robert groden v frank gorka and city of dallas

PLAINTIFF’S WITNESS LIST Page | 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT GRODEN,

Plaintiff,

v.

CITY OF DALLAS, TEXAS and

SERGEANT FRANK GORKA,

Defendants.

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CIVIL ACTION NO.

3:10-cv-01280-F

PLAINTIFF’S WITNESS LIST

COMES NOW, Robert Groden (“Plaintiff” or “Groden”), and pursuant the Court’s October

30, 2013 Order Setting Trial, Local Rule 26.2, and Rule 26(a)(3) of the Federal Rules of Civil

Procedure, files this Plaintiff’s Witness List, and for same would respectfully show unto the Court

as follows:

I.

PLAINTIFF’S WITNESSES

