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

Karen J. Stillwell, Bar No. 022711

Travis B. Hill, Bar No. 021133

O'CONNOR & DYET, P.C.

7955 South Priest Drive

Tempe, Arizona 85284

daniel.oconnor@occlaw.com

karen.stillwell@occlaw.com

travis.hill@occlaw.com

(602) 241-7000

Attorneys for Phoenix 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’ REPLY IN SUPPORT 

OF NOTICE OF VIOLATIONS OF 

ARIZ. R. PROF. COND. E.R. 3.2 & 3.6, 

AND LOCAL RULE OF CIVIL 

PROCEDURE 83.8

AND 

MOTION FOR SANCTIONS

Assigned to the 

Honorable Susan M. Brnovich

The purpose of Defendants’ Notice of Violations of Ariz. R. Prof. Cond. E.R. 4.2 & 

3.6, and Local Rule of Civil Procedure 83.8 and Motion for Sanctions (“Defendants’ 

Motion”) was to alert the Court to new violations of the Arizona Rules of Professional 

Conduct, Rules of this Court, and its Orders, all of which are open, obvious, and as this 
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pleading is written, are readily available on the internet. These violations individually and 

collectively warrant Defendants’ requested sanctions, or at the very least a “gag order.”

In her Objection, Plaintiff’s counsel deflects his own violative conduct and claims 

Defendants are “bullying” him and “muzzling” free speech. (Dkt. No. 342). Defendants 

are doing no such thing. Our Courts and our State Bar governing attorneys’ ethics have 

Rules and Orders and when those are violated, it is incumbent upon opposing counsel to 

alert the Court. When confidential information used in support of that Notice to the Court, 

the Notice and attachments are filed under seal. Plaintiff’s misrepresentations of the 

underlying Notice and its contents in her publicly-filed Objection should not go unnoticed.1

Defendants do not dispute Plaintiff’s important rights to free speech, petition the 

government, and fight for policy changes that she believes are necessary. Defendants have 

not, and do not, wish to restrict this in any manner. However, Plaintiff’s counsel is bound 

by the Court’s Rules and Orders, as well as their ethical duties proscribed by the State Bar. 

Moreover, while Plaintiff is fundamentally endowed with such rights, Defendants are also 

entitled to a fair trial. These rights can and should be balanced. Unfortunately, in this case, 

Plaintiff’s counsel have repeatedly walked the line, and now, just four months from trial, 

they have leaped over it.

MEMORANDUM OF POINTS AND AUTHORITIES

I. ARGUMENT

1. Defendants have not Requested the Court Reconsider its Previous Orders, and as such, Local Rule of Civil Procedure 7.2(g) does not Apply.

1 Plaintiff inaccurately claims the “only piece of information” claimed to be confidential 

in the underlying Notice and Motion is an officer’s promotion. In addition to other items, 

deposition testimony demonstrating Plaintiff’s violations and unprofessional conduct 

was detailed in and attached to the underlying Motion. This Court previously held certain 

deposition testimony is confidential. Defendants sought a Court Order sealing their 

underlying Notice and Motion to comply with the Court’s Orders and Rules. (Dkt. No. 

329). The Court agreed and granted Defendants’ Motion to Seal. (Dkt. No. 334).
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Defendants have not requested the Court reconsider its previous Rulings and Orders 

with respect to Plaintiff’s counsel’s conduct. Instead, Defendants merely point to past 

documented violations, and the Court’s Orders issuing warnings to Plaintiff’s counsel.

Nothing within Local Rule of Civil Procedure 7.2(g), or elsewhere, prevents the 

Defendants or the Court from reviewing, or citing to, past Orders that warn of future 

sanctions or remedial measures that may be taken by the Court for future, or present, 

violations by Plaintiff’s counsel. The references to the prior conduct and the Court’s 

previous warnings to Plaintiff’s counsel related to the conduct establish a pattern of 

misconduct and refusal to abide by the Court’s Rules and Orders.

2. The U.S. Supreme Court has Held Extrajudicial Statements may and 

should be Constitutionally Restricted to Ensure a Fair Trial.

