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Kathleen L. Wieneke, Bar #011139

Christina Retts, Bar #023798

Tara B. Zoellner, Bar #027364

WIENEKE LAW GROUP, PLC

1095 West Rio Salado Parkway, Suite 209

Tempe, Arizona 85281

Telephone: (602) 715-1868

Facsimile: (602) 455-1109

Email: kwieneke@wienekelawgroup.com

Email: cretts@wienekelawgroup.com

Email: tzoellner@wienekelawgroup.com

Attorneys for Defendants City of Phoenix and 

Officer Jason Gillespie

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Martha Winkler, a single woman,

 Plaintiff,

v.

City of Phoenix, a public entity, et al.,

Defendants.

No. 15-cv-01786-PHX-DLR

DEFENDANTS’ TRIAL 

MEMORANDUM

Pursuant to the Court’s Trial Setting Order (Dkt. 93), Defendants City of Phoenix 

and Officer Jason Gillespie submit the following Trial Memorandum, outlining and 

addressing legal issues anticipated at trial. 

I. LEGAL ISSUES

a. Plaintiff’s Fourth Amendment Unreasonable Search and Seizure Claim

i. Officer Gillespie is entitled to qualified immunity.

Officer Gillespie is entitled to qualified immunity for his arrest of Plaintiff. Qualified 

immunity allows for mistaken judgments and protects “all but the plainly incompetent or 

those who knowingly violate the law.” Peng v. Penghu, 335 F.3d 970, 976 (9th Cir. 2003). 

See also Brosseau v. Haugan, 543 U.S. 194, 201 (2004). “The court applies a two-prong 

analysis to determine whether officials are entitled to qualified immunity: (1) whether the 

facts alleged show that the officer violated a constitutional right; and (2) if so, whether that 

right was clearly established at the time of the event.” Rosenbaum v. Washoe County, 663 

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F.3d 1071, 1075 (9th Cir. 2011) (citing Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)).

The Court may address these prongs in any order. Pearson v. Callahan, 555 U.S. 223, 236 

(2009).

Where, as here, an arrest is made with probable cause, it does not violate the Fourth 

Amendment, and the arresting officer is entitled to qualified immunity. Rosenbaum, 663 

F.3d at 1076. See also Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right 

would have been violated were the allegations established, there is no necessity for further 

inquiries concerning qualified immunity.”) (overruled on other grounds by Pearson, 555 

U.S. at 236). Even assuming, however (without conceding), that Officer Gillespie did not 

have probable cause to arrest Plaintiff, he is still entitled to qualified immunity, as Plaintiff 

cannot show that Officer Gillespie’s actions were unlawful under the particular 

circumstances. See Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) 

(“The plaintiff bears the burden to show that the contours of the right were clearly 

established.”). 

“An officer cannot be said to have violated a clearly established right unless the 

right’s contours were sufficiently definite that any reasonable official in his shoes would 

have understood that he was violating it, meaning that existing precedent placed the 

statutory or constitutional question beyond debate.” City and County of San Francisco, 

Calif. v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (internal citations and quotations omitted). 

Whether a right is “clearly established” cannot be defined “at a high level of generality.” 

Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). Rather, “[t]he dispositive question is whether 

the violative nature of the particular conduct is clearly established.” Id. (emphasis in 

original) (internal citations and quotations omitted). Moreover, the United States Supreme 

Court has suggested (repeatedly) that circuit precedent alone may be insufficient to create 

the type of “clearly established” precedent necessary to overcome qualified immunity. See 

Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015); Sheehan, 135 S.Ct. at 1775-76, 78; Carroll 

v. Carman, 135 S.Ct. 348, 350 (2014); Reichle v. Howards, 132 S.Ct. 2088, 2094 (2012).

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Here, it is not enough to say that Plaintiff has a right to be free from unreasonable 

searches and seizures. See Ashcroft v. al-Kidd, 563 U.S. 731, 2084 (2011) (“The general 

proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of 

little help in determining whether the violative nature of particular conduct is clearly 

established.”). See also Sheehan, 135 S.Ct. at 1776 (“Qualified immunity is no immunity at 

all if ‘clearly established’ law can simply be defined as the right to be free from 

unreasonable searches and seizures.”). The proper inquiry is whether, at the time of the 

arrest, Plaintiff had a clearly established right that prohibited Officer Gillespie from 

arresting her for trespass based on the statements of two store employees to the officer that 

she had been asked multiple times to leave the premises but remained on the store property. 

Because she did not, Officer Gillespie is entitled to qualified immunity.

ii. As to Plaintiff’s unlawful search and seizure claim, Officer Gillespie 

had probable cause to arrest Plaintiff.

Plaintiff alleges that Officer Gillespie arrested Plaintiff without probable cause. (Dkt. 

12, ¶ 31.) “A claim for unlawful arrest is cognizable under § 1983 as a violation of the 

Fourth Amendment, provided the arrest was without probable cause or other justification.”

Dubner v. City and County of San Francisco, 266 F.3d 959, 964-65 (9th Cir. 2001). To 

determine whether an arrest was lawful under the Fourth Amendment, “[f]ederal law asks 

only whether the officers had probable cause to believe that the predicate offense, as the 

state has defined it, has been committed.” Williams v. Jaglowski, 269 F.3d 778, 782 (7th 

Cir. 2001). “If an officer has probable cause to believe that an individual has committed 

even a very minor criminal offense in his presence, he may, without violating the Fourth 

Amendment, arrest the offender.” Id.; see also Lacy v. County of Maricopa, 631 F. Supp. 

2d 1183, 1193 (D. Ariz. 2008) (“Probable cause to arrest or detain is an absolute defense to 

any claim under § 1983 against police officers for wrongful arrest or false imprisonment, 

as the lack of probable cause is a necessary element of each.”

