10

11

12

13

14

is

16

17

18

19

20

21

22

23

24

25

Scott Defoe - October 23, 2020

CONFIDENTIAL
evade?
A Yes.
Q And so you've had to use your body weight to

adjust and get the handcuffs secured. Correct?

A Yes. I mean, most people in a prone position
have to use some type of force to get someone
handcuffed.

Q So that's not abnormal. That's within policy.
That's something you guys are trained on?

A Well, it depends. You say "policy".

It has to be, if you look at the effective
handcuffing technique, it doesn't mean you have to lay
on the back or put knees in the back.

You just simply handcuff the hands, put them in
a seated or standing or recumbent position, after doing
that.

Q What happens if they physically resist?

A You use reasonable force to overcome their
resistance.

Q In response to the resistance that is shown?

A Correct...

(e) Now, what officers do you claim used deadly

force? Because you identified them as defendants.
A Yes.

Q Which ones?

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com


10

LL

12

13

14

15

1é

17

18

19

20

21

a2:

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

comfort animals. Do you understand that?

MR. CHAMI: Object to foundation.

THE WITNESS: I believe so, yes.
BY MS. STILLWELL:

Q Now, contacting Maricopa County Animal Care
and Control, you indicated that the officers should
have contacted them prior to any use of force.

Is that your testimony?

A Well, if they were going to arrest him for the
misdemeanor paraphernalia warrant for failure to appear,
if they were going to do that for that Mesa warrant,
yes, I think that would have been reasonable.

Q Okay.

A That's no different than if you're arresting
someone, and they're in the possession of a child. You
contact the Department of Social Services.

So I think that yes, if they were going to do
that, is to simply de-escalate, let them know that
you're going to be taking him into custody, you're going
te go ahead and get that animal brought. You're going
to have an Animal Control come and pick up the animal.
Or, if he had a friend or relative he could drop the
animal off with, that would have been reasonable.

Q And you recall that the officers spoke for

several minutes, number one prior to Mr. Muhaymin using

KAMRYN | WHITNEY COURT REPORTING, LLG
info@kwcourtreporting.com

109


10

aL

12

13

14

45

16

17

18

19

20

21

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

that Mr. Muhaymin was hogtied. Correct?

A That's correct.

fa) And it also says: "As soon as the subject --"
and I'll direct your attention to the second column, at
the top. "As soon as the subject is handcuffed, get
him off his stomach."

Did I read that right?

A You did.

ie) Now, we agree that the -- when the second
struggle occurred, you've already told me that it's
safer for a suspect to have his arms handcuffed behind
his back. Correct?

A Typically, yes.

Q And it's safer for everybody, for the officers
as well. Correct?

A Yes.

Q And so when Mr. Muhaymin was now with his arms
in front, and had pushed off the vehicle, he needed to
be re-cuffed, to be appropriately handcuffed. Correct?

MR. CHAMI: Objection; misstates the evidence,
and it's testifying. Move to strike.

THE WITNESS: Yes. Possibly, you need to --
you should try to adjust those handcuffs, if possible,
depending on the subject's actions.

Mtl

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com


16

17

18

19

20

21

22

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

possessing any super, you know, human strength.
Especially we know that he was a martial arts expert
and pretty -- with extensive experience. And he never
once tried to strike or hurt the officers in any way.
BY MS. STILLWELL:

Q But you agree that he physically resisted
their attempts to detain him?

A Yes. Initially, with the dog. And I think on
the ground over there, I can't tell if he was physically
resisting.

I know that they physically, based on my
looking at the video, I believe that the arms were
pushed over to the head, in addition to what
Officer Grenier stated when they reviewed the body-worn
camera, forced the arms over the head, to the front,
which I believe is unreasonable.

Q Now back to my original question about
Mr. Muhaymin's extreme strength. And I think you may
have said it in your report, too.

The officers commented on the extreme strength
that he had. Do you recall that?

A Yes.

fe) Okay. If the officers had told him that
instead of, you know, being taken into custody for a

warrant, if they told him that, "We're taking you to a

KAMRYN | WHITNEY COURT REPORTING, LLG
info@kwcourtreporting.com

150


10

24.

12

13

14

16

17

18

19

20

21

22

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

BY MS. STILLWELL:

Q Now, Mr. DeFoe, you said earlier that no crime
had been committed.

You understand Mr. Muhaymin had an active
warrant out of the City of Mesa. Correct?

A I'm aware of that. But I meant a crime had
been committed as it relates -- not the failure to
appear out at Mesa.

I'm talking about on the day of the response,
we found out that there was a mutual bump involving
Mr. Tarango, and then there was no other crime at the
time. So -- other than the warrant.

Q And you would agree with me that the warrant
provides the basis for an arrest?

A Sure. I agree. I mean, they had a lawful
right to take him into custody. And that's, once again,
based on their policy, they opted not to do that, which
ig the discretion of the officer, and could have gotten
supervisor approval, based on the totality of the
circumstances.

fo Now, have you ever, in your experience as a
law enforcement officer, have you ever, you know,
advised a suspect that you have -- that they have a
warrant, and you want to take them into custody, and

they run?