Plaintiff’s counsel implies that his conduct is cloaked in the all-encompassing 

freedoms of speech afforded by the United States and Arizona Constitutions, ignoring the 

many multifaceted limitations enumerated by the United States Supreme Court regarding 

speech, particularly speech by attorneys in ongoing litigation. A recitation of these cases

and the examples of where freedom of speech may be restricted is unnecessary, Defendants 

are not making this up, the Supreme Court has explicitly supported restraints of speech in 

making extrajudicial statements when weighed against the right to a fair trial. Gentile v.

State Bar of Nevada, 501 U.S. 1030 (1991). Lawyers involved in pending litigation are 

subject to ethical restrictions upon speech which do not apply to ordinary citizens. Id. at 

1071. In Gentile, the Supreme Court held that it is entirely appropriate for courts and State 

Bars to regulate attorney speech. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1072

(1991) (Rehnquist, J.) (“We expressly contemplated that the speech of those participating 
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before the courts could be limited.”).

2 As example, the Supreme Court noted that attorneys 

should be prohibited from discussing inadmissible evidence in an extrajudicial statement:

Extrajudicial comments on, or discussion of, evidence which might never be 

admitted at trial and ex parte statements by counsel giving their version of 

the facts obviously threaten to undermine this basic tenet.

Id. at 1071. The Court also noted that restrictions on an attorney’s opinions about the merits 

of a claim or defense are especially appropriate, because the public often lends considerable 

weight to such opinions:

Because lawyers have special access to information through discovery and 

client communications, their extrajudicial statements pose a threat to the 

fairness of a pending proceeding since lawyers' statements are likely to be

received as especially authoritative.

Id. at 1074. 

Restrictions upon extrajudicial statements are proper when such comments have a

likelihood to influence the outcome of a trial, or where they may prejudice the available 

pool of jurors, even if an untainted set of jurors can eventually be found. Id. at 1075. 

Moreover, the Gentile Court clearly stated limitations of freedom of speech apply to the 

litigants. Chief Justice Rehnquist noted that the Court had previously concluded that a 

litigants’ right to free speech “may be subordinated to” the right to a fair trial. Id. (quoting 

Seattle Times Co. Rhinehart, 467 U.S. 20 (1984)). 

Political winds do not blow so strongly as to make two events, dissimilar in many 

significant respects, move the foundational bedrock of our judicial system ensuring the 

right to a fair trial, despite how rigorously those winds are fanned by the attorneys 

representing the Plaintiff. In hindsight, if done properly, Plaintiff’s attorneys may have 

2 The Gentile decision contained two separate majority opinions. Chief Justice Rehnquist 

authored a majority opinion regarding certain aspects of the case, while Justice Kennedy 

authored a majority opinion with respect to the other aspects of the case. Unless 

otherwise notated, the quotations cited herein are from the portions of the opinion that

were adopted by the majority of the Court.
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discussed policy or political change exclusively with elected officials or the press without 

violating Ariz. R. Prof. E.R. 4.2 & 3.6, and Local Rule of Civil Procedure 83.8. However,

Plaintiff’s counsels’ attempt to retrospectively frame their conduct within the rules is

telling and his request that this Court view his conduct through his lens is improper.

Plaintiff’s counsel went far beyond demanding an investigation be reopened – he 

misrepresented to the media the investigations performed to date and details of the events. 

He used the media to discuss evidence, discuss what experts will testify to, and cast 

aspersions against Defendants and their counsel. It is unfortunate that the Plaintiff’s 

counsel have placed Plaintiff in this unnecessary position. 

3. The Extrajudicial Statements by Plaintiff’s Counsel Speak for Themselves.

To correct the Plaintiff’s summary within Plaintiff’s Objection, “prominence does 

not necessarily produce prejudice, and juror impartiality does not require ignorance.” 