“Probable cause exists if ‘at the moment the arrest was made . . . the facts and 

circumstances within [the police officer’s] knowledge and of which [the police officer] had 

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reasonably trustworthy information were sufficient to warrant a prudent man in believing’ 

that [the arrestee] had violated [the law].” Bohnert v. Mitchell, NO. CV-08-2303-PHXLOA, 2010 U.S. Dist. LEXIS 100324, *33 (D. Ariz. Sept. 21, 2010) (citing Hunter v. 

Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964))).

“Probable cause exists when the facts and circumstances within the officers’ knowledge 

and of which they had reasonably trustworthy information were sufficient to warrant a 

prudent man in believing that the plaintiff had committed or was committing an offense.”

Lacy, 631 F. Supp. 2d at 1194. 

The probable cause standard “is not a subjective standard but an objective one.” State

v. Vaughn, 12 Ariz. App. 442, 444 (1970); see also Whren v. United States, 517 U.S. 806, 

813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth 

Amendment analysis.”); Devenpeck v. Alford, 543 U.S. 146, 153-56 (2004) (rejecting the 

“closely related” rule and holding that “[s]ubjective intent of the arresting officer . . . is 

simply no basis for invalidating an arrest. Those are lawfully arrested whom the facts known 

to the arresting officers give probable cause to arrest.”). “Claims for false arrest focus on 

the validity of the arrest, not on the validity of each individual charge made during the 

course of the arrest.” Lacy, 631 F. Supp. 2d at 1194 (citing Price v. Roark, 256 F.3d 364, 

369 (5th Cir. 2001)) (remaining citations omitted); see also Barry v. Fowler, 902 F.2d 770, 

773 n.5 (9th Cir. 1990).

The Court should find in favor of Officer Gillespie if the officer had probable cause 

to arrest Plaintiff for any offense that could have been charged under the circumstances.

Lacy, 631 F. Supp. 2d at 1194 (citing Barry v. Fowler, 902 F.2d 770, 773 n.5 (9th Cir. 1990) 

and Egolf v. Witmer, 526 F.3d 104, 108 n.8 (3d Cir. 2008) (“probable cause need only exist 

as to any offense that could be charged under the circumstances”)).

Officer Gillespie arrested Plaintiff for trespassing on Circle K property, but had 

probable cause to arrest her for other crimes, as well. At minimum, he could have arrested 

her for any of the following:

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1. Criminal trespass in the third degree: Plaintiff committed criminal trespass in the 

third degree when she stayed on the Circle K premises after Officer Gillespie and 

the Circle K clerks asked her to leave. See A.R.S. § 13-1502(A)(1) (“knowingly 

entering or remaining unlawfully on any real property after a reasonable request 

to leave by a law enforcement officer, the owner or any other person having 

lawful control over such property”). 

2. Harassment: Plaintiff harassed1 the Circle K clerks when her lottery ticket issue 

was not resolved to her satisfaction. Her behavior, in fact, led them to call the 

police and request that she be removed from the premises. Moreover, she 

harassed Circle K customers to the extent that one of them also called the police 

to report her harassing behavior. A.R.S. § 13-2921(A). This information was 

included in the Computer Aided Dispatch report sent to Officer Gillespie, as well 

as reported to him over the radio as he was responding to the call. 

3. Disorderly Conduct: Plaintiff committed disorderly conduct when she continued 

to disrupt Circle K operations before Officer Gillespie arrived. See A.R.S. 13-

2904(A)(4) (a person commits disorderly conduct if, “with intent to disturb the 

peace or quiet of a neighborhood, family or person, or with knowledge of doing 

so, such person . . . [m]akes any protracted commotion, utterance or display with 

the intent to prevent the transaction of the business of a lawful meeting, gathering 

or procession”).

4. Refusing to Provide Truthful Name: Plaintiff refused to identify herself or 

provide identification to Officer Gillespie, upon request. In so doing, she violated 

A.R.S. § 13-2412 (“It is unlawful for a person, after being advised that the 

person’s refusal to answer is unlawful, to fail or refuse to state the person’s true 

full name on request of a peace officer who has lawfully detained the person 

 1 “Harassment” is “conduct that is directed at a specific person and that would cause 

a reasonable person to be seriously alarmed, annoyed, or harassed and the conduct in fact 

seriously alarms, annoys or harasses the person.” A.R.S. § 13-2921(E).

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based on reasonable suspicion that the person has committed, is committing or is 

about to commit a crime.”).

5. Resisting Arrest: Plaintiff resisted Officer Gillespie’s ability to investigate the 

situation and his attempts to arrest her. In so doing, she violated A.R.S. § 13-

2508 (“[a] person commits resisting arrest by intentionally preventing or 

attempting to prevent a . . . peace officer. . . from effecting an arrest by . . . 

engaging in passive resistance.”2

). Under Arizona law, resisting arrest by a peace 

officer is a Class 6 felony. Id. The statute “plainly states that ‘a person commits 

resisting arrest by intentionally preventing or attempting to prevent’ an arrest by 

a police officer if either (A)(1) or (A)(2) is satisfied.” State v. Lee, 176 P.3d 712 

(Ariz. App. 2008) (quoting A.R.S. § 13-2508(A)). [T]he language of subsection 

(A)(1) does not require any particular type of physical conduct so long as that 

conduct qualifies as “physical force against the peace officer or another.” A.R.S. 

§ 13-2508(A)(1). Those who use physical force against police officers attempting 

to arrest them are not entitled to engage in “minor scuffling,” whether it is usual 

or unusual in the context of an arrest. See State v. Stroud, 88 P.3d 190, 194-95 

(Ariz. App. 2004) (In attempting to flee from an arrest, the defendant was 

“kicking his feet” and “pushing on [the officer’s] arm.”), rev’d on other grounds, 

103 P.3d 912 (2005); State v. Sorkhabi, 46 P.3d 1071, 1072, ¶ 2 (Ariz. App. 2002)

(defendant resisted arrest when he became disruptive at casino, struggled with 

police when they tried to arrest him for his disruptive behavior, and refused to 

leave the casino when requested).

