and to view them inappropriately while in a state of undress in the housing
or bathroom areas. Male correctional officers and staff have also engaged in
regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often
highly sexualized and excessively hostile.

The HRW report addressed the sexual abuse in Michigan as violations of
the ICCPR (ratified by the United States in 1993), the Convention Against
Torture (ratified in 1994), and the Convention on the Elimination of All
Forms of Discrimination Against Women (Women’s Rights Convention) and
made recommendations based on international standards, including that
searches of women prisoners be conducted only by female staff and male officers announce their presence before entering women’s housing units, toilet,
or shower areas. These recommendations were echoed in Amnesty International’s 1998 report Rights for All on human rights violations in the United
States.
The HRW report garnered significant national publicity but little local attention. However, its value to the litigation became readily apparent to the
women’s attorneys. Although, the report was not conceptualized with domestic litigation in mind (indeed Michigan was the only state under review in
which there was pending litigation), litigation with its judicial enforcement
mechanisms was the most effective way to implement the report’s remedial
recommendations.
At the beginning stages of the litigation, the report, compiled by an independent international organization after extensive interviews with women
prisoners and prison staff and documentation review, played an important
role in developing factual support for both the state and federal litigation.
The women’s attorneys used the detailed factual findings to inform the court
of the extent and range of abuses for purposes of demonstrating that there were
enough women harmed to justify class-action certification in the state case. The
validation of the complaint’s factual allegations by an independent organization diminished the state’s power to deny any problem and contributed to the
federal courts’ denial of the states’ motions to dismiss. The detailed report and
the media attention surrounding its release also made any dismissal of the suit
by the court, based upon the state’s mere denial, extremely unlikely.
In addition to providing factual support, the international standards referenced in the report also had a profound effect on the courts’ view and treatment of the case, both in terms of the applicable standards in the case and the
overall perception of the claim. While the complaints, at that time, contained
only allegations of violation of the state and federal constitutions and civil

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rights statutes, the HRW report raised the specter of violations of international treaties and standards. The federal judge was cognizant of the question
of whether the United States domestic laws would prove to provide equal
and sufficient protection of the rights of the women prisoners as those provided
in international treaties and guaranteed by the majority of “peer” nation states
such that the rights had reached the status of customary international law.
Counsel also pointed out that if necessary, plaintiffs would seek to amend the
complaint to add claims based on international law and that a number of the
women prisoners were foreign nationals who might have a greater entitlement to the protections of the international documents signed and ratified by
their nation states.
Federal and state judges are also, understandably, fiercely protective of the
state and federal constitutions they have sworn to uphold. They often believe
that the constitutions provide (or should provide) sufficient protections for
the rights of all individuals, including prisoners. Judges are also not immune
from the general American perception that we provide leadership and, until
recently, are the standard bearer of civil and human rights around the world.
To have an international human rights organization assert that the treatment
of women prisoners violates international norms and standards and hold these
violations up to the world, placed the domestic courts in a situation of either
disregarding the findings of the report, or interpreting the United States Constitution to provide an adequate mechanism for remedying these violations.
The attorneys, by attaching the HRW report to court pleadings, also introduced an entirely new perspective on the treatment of women prisoners
in Michigan. The report provided a glimpse of possible remedial measures
both through the recommendations and through the opportunity to view
best practices in other states and countries. Educating the court early on that
there were jurisdictions that did not have the level of abuse that existed
in Michigan’s women’s prisons significantly diminished corrections officials’
standard second line of defense to challenges to conditions of confinement.
After denying the problem, corrections officials often defend a challenged
condition as an unavoidable consequence of housing dangerous felons and
resisted remedial measures as incompatible with penalogical objectives and security concerns. Information that other countries and states have managed to
house their women prisoners without pervasive sexual abuse by male guards
allowed the court to disregard this defense without impermissibly failing to
give deference to the expertise of corrections management. As discussed
below, the information about international standards and practices also would
have a profound influence on the shaping of remedies in the case.
The HRW report, as introduced by the plaintiffs in the federal and state
litigation, also provided a more intangible but no less important benefit to the
domestic litigation. The perception by the courts that this was not just another prisoner case seeking damages but, rather, a case of international human
rights importance, had a lasting impact on both of the judges. The judges,
who had sentenced some of the very clients that were now before them seeking protection, relief, and damages, were provided a different lens through
which to view the women in the litigation, as well as the goals and potential
impact of their rulings beyond this case.

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The use of human rights as opposed to prisoners’ rights became more than
a semantic distinction in the case and began to inform the way participants
viewed the issues. It is easier to disregard the statements of, as the defendant
corrections department often refer to them (with a bit of redundancy), the
“convicted female felon,” the “prisoner inmate,” or the “felony offender”
than it is to disregard the human rights of an incarcerated woman. The language of humane treatment, degrading treatment of women, and human
rights began to be repeated by the media as the case progressed, adopted by
the women’s attorneys and ultimately echoed by the court.20
Outside of the courtroom, but no less important for the success of the litigation, the HRW report was distributed to the women prisoners and proved to
be an important organizing and solidifying tool for the class. The women saw
a concrete result from their willingness to disclose the details of their abuse
with an international agency that recognized them as humans entitled to be
treated with dignity and respect. The report lifted the veil of isolation and
despair that had descended upon a group of women who believed not only
that no one was listening but that, even if they were heard, no one would
care. It also introduced women to the existence of counterparts in other states,
lessening the self-blaming guilt that was a constant companion for many of
the women who had been raped by guards, and provided a new non-legalistic
language in which to assert their entitlement to nondegrading treatment and
basic human rights.