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com

147


10

11

12

13

14

15

16

LY

18

19

20

21

22

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

Q Okay. And in your opinion, it says: "It is
my opinion that the Basic Physiclogy of a Struggle is
applicable in this matter."

Did I read that correctly?

A Yes.

Q And you have -- that is the 1895 publication
by the U.8. Department of Justice?

A Yes.

Q And you'd agree with me that that publication
now, now, in 1995, that it's 25 years old. Correct?

A Yes. It's 25 years old.

Q And there have been several additional studies
and/or articles or publications regarding asphyxiation
and struggles and detaining individuals. Correct?

A There have been.

fa) Now, on page 2 of the Basic Physiology of a
Struggle, do you see how it provides the advisory
guidelines for care of subdued subjects?

A Yes.

Q And it says in there, in the first paragraph:
"Where possible, avoid the use of maximally prone
restraint techniques (e.g., hogtying) ."

Do you see that?

A esr.

Q Now, it's not your testimony or your opinion

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com

189


EXHIBIT 47


10

11

12

13

14

1s

16

17

18

19

20

21

22

23

24

25

Scott Defoe = October 23, 2020
CONFIDENTIAL

to four officers holding him down. Right? So there

was -- that was -- and his head was pinned down to the
ground by his dreadlocks, and there was body weight and
force holding him down, and coupled with the fact that,
you know, specifically when Officer Grenier said "yes,
he was pinned", was a clue to me that that he was pinned
to the ground during the entire time preceding his
death.

Q You do not know -- back to my original
question, you do not know how long any one officer was
in a position. Correct?

A No. dust that they were all on top of him.
And it coincides with Grenier's statement at his
interview actually, on 1/4/17.

Qo You do not know how much body weight was
applied to any specific area. Correct?

A There is -- no one can be able to determine how
much body weight some of the officers, other than the
fact that, you know, the end result was that he vomited
and passed away.

te] Have you had anyone die in your custody?

A People that I've shot, yes.

Q Any others?

A No.

Q When a suspect says that they can't breathe,

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com

199


10

11

12

13

14

15

16

Ae

18

19

20

21

22

23

24

25

Scott Defoe = October 23, 2020
CONFIDENTIAL

the officers that were present, on the back, holding
the legs, on the neck, on the head, during the time in
which until he went unconscious.

BY MS. STILLWELL

Q Not one officer maintained a specific position
for more than a few minutes. Correct?

MR. CHAMI: Objection; misstates the evidence.

THE WITNESS: I didn't time, other than the
fact that what the officers testified to as to where
and what each other individual officer did when they
arrived, what their observations were, as well as what
their own observations were and their testimony in
their depositions.
BY MS. STILLWELL:

Q In rendering your opinion number six, you did
not time or quantify the length of any application of
body weight?

A Just the body weight in itself, the entire
time. It was hard to tell, you know, how long, you
know, someone's knee was on the neck, how long the
weight was on his shoulders, how long the weight was --
but there was continuous weight, as you can see on the
body-worn camera, the entire time.

And it coincides with what the officers were

saying as well, as they arrived. There were still three

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com

198



10

11

12

13

14

15

16

17

19

20

21

22

23

24

25

Scott Defoe - October 23, 2020

CONFIDENTIAL
BY MS. STILLWELL:
Q By reminding the person, "Stop resisting"?
A If they're resisting, yes.
Q Okay. Now, in your opinion number three, you
epine -- and I think we touched base on this -- but you

opine and even underline that he did not commit a crime
that necessitated detention or arrest.
And you base that opinion on trespass.

Correct?

A Or assault. Everything but the warrant. Take
the warrant out of the equation, there is no crime.

Q So in your opinion, you go through the
trespass statute. Correct?

A I do.

(o) And Mr. Muhaymin was not arrested for

trespass. Right?

A He was not.
Q And he was not arrested for assault. Correct?
A No. He died at the scene. He wasn't arrested

for anything.

Q He was being arrested, though. He was being
detained for a warrant. Correct?

A Yes.

Q Okay. You do not mention Mr. Muhaymin's

warrant in this opinion, though.

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting,com

161


10

Beek

12

13

15

16

17

18

19

20

21

22

23

24

25

Scott Defoe - October 23, 2020

CONFIDENTIAL
service animal?
A Yes.
ie) You understand that it was not registered with

Maricopa County as an animal. Correct?

A I don't know that.

is) Do you understand that it was never trained as
a service animal?

MR. CHAMI: Object to foundation, misstates,
assumes facts not in evidence.

THE WITNESS: Well, I don't know what its
training was. Service animals, depending on the type
of illness the person may have, are trained in a
variety of different ways. So sometimes it's just
comfort, and sometimes it's formal training, formal K9
training, depending on what the person's situation is.
BY MS. STILLWELL:

Q And you understand, under the ADA, a comfort
animal does not amount to a service animal?

MR. CHAMI: Objection; foundation.