The fact that Plaintiff was not ultimately charged or convicted of these crimes does 

not negate probable cause. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); see also 

Blankenhorn v. City of Orange, 485 F.3d 463, 472-473 (9th Cir. 2006) (officers had 

probable cause to arrest the plaintiff for trespassing, even though he was ultimately charged 

 2 “‘[P]assive resistance’ means a nonviolent physical act or failure to act that is 

intended to impede, hinder or delay the effecting of an arrest.” A.R.S. § 13-2508(C).

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with resisting arrest); Beauregard v. Wingard, 362 F.2d 901, 903 (9th Cir. 1966) (“[W]here 

probable cause does exist civil rights are not violated by an arrest even though innocence 

may subsequently be established.”).

As long as Officer Gillespie had “some reasonable basis to believe [Plaintiff] had 

committed a crime, the arrest is justified as being [ ] based on probable cause. Probable 

cause need only exist as to any offense that could be charged under the circumstances.” 

Blankenhorn, 485 F.3d at 473 (citing Bingham v. City of Manhattan Beach, 341 F.3d 939, 

950 (9th Cir. 2003) (citations omitted)) (emphasis added); see also Peng, 335 F.3d at 976 

(“A police officer may make a warrantless arrest when the ‘officer has probable cause to 

believe that the person to be arrested has committed a felony, whether or not a felony, in 

fact, has been committed.’”); Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If 

an officer has probable cause to believe that an individual has committed even a very minor 

criminal offense in his presence, he may, without violating the Fourth Amendment, arrest 

the offender.”). Moreover, a reasonable but mistaken belief as to the facts establishing the 

existence of probable cause could also support probable cause. See Saucier, 533 U.S. at 206 

(“Officers can have reasonable, but mistaken, beliefs as to the facts establishing the 

existence of probable cause . . . and in those situations courts will not hold that they have 

violated the Constitution.”).

Because Officer Gillespie had probable cause to arrest Plaintiff for several offenses, 

Plaintiff’s Fourth Amendment unreasonable search and seizure claim fails as a matter of 

law.

iii. The parking lot of the Circle K store is part of the “premises” for 

purposes of trespass.

Here, the Circle K property consisted of the Circle K building, the parking lot, and 

the gas pumps, which were located in the parking lot. A “No Trespassing Sign” was posted 

on the outside of the Circle K building. Additionally, the Circle K management had an 

“Authority to Arrest Trespassers” on file with the City of Phoenix Police Department. The 

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“business” of the Circle K included the retail purchase of gas within the parking lot, as well 

as retail purchases within the building.

Arizona courts have repeatedly deemed the parking lot connected to a storefront as 

part of the “premises,” particularly for purposes of store-owner liability. See Timmons v. 

Ross Dress for Less, Inc., 324 P.3d 855, 856 (Ariz. App. 2014) (deeming the parking lot to 

the storefront as part of the “premises” for purposes of liability to the store leaser); P.B. Bell 

& Assoc. v. Indus. Comm’n of Arizona, 690 P.2d 802, 807 (Ariz. App. 1984) (“Thus, if the 

owner of the building in which the employee works provides a parking lot for the 

convenience of all of his tenants, or if a shopping center parking lot is used by employees 

of businesses located in the center, the rule [that the parking lot is considered part of the 

premises] is applicable...”) (citations omitted); Knoop v. Indus. Comm’n, 589 P.2d 1325, 

1326 (Ariz. App. 1978) (explaining that when an employee injures himself while going to 

or coming from work when he is on the employer’s premises, such “premises” does not 

include a “public thoroughfare” but does include the employer’s parking lot); Shaner v. 

Tucson Airport Authority, Inc., 573 P.2d 518 (Ariz. App. 1977) (reasoning the airport 

parking lot was part of the company’s “premises”).

Thus, here, in considering whether Officer Gillespie had probable cause to arrest 

Plaintiff by virtue of her presence in the Circle K parking lot, the parking lot is considered 

part of the Circle K premises for purposes of a determination of whether Plaintiff was, in 

fact, asked to leave, as required under A.R.S. § 13-1502 (criminal trespass statute).

b. Plaintiff’s Fourth Amendment Excessive Force Claim

i. The amount of force Officer Gillespie used was objectively 

reasonable under the circumstances.

Excessive force claims are governed by the Fourth Amendment’s objective 

reasonableness standard based on the information the officer possessed when the conduct 

occurred. See Saucier, 533 U.S. at 206. Courts balance the nature and quality of the intrusion 

against the government interest at stake, the nature and severity of the crime, the imminent 

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threat of harm to the police or others, and whether the person was actively resisting arrest.

See Graham v. Connor, 490 U.S. 386, 396 (1989).

In determining whether the amount of force an officer used was objectively 

reasonable, the Ninth Circuit has instructed that officers “need not avail themselves of the 

least intrusive means of responding to an exigent situation; they need only act within that 

range of conduct we identify as reasonable.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 

1994). This is because the quick and difficult decisions officers make under stress about the 

amount of force to use should not be second-guessed with hindsight in the courtroom:

Requiring officers to find and choose the least intrusive alternative would 

require them to exercise superhuman judgment. In the heat of battle with 

lives potentially in the balance, an officer would not be able to rely on 

training and common sense to decide what would best accomplish his 

mission. Instead, he would need to ascertain the least intrusive alternative 

(an inherently subjective determination) and choose that option and that 

option only. Imposing such a requirement would inevitably induce 

tentativeness by officers, and thus deter police from protecting the public and 

themselves. It would also entangle the courts in endless second guessing of 

police decisions made under stress and subject to the exigencies of the 

moment.

Id.; accord Graham, 490 U.S. at 396-97 (“The calculus of reasonableness must embody 

allowance for the fact that police officers are often forced to make split-second judgments 

– in circumstances that are tense, uncertain, and rapidly evolving – about the amount of 

force that is necessary in a particular situation.”).

ii. Officer Gillespie was performing a community caretaking function.