Continuing Human Rights Interventions
In 1998, two years after the litigation began and the HRW report, the
United Nations Commission on Human Rights appointed a special rapporteur, Radhika Coomaraswamy, to investigate the treatment of women prisoners in the United States as part of her mandate to investigate the causes
and consequences of violence against women. The reports of the international human rights organizations and the supporting documentation from
the litigation were largely responsible for this mission. The State Department
approved the visit and the special rapporteur prepared to visit Michigan’s
prisons along with six other states. However, on the eve of her visit, the
then-governor of Michigan, John Engler, revoked his agreement to allow her
to visit women prisoners and canceled her meetings with state representatives. The refusal was grounded in part on the governor’s assertion that
the United Nations both lacked authority and was being used as a tool of the
litigation.
Nevertheless, the special rapporteur journeyed to Michigan to meet with
lawyers, academics, former guards, and former prisoners. Despite the lack of
cooperation, the conditions in Michigan women prisons were included in
the 1999 United Nations Human Rights Commission report on Violence
Against Women. The report detailed the credible allegations of both sexual
abuse and retaliation and, recognizing the UN Standard Minimum Rules for
the Treatment of Prisoners, as augmented by the Basic Principles for the
Treatment of Prisoners,21 stressed the need for gender-specific supervision of
women prisoners.

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In an act of reciprocity, plaintiffs’ counsel for the women prisoners, made
presentations both at the United Nations Crime Prevention and Criminal
Justice Congress in Vienna and an ancillary meeting panel at a session of the
United Nations Human Rights Commission in Geneva on the ongoing
human rights violations occurring in Michigan’s women prisoners.
The local media then picked up on the reports in the Geneva press, reinforcing the relevance of the human rights framework and the scrutiny the
state was being subjected to, in part because of the governor’s refusal to acknowledge the authority of the United Nations on this issue. The state’s refusal to allow inspections subjected it to scathing comparisons with rogue
countries with extensive human rights violations and a history of rejecting
international oversight and investigations into their conduct.
In 1998, Human Rights Watch returned to Michigan to follow up on reports that the women prisoners’ cooperation with the international organizations and participation in the litigation had resulted in severe retaliatory actions
by staff against them, including physical assaults and abuse, incarceration in
isolation cells for long periods of time, intensified threats of sexual abuse,
threats to their family, denial of visits, and loss of paroles. The resulting report,
titled Nowhere to Hide, highlighted the near-absolute power staff had over the
women prisoners—controlling their access to the world and their freedom,
the risks the women incurred in speaking out, and the difficulty of addressing
the abuse in this punitive and secretive environment. The report also reflected the interactive synergy between the litigation and human rights documentation. The acknowledgment both of the impact of stepping forward and
the price that women prisoners were paying heightened both the credibility
of HRW among the women as well as confirming the need for the litigation
to seek additional remedial measures with regard to the retaliation.

The Path to Settlement
Meanwhile, the litigation was continuing at both the state and federal levels. Hundreds of depositions were taken, and weekly motions were occurring in
federal court to address discovery issues, retaliation, and ongoing abuse. While
no formal claims for violation of human rights had been filed, the language
of the litigation both in the court room and in media coverage began incorporating the language of the recommendations of the reports and the observations of the United Nations calling for ensuring the human rights of women
prisoners in Michigan. Phrases such as degrading treatment and inhumane
conditions had replaced domestic legalese terms, and the call for taking male
correctional staff out of the housing units of the female facilities was taken up
by the Michigan state legislature as well as editorials in the local newspapers.
The accumulated negative press and pressure of the international scrutiny
and local and national media coverage, and the rejection of the state’s attempt to characterize the litigation as frivolous or the result of isolated acts of
a few rogue guards by both the courts and the press resulted in the parties
beginning settlement discussions.22
During the litigation, the Department of Corrections had made changes
in its operations, as part of a settlement with the DOJ, including changes in

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some of its process for hiring, training, and investigation of staff and structural
changes in the facilities. The women prisoners, however, insisted that any
settlement of their claims must include adherence to the international norms
prohibiting cross-gender supervision and searches. While this relief was never
specifically requested in the original pleadings, plaintiffs had prepared an
amended complaint to allege violations of customary international law and
specifically request injunctive relief consistent with the applicable standards
set forth in the Convention Against Torture, the Women’s Rights Convention, and the UN Standard Minimum Rules for the Treatment of Prisoners
should the settlement negotiations fail and trial on this issue be required.23
Ultimately, the federal litigation was settled for significant damages and
remedial relief, including the commitment to remove male staff from the
housing units, intake, and transportation areas of women’s prisons in Michigan and to eliminate cross-gender patdowns. The HRW report played a key
role in persuading the court and the Department of Corrections to agree to
remove male staff. While traditional prisoners’ rights cases typically include
experts who provide reports and testimony on the best practices in other
states and correctional standards, it is unlikely that global standards regarding
the treatment of incarcerated women prisoners would have been provided to
the court absent HRW’s report and Amnesty International’s subsequent report in 1998. The reports revealed that while cross-gender supervision was
standard practice in the United States, it was contrary to international standards that the majority of the world had accepted as a minimum standard.
In Michigan, women prisoners were largely supervised by male staff who
performed the vast majority of body searches and routinely viewed women
nude and performing basic bodily functions. In many instances, the midnight
shift at the women prisons would be comprised entirely of male guards with
full access to the women. The unfettered access, prurient viewing, and constant touching all worked to create a culture of sexual abuse and degradation
in the women’s facilities. The state had steadfastly refused to consider gender-specific supervision, asserting it to be near impossible, inconsistent with
standard correction practices, and unlawful. The DOJ also declined to consider the remedy of elimination of cross-gender supervision and body searches,
both because the federal prisons utilized male staff in their female prisons and
a concern for the constitutionality of gender-based staffing raised by DOJ
attorneys in the employment division.
Yet, HRW and Amnesty International maintained that internationally accepted UN standards24 for the treatment of prisoners as well as the Convention
Against Torture, the Women’s Rights Convention, and the ICCPR should be
considered in determining the treatment of prisoners, including women in
detention. In particular, the UN Standard Minimum Rules for the Treatment
of Prisoners represented a global consensus for the standards applicable
to women prisoners and included the requirement that male staff shall not enter
the part of the institution set aside for women unless accompanied by a female
officer; and that women prisoners shall be under the authority of and attended
and supervised only by woman officers. Although the United States had, in
1975, indicated its full compliance with implementation of these standards,
the United States had lapsed into noncompliance beginning in the 1980s.25

