1

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

Daniel J. O’Connor, Jr., Bar No. 010081

Karen J. Stillwell, Bar No. 022711

Jared M. Scarbrough, Bar No. 022011

O'CONNOR & DYET, P.C.

7955 South Priest Drive

Tempe, Arizona 85284

daniel.oconnor@occlaw.com

karen.stillwell@occlaw.com

jared.scarbrough@occlaw.com

(602) 241-7000

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin as Personal 

Representative of the Estate of 

Muhammad Abdul Muhaymin Jr.,

Plaintiff,

vs.

City of Phoenix, an Arizona Municipal

Corporation; Antonio Tarango; Officer 

Oswald Grenier; Officer Kevin 

McGowan; Officer Jason Hobe; Officer 

Ronaldo Canilao; Officer David Head; 

Officer Susan Heimbinger; Officer James 

Clark; Officer Dennis Lerous; Officer 

Ryan Nielson; Officer Steven Wong; and 

Doe Supervisors 1-5,

Defendants.

Case No.: 17-cv-04565-PHX-SMB

DEFENDANTS’ SUPPLEMENT TO 

MEMORANDUM RE: CONFIDENTIAL 

DESIGNATION OF DEPOSITION 

TRANSCRIPTS AND VIDEOTAPES

AND

EXPEDITED MOTION FOR 

PROTECTIVE ORDER AND ORDER 

TO CEASE/DESIST AND REMOVE 

PUBLIC POSTINGS

(Assigned to the Honorable Susan M. 

Brnovich)

Defendants City of Phoenix, Antonio Tarango, Officer Oswald Grenier, Officer 

Kevin McGowan, Officer Jason Hobel, Officer Ronaldo Canilao, Officer David Head, 

Officer Susan Heimbigner, Officer James Clark, Officer Dennis Leroux, Officer Ryan 

Nielsen and Sgt. Steven Wong (collectively “Phoenix Defendants”) submit this Supplement 

to Phoenix Defendants’ Memorandum of Points and Authorities regarding Defendants’ 
- 2 -

1

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

request to designate deposition transcripts and videotapes as confidential pursuant to the

Court’s May 8, 2019 Protective Order and applicable case law.

1 Phoenix Defendants also 

move the Court, on an expedited basis, for a Protective Order and Order to Plaintiff’s counsel 

to remove all public postings related to this matter and immediately cease and desist. 

MEMORANDUM OF POINTS AND AUTHORITIES

Over the last seventy-two hours, Plaintiff’s counsel has made multiple public posts 

and comments through social media, and at a minimum, Facebook. Plaintiff’s counsel is 

improperly posting materials/videos and prejudicial arguments comparing this litigation to 

the recent death of George Floyd in Minneapolis. He is using the public platform, Facebook, 

to bring this litigation to the public forefront in efforts to create public outrage, incite anger 

and violence against Phoenix Defendants, and gain national media attention. Finally, 

Plaintiff’s counsel sent undersigned counsel a “demand to settle,” containing threats and 

demands to settle or “wait for the inevitable national attention that will leave you wishing you 

had accepted my overtures.” See May 27, 2020 Correspondence from Plaintiff’s Counsel, 

attached as Exhibit A and filed under seal. 

On May 27, 2020, Plaintiff’s counsel posted on Facebook side by side pictures 

comparing this matter to the recent death of George Floyd and stating that he “represents the 

family.” See Exhibit B. Plaintiff’s counsel made this post shareable and indicated he will be 

“posting videos of the incident soon.” See Exhibit B, p. 2. Just today, on May 29, 2020, 

Plaintiff’s counsel posted an edited video and asserts “Phoenix PD murder of Muhammad 

Muhaymin for attempting to use a public restroom. No officers fired or charged. I represent 

his daughter and sister in a wrongful death civil rights law suit.” “Please repost and share.”

“This is exactly like the inhumane and violent murder of George Floyd.” See Exhibit C.

Both posts have already been shared with additional comments. See, e.g., Exhibit D. 

 

1 Phoenix Defendants’ February 18, 2020 Memorandum is reflected at Dkt No. 117; and 

the May 8, 2019 Order of Protection is reflected at Dkt No. 072.
- 3 -

1

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

These posts are troubling for several reasons. First and foremost, although Mr. 