The United States Supreme Court has recognized that police officers perform

“community caretaking” functions, which are “totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.” See

Colorado v. Bertine, 479 U.S. 367, 381 (1987). The community caretaking function

includes actions taken to promote public safety. United States v. Torres, 828 F.3d 1113, 

1118 (9th Cir. 2016). Additionally, “officers may detain individuals under their community 

caretaking function to ensure the safety of the public or the individual.” See Liberti v. City 

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of Scottsdale, No. CV-17-02813-PHX-DLR, 2018 U.S. Dist. LEXIS 154600 (D. Ariz. Sept. 

11, 2018). Where an officer is performing a community caretaking function, the government

interest in using force to subdue a resisting suspect is substantial. See Ames v. King County, 

Washington, 846 F.3d 340, 348 (9th Cir. 2017).

In Liberti, the Court addressed the investigatory detention of a suspect who reached

over the counter of a Chompie’s restaurant, grabbed the phone, and then called 911. When

officers arrived at the scene, the suspect was pacing, admitted to feeling “weird,” and 

swayed close to officers. The suspect ignored two police commands to sit down and, as a

result, an officer grabbed his arm to force him to the ground. The suspect then jerked away,

briefly grappled with officers, then fled. The Court ruled that “a reasonable jury could only

find that the Officers were reasonable in their belief that Liberti’s jittery, confused 

demeanor, complaints of feeling ill, and 911 call indicated that he might have been under

the influence of a controlled substance.” Id. at *8. The Court cited to Tatum v. City & Cnty.

of S.F., 441 F.3d 1090 (9th Cir. 2006), for the proposition that an officer’s observations of 

a detainee mumbling, disobeying commands and perspiring created “a fair probability he 

had committed a crime.” Not only was there evidence of a crime, but “Officers would have 

been within their rights as community caretakers to detain Liberti for his own safety.” Id.

The community caretaker function of protection of the public and the suspect also applied

to the force used to coerce the suspect into a seated position as the suspect’s “refusal to obey 

police commands, combined with his apparent intoxication, created a government interest 

in subduing him before he harmed himself or the public.” Id. at *11.

c. Plaintiff’s State Law Claims

i. Plaintiff’s gross negligence claim fails because the alleged battery 

was an intentional act.

Plaintiff’s sole remaining claim is a gross negligence claim against the City of 

Phoenix, based on a theory of vicarious liability.3 Plaintiff alleges the City of Phoenix is 

 3 Plaintiff did not sue Officer Gillespie under state law because she failed to timely 

comply with the Notice of Claim statute, A.R.S. § 12-821.01.

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vicariously liable for Officer Gillespie’s willful, wanton, and reckless disregard of Martha 

Winkler’s safety. (Dkt. 12, Count One.) Plaintiff has acknowledged, and Defendants agree, 

however, that this claim is not viable following the Arizona Supreme Court’s August 2018 

decision in Ryan v. Napier. 425 P.3d 230 (Ariz. 2018).

Napier involved a negligence claim arising out of the intentional release of a police 

dog and subsequent injuries to a suspect resulting from the “bite and hold.” The Arizona

Supreme Court analyzed the distinctions between negligence claims and intentional torts, 

determining, “[t]he fundamental distinction between negligence and an intentional tort is 

whether the consequences of the act or omission are unintentional or intentional.” Id. at 235, 

¶ 19 (citing Am. Nat’l Fire Ins. V. Schuss, 607 A.2d 418, 423 (Conn. 1992)). It concluded 

“that negligence and intent are mutually exclusive grounds for liability” and held that 

negligent use of intentionally inflicted force is not a cognizable claim. Id. at 236, ¶¶ 20-21. 

Plaintiff alleges – and Defendants do not disagree – that Officer Gillespie’s decision 

to use force to effect her arrest was intentional. As the basis of Plaintiff’s gross negligence 

claim against the City is vicarious liability, and thus dependent on Officer Gillespie’s 

underlying conduct, that claim is no longer viable.

ii. Plaintiff’s battery claim against the City of Phoenix fails because she 

cannot allege vicarious liability against the City for an alleged 

felonious act.

In light of Napier, and at the eleventh-hour, Plaintiff seeks to amend her complaint 

to eliminate her gross negligence claim (against the City of Phoenix only) and replace it 

with a battery claim against the City of Phoenix. (Dkt. 133.4

) Although a battery claim – an 

intentional tort – would have been the more appropriate claim under the circumstances, it, 

too, fails, because the City of Phoenix cannot be held vicariously liable for what amounts 

to an intentional, felonious act.

Here, Plaintiff asserts that Officer Gillespie was acting within the course and scope 

of his employment as a City of Phoenix police officer when he arrested Plaintiff. However, 

 4 Defendants will be filing a separate response to Plaintiff’s Motion to Amend.

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Plaintiff’s battery claim – unlike her negligence claim – is an intentional tort and, as alleged, 

a criminal felony. As such, the City of Phoenix is immune from this claim, pursuant to 

A.R.S. § 12-820.05(B), which provides:

A public entity is not liable for losses that arise out of and are directly 

attributable to an act or omission determined by a court to be a criminal 

felony by a public employee unless the public entity knew of the public 

employee’s propensity for that action. (emphasis added) 

See Napier, 425 P.3d at 237; Gallagher v. Tucson Unified Sch. Dist., 349 P.3d 228, 231 

(Ariz. App. 2015) (The conduct Plaintiff alleges in her complaint is, under Arizona law, an 

aggravated assault and a felony.)5 See A.R.S. §§ 13-1203 & -1204. There need not be a 

felony conviction or even a prosecution to render the statute applicable and the public entity

not liable for the acts of the employee. Fernandez v. City of Phoenix, No. CV 11-02001-

PHX FJM, 2012 U.S. Dist. LEXIS 85268, *4 (D. Ariz. 2012); McGrath v. Scott, 250 F.

Supp. 2d 1218 (D. Ariz. 2003) (A.R.S. §12-820.05(B) applies even if no criminal court 

previously has found that the public employee(s) committed a felony). As such, the City of 

Phoenix cannot be held vicariously liable for his conduct, because A.R.S. § 12-820.05 

provides immunity.6

iii. Plaintiff’s state law claim(s) are not viable because they are based on 

respondeat superior liability and Plaintiff failed to serve Officer 

Gillespie with a Notice of Claim. 