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Although no domestic standards required female supervision, plaintiffs’ counsel, who heretofore had had no basis upon which to assert the provisions as a
remedy, now based on the HRW and Amnesty International reports, had the
entire world.

Post-Settlement
The intertwining of human rights advocacy with the domestic litigation
continued when a contingent of guards challenged the Department of Corrections’s implementation of the terms of the settlement, claiming that the
removal of staff, based on their gender, violated their constitutional rights to
equal protection under the law.26 The women prisoners sought and obtained
the right to intervene to protect their settlement and ensure compliance with
both their constitutional rights and international standards of treatment. The
history, as well as the current practices, in the United States and in ‘peer’
countries was a prominent concern of the trial judge in the case, who contacted Canadian government officials to inquire about the standards in provincial facilities housing women prisoners, and admitted into evidence the
HRW and Amnesty International reports, the report of the UN Commission
on Human Rights, and The Report of the Canadian Government, CrossGender Monitoring Project Third And Final Report, dated September 30,
2000, which recommended enforcement of the requirements of female-only
corrections officers in female prisons in Canada. Although the court considered pleadings that directly raised the argument that failure to implement
the settlement agreement would violate women prisoners’ rights under both the
Constitution and customary international law, it failed to directly rule on the
women prisoners’ claims and rejected the gender-specific assignments relying
only on an analysis of the equal protection rights of the guards.
The federal trial court was, however, reversed on appeal by the Sixth Circuit Court of Appeals, which upheld the women prisoners’ settlement requirement of gender-specific supervision based on women prisoners’ rights
under the Constitution to privacy and safe and humane treatment.27
While much of the interaction between human rights and the constitutional
challenge to protect women prisoners from abuse arose from unplanned circumstances, the lessons and values learned were intentionally applied in the
following challenge to the State of Michigan’s treatment of its incarcerated
citizens in this case the imposition of a sentence of life in prison, without the
possibility of parole, for children under the age of eighteen, which constituted
a clear violation of their human rights.

CHILDREN TO THE WORLD, ADULTS AT HOME
If there is a group of people caught up in the criminal justice system
in America that has less legal protection than women prisoners, it has to be
the children. In 1997, it was estimated that less than 1 percent of the people
in state prisons were under the age of eighteen. Two years later, youth under
eighteen accounted for 2 percent of all new commitments to state prisons. In
2004, there were estimated to be over 200,000 children under the age of

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eighteen incarcerated in adult jails and prisons in the United States. The number is estimated because no one knows for sure how many children are being
held in captivity. The Department of Justice, Bureau of Statistics published a
report in 2001 which attempted to identify the number children under eighteen held in adult jails and prisons in this country as well as the number held
in both private and public juvenile detention facilities. However, many states
do not maintain separate records of the number of children in their adult facilities, reasoning that once a child had been tried or sentenced as if they were
an adult, their child or juvenile status does not follow them into the adult
prisons, despite the realities of their age. Figures of youth held in county jails
are not compiled by, or reported to, a central source, and separate entities
altogether monitor children held in most states’ juvenile facilities.
There is no federal statute or constitutional provision that provides a child
special protection, or even protects a child’s right to be treated consistent
with their status as a child, and throughout the country state laws allow prosecutors to turn a blind eye to the chronological age and corresponding maturity of children, designating them as adults and subjecting them to adult
prosecution, punishment, and incarceration.
In stark contrast, the Convention on the Rights of the Child (CRC) recognizes that the special status of children entitles them to special protection.
It provides that children are to be incarcerated as a last resort, for the least
amount of time possible with mandated rehabilitative efforts. Further, the
CRC flatly prohibits sentencing children to life in prison without parole, stating in Article 37(a) that “Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for offences committed by
persons below eighteen years of age.”
This provision of the CRC has near universal acceptance. 192 of the 194
countries have signed, ratified, and not registered a reservation to the CRC’s
prohibition on life imprisonment without release for youth offenders. The
United States and Somalia are the only two countries in the world that have
not ratified the CRC, although both have signed it.28
Life imprisonment for juveniles also violates the clear language of the
ICCPR, which was both signed and ratified by the United States. Article
10(3) requires that children (under the age of eighteen) be treated appropriate to their age and legal status as children. Article 14(4), which was cosponsored by the United States, mandates that criminal procedures for youth
charged with crimes “take account of the age and the desirability of promoting their rehabilitation.”29
The harshest punishment available for a crime, in states that do not have
the death penalty, is the sentence of life imprisonment. In forty-two states, in
the United States, it is also a permissible punishment for crimes committed
by children.