Skilling v. United States, 561 U.S. 358, 381, 130 S. Ct. 2896, 2902 (2010) (citing to Irvin 

v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639 (1961)) (holding that pre-trial publicity 

involving the Defendant’s bankruptcy did not require a change of venue in the Defendant’s 

securities fraud trial). Apart from the matters, being civil actions, the prejudice involved 

here is highly disparate in Skilling. However, Defendants would agree that Skilling does 

apply with respect to this Court’s determination in this respect:

When pretrial publicity is at issue, ‘primary reliance on the judgment of the 

trial court makes [especially] good sense’ because the judge ‘sits in the locale 

where the publicity is said to have had its effect’ and may base her evaluation 

on her ‘own perception of the depth and extent of news stories that might 

influence a juror.’

Id. at 386, 2918. 

Plaintiff’s counsel made a lot of statements – in the letter he sent directly to Council 

and in his extrajudicial statements to the media – however, many of their statements were 

unsubstantiated and/or designed to influence the potential jury pool. In the Objection,

Plaintiff’s counsel misrepresents and attempts to excuse their misconduct by claiming 
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information is public knowledge.3 However, Plaintiff relies upon at least one news article 

in which he provided information to the media. Nonetheless, Plaintiff’s misrepresentation 

of information that is now “public” is largely due to his improper conduct and comments 

that arise from extrajudicial statements concerning the death of Mr. Muhaymin, the 

evidence a jury will weigh, and what Defendants’ experts will testify to regarding this case.

Plaintiff’s counsel argues that Defendants twisted his words and taken his 

statements out of context. During his media interview, Mr. Faraj stated, “You had a man 

die in the custody of the Phoenix Police Department, who committed no crime. He died by 

asphyxiation and suffocation. The County Coroner declared it a homicide, and not a single 

county politician, person in a position of power, has seen fit to call for a criminal 

investigation.” https://www.abc15.com/news/local-news/investigations/family-imploresphoenix-council-to-act-in-in-custody-death-of-muhammad-muhaymin.

Mr. Chami stated, “Nothing has happened. In fact, you know, at least one officer 

has been promoted, um, since this incident. So you know this-the... Had we had a a 

bystander, with a with a video camera or with a cell phone, the way um, the way the the 

Floyd family had the benefit of bystanders who actually thought to take out their cell 

phones and record it. I think we would have a much different outcome. I think Muhammad

Muhaymin may have been George Floyd, just three years earlier.” Id. Missing from these 

quoted statements and the news report is the word “reinvestigate” because, as Plaintiff’s 

counsel knows, this matter was already investigated by the Department and by the 

Maricopa County Attorney’s Office, in 2017. The Maricopa County Attorney’s Office 

determined there was no criminal conduct.

3 The Phoenix New Times article cited by Plaintiff’s counsel does not reference a 

promotion; rather it inaccurately identifies an officer as “Sergeant,” which he is not. Dkt. 

No. 342, p. 5. Moreover, no “overtly racist statements” were attributed to this officer.
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What does appear in the news report is the word “homicide.” When searching for 

the definition of homicide via Google’s web engine, the first definition which appears is 

“the deliberate and unlawful killing of one person by another; murder.” But the Arizona 

Court of Appeals, found differently and held that a medical examiner’s testimony regarding 

the medical cause of death as homicide, violated Rules 403 and 702, Ariz. R. Evid., because 

a lay person may be misled into believing that the term was synonymous with the criminal 

offense of homicide. State v. Sosnowicz, 229 Ariz. 90, 97, 270 P.3d 917, 924 (App. 2012). 

Here, the potential jury pool, similar to the empaneled jury in State v. Sosnowicz, has now 

received this information one-sidedly, and without the benefit of explanation, nor the 

opportunity for Defendants to challenge the admissibility of such information under Rules 

403 and 702, Fed. R. Evid. However, Plaintiff’s counsel need not parse words in their 

pleading, given that large portions of the letter sent to the City of Phoenix Mayor and City 

Council Members appeared unredacted in the news report. Included within the visible letter 

were the words kill, killing, and killed to describe Mr. Muhaymin’s death putatively at the 

hands of the Defendants. Based upon Plaintiff’s own words, it is clear that Plaintiff’s 

counsel insinuated that the Defendants murdered Mr. Muhaymin, that would cross the line 

of prohibited extrajudicial statements.