Plaintiff’s vicarious liability claim also fails because Plaintiff failed to serve Officer 

Gillespie with a Notice of Claim, as required under A.R.S. § 12-821.01. This effectively 

makes Officer Gillespie “immune” from all state law claims, rendering the City, his 

 5 This claim, in creating an A.R.S. § 12-820.05 issue, also creates a potential, 

prejudicial conflict between the City of Phoenix and Officer Gillespie that did not exist 

before. This issue will be further briefed in Defendants’ response to Plaintiff’s Motion to 

Amend.

6 Plaintiff may argue that Officer Gillespie had a propensity for using excessive force 

and, thus, A.R.S. § 12-820.05 does not apply. Discovery is closed, however, and there is no 

evidence to support this argument.

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employer, unable to be held vicariously liable for any of Officer Gillespie’s alleged tortious 

acts. 

Arizona’s notice of claim statute, A.R.S. § 12-821.01(A) requires Plaintiff to file a 

notice of claim with “person or persons authorized to accept service for the public entity or 

public employee as set forth in the Arizona rules of civil procedure within one hundred 

eighty days after the cause of action accrues.” The notice must contain “facts sufficient to 

permit the public entity or public employee to understand the basis upon which liability is 

claimed.” A.R.S. § 12-821.01(A). It is mandatory for Plaintiff to comply with this statute.

See Barth v. Cochise County, 138 P.3d 1186, 1191 (Ariz. 2006); see also Deer Valley 

Unified Sch. Dist. v. Houser, 152 P.3d 490, 493 (Ariz. 2007). Neither actual notice nor 

substantial compliance excuse failure to comply with the notice of claim statute. Id.

There is no question Plaintiff did not file a timely notice of claim as to Officer 

Gillespie. This failure is fatal to her claim against the City of Phoenix because the failure to 

comply with the notice of claim statute as to employees also bars all respondeat superior or 

vicarious liability claims against the employer for the employee’s conduct. Ferreira v. 

Arpaio, No. CVI-15-01845-PHX-JAT, 2016 WL 3970224, at *10 (D. Ariz. July 25, 2016) 

(concluding that where claims against a government employee are dismissed with prejudice 

due to Plaintiff’s failure to comply with the notice of claim statute, the government 

employer could never be held vicariously liable and must be dismissed as well); Mulligan 

v. Grace, 666 P.2d 1092, 1094 (Ariz. App. 1983) (where county attorney held immune from 

suit, government defendants could not be held liable on respondeat superior theory since 

their “liability would depend on the necessary finding of liability on the part of their agent”); 

see also M.J. ex rel. Beebe v. United States, 721 F.3d 1079, 1084 (9th Cir. 2013) (concluding 

that because police officer was immune from negligence claim, the plaintiff’s claims against 

municipality for officer’s alleged negligence fail if those claims are based on the City’s 

vicarious liability; noting that under applicable state law, “[f]or vicarious liability to attach, 

some sort of underlying liability must be established for which the employer can be held 

liable”). Thus, because Plaintiff did not serve Officer Gillespie with a notice of claim, and 

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because her gross negligence claim against the City is one of vicarious liability and not 

direct liability, Plaintiff’s state law claim against the City of Phoenix fails on notice of claim 

grounds.

iv. Plaintiff’s proposed battery claim also fails due to Plaintiff’s failure 

to comply with the notice of claim statute as to Officer Gillespie.

In spite of failing to serve Officer Gillespie with a notice of claim, Plaintiff now, one 

month before trial, is attempting to allege a battery claim against the City of Phoenix, based 

on a vicarious liability theory. However, because the vicarious liability of the City of 

Phoenix is necessarily based upon the liability of its employee (Officer Gillespie), and 

because the employee cannot be liable because Plaintiff failed to comply with the notice of 

claim statute, there can be no vicarious liability against the City of Phoenix for Officer 

Gillespie’s alleged acts. In other words, if no claim can be brought against the employee, 

his liability is extinguished, thereby also extinguishing the vicarious liability of the 

employer. Accordingly, Plaintiff’s battery claim against the City of Phoenix also fails.

d. Plaintiff cannot recover punitive damages from the City of Phoenix.

Under Arizona law, “[n]either a public entity nor a public employee acting within 

the scope of his employment is liable for punitive or exemplary damages.” A.R.S. § 12-

820.04. Plaintiff may not obtain punitive damages against the City for her state law claim

arising out of Officer Gillespie’s alleged conduct.

II. EVIDENTIARY ISSUES

a. Plaintiff’s Police Procedures Expert

i. Plaintiff’s police procedures expert should not be permitted to 

summarize the surveillance footage of the incident.

In his expert report, Plaintiff’s police procedures expert, Ronald Kirby, provides a 

summary of the surveillance footage of the incident in a section entitled, “Video 

Surveillance Review.” Among the assertions Mr. Kirby makes are, “[Plaintiff’s manner did 

not appear aggressive as she walked to [Officer Gillespie]”; “I witnessed no moving traffic 

in the lot”; as well as a play-by-play of his interpretation of the events captured on video.

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This summary, which includes time references, is unhelpful and unnecessary. The jury is 

perfectly capable of reviewing the surveillance footage itself to ascertain what happened 

and when. Expert testimony is unnecessary. Fed. R. Evid. 702.7

“[W]hen cases involve review of videotaped events, an expert’s opinion should not 

be permitted when the expert is no better suited than the jury to interpret the video’s 

contents.” Sherrod v. McHugh, 334 F. Supp. 3d 219, 271 (D.D.C. 2018) (citing Estate of 

Collins v. Wilburn, 253 F. Supp. 3d 989, 992 (E.D. Ky. 2017) (“[T]here is little need for 

Plaintiff’s expert to tell the jury whether the officers’ actions were objectively reasonable 

under the circumstances because a video captures the incident.”); Dunlap v. Hood, 2009 

U.S. Dist LEXIS 11643, at *1 (N.D. Tex. 2009) (“Because [the expert] is not better suited 

than the jury to interpret the contents of the video [showing an alleged use of excessive 

force], his supplemental opinion is not the proper subject of expert testimony.”)).