Developing an Integrated Human Rights Strategy
Despite the clear problem of juvenile life without parole sentences, little
was known of the number of youth serving this sentence in the United
States. Given the positive, if somewhat serendipitous, impact of interweaving

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documentation of the abuse of women prisoners by international human
rights organizations with domestic litigation challenging their treatment, a
joint documentation project was planned as the first step in an integrated
advocacy strategy incorporating human rights to address juvenile life without
parole sentences in the United States.
The coalition which would become known as the Second Chances coalition
was spearheaded by the Juvenile Life Without Parole Initiative and began in
the state of Michigan in 2003 with the sponsorship of the Michigan affiliate
of the American Civil Liberties Union, the research assistance of the Institute
for Social Research at the University of Michigan, and Columbia Law School’s
Human Rights Institute. The national ACLU, a domestic civil rights organization, had recently created a Human Rights Working Group to incorporate
a human rights framework in certain litigation and advocacy work, and the work
around juvenile life without parole, which combined that working group’s
concerns with human rights, racial justice, and criminal justice, quickly became part of the national initiative.
Documentation was conceptualized as a first step for several reasons. As in
the prior work around sexual abuse of women prisoners, documentation by
human rights organizations would identify, humanize, and give voice to the
victims of the human rights violations. In addition, documentation was necessary because there was a dearth of knowledge on the extent of the use of this
punishment in the United States. Fact-finding could also function to identify
potential areas of litigation.
Documentation as a first step also made sense because direct legal challenges under domestic law appeared limited. The traditional challenge used
to attack the juvenile death penalty was the Eighth Amendment’s prohibition
on cruel and unusual punishment. The U.S. Supreme Court stuck down the
death penalty for juveniles under the age of sixteen in 1988.30 Although the
U.S. Supreme Court, at the time the documentation project was initiated in
2003, had not yet rejected the death penalty for sixteen- and seventeen-year
olds, the challenge was well underway to argue that this punishment had also
become sufficiently unusual to warrant a ruling on its unconstitutionality.
However, the U.S. Supreme Court had also held in general that life without
parole sentences were constitutional, and the laws of forty-two states allowed
life without parole sentences for juveniles, making a constitutional challenge
that the punishment met the conjunctive requirements of cruel and unusual
difficult on its face.
Federal appellate courts had also held that mandatory sentences of life
without parole imposed on juveniles for murder convictions do not violate
the Eighth Amendment, and where review has been sought by the United
States Supreme Court, it has been declined. These courts also rejected arguments that the lack of consideration of the defendants’ youth posed constitutional problems.31
In 2004, the Supreme Court finally forced the United States into compliance with the world’s standards on criminal punishment of juveniles in the
context of the death penalty in Roper v. Simmons, which struck down the death
penalty for juveniles who committed their crimes under the age of eighteen
as a violation of the Eighth Amendment. Much of the Court’s reasoning

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about the differences between juveniles and adults, the vulnerability of juveniles to negative influences and pressures, and other developmental realities
apply equally to life without parole sentences. It was clear that the human
rights communities’ work on this issue contributed to the Court’s interpretation of the Eighth Amendment,32 and the same international authorities that
condemned the juvenile death penalty instruct that the sentence of life without parole for juveniles also violates international law and is a rare punishment around the world.33 However, while Roper struck down the juvenile
death penalty, it left intact laws in forty-two states which sentence children to
grow old and die in a prison cell for crimes committed when they were under
the age of eighteen. With the practice remaining widespread in the United
States, a challenge under the Eighth Amendment, which required a demonstration of both cruelty and unusualness, was still premature.
Similarly, state constitutional challenges were not promising, although
many states, including Michigan where the documentation project started,
had a disjunctive constitution requiring the proof of cruel or unusual punishment. The Supreme Court of Michigan had held that juveniles do not have a
fundamental or constitutional right to special protection, and the state appellate courts had rejected a challenge to the life without parole sentences as
cruel or unusual and held that children or juveniles had no constitutional
right to be treated as juveniles. The lack of a right to special protection means
that there is no fundamental right to certain procedures and standards for
determining when children can be treated as adults.
An additional perspective contributed to a decision not to attempt domestic litigation as the first challenge to juvenile life without parole sentences.
While litigation had been a significant tool in challenging human rights
violations, its focus on the authority of the judiciary could, without care,
disengage advocates, families, and the victims of the human rights violations
themselves while the litigation wound itself through courts and appellate processes. Without an advocacy movement in place, a pure litigation strategy was
insufficient for building a successful human rights framework.
The strategy then was to begin a challenge using a human rights framework, both substantively and procedurally using traditional human rights devices to begin the advocacy. The strategy would first create a documentation
project, then join together domestic advocacy groups involved with children’s
rights and criminal justice issues together with international human rights
organizations to develop both an advocacy campaign and a coordinated legal
challenge incorporating human rights law.

Human Rights Documentation
In Michigan, the documentation project involved extensive interviews
with juveniles serving the life without parole sentence; collateral interviews
with families of the juveniles and victims’ families; extensive review of trial
transcripts and records of the juveniles, pre- and postconviction; interviews
with judges and prosecutors; and data collection, in order to compile a broad
understanding of the impact of the laws allowing life without parole sentencing
of juveniles.

