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HONOR LAW GROUP, PLLC

Benjamin L. Rundall, State Bar No. 031661

James M. Cool, State Bar No. 028023

4450 S. Rural Rd., Suite C-220

Tempe, AZ 85282

(602) 282-0223

Attorney E-mail: files@aztrialattorneys.com

LAW OFFICE OF SCOTT A. EWING

Scott A. Ewing, State Bar No. 030375

5215 N. Sabino Canyon Rd. 

Tucson, AZ 85749

Attorney E-mail: scott@azcivilrightsattorney.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Carlos Castro,

Plaintiff, 

vs. 

The State of Arizona, et al.,

Defendants.

Case No. 2:18-cv-00753-SRB-ESW

PLAINTIFF’S CONTROVERTING AND 

SEPARATE STATEMENTS OF FACTS 

IN SUPPORT OF HIS RESPONSE TO 

STATE DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

Plaintiff, Carlos Castro (“Mr. Castro”), submits the following Controverting Statement of 

Facts (“CSF”) and Separate Statement of Facts (“PSOF”) in opposition to Defendants’ Motion 

for Summary Judgment.

Plaintiff’s Controverting Statement of Facts

1. Undisputed.

2. Undisputed.

3. Undisputed.

4. Undisputed, but with Objection. The information regarding Castro’s prior 

criminal conduct and convictions is not relevant to whether Defendant Martin’s use of force 

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was justified; and even if it was, such evidence would be overly prejudicial. Plaintiff has 

already conceded his prior criminal past, but his past is not the focus of inquiry before this 

Court. Moreover, even Defendants’ expert concedes “I don’t recall anything in the record that 

suggested that [Plaintiff] was involved in gang activity at the time of committing any of these 

other crimes.” See Exhibit 3 at 80:11-13.

5. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4. 

6. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4. 

7. Undisputed.

8. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4.

9. Disputed. Ms. Benton’s brother, BJ, started arguing with and threatening 

Plaintiff because he disagreed with Ms. Benton’s decision to be in a relationship with Plaintiff. 

Plaintiff was not in a dispute with the entire Benton family, but rather, Ms. Benton’s brother 

BJ who disagreed strongly with Ms. Benton’s relationship with Plaintiff. Moreover, the 

characterization that Plaintiff was “ready and willing to use his gun” is deceptively cryptic. If 

Defendants’ intent in being cryptic is to infer Castro was willing to use his gun and shoot BJ, 

they should also include the important mitigating details that all four shots Plaintiff fired were 

into the air and no evidence shows Plaintiff pointed a gun at any person or shot at any person. 

This additional fact provides an important qualitative distinction that even Defendants’ expert 

agrees could be used to show less indication of threat. See Exhibit B at 91:10-95:4; Exhibit 

3 at 62:4-25.

10. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4.

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11. Disputed. Plaintiff again objects to the characterization of Defendants’

narrative, which should include the critical fact he shot into the air, and not at any specific 

individual.

12. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4.

13. Disputed. Plaintiff has never been convicted of an assault or robbery at 

JCPenney. See Exhibit 7.

14. Objection. Whether Plaintiff invoked his Fifth Amendment rights is not a 

material fact relevant to the Court’s analysis in this matter and has only been mentioned to 

create the improper inference that Plaintiff must be guilty of these allegations. 

15. Objection. Plaintiff has never been charged with or convicted of homicide and 

this is not a material fact that will aid in resolution of Defendant Martin’s use of excessive 

force. This statement has been included by Defendants for the sole purpose of avoiding 

Defendant Martin’s own misconduct. 

16. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4.

17. Undisputed, but with Objection. Plaintiff repeats his objection made in 

response to SOF 4.

18. Disputed. Plaintiff was never charged with or convicted of an assault and 

robbery at JCPenney. See Exhibit 7.

19. Undisputed.

20. Undisputed.

21. Undisputed.

22. Undisputed.

23. Undisputed.

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24. Undisputed.

25. Undisputed, but with Objection. At his deposition, Plaintiff said he was not a 

member of a gang at the time of his arrest. See Exhibit B at 25:21-23.

26. Undisputed.

27. Undisputed, but with Clarification. Plaintiff agreed getting the face tattoo was 

a mistake. See Exhibit B at 30:8-15.

28. Undisputed.

29. Undisputed.

30. Undisputed.

31. Undisputed.

32. Undisputed.

33. Disputed. Plaintiff stated that while hiding in the shed he never heard Officers 

give K-9 Commands or saw any K-9s. See Exhibit B at 121:6-121:11.

34. Undisputed, but with Clarification. The screenshots presented do not 

necessarily represent “key” moments of this incident but, rather, relevant moments. 