Haytham Faraj is admitted Pro Hac Vice in this matter, by nature of his admission, he is bound 

by the Arizona Rules of Professional Conduct. ER 3.6, Rule 42, Ariz. R. Prof. Cond., states: 

“(a) A lawyer who is participating or has participated in the investigation or litigation of a 

matter shall not make an extrajudicial statement that the lawyer knows or reasonably 

should know will be disseminated by means of public communication and will have a 

substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” 

(Emphasis added). In addition, ER 4.4, Rule 42, Ariz. R. Prof. Cond., provides “[i]n 

representing a client, a lawyer shall not use means that have no substantial purpose other 

than to embarrass, delay, or burden any other person. ...” (Emphasis added).

Local Rule Civ 83.8 provides: “A lawyer or law firm associated with a civil action 

shall not during its investigation or litigation make or participate in making an extrajudicial 

statement, other than a quotation from or reference to public records, which a reasonable 

person would expect to be disseminated by means of public communication, if there is a 

reasonable likelihood that such dissemination will interfere with a fair trial and which relates 

to:

(1) evidence regarding the occurrence or transaction involved;

(2) the character, credibility, or criminal record of a party, witness or prospective 

witness; 

(3) the performance or results of any examination or tests or the refusal or failure of a 

party to submit to such;

(4) an opinion as to the merits of the claims or defenses of a party except as required 

by law or administrative rules; or 

(5) any other matter reasonably likely to interfere with a fair trial of the action.”

These posts indisputably refer to the “evidence regarding the occurrence,” “the 

character, credibility . . . of a party...,” “the ... results of any examination,” “opinion as to the 

merits of the claims or defenses of a party ...” and certainly present matters that are reasonably 

(and highly) “likely to interfere with a fair trial of the action.” These are not publicly available 
- 4 -

1

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

materials. The only possible purpose for Plaintiff’s counsel’s posts is to “embarrass, delay, or 

burden any other person” and to incite public anger against Phoenix Police Department in the

midst of ongoing protests related to George Floyd in Minnesota. See ER 4.4, Rule 42, Ariz. 

Prof. R. Cond.; see also Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349 

(S.D.N.Y. 1999) (“[C]ourts must be vigilant to ensure their processes are not used improperly 

for purposes unrelated to their role.”). 

Finally, the posts are troubling because they are filled with misrepresentations and 

inaccuracies – not just about the encounter and circumstances – but about the public facts of 

this matter. For instance, Mr. Faraj claims he “represent[s] his daughter and sister.” This is 

inaccurate insofar as Plaintiff’s counsel and this Court are aware that Mr. Brian Theut has 

been appointed to represent Mr. Muhaymin’s daughter, the minor statutory beneficiary, in 

this matter. Docs. 165, 168. In addition, the edited video is not a public video – this is 

Plaintiff’s “clip,” which was made and disseminated for purposes of prejudicing the Phoenix 

Defendants, inciting anger, and interfering with a fair trial. 

Plaintiff’s counsel is attempting to capitalize on media attention and attempting to 

pressure Phoenix Defendants into acceding to Plaintiff’s demands, by leveraging public 

opinion and harassment and there is “no need to add to such palpable concerns for the safety 

of the Individual Defendants in this case.” Arroyo v. City of Buffalo, 2017 WL 3085835, at 

*14 (July 20, 2017); see also Milner v. City of New York, 2012 WL 3138110, at *14 (S.D.N.Y. 

Aug. 2, 2012). None of this is needed for legitimate public policy reasons or litigation needs. 

See Paisley Park Enters., Inc., 54 F. Supp. 2d at 349.

/ / / /

/ / / /

/ / / /

/ / / /
- 5 -

1

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

For these reasons, Phoenix Defendants respectfully request the Court Order that 

deposition transcripts and videotapes remain confidential pursuant to its May 8, 2019 Order.

Phoenix Defendants also request that the Court issue an Expedited Protective Order 

prohibiting public commenting on this matter and Ordering Plaintiff’s Counsel to remove his 

posts immediately.

Dated: May 29, 2020.

O’CONNOR & DYET, P.C.

By:/s/ Karen J. Stillwell

Daniel J. O’Connor, Jr.

Karen J. Stillwell

Jared M. Scarbrough

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on May 29, 2020, I electronically filed the foregoing with the 

Clerk of the Court for the U.S. District Court, District of Arizona, using the CM/ECF 

System. A Notice of Electronic Filing will be served to the following registered 

participants:

David A. Chami

PRICE LAW GROUP, APC 

8245 N. 85th Way

Scottsdale, AZ 85258

Attorney for Plaintiff 

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ 

1935 W Belmont Ave. 

Chicago, IL 60657

Attorney for Plaintiff

Brian J. Theut

Theut, Theut & Theut

5150 North 16th Street

Phoenix, AZ 85016

Court Ordered Statutory 

Representative for Amirah 

Muhaymin, a minor

By: /s/ Kim Penny