Here, as in the cases above, the jury is equally as capable as Mr. Kirby of determining 

whether the video corroborates or contradicts the parties’ assertions. Thus, allowing Mr. 

Kirby to opine on what the video shows and when will not assist the jury in understanding 

the evidence or determining a material fact. Mr. Kirby should not be permitted to offer a 

summary of the surveillance video footage.

ii. Plaintiff’s Police Procedures expert should not be permitted to testify 

regarding “pre-tactical matters”

Plaintiff’s police procedures expert, Ronald Kirby, has offered opinions regarding 

“pre-tactical matters,” such as whether Officer Gillespie should have “allowed Plaintiff to 

leave,” called for a “backup officer,” and he dictates the order that he believes Officer 

Gillespie should have spoken to the witnesses.

Plaintiffs “cannot establish a Fourth Amendment violation based merely on bad 

tactics that result in a . . .confrontation that could have been avoided.” Sheehan, 135 S. Ct. 

at 1777 (internal quotation marks omitted); George v. Morris, 736 F.3d 829, 839 n.14 (9th 

 7 Although the witness can use the video to “explain” his opinions, he cannot simply 

“interpret” the video for the jury. 

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Cir. 2013) (refusing to consider plaintiff’s proposed alternative tactics as part of the 

excessive force inquiry); Billington v. Smith, 292 F.3d 1177, 1188 (9th Cir. 2002); see also 

Smith v. Cnty. of Butte, No. 2:15-cv-00988-KJM-CMK, 2017 U.S. Dist. LEXIS 65335, at 

**19-23 (E.D. Cal. Apr. 28, 2017) (finding officers’ plan not unreasonable where plaintiffs 

alleged the tactics, including failure to gather information from family members and choice 

of K-9 as first-used less-lethal option, were not proper for dealing with a mentally ill 

individual). The Fourth Amendment allows officers to react to exigencies created by tactical 

missteps, Kentucky v. King, 563 U.S. 452, 462 (2011).

For the same reasons set forth in the above cases, Plaintiff should not be permitted 

to use Mr. Kirby’s opinions about Officer Gillespie’s investigative tactics to establish a 

Fourth Amendment violation.

b. Because Plaintiff’s Monell claim against the City of Phoenix has been 

dismissed, Plaintiff should not be permitted to present evidence and/or 

argument regarding the City’s internal policies, training, and 

supervision.

The Court dismissed Plaintiff’s Monell claim. (Dkt. 91.) As such, Plaintiff cannot 

attempt to prove her constitutional claim by establishing a purported violation of internal 

Phoenix Police Department policy and training. Internal police policies and training do not 

establish the constitutional minimum. Police departments are free to set internal policies 

and provide training that is more restrictive than the Constitution. See Whren v. United 

States, 517 U.S. 806, 815 (1996) (police practices and regulations are an unreliable gauge 

by which to measure reasonableness of police conduct because they vary from place to place 

and from time to time); Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir. 1995) (holding that 

“violation of a police department regulation is insufficient for liability under section 1983” 

for excessive force); Thompson v. City of Chicago, 472 F.3d 444, 454-55 (7th Cir. 2006) 

(the General Orders were of no consequence to the determination of whether the officer 

violated the plaintiff’s Fourth Amendment rights in apprehending him); see also Tanberg 

v. Sholtis, 401 F.3d 1151, 1164-65 (10th Cir. 2005) (holding that similarity of police rules 

to the applicable objective reasonableness standard would cause jury confusion).

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Plaintiff may also attempt to offer expert opinion through her police procedures 

expert, Ronald Kirby, on Officer Gillespie’s compliance with the City’s training and 

policies.8 These opinions have no relevance now that Plaintiff’s Monell claim has been 

dismissed. Permitting Plaintiff to offer such opinions would only confuse the jury, waste 

time, and serve as a back-door attempt to resuscitate claims that the Court has dismissed.

Plaintiff should be prohibited from eliciting testimony, or offering evidence related to any 

claimed violation of training Officer Gillespie received from the City of Phoenix or the 

City’s internal policies.

c. Plaintiff should be precluded from introducing undisclosed evidence.

Defendants propounded written discovery seeking, among other things, Plaintiff’s 

impeachment evidence:

City of Phoenix Interrogatory No. 6: Identify all impeachment evidence you 

may utilize at trial, including the name, address, and a description of any and 

all testimony to be provided by impeachment witnesses at trial, and a list of 

all impeachment exhibits and the custodian of records for each exhibit.

Plaintiff’s Response: Objection: This request is overly broad, burdensome 

and unlimited as to time and scope. Plaintiff further objects to the 

interrogatory because discovery is still in its infancy and Plaintiff has not 

chosen which exhibits it intends to use. Without waiving said objections, 

Plaintiff does not have knowledge and is not in possession of any 

impeachment evidence.

City of Phoenix Interrogatory No. 18: Please identify any statements or 

admissions you intend to introduce or use at trial under 801(d)(2), Fed. R. 

Evid., by any City employee or former employee, including the name of the 

 8 Although not disclosed in his report, Plaintiff’s expert cannot opine on legal issues 

such as the existence of probable cause or whether the force used was “reasonable” or 

justified. See U.S. v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999) (expert opinions in the form 

of legal opinions not allowed); see also Monroe v. Griffin, No. 14-cv-00795-WHO, 2015 

U.S. Dist. LEXIS 120125, at *6 (N.D. Cal. Sept. 9, 2015) (“[A]n expert witness cannot give 

an opinion as to [his] legal conclusion, i.e., an opinion on an ultimate issue of law.”); Brown 

v. Lewis, No. 12-14953, 2014 WL 354007, at *5 (E.D. Mich. Jan. 31, 2014) (expert opinions 

that use of force and detention was unlawful and that probable cause was lacking “invade 

the province of the jury by explicitly telling members what verdicts to reach.”); Hanig v. 