4. Plaintiff’s Counsel Selectively Block Quoted Ariz. R. Supp. Ct. E.R. 4.2, 

Cmt. 1

Plaintiff criticizes Defendants’ citation to ABA model rules “as opposed to the rules 

actually enacted in Arizona” and accused Defendants of an “obvious attempt to mislead 

the Court,” citing Ariz. R. Prof. Cond. E.R. 3.3. However, Rule 42, Arizona Rules of 

Professional Conduct, expressly states: “The professional conduct of members shall be 

governed by the Model Rules of Professional Conduct of the American Bar Association, 

adopted August 2, 1983, as amended by this court and adopted as the Arizona Rules of 

Professional Conduct.” Thus, Rule 42 of the Arizona Rules of Professional Conduct

demonstrates that the ABA model rules have been adopted in Arizona. 
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As the ABA model rules have been adopted by Arizona, Defendants directed the 

Court’s attention to ABA Formal Opinion 97-408, because Arizona did not have an opinion 

which discussed Ariz. R. Prof. Cond. E.R. 4.2, in the context of attorney communications 

with a government organization represented by separate counsel. Ariz. R. Prof. Cond. E.R. 

4.2 provides on its face, “In representing a client, a lawyer shall not communicate about 

the subject of the representation with a party the lawyer knows to be represented by another 

lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized 

by law to do so.” Lang v. Superior Ct., In & For Cty. of Maricopa, 170 Ariz. 602, 604–05, 

826 P.2d 1228, 1230–31 (App. 1992), makes clear that this Rule applies to organizations. 

Plaintiff’s Objection doesn’t argue that counsels’ communication falls outside of the 

purview of Ariz. R. Prof. Cond. E.R. 4.2. Instead, Plaintiff’s counsel argue that their 

communication is permissible under the Rule.

Again, Defendants have not argued that Plaintiff is prohibited from discussing 

policy or political change with the City of Phoenix officials, but instead, take issue with 

Plaintiff’s counsel directly communicating with a party (an organization) they know to be 

represented in this matter and discuss the merits of the defense, evidence, and what experts 

will testify to, all without Court Order or prior notice to undersigned. To apparently prove 

that Plaintiff’s counsel did not violate Ariz. R. Prof. Cond. E.R. 4.2, they partially quoted 

Ariz. R. Sup. Ct. E.R. 4.2 cmt. 1, focusing on “[c]ommunications authorized by law 

include, for example, the right of a party to a controversy with a government agency to 

speak with government officials about that matter.” However, Plaintiff’s counsel omitted 

the beginning of the comment. The comment to E.R. 4.2 provides, in its entirety: 

This Rule does not prohibit communication with a party, or an employee or 

agent of a party, concerning matters outside the representation. For 

example, the existence of a controversy between a government agency and a 

private party, or between two organizations, does not prohibit a lawyer for 

either from communicating with nonlawyer representatives of the other 

regarding a separate matter. Also, parties to a matter may communicate 

directly with each other and a lawyer having independent justification for 

communicating with the other party is permitted to do so. Communications 
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authorized by the law include, for example, the right of a party to a 

controversy with a government agency to speak with government officials

about the matter. (emphasis added).

Notably, it was not Plaintiff (a party) who communicated with represented officials 

regarding facts of the matter, it was her attorney. As stated above, Arizona Professional 

Rules of Conduct prohibit Plaintiff’s counsel’s conduct. Plaintiff’s counsel’s partial 

quotation of this comment was an obvious attempt to mislead the Court, and violates Ariz. 

R. Prof. Cond. E.R 3.3, given that prohibits their direct communication to the City of 

Phoenix officials. 

5. Enforcing the Court Orders, Ariz. R. Prof. Cond. E.R. 3.2 & 3.6, and Local 

Rule of Civil Procedure 83.8 is not Draconian.