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The data collections and the interviews proved the most challenging and
enlightening. In order to obtain a nuanced view of the data, it was planned
to collect data and obtain interviews from a minimum of fifteen states from
different geographic areas that allowed life without parole sentences to be
imposed on juveniles. While the data collected provided a wealth of information and the beginning of an understanding of the extent of the use of life
without parole sentences for children, the diverse recordkeeping of various
Departments of Corrections together with divergent rules on what constituted public documents, and a patchwork of laws left some gaps in the data.
The interviews, once permission was obtained, ranged from emotional
discussions with youths who had not received a single visitor since they had
been arrested and lacked knowledge of the terms of their sentence, to in-depth
thoughtful discussions with mature men and women who spoke of their
youthful selves almost as children from another era and identity, to youths
who were deeply damaged and brought to visits from observation facilities
after suicidal or self-mutilation incidents. Initial interviews led to follow-ups,
letter writing, and phone calls and the emergence of a family advocacy network and a network of incarcerated youth who began their own documentation project to detail their lives.
When it became apparent that there was an impetus for seeking remedial
action in Michigan, a breakout report was issued titled, Second Chances:
Juveniles Serving Life Without Possibility of Parole in Michigan’s Prisons, reporting that over 300 children in Michigan alone were serving the sentence
of natural life without any possibility of parole.
After the publication and attendant publicity of Second Chances, Amnesty
International and Human Rights Watch partnered together, for the first time,
to complete and issue a national documentation report on juveniles serving
life without possibility of parole in the United States. The report was able to
utilize the data collected by the ACLU’s juvenile life without parole initiative
and take advantage of the findings compiled from focus groups and statewide
polling conducted in Michigan on the issues. The report, titled The Rest of
Their Lives: Life without Parole for Child Offenders in the United States, was
issued in late fall 2005, and its unveiling at the ACLU offices of Michigan
recognized the combined efforts of these three organizations to adopt a
human rights framework approach to the challenge to juvenile life without
parole in this country.

Infusing Human Rights Advocacy in Local Campaigns
The report garnered worldwide media attention, raising the consciousness
of media and the public in the United States to the human rights violation
involved in sentencing juveniles to life without parole, while concurrently
raising the issue of the United States’ violation of human rights with the
worldwide body.34
Meanwhile, the documentation reports sparked an informal national coalition that included domestic advocacy groups, children’s groups, legal academics, funders, additional domestic criminal justice advocacy groups, doctors and psychologists, and traditional human rights advocates to coordinate

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national challenges to juvenile life without parole sentencing. The overarching issue and approach was to keep the human rights component alive in
whatever strategies were most effective on a state-by-state and national basis.
In Colorado, advocacy groups, in collaboration with Human Rights Watch,
issued their own state documentation report titled Thrown Away: Child Offender Serving Life Without Parole in Colorado. California and Illinois began
working with a private law firm to begin their own statewide documentation
project in preparation for legislative and/or litigation challenges, drawing on
the expertise of both Human Rights Watch and the ACLU. Mississippi, Louisiana, and Florida all began their own initiatives, again relying upon the assistance of the ACLU, Amnesty International, and Human Rights Watch in
developing their state challenges.
In Michigan the documentation project continued and became more nuanced, able to address the racial injustice components of the life without parole sentence and engage advocacy groups to focus on this aspect of racial
discrimination in the administration of the criminal justice system in the United
States. The project also continued to weave human rights concerns with the
domestic agenda, by working domestically to introduce legislation to eliminate the sentence, while filing a petition with the Inter-American Commission,
with the assistance of the Human Rights Institute and clinic at Columbia
Law School, directly challenging the illegality of their sentence under the
American Declaration of the Rights and Duties of Man.
The media reports on all of these events often included specific reference
to the fact that this practice violated international norms, treaties, and covenants, a perception not usually included in media reports of domestic sentencing issues involving the criminal justice system in America and impacting the
language of the debate. The discussion was more about children’s rights,
human rights, and second chances for youth and less about violent predators/
felons and hardened criminals (language used by the opposition).
Like the situation with women prisoners, the juveniles serving the life sentence together with their families and friends also embraced the human rights
language and framework. The Second Chances coalition, which grew out of
the grassroots organization of family, friends, and juveniles, created a Web
site with links to the domestic legislation, the Inter-American petition, the
documentation reports, and the international instruments which supported
the assertions of human rights violations.

International Advocacy
In addition to local efforts, activists engaged in international forums to increase international pressure on the United States. Counsel for the juveniles
in Michigan attended the UN Congress on Crime Prevention and Criminal
Justice in Bangkok in 2005, on behalf of Human Rights Advocates to raise
the issue of juvenile life without parole sentences in this international body as
a prelude to addressing the issue with the UN Human Rights Committee.
In September 2006, the United Nations Human Rights Committee addressed the issue as part of its concluding observations on the United States’s
compliance with the ICCPR. After recognizing the documentation reports,

ENSURING RIGHTS FOR ALL

145

the committee observed that sentencing children to life sentence without
parole is of itself not in compliance with Article 24 (1) of the Covenant
(Articles 7 and 24) and recommended that:
The State party should ensure that no such child offender is sentenced to life
imprisonment without parole, and should adopt all appropriate measures to
review the situation of persons already serving such sentences.35

Similarly, the UN Committee Against Torture included the issue in its
recommendation on the United States’s compliance with the Convention
Against Torture, stating: “The State party should address the question of
sentences of life imprisonment of children, as these could constitute cruel,
inhuman or degrading treatment or punishment.”36
The United Nations General Assembly also adopted a resolution calling
for the elimination of this practice as violating the Convention on the Rights
of the Child. This international attention, in turn, brought domestic media
attention back to the human rights issues and violations, requiring state legislators to address the issues of the state’s laws violating human rights norms,
treaties, and conventions. Not everyone was impressed with the framework
however. Alan Cropsey, the Republican chair of Michigan’s Senate judiciary
committee, who blocked hearings on the reform legislation, responded to
the United Nations observations by asserting that “The UN is a laughing
stock. They have no moral credibility.” One journalist, however, noting
the poor company the United States was keeping on this issue, mourned the
United States’s ebbing moral authority, coming full circle by connecting the
abuses committed by military in Abu Ghraib with the culture of ignoring
human rights obligations at home.

