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Mulhern v. City of Scottsdale

Court of Appeals of Arizona, Second Division, Department A

May 10, 1990

Kimberly MULHERN, on her own behalf and as Personal Representative of the Estate of Daniel Mulhern, Jr., deceased, and on behalf of the surviving children, Daniel Anthony Mulhern III; Brandon Mulhern; Dan Mulhern and Margaret Mulhern, husband and wife, Plaintiffs/Appellants,
v.
CITY OF SCOTTSDALE, a municipal corporation; Michael Gannon, Chief of Police, Scottsdale Police Department; Hal Nevitt and Jane Doe Nevitt, husband and wife, Defendants/Appellees.

Review Denied Oct. 23, 1990.

Page 16

[165 Ariz. 396] Barry H. Hart, Ltd. by Barry H. Hart, Phoenix, for plaintiffs/appellants.

Jennings, Strouss & Salmon by Michael A. Beale, Jefferson L. Lankford and Michael J. O'Connor, Phoenix, for defendants/appellees.

OPINION

HOWARD, Judge.

On February 14, 1986, Daniel Mulhern, Jr. was shot and killed by Hal Nevitt, a Scottsdale police officer on patrol duty. Plaintiffs filed a complaint for wrongful death, with additional counts by the parents of the deceased against Nevitt, Scottsdale Police Chief Michael Gannon and the City of Scottsdale for negligent and intentional infliction of emotional distress based on the negligent assignment of patrol duties. The wrongful death claim, based on the alleged negligence of Nevitt, was separated from the other counts and tried by a jury which returned a unanimous defense verdict. Because of that verdict, the trial court entered judgment in favor of the defendants on all counts. Plaintiffs made a motion for a new trial which was denied. This appeal followed.

FACTS

The evidence presented at trial showed that the deceased was suffering from psychological problems and alcoholism. He had been drinking on the day of the incident at his parents' home where he was staying as kind of a "halfway house." He began acting strangely, repeatedly pointing a loaded .25-caliber pistol at his head and pulling the trigger. The weapon did not fire only because Mulhern, apparently unfamiliar with the mechanism of the automatic[165 Ariz. 397]

Page 17

pistol, failed to chamber the first round.

Mulhern's parents, being unable to calm or disarm him, called the Scottsdale police who responded immediately, sending both uniformed Officer Hal Nevitt as the closest patrol unit and plain clothes Detective Paul Blackford. The officers were informed that there was a man with a gun at the Mulhern house.

The two officers arrived at the same time, but Blackford drove past the house and had to backtrack in order to find it. Nevitt left his vehicle first but he did not immediately draw his weapon. Nevitt saw Mulhern's father but not Mulhern, spoke to the father and confirmed that Mulhern had a weapon.

According to Nevitt, Mulhern then emerged from some bushes in front of the house armed with a pistol. Nevitt and Blackford drew their weapons. Nevitt ordered Mulhern to stop and/or drop his weapon. Mulhern ignored the command and instead moved slowly across the front of the house toward the driveway holding the automatic pistol in his right hand. Nevitt again ordered Mulhern to stop and again Mulhern ignored the command. He abruptly changed speed and direction. Nevitt was crouched behind a pillar at the other end of the driveway for protection with his weapon drawn. Mulhern charged directly at Nevitt at a run or trot, his arms extended, waving his left arm in the air and screaming at the officer. Some eyewitnesses reported that Mulhern also pointed his gun at the officer or at bystanders, raised the gun, or fired his weapon. Others testified that Mulhern never raised the weapon and never fired at Nevitt. Nevitt testified that Mulhern got to within five to ten feet of him when he finally fired. The time from Nevitt's arrival at the scene until the shooting was less than 95 seconds.

Three expert witnesses in the use of deadly force by police officers testified at trial. All of them, including the plaintiffs' expert, agree that if the deceased ran at the officer with his right arm extended holding the pistol, then the officer was unquestionably justified in shooting. Plaintiffs' expert witness even agreed that if the suspect were immobile, holding his weapon limply at his side, whether the officer should shoot would be a very close call. The expert testimony was that any overt movement by an armed suspect justifies the officer's use of deadly force because of the unpredictability of the suspect and the officer's disadvantage in having to react to the suspect's actions. Even a change in facial expression would be enough, according to the plaintiffs' own expert.

PRETRIAL PROCEDURE--MOTION IN LIMINE

Prior to trial the trial court granted Gannon's and the City's motion in limine excluding evidence as to a 1984 internal investigation of Nevitt, the involvement of Nevitt in an alleged obstruction of a Phoenix Police Department criminal investigation, Nevitt's use/sale of narcotics in 1984 and consumption of alcohol off duty prior to December 1, 1985, use of alcohol after the shooting, the investigation as to Nevitt's prior drug problems, the arrest of Nevitt on March 28, 1986, on conspiracy charges, racketeering, transportation, importation, sale and transfer of drugs, Nevitt's suspension or termination from the Scottsdale Police Department, his plea of no contest to some of the drug charges and his seven-year sentence to the Department of Corrections. The trial court also granted Nevitt's motion in limine prohibiting the use of Nevitt's felony convictions on the narcotics charges for impeachment purposes.

ISSUES

Plaintiffs contend the trial court erred in dismissing their negligent assignment claim against defendants City and Gannon, in granting Nevitt's motion for separate ...


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