35. Undisputed.

36. Disputed. Plaintiff did not continue fleeing but rather climbed on top of the roof 

from the ladder in the backyard while determining how to surrender because he “knew [he].

was caught” and recognized that Officers were in the front. See Exhibit B at 124:25-125:7.

37. Disputed. Plaintiff was already on the front area of the roof near the front yard

when first ordered to come down off the roof by an Officer in the front yard. So, had Plaintiff

walked back to the ladder on the back side of the roof, he would have been walking away 

from and out of the presence of officers. By walking towards the officer, Plaintiff was in the 

process of obeying the Officer’s commands, which is also recognized by Defendants’ expert. 

See Exhibit B at 122:10-25; Exhibit 3 at 97:2-25.

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38. Disputed. Officers gave conflicting commands to both “stop” and get off the 

roof. As Defendants’ expert concedes, “it’s not best practice to give conflicting commands,” 

because doing so may prove “confusing” to the suspect. Despite these conflicting commands, 

however, Plaintiff walked to the edge of the roof towards Officers and within their line of 

sight, sat down, put his feet over the edge of the roof, and said “I’m done.” See Exhibit 1 at 

2:11-3:3; Exhibit 2 at 00:02-00:16; Exhibit B at 124:2-7; Exhibit A at 24:6-24; Exhibit 3 

at 86:1-24 and 87:12-24.

39. Disputed. Plaintiff attempted to comply with Officers conflicting commands

and even Defendants’ own expert conceded it would be fair to conclude Plaintiff “thought he 

was being compliant.” See Exhibit 2 at 00:15; Exhibit 5 at p. 15, ¶ 6; Exhibit 3 at 106:23-

107:7 and 178:15-179:6; Exhibit B at 124:2-7 and 124:25-125:7.

40. Disputed. Plaintiff said “I’m done” at least six times before Officers Tasered 

him from the roof. Plaintiff also pleaded with Officers that he did not want to fall from the 

roof, a request that was completely ignored by Officers despite being reasonable. See Exhibit 

1 at 2:21, 3:3, and 3:11-15; Exhibit 2 at 00:27-00:35; Exhibit B at 124:25-125:7.

41. Undisputed.

42. Undisputed but with Clarification. Plaintiff also said he was sitting right in 

front of officers, without a shirt, and he believed they could see “I have no guns.” See Exhibit 

B at 131:10-132:8.

43. Undisputed.

44. Disputed. Plaintiff was not “plotting his escape” and attempted to comply with 

conflicting police commands. See Exhibit B at 124:25-125:7; Exhibit 2 at 00:02-00:16; 

Exhibit A at 24:6-24.

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45. Disputed. Plaintiff was well illuminated by a police spotlight and shirtless. 

Officers’ approach of Plaintiff in defiance of protocol creates an inference they did not 

perceive Plaintiff as a threat.

46. Disputed. Plaintiff repeatedly tried to comply with police commands and 

verbally surrendered to police, stating, “I’m done” six times before being inappropriately 

Tasered off the roof. See Exhibit 2 at 00:15-00:31 and Exhibit B at 124:2-7.

47. Disputed. Defendants’ expert believes it wouldn’t be an “unfair conclusion” to 

conclude Plaintiff was surrendering; Plaintiff’s expert says Plaintiff was “100% done;” 

Plaintiff said he was surrendering, and the video shows Plaintiff putting his hands up and 

telling officers “I’m done” six times. See Exhibit 2 at 00:15-00:31; Exhibit 3 at 178:15-

179:6; Exhibit 4 at 52:7-56:20; Exhibit B at 124:25-125:4 and 134:3-18.

48. Disputed. The very next line from Plaintiff’s deposition, which Defendants 

conveniently failed to mention, confirms Plaintiff “was going to give up” because “I knew I 

was caught.” See Exhibit B at 124:25-125:4.

49. Disputed. Plaintiff was not ignoring police commands but rather attempting to 

comply with conflicting commands. Also, the Taser obviously had an effect on Plaintiff who 

cried out in pain upon being struck. Plaintiff agrees he told officers he was done. See Exhibit 

1 at 2:11-3:3 and Exhibit 2 at 00:02-00:16.

50. Disputed. The Taser did effect Plaintiff who cried out in pain upon being struck. 

See Exhibit 1 at 3:15; Exhibit 2 at 00:29; Exhibit B at 130:1-25.

51. Disputed. Plaintiff does not reject Defendant Martin’s observations in other 

cases but calls into question the use of this testimony to support his basis for allowing Storm 

to bite Plaintiff. Plaintiff reacted to the Tasers as can be heard on the video. See Exhibit 2.