THE WITNESS: They're two different animals,
have two different functions as animals. They may have
the same functions; but they are trained differently,
yes.

BY MS. STILLWELL:

Q And the ADA covers service animals, not

KAMRYN | WHITNEY COURT REPORTING, LLG
info@kwcourtreporting.com

108


10

il

12

13

14

16

ites)

18

1s

20

21

22

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

leg by the torso, by the upper thigh area, then
possibly.

Q But that wouldn't restrict anybody's
breathing, by holding down an arm or a hand?

MR. CHAMI: Object to form.

BY MS. STILLWELL:
ie) Or an ankle. Correct?

MR. CHAMI: Object to form, improper expert
testimony.

THE WITNESS: People are attempting to
breathe, and they're trying to create space between the
ground and their body, is they're going to try to move
their legs and whatnot, to try to grab, you know, get
whatever air they can into their lugs.

So once again, by holding down their legs in
the torso area, in the waist and the legs area could
prevent or restrict them from doing that.

BY MS. STILLWELL:
Q How long do you believe -- did you quantify

how long Mr. Muhaymin was on his stomach?

A No.

Qo So you don't know how long he was in a prone
position?

A Ultimately, I do not.

Q And is it your opinion that Mr. Muhaymin had

KAMRYN | WHITNEY COURT REPORTING, LLG
info@kwcourtreporting.com

211


w

10

ea

13

14

15

16

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

Q Now, in addition to Mr. Murray's incident
report and statement about Mr. Muhaymin's conduct at
the hospital, de you recall receiving a document from
Maricopa County Animal Care and Control report, where
Maricopa Animal Care and Control indicates that that
they were contacted on January 4th, 2017?

A No.

Q That would certainly affect your opinion
regarding the animal. Correct?

A Well, it would. If they were contacted prior
to the use of force, it would have. But at the time in
which force was used, they were not at scene. They
should have been contacted before, if they were going to
take Mr. Muhaymin into custody, and to coordinate that.
Especially the fact that it was a service animal, and
especially due to the fact there was apparently some
anxiety and obviously mental health conditions that were
occurring. I think their approach to that could have

been quite different.

Q Okay. We're going to break that down a little
bit.
How do you know that the animal was a service
animal?
A Because he said it was.
Q Because Mr. Muhaymin you said that it was a

107
KAMRYN | WHITNEY COURT REPORTING, LLC
info@kwcourtreporting.com



Scott Defoe - October 23, 2020
CONFIDENTIAL

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

MUSSALINA MUHAYMIN, as
Personal Representative of
the Estate of Muhammad Abdul
Muhaymin, Jr.,
Case No. 17-cv-04565
Plaintiff, PHX-SMB

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.

CONFIDENTIAL

VIDEOTAPED DEPOSITION OF SCOTT DEFOE
Irvine, California

Friday, October 23, 2020

REPORTED BY: Marlene Apodaca, CSR No. 6579
Job No. 108055



10

14:

12

13

14

15

16

LF

18

19

20

21.

22

23

24

25

Scott Defoe - October 23, 2020
CONFIDENTIAL

Q Now, I know you claim later on in one of the
opinions that the officers' actions amounted to deadly
force. I just need a better understanding of how you
reached that conclusion.

Clearly, just because someone dies in police
custody, it doesn't mean that anything ill happened.
There wasn't any wrongdoing. Correct?

MR. CHAMI: Object to form, foundation.

THE WITNESS: At times, yes.

BY MS. STILLWELL:
Q I mean, a person can die in police custody

without anyone's involvement. Correct?

A They can commit suicide. They can do a number
of things.
fe) And it can be a heart attack, where someone is

being put into handcuffs in police custody. Correct?

A It can.

Q And you already indicated that, in your
experience as an officer, the people who have died in
custody at your hands was because of a shooting. Is
that right?

A Shootings, yes.

Q And I think we talked about this earlier. In
your years of experience, you have had individuals who

didn't want to be arrested or who tried to run and

KAMRYN | WHITNEY COURT REPORTING, LLC
info@kweourtreporting.com

203



10

bse

12

13

1s

16

17

18

19

20

21

22

23

24

25

Scott Defoe = October 23, 2020
CONFIDENTIAL

Q Okay. And I'm going to move to strike the
entire answer.

My question was: If there is no -- if the
force was reasonable, then there is no duty to
intervene. Correct?

MR. CHAMI: Object to the form.

THE WITNESS: Well, if the force is
reasonable, yes.

BY MS. STILLWELL:

Q Okay. In opinion number eight, you opine that
there was a failure to provide training on seven
different areas. The first is proper response and
interaction with mentally i11, working as a team,
verbal strategies, active listening skills, crisis
intervention training, defusing and de-escalation
techniques, and positional asphyxia.

Is that right?

A Yes.

{e) Now, you would agree with me that -- you've
received all the training records for each of the ten
police officers. Correct?

A Yes,

Q And I'm sure, in your experience, when you
have the training records, the description of the

training is summarized in just a few words. Is that

KAMRYN | WHITNEY COURT REPORTING, LLG
info@kwcourtreporting.com

217