Despite the redundant disapproval in Plaintiff’s Objection to the Court Orders and 

Rules governing the conduct of the Parties and their counsel, Defendants would 

respectfully request the Court weigh its ruling in mind of all Parties and balance their 

respective rights. Defendants’ Notice and Motion were not prompted by conduct violating

Plaintiff’s right to free speech; rather, its purpose was to point out Plaintiff’s counsel’s

violation of the Court’s Rules and Orders, as well as the ethical rules by which they are 

bound, and Defendants’ right to a fair trial. Nearly a year ago, this Court expressed concern 

over the timing of Plaintiff’s counsel’s conduct in relation to nationwide events. The timing 

of Plaintiff’s counsel’s statements here are similarly concerning.4

Plaintiff’s counsel describes Defendants’ Notice to the Court of their violative 

conduct as a “Hail Mary.” Of course, this is a metaphor generally used to describe a 

situation similar to a “Hail Mary” play utilized in the game of American football. This 

football play is used on offense, in which a player, usually the quarterback, makes a last4 Plaintiff’s counsel again mentioned something that was discussed during a hearing sealed 

by the Court. Interjecting his arguments in support of his previous improper conduct 

(attaching full deposition transcripts to briefing) is entirely inappropriate, as is his 

discussion of matters addressed during a sealed hearing. (Dkt. No. 342, p. 8).
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ditch effort to hurl the ball as far as they can into the endzone in hopes that the team’s 

receiver catches the ball to win the game. It is almost exclusively used when a team is 

behind on points in the last seconds of the game. While the metaphor doesn’t quite track 

the circumstances of this case, what is interesting is the timing connotated by the use of the 

term in Plaintiff’s Objection. Defendants agree that we are in the last seconds of this case

if it were a football game. However, a better metaphor would be that Plaintiff’s counsel’s 

conduct is much like a team that is forced to forfeit due to the ejection of players for too 

many unsportsmanlike penalties. While it would be preferable to win the game based upon 

play on the field, it is tough to criticize the opposing team or referee, when the side who 

committed penalties in that situation did it to themselves by failing to follow the rules.

While it is universally understood that this matter is not a game, nor are the rules 

that govern it, no amount of catchy metaphors can distract from the very real constitutional 

balancing the Court must examine. Defendants have repeatedly asked that the Plaintiff’s 

counsel abide by the Rules and litigate this matter within the appropriate forum – namely, 

the Court and not the media; however, they continue to demonstrate to the Court that they 

will not, regardless of what the Rules require. The requested sanctions permitted by the 

Rules are not “draconian.” These Rules are designed to protect the rights of all parties from 

being trampled. See LR Civ. 83.8(a) (“[a] lawyer . . . associated with a civil action shall 

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

statement, ... if there is a reasonable likelihood that such dissemination will interfere with 

a fair trial. ...”).

Subjecting Defendants (and Plaintiff) to an unfair trial by a tainted jury pool is 

categorically draconian. While the effects of the requested sanctions are averse to the 

Plaintiff, she need not look to the Court or Defendants to ask why, she only need look to 

her counsel. They can explain why they couldn’t resist speaking to the media, and how that 
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potentially prejudiced not only the Defendants, but could result in the dismissal of her case 

through their conduct. Her counsel knows the rules and knows they violated them.

II. CONCLUSION

Plaintiff’s counsel’s attempt to now retrofit their conduct to conform to the Rules is 

troubling. It seems as though asking for a fair trial equates to an unconstitutional restraint 

on speech. According to Plaintiff’s counsel, simply asking that they follow the Rules 

governing communications with represented parties and trial publicity, is an attempt to 

muzzle and bully her. It is abundantly clear that Plaintiff’s counsel never has, nor will they 

ever, permit this matter to be heard under the due process requirements and in the 

Courtroom. Defendants respectfully request that the Court to consider appropriate 

sanctions and penalties as are warranted here. 

RESPECTFULLY SUBMITTED this 14th day of May, 2021.

O’CONNOR & DYET, P.C.

By: /s/ Karen J. Stillwell

Daniel J. O’Connor, Jr.

Karen J. Stillwell

Travis B. Hill

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on May 14, 2021, 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
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Brian J. Theut

THEUT, THEUT & THEUT

5150 North 16th Street

Phoenix, AZ 85016

Guardian Ad Litem and Statutory 

Representative for A. M. 

By: /s/ Dara J. Wilson