52. Undisputed, but with Clarification. Plaintiff was also given the conflicting 

command to “stop.” See Exhibit A at 24:6-24.

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53. Disputed. After the warning issued by Officers and referenced in Defendants’ 

SOF 52, Plaintiff never received any other warnings he would be bitten by Storm. See Exhibit 

2; Exhibit B at 150:18-22.

54. Disputed. Plaintiff’s deposition and further analysis of video show Plaintiff was 

tasered from the roof. Defendants’ insinuation that not coming off the roof constitutes a failure 

to comply with police commands ignores their own failure to follow policy by employing a 

Taser to dangerously remove a surrendering suspect from a roof. See Exhibit 2 at 00:29;

Exhibit 4 at 46:5-25; Exhibit B at 130:23-25.

55. Disputed. Plaintiff agrees Troopers Headley and Engwis tackled him but 

disputes he was trying to escape. See Exhibit 2 at 00:32.

56. Disputed. Plaintiff could not comply with Officers’ commands because these 

Officers were holding his arms. This is not only according to Plaintiff and what can be seen 

on the video but was confirmed by Defendant Martin and Defendants’ Expert. See Exhibit B 

at 145:2-150:14; Exhibit 3 at 143:2-6; Exhibit A at 25:18-23; Exhibit 2 at 00:46.

57. Disputed. Officers had control of Plaintiff’s arms. See Exhibit B at 145:2-

150:14 and Exhibit 2 at 00:32-00:41.

58. Undisputed.

59. Disputed. Plaintiff had no opportunity to clench his arms beneath his torso or 

otherwise resist officers’ attempts to handcuff him because officers immediately grabbed 

Plaintiff’s hands, maintaining full control over them. See Exhibit 2 at 00:46; Exhibit B at 

145:2-150:14; Exhibit A at 25:18-23.

60. Disputed. Defendant Martin had no reason to fear Plaintiff was armed after 

seeing him shirtless and fully illuminated by the police helicopter while Plaintiff was on the 

roof. Moreover, Plaintiff was being pinned to the ground on his stomach by at least four 

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officers, eliminating the possibility he could retrieve a firearm from the front of his waistband 

and open fire on Officers. See Exhibit 2 at 00:46.

61. Undisputed.

62. Disputed. Plaintiff did not and could not put his arms beneath him as they were 

being held by officers. See Exhibit B at 145:2-150:14; Exhibit 3 at 143:2-6; Exhibit A at 

25:18-23; Exhibit 2 at 00:46.

63. Undisputed, but with Clarification. Plaintiff could not have been flailing if 

his foot was held by officers.

64. Disputed. Plaintiff was not resisting arrest. Rather, Plaintiff was reacting to 

being bitten by a dog who tore out chunks of his flesh and muscle. Accordingly, use of Storm 

exacerbated Plaintiff’s arrest. See Exhibit 2 at 00:46.

65. Disputed. When Plaintiff was cuffed is disputed. Plaintiff says he was in cuffs 

when bitten by Storm. Video shows an officer removing ziptie cuffs from his waist well before 

Storm stops biting Plaintiff. See Exhibit B at 145:2-146:14 and Exhibit 2 at 1:17.

66. Disputed. Plaintiff was already in cuffs when bitten by Storm. See Exhibit B 

at 145:2-146:14 and Exhibit 2 at 1:17.

67. Disputed. See Plaintiff’s response to SOF 65, immediately above.

68. Disputed. Plaintiff’s expert opined in his report that the bite lasted 86 seconds 

based on his observation. See Exhibit 5 at p. 13, ¶ 2.

69. Undisputed, but with Clarification. Critically, Defendant Martin’s report was 

not timely and submitted nearly a month after the incident. See Exhibit 5 at p. 21, ¶ 11.

70. Disputed. The State Defendants misstate the facts when they say “...what is 

clear is that Storm was released from the bite as soon as Plaintiff was handcuffed.” As the 

police body camera footage shows, and Plaintiff’s expert explains, Detective Martin may not 

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have been in control of K9 Storm as he gave the command for Storm to release the bite at 

least twice. See Exhibit 5 at 14, ¶ 5.

Plaintiff’s Separate Statement of Disputed Facts Overlooked by Defendants

1. Because of the dog bite, Plaintiff suffered severe, permanently disfiguring 

injuries to his leg that have required multiple surgeries and extensive physical therapy to treat. 

See Exhibit 6; Exhibit 9; Exhibit B at 150:5-6.

2. Plaintiff was brightly illuminated by a spotlight on a circling police helicopter 

while on the roof and at the time he was bitten by Storm. See Exhibit 2; Exhibit 8.

3. While on the roof, Plaintiff does not reach for his waistband or pants pocket. See

Exhibit 2 at 00:09-00:31; Exhibit 3 at 175:17-176:9.