NOTES
1. Matt Davis, Michigan Department of Corrections spokesperson (press
statement).
2. Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871).
3. Thompson v. Bond, 421 F.Supp. 878, 882 (W.D. Mo. 1976).
4. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
5. Many chapters could be written on the confluence of events that resulted in
what is known as the modern prisoners’ rights movement. The Autobiography of Malcolm X was first published in the United States in 1965 and Eldridge Cleaver’s Soul on
Ice in 1968. These followed Caryl Chessman’s 1950s exposure of death row (in)justice and were all widely read both inside prison and out, creating a symmetry of shared
knowledge and consciousness raising on prison conditions in the United States.
6. Jackson v. Bishop, 404 F.2d. 571 (8th Cir. 1968).
7. Hutto v. Finney, 437 U.S. 678 (1978).
8. Wolff v. McDonnell, 418 U.S. 539 (1974).
9. Estelle v. Gamble, 429 U.S. 97 (1976).
10. Turner v. Safely, 482 U.S. 78 (1987).
11. O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
12. Because prison officials often prove to be recalcitrant even after courts have
found the condition and treatment of prisoners unconstitutional, federal trial court

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PORTRAITS OF THE MOVEMENT

judges have the power to issue injunctive and remedial orders specifically ordering
officials to take certain steps or adopt certain measures.
13. Wilson v. Seiter, 501 U.S. 294 (1991).
14. Significantly, the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment provides that coercion based on discrimination
which causes severe harm, whether physical or mental, constitutes torture. For an action to constitute cruel, inhuman, or degrading treatment or punishment it need not
be shown to be committed for a particular purpose or with any specific intent.
15. Lewis v. Casey, 518 U.S. 343 (1996).
16. Amnesty International, “Not Part of My Sentence”: Violations of the Human
Rights of Women in Custody in the United States (Amnesty International, March
1999); Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State
Prisons (Human Rights Watch: December 1996); Human Rights Watch, Nowhere to
Hide: Retaliation against Women in Michigan State Prisons (Human Rights Watch,
July 1998).
17. Glover v. Johnson, 478 F.Supp 1075 (E.D. Mich 1979).
18. Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994).
19. In the criminal justice context, attempts by prisoners to challenge their criminal convictions arguing international law in the context of habeas corpus petitions had
consistently been rejected, as had challenges to capital punishment against juveniles,
something that was clearly violative of a number of international treaties and customary international law.
20. Counsel for the women also attempted to reframe the language and status of
their clients by including claims, in the federal litigation, of violations of the federal
Violence Against Women’s Act, and in the state case raising their central claims under
the state’s civil rights act which prohibits discrimination, including sexual-based harassment against women in all public services and facilities. Unfortunately, after the
cases were filed, the federal courts struck down the Violence Against Women’s Act as
unconstitutional. When the Act was reauthorized, it excluded protections for women
prisoners. Similarly, the state of Michigan amended the state’s civil rights act to specifically deprive prisoners of the Act’s protection against discrimination. This amendment was, however, later struck down as unconstitutional when challenged by women
prisoners as violative of their constitutional and human rights. Mason v. Granholm,
2007 WL 201008, ED Mich, January 23, 2007.
21. UN General Assembly, Basic Principles for the Treatment of Prisoners, G.A. res.
45/111, UN Doc. A/45/11 (December 14, 1990).
22. A one-hour special was aired on national television which focused in large part
on the conditions in Michigan and joined comments from Human Rights Watch, the
counsel for the women prisoners, the Department of Justice, and state officials in
evaluating the conditions of women prisons in the program titled Women in Prison:
Nowhere to Hide. The special garnered an American Bar Association Silver Gavel
Award and a Robert Kennedy award for broadcast journalism that year.
23. See Martin A. Geer, “Human Rights and Wrongs in our Backyard: Incorporating International Human Rights Protections Under Domestic Civil Rights Law: A
Case Study of Women in the United States Prisons,” Harvard Human Rights Journal
13 (Spring 2000): 71.
24. Standard Minimum Rules for the Treatment of Prisoners, adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 UN ESCOR Supp. (No.
1) at 11, UN Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 UN ESCOR
Supp. (No. 1) at 35, UN Doc. E/5988 (1977); UN General Assembly, Basic Principles for the Treatment of Prisoner.

ENSURING RIGHTS FOR ALL

147

25. Nick Pappas, The Jail: Its Operation and Management (Washington, DC: United
States Bureau of Prisons, 1973), pp. 19, 71–72; UN Standard Minimum Rules. For a
full history of the United States lapse into noncompliance, see Martin A. Geer, “Protection of Female Prisoners :Dissolving Standards of Decency,” Margins 2 (2002): 209.
26. Everson v. MDOC, 222 F.Supp 2d 864 (E.D. Mich 2002). The male guards
used Title VII of the Civil Rights Act Section 703(a)(1) and (2), which states:
(a) It shall be unlawful employment practice for an employer
1. To fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions or privileges or employment because of such individual’s race,
color, religion, sex or national origin; or
2. To limit, segregate or classify his employees or applicants from employment in any way that would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex, or national
origin.
27. Everson v. MDOC, 391 F3d 739 (2004), cert. den. 126 S.Ct 364 (2005). For a
good discussion of the case and the legal and social issues surrounding women prisoner abuse and privacy rights, see the work of Brenda Smith, “Sexual Abuse of Women
in Prison, a Modern Corollary of Slavery,” Fordham Urb. L.J. 33 (2006): 571; and
Brenda Smith, “Watching You Watching Me,” Yale J.L. and Fem. 15 (2004): 223.
28. The United States signed the Convention on the Rights of the Child on
February 16, 1995 and Somalia signed on May 2, 2002, and while neither have since
ratified it, Somalia lacks a formal government to effectuate ratification.
29. When the United States ratified the ICCPR, it attached a limiting reservation,
providing that “the United States reserves the right, in exceptional circumstances, to
treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and
paragraph 4 of article 14.”
30. Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (Stevens, J., concurring)
(the court in holding that such a punishment has become unusual in the United
States as part of our evolving standards of decency also noted the global rejection of
the death penalty for youth offenders age sixteen or younger).
31. Although two state supreme courts have held that juvenile life without parole
sentences were improper, the cases involved particularly troubling circumstances concerning a thirteen-year-old convicted of murder and a fourteen-year-old convicted of
rape.
32. The Court specifically referred “to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of cruel and unusual punishments,” and cited two documentation reports on
the limited use of capital punishment of minors in the rest of the world. Roper v. Simmons, 125 S.Ct. 1183, 1198 (2005).
33. According to Human Rights Watch, Amnesty, and Human Rights Advocates,
there were only a handful of youth in the rest of the world combined serving a life
without parole sentence.
34. There was extensive coverage in both local newspapers in Michigan as well as
worldwide coverage. For example BBC radio aired an interview with a juvenile serving LWOP in Michigan and the New York Times included the issue in a three-part
series. The national report also helped fuel ongoing coverage and attention on Michigan with segments of National Public Radio and state journals focusing on Michigan’s efforts to illuminate and eradicate this human rights violation.

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PORTRAITS OF THE MOVEMENT

35. See UN Human Rights Committee, 87th Session, Consideration of Reports
Submitted By Parties Under Article 40 of the Covenant, Concluding Observations of the
Human Rights Committee: United States of America, UN Doc. CCPR/C/USA/
CO/3/Rev.1 (18 December 2006).
36. UN Committee Against Torture, 36th Session, Consideration of Reports Submitted By Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee Against Torture: United States of America, UN Doc. CAT/C/
USA/CO/2, para. 34.

Amos E. Williams
615 Griswold, Suite 1115
Detroit, Michigan 48226
Telephone (313) 963-5222 ! E-mail: aewpc@aol.com

WHY I CALL DEFENDANTS FIRST

Having tried many police misconduct cases, I have made some assessments
that I use to tailor my trial tactics in such cases. Some of my comments may seem
harsh and anti-police, I assure you that is not the case. I served as a police officer for
17 years and in my opinion there is no higher calling – when the job is done right.
Furthermore, no one wants to see abusive officers punished more than the officers who
do the job properly.
Criminals are criminals because they violate the law, usually those laws are
statutes or city ordinances. Police officers are bound by laws as well and in most of my
cases, those LAWS are the highest law of the land, the United States Constitution’s Bill
of Rights. I ask you, which is the more serious danger to our society, violation of a
statute or violation of the constitution? I look at being a civil rights trial lawyer as a
mission to defend the constitution and to go after those who violate it. So, here are a
few of my thoughts based upon 20 plus years of trying police cases.
Suing police officers is always a tricky business. That is because the police hold
a special place in the minds of most citizens. No matter how many times the taped
beating of Rodney King was shown, no matter the extensive press coverage of the
beating and death of Malice Green1, and no matter the outrage regarding the killing of
the unarmed Amadou Diallo,2 the subconscious favorable image of the police in the
minds of most citizens (and it appears, in the minds of too many judges), seems to be

unaffected.
Police misconduct trials are frequently complicated by the fact that the incidents
giving rise to the lawsuits, are not one-on-one encounters and the plaintiff is often the
sole eye witness in support of his or her claim while there are several officers to testify
against the plaintiff. Even where there are other “citizens” who witness the events, they
often do not want to be involved. But, regardless of the number of witnesses in support
of the plaintiff’s claims, it seems that the “preponderance of the evidence” standard of
proof in civil cases is much higher when police officers are the defendants because as
“officers of the law”, juries seem to give them more credibility than the citizen plaintiff or
the citizen witnesses supporting the plaintiff.
In every case where I have been successful in obtaining a verdict there is one
common factor, I was able to show that the defendant officer LIED. Not that he made a
mistake and not that he used bad judgment but that he or she deliberately, purposefully
attempted to deceive the jury which was there to look into the propriety of his conduct.
It may be helpful to recognize and remember that police officers are trained to
know the law so that they will not violate civil rights during their enforcement activities,
at least that is the hope of most police chiefs. That also means that officers recognize
when they cross the line and when an officer realizes that he has violated a civil right,
there may be a tendency to make it right by fabricating the evidence that would justify
his actions. This has been especially true in many cases of excessive force and illegal
search and seizure where the touchstone issues are necessary force, probable cause
and/or exigent circumstances.

The BADGE is a double edged sword for the police in civil litigation. It does
elevate them as a witness in the eyes of the jury, even if subconsciously, as previously
noted but it also holds them to a higher standard in the eyes of the jury. It seems a jury
will give officers the benefit of the doubt, if the jury believes that their “dedicated
protectors and guardians, who are out there with their lives on-the-line fighting the
forces of evil to serve and protect the public” are candid, truthful and performing their
duties in good faith. If you can show that the officer purposefully lied to evade
responsibility for violating his oath and public trust, the defendant officer will be
removed from his pedestal in the jury’s mind. Once he is shown to be a liar, the badge
is tarnished and no longer affords him an elevated status but rather hangs around the
defendant’s neck like an albatross. Once his credibility is destroyed he is viewed very
harshly by the jury; the fall from grace seems to be a much longer fall than from any
other place.
From day one in preparing a police case, my personal objective is to gather the
evidence necessary to show that the defendant knowingly violated the plaintiff’s rights
and pursued a studied course of deception to make it appear that his actions were
justified. The legal nuts and bolts of establishing liability, surviving summary judgment,
and providing proof of damages must, of course, not be neglected but the strategic
element of obtaining a verdict at trial lies in depriving the defendant officer of credibility.
IT TAKES ONE TO CATCH ONE
I have found that the best witness against a defendant police officer is another
police officer. My practice is to call the defendant officer first during my case in chief. I
use the officers as witnesses against each other because at that early stage of the trial

the defendant officer has no advantage in status over the other officers in the jury’s
eyes.
I have often commented that some police officers lie frequently, but they do not
do it well. If you are successful in using the “good” officers (or not so good officers) to
show that the defendant or co-defendant officers are lying then the non-police
witnesses have a lot more weight when you call them later in the case. This is
especially true if the plaintiff’s witnesses are “corroborating” the testimony of the “good”
police officer witnesses who preceded them.
There is frequently a lot of information to use to show a defendant officer’s
deception. By the time a case goes to trial, the defendant officer has typically made
several statements regarding the incident. If there was an arrest and criminal trial of the
plaintiff prior to the civil case, the defendant officer has typically (1) written a report, (2)
testified at a preliminary exam, (3) testified at the criminal trial and (4) been deposed in
the civil case BEFORE taking the stand in the civil trial.
I typically start the trial by calling the defendant officer and then gear my direct
examination to highlight differences in his reports, their depositions, their preliminary
exam, their criminal trial testimony and the testimony they just gave in the present case.
If successful, even a good cross exam by the defense attorney cannot rehabilitate them
because the answers appear to be alibi’s or excuses.
Once you have “nailed down” the defendant officer to a position, you can then
use the rest of the witness to destroy and discredit his account of the incident. This
tactic has worked extremely well for me.

Many years ago a client who attended the deposition of a defendant officer
expressed his outrage to during a break. The client commented that he could not
believe that a police officer would so blatantly lie under oath and he wanted to know
why I did not challenge the officer on the lie at the deposition since I already had
evidence that proved he was lying. I told him “If officers stop lying I will be out of
business.” I further explained that I was not distressed by the lies because they would
be our biggest asset at trial. After trial, the client, nearly 3 million dollars richer, was still
incensed and appalled that a police officer lied under oath.
That attitude is common among jurors and that is why I call the defendant officer
first, to foster that attitude among the jurors, to intensify it and to focus the trial on the
defendant’s deception.
A TIP:
ANTICIPATE DEFENSES AND ATTACK THEM
PREEMPTIVELY IN THE PLAINTIFF’S CASE
I have noticed that defense attorneys typically try to set up four defenses for
offending officers and they are, generally speaking, along these lines:
1.

I didn’t do it.

2.

If I did it, the plaintiff forced me to do it.

3.

Even if the plaintiff did not force me to do it, I was authorized by law to do
it. And

4.

If I did it, and if the plaintiff did not force me to do it, and if I was not
authorized by law to do it, you should not give the plaintiff any money
because I am your protector and the plaintiff is a really bad person who
only wants money.

You can count on seeing these “defenses” so plan to show the jury that none of
them are valid. Frequently, I tell the jury to look for these defenses when I do opening
statement.

ENDNOTES

1. Malice Green was a citizen of the U.S. City of Detroit, Michigan who died while in
police custody after being arrested by Detroit police officers Walter Budzyn and Larry
Nevers on November 5, 1992, during a traffic stop. Both officers were later convicted
for Green's death. While Green's autopsy showed he had crack cocaine and alcohol in
his system, the official cause of death was ruled due to blunt force trauma to his head.
Green allegedly failed to relinquish a vial of crack cocaine, attempted to assault the
officers, attempted to grab Nevers' gun and resisted arrest. Nevers struck Green in the
head with his flashlight approximately a dozen times during the struggle which,
according to the official autopsy, resulted in his death.
The Michigan Supreme Court granted a new trial for Walter Budzyn, mostly on
the grounds of the showing of Malcolm X. Budzyn was immediately released from
prison. He was retried, and on March 19, 1998, he was again found guilty of involuntary
manslaughter, and in January 1999 the Michigan Court of Appeals reinstated his 4 to
15 year prison sentence. He had already served the minimum under the first conviction,
and was released. Larry Nevers' 1997 appeal to the Michigan Supreme Court was
denied. However, he was successful on his appeal to a Federal court, which overturned
the verdict in 1999.

2.Amadou Bailo Diallo (September 2, 1975 – February 4, 1999) was a 23-year-old
immigrant to the United States from Guinea, who was shot and killed on February 4,
1999, by four New York City Police Department plain-clothed officers: Sean Carroll,
Richard Murphy, Edward McMellon and Kenneth Boss. The four men fired a total of 41
rounds. Diallo was unarmed at the time of the shooting, and a firestorm of controversy
erupted subsequent to the event as the circumstances of the shooting prompted
outrage both within and outside New York City. Issues such as police brutality, racial
profiling, and contagious shooting were central to the ensuing controversy.
The shooting took place at 1157 Wheeler Avenue in the Soundview section of The
Bronx. The four officers involved were part of the now-defunct Street Crimes Unit. All of
the officers were exonerated by jury trial of any wrongdoing. Source: Wikipedia.