Plaintiff was walking around in public naked from the waist down. This led to a confrontation with the police. Plaintiff initially talked to the officers and then took off.  The officers took him to the ground (hot asphalt), and he was injured.  First trial, the officers won although the trial court granted a motion for a new trial after deciding the defense’s introduction of a drug test was unduly prejudicial.  At the second trial, the trial court bifurcated liability and damages. The officers conceded their use of force constituted assault or battery, but the use of force was justified under A.R.S. § 13-409. (Is it a battery if force is privileged?) Second trial, the officers win again.  Plaintiff argues the jury instructions should have separately instructed on each assault or battery and required justification for each. The jury instruction mirrored the justification statute, and the court of appeals held there was no error. Further, the instruction calling this an arrest rather than a welfare detention was not unduly prejudicial. 

Plaintiff also argued defense counsel’s closing argument was unduly prejudicial because she referred to plaintiff’s failure to present evidence on plaintiff’s mental health. This was a mistake because the relevant evidence was what the officers knew when they confronted the plaintiff.  We suspect counsel was looking for some way around the officers not following mental health protocols. This argument, however, was not prejudicial enough. Include in the “not prejudicial enough” category several evidentiary rulings during trial including impeachment evidence, deposition testimony, and an expert vouching for a witness.

The court concludes with a discussion of whether the trial court should have imposed sanctions for bringing up the drug screen test in the first trial. Trial counsel was told not to bring it up without permission and did it anyway. This misconduct was the basis of the new trial, and this violation of an unambiguous order warrants sanctions. A.R.S. § 12-349 requires only unreasonable delay and expansion of the proceedings. The concurrence suggests just because the trial court used the incorrect standard by requiring bad intent, the court should remand and have the trial court evaluate under the correct legal standard.  Although there will be no third trial, the court sends a message. Seems a little strong when one considers the back and forth during the first trial, the curative instruction, and the trial court’s decision granting a new trial came only after the result. The court of appeals had previously affirmed the trial court’s decision granting a new trial. If sanctions were warranted, why was this not determined in round one?

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