Lee, 2004 WL 6040610, at *1 (D.S.D. Apr. 19, 2004) (same).

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person who made the statement, the date/time of the statement, and all 

persons present when the statement was made.

Plaintiff’s Response: Objection: question is improper as it seeks information 

protected by privilege and work product. Without waiving said objection, 

Plaintiff intends to use all the statements and admissions made by Officer 

Gillespie in his police report and interview.

Although Plaintiff was not obligated to disclose impeachment evidence on her own 

under Rule 26(a)(1), she was obligated to produce it in response to Defendants’ specific 

discovery requests. See Varga v. Rockwell Int’l Corp., 242 F.3d 693, 697 (6th Cir. 2001) 

(“We take this occasion to emphasize what Rule 26(b) makes perfectly clear: the recipient 

of a properly propounded document request must produce all responsive, non-privileged 

documents without regard to the recipient’s view of how that information might be used at 

trial. A party may not, under any circumstances, hold back materials responsive to a proper 

discovery request because it prefers to use the evidence as surprise impeachment evidence 

at trial.”); Newsome v. Penske Truck Leasing Corp., 437 F. Supp. 2d 431, 435-36 (D. Md. 

2006) (“A party must disclose impeachment evidence in response to a specific discovery 

request.”) (citing Fed. R. Civ. P. 26(b)(1)).

Thus, impeachment evidence that Plaintiff did not produce or identify in response to 

the above discovery requests should be excluded at trial. Plaintiff’s failure to produce such 

evidence is neither substantially justified nor harmless, as Defendants cannot properly 

respond to Plaintiff’s evidence where Plaintiff has failed to identify and/or produce it 

pursuant to Defendants’ proper and timely discovery requests. See Fed. R. Civ. P. 26(a) and 

(e); Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as 

required by Rule 26(a) or (e), the party is not allowed to use that information or witness to 

supply evidence . . . at a trial.”).

Defendants also served written discovery seeking the following as to Plaintiff’s 

experts:

City of Phoenix Interrogatory No. 15: Do you know of any person who is 

skilled in any particular field of science, including the field of medicine, 

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whom you may call as a witness upon the trial of this action and who has 

expressed an opinion upon any issue of this action? ____ If so, list all items 

provided to the expert(s) by you and your attorney, all items and/or facts 

relied upon by the expert(s) in rendering opinions, each opinion, and the 

date(s) of any report(s) prepared by the expert(s).

Plaintiff’s Response: At this time, Plaintiff has not retained any expert 

witnesses outside the ones disclosed in Plaintiff’s 26.1 Disclosure Statement.

Plaintiff never supplemented this response, in spite of identifying several treating providers 

as “experts.” Not only did her “expert” disclosures contain boilerplate descriptions of their 

anticipated testimony, but nowhere does Plaintiff disclose the bases for the treating 

providers’ testimony or the information that they reviewed in coming to their unknown 

conclusions. See also Defendant’s Motion in Limine No. 5 Re: Inadequately Disclosed 

Treating Physicians (Dkt. 125). As with her failure to disclose information responsive to 

Interrogatories 6 and 18, Defendants cannot properly respond to the unknown “opinions” 

of Plaintiff’s Rule 26(a)(2)(c) experts without appropriate disclosure.

d. Plaintiff cannot causally link her medical bills to the use of force.

To the extent Plaintiff seeks damages for her medical treatment, she has not disclosed 

a medical expert to causally link any medical bills to Officer Gillespie’s use of force. See 

Schudel v. Gen. Elec. Co., 35 Fed. Appx. 481, 484 (9th Cir. 2002) (jury cannot resort to 

speculation or conjecture regarding medical cause of injury); see also Gilmore v. Lockard, 

Case No. 1:12-cv-00925-SAB(PC), 2017 U.S. Dist. LEXIS 20819, at **4-6 (E.D. Cal. Feb. 

14, 2017) (precluding Plaintiff from personally testifying regarding a diagnosis, opinions, 

inferences or causation, and offering any opinions or inferences from any medical records); 

Shorter v. Baca, 101 F. Supp. 3d 87, 900 n.7 (C.D. Cal. 2015) (noting that much of the 

plaintiff’s evidence regarding her diagnosis and need for medical treatment, in the form of 

her own declaration, would be inadmissible under Rule 702) (citing Jacobs v. Woodford, 

Case No. 1:09-cv-00369-JLT, 2013 U.S. Dist. LEXIS 11988, at *7 (E.D. Cal. Jan. 28, 2013) 

(precluding plaintiff, who lacks medical expertise, from offering any medical opinion, 

reporting what any medical professionals told him about his condition, or from testifying 

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as to any scientific conclusions regarding his medical condition); see also Calloway v. 

Hayward, 1:08-cv-01896-LJO-GSA-PC, 2017 U.S. Dist. LEXIS 9903, at *8 (E.D. Cal. Jan. 

24, 2017) (granting motion in limine to preclude plaintiff from offering hearsay medical 

opinions under Rule 404(b), noting, “Plaintiff is not qualified to render an expert opinion 

on his medical issues [and] may not testify as to any medical matter which requires 

scientific, technical, or other specialized knowledge”).

Plaintiff’s medical records are replete with pre-existing conditions, including 

diagnoses of hypothyroidism, bipolar disorder, EKG, “anxiety state/disorder unspecified,” 

varicose veins, pain in right shoulder, and an age-related nuclear cataract. She would have 

required treatment for these conditions regardless of her contact with law enforcement.

Moreover, with respect to her shoulder pain and claim of vision issues, Plaintiff has not 

disclosed an expert to distinguish between Plaintiff’s pre- and post- incident symptoms and 

therefore cannot prove that the pain and vision problems she alleges are not the result of her 

pre-existing conditions. Plaintiff should not, herself, be permitted to provide the sole 

testimony as to her diagnoses. 

e. Voir dire and Closing Arguments

i. The “Golden Rule” and reptile arguments should be prohibited.