4. While Plaintiff is on the roof, at least ten officers swarm Plaintiff from below with 

weapons drawn. See Exhibit 2 at 00:10-00:31; Exhibit B at 126:7-11.

5. Rushing up to Plaintiff while Plaintiff had a tactical advantage may not have been

best practice, or at the very least demonstrates officers had sufficient control of the situation to 

engage in a dialogue with Plaintiff before the Taser and bite. See Exhibit 3 at 116:2-120:21.

6. Two police dogs are below Plaintiff while he is on the roof. See Exhibit 2.

7. An unidentified Officer audibly tells one of the police dogs to “bite him, bite him, 

bite him” while Plaintiff is attempting to comply with police commands to come down from the 

roof. See Exhibit 1 at 2:15-16; Exhibit 2 at 00:11-00:14.

8. Plaintiff audibly cries out when hit by the Taser and repeats four times “I’m done” 

and that he doesn’t want to fall off the roof. See Exhibit 1 at 3:11-15; Exhibit 2.

9. Plaintiff is struck by a second Taser round. See Exhibit 2 at 00:29.

10. Plaintiff falls from the roof less than a second after being struck by the second 

Taser. See Exhibit 2 at 00:29-00:31; Exhibit B at 130:9-15.

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11. Plaintiff fell no more than five feet from his position on the roof. See Exhibit 2; 

Exhibit 3 at 130:18-131:5.

12. Plaintiff never stood up after falling from the roof. See Exhibit 2; Exhibit 3 at 

131:6-9.

13. Plaintiff is tackled by two SWAT officers in full tactical gear less than a second 

after falling from the roof. See Exhibit 2; Exhibit A at 25:18-23.

14. Plaintiff is commanded to place his hands behind his back while Officers are 

holding his arms. See Exhibit D at #18-19; Exhibit E at ¶ 2; Exhibit F at 17:45-17:55; Exhibit 

B at 145:2-150:14; Exhibit 3 at 143:2-6; Exhibit A at 25:18-23; Exhibit 2 at 00:46; Exhibit 

G at Photos 17 and 19.

15. Plaintiff is unable to comply with police commands because Officers are holding 

his arms. See Exhibit B at 145:2-150:14; Exhibit 2 at 00:32-00:41; Exhibit G at Photos 18-

19.

16. Seconds after being Tasered off the roof, other SWAT officers are on top of 

Plaintiff and pinning him to the ground. See Exhibit 2 at 00:31-00:40; Exhibit A at 28:22-29:7.

17. An Officer removes ziptie cuffs from his waistband before Storm is removed from 

the bite. See Exhibit 2 at 00:54.

18. Audio from the body camera video reveals an Officer saying “good job guys” after 

Plaintiff has been bitten, but before Storm is removed from the bite. See Exhibit 1 at 4:3; Exhibit 

2 at 00:48.

19. Plaintiff is bitten by Storm within seconds of being Tasered from the roof. See

Exhibit 2 at 00:29-00:43.

20. Plaintiff said he was in cuffs before being released from the bite. See Exhibit B at 

150:12-14.

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21. Defendant Martin allowed Storm to continue biting Plaintiff for 86 seconds.

Plaintiff’s expert will opine the industry standard for a bite is between five to fifteen seconds. See

Exhibit 2; Exhibit 4 at 167:21-168:7; Exhibit 5 at p. 13, ¶ 2.

22. At the time of his arrest, Plaintiff did not have a gun. See Exhibit 3 at 79:3-5.

23. Plaintiff could not have remained still while bitten by Storm. See Exhibit 3 at 

154:21-155:25; Exhibit 5 at p. 16, ¶ 7.

RESPECTFULLY SUBMITTED this 14th day of November, 2019.

HONOR LAW GROUP, PLLC

By /s/ Benjamin L. Rundall 

Benjamin L. Rundall, Esq.

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2019, I caused the foregoing document to be 

electronically transmitted to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a notice of Electronic Filing to the following CM/ECF registrants: 

Honorable Susan R. Bolton

United States District Court

Sandra Day O’Connor U.S. Courthouse, Ste. 522

401 W. Washington St., SPC 50

Phoenix, AZ 85003-2153

Honorable Eileen S. Willett

Magistrate Judge

United States District Court 

401 W. Washington St., SPC 13

Phoenix, AZ 85003-2153

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Michael Tryon

Jeremy Horn

Office of the Attorney General

2005 N. Central Ave.

Phoenix, AZ 85004

michael.tryon@azag.gov

jeremy.horn@azag.gov

Attorney for Brad Martin and

The State of Arizona

 /s/ ALG

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