A “Golden Rule” argument suggests to jurors that they put themselves in the 

plaintiff’s position, and is prohibited because it encourages jurors to decide the case on bias 

and personal interests rather than on the evidence. See Puckett v. State, 918 S.W.2d 701, 

711 (Ark. 1996); Braithwaite v. State, 572 S.E.2d 612,615 (Ga. 2002). In civil cases, when 

the “Golden Rule” argument relates to the sensitive area of financial responsibility and asks 

the jury to consider how much they would wish to receive in the situation, it is prohibited. 

See Rosen v. Knaub, 842 P.2d 1317 (Ariz. App. 1992); Shaffer v. Ward, 510 So. 2d 602, 

603 (Fla. Dist. Ct. App. 1987).

Similarly, the reptile theory is a vehicle whereby a party raises questions of 

community protection, in an attempt to spread the aroma of fear in the community. Such

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theories are improper as they focus on evidence extrinsic to the case, are intended to set up

the jury as a protector of the community, ask the jury to place itself in the plaintiff’s position,

and set up confusion as to the appropriate standard of care. The Court should not condone 

arguments that appeal to the prejudice or sympathy of the jury. See Pracht v. Saga Freight

Logistics, LLC, 2015 WL 6622877 (W.D.N.C. 2015) (granting motion to preclude Golden

Rule and/or Reptile Theory questions and argument).

ii. Closing arguments must be based on facts in evidence.

Although it is widely understood that attorneys have significant latitude in drawing

inferences based upon the evidence admitted in a case, all arguments used in a closing must

be based upon facts in evidence. In Johnson v. United States, 247 F.2d 803, 805 (D.C. Cir.

1965), the court held: “It is elementary...that counsel may not premise arguments on

evidence which has not been admitted.” This echoed the holding in Robinson v. United 

States, 32 F.2d 505, 508 (8th Cir. 1928), where the court ordered a new trial after counsel’s

argument was clearly outside the testimony of the witnesses at trial. Put simply, “counsel

has no right to create evidence or misstate the facts.” State v. Thornton, 498 N.W. 2d 670,

676 (Iowa 1993).

iii. References to matters outside evidence in making damages claims 

are improper.

In closing argument, counsel is permitted to argue reasonable inferences from the

evidence. See State v. Moody, 94 P.3d 1119, 1159 (Ariz. 2004). The parties are prohibited, 

however, from arguing facts not in evidence. Grant v. Ariz. Pub. Serv. Co., 652 P.2d 507, 

524 (Ariz. 1982). In arguing damages, using monetary figures from nonparties outside the 

facts of the case is not permitted. In Colfer v. Ballantyne, 89 Ariz. 408, 412-13 (1961), the 

plaintiff’s counsel attempted to use examples of a movie star earning $5,000 per night, or 

racehorses earning $100,000 purses to inflate the damages to be awarded by the jury. The 

court held these references were not relevant to the plaintiff’s damages and did not call upon 

the jurors to exercise judgment and experience in connection with the ordinary affairs of 

life in evaluating the facts of the case at hand. See also Moore v. Missouri Pacific R. Co., 

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825 S.W.2d 839 (Mo. 1992) (reversible error to refer to professional athlete salary in closing 

argument); Gath v. M/A-Com, Inc., 802 N.E.2d 251, 496 (Mass. 2003) (references to 

damages for airline crashes and baseball players’ salaries was “most improper”).

Nor is it proper to admit such evidence solely as a set up to arguing the issue in

closing. For example, the salary of a Diamondbacks player is irrelevant in an excessive

force case involving a plaintiff who was behaving disruptively while trespassing on private 

property, and serves no purpose other than to allow counsel to argue the matter in closing.

iv. An attorney may not vouch for the credibility of a witness or assert 

his personal beliefs about the case.

A party may not vouch for a witness’s credibility, or improperly introduce evidence 

outside the record—such as a lawyer’s experience with similar cases—as a means of 

commenting on the opposing party’s case and the credibility of witnesses. See State v. Forde, 

233 Ariz. 543, 563 (2014) (prosecutor’s closing argument, which vouched for the witness’s 

honesty, was improper). Vouching comes in two forms—when the lawyer places the 

prestige of the government behind a witness by providing personal assurances of the

witness’s credibility; or suggests that the testimony of a witness is supported by information

outside that presented to the jury. See United States v. Sanchez, 176 F.3d 1214, 1224 (9th

Cir. 1999); United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002); United States 

v. Combs, 379 F.3d 564, 567–68 (9th Cir. 2004) (holding that it was improper to ask the 

defendant whether the testifying agent lied and for the prosecutor to make a closing 

argument in which he several times referred to the defendant calling the agent a liar, and 

impermissibly referring to the fact that if the agent lied he would have committed perjury 

and would have been “flush[ing] his ten-year career down the toilet.”).

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DATED this 4th day of March, 2019. 

WIENEKE LAW GROUP, PLC 

By: /s/ Kathleen L. Wieneke

Kathleen L. Wieneke

Christina Retts

Tara Zoellner

1095 West Rio Salado Parkway, Suite 209

Tempe, Arizona 85281

Attorneys for Defendants City of Phoenix and 

Officer Jason Gillespie

CERTIFICATE OF SERVICE

I hereby certify that on March 4, 2019, I electronically transmitted the attached 

document 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:

Jocquese L. Blackwell

Gillmore Bernard

BLACKWELL LAW OFFICE, PLLC

3101 North Central Avenue, Suite 820

Phoenix, AZ 85012

jocquese@azjustice.com

gill@azjustice.com

Attorneys for Plaintiff

I hereby certify that on this same date, I served the attached document by U.S. Mail, 

postage prepaid, on the following, who is not a registered participant of the CM/ECF 

System:

N/A

By: /s/ Tara B. Zoellner

Case 2:15-cv-01786-DLR Document 138 Filed 03/04/19 Page 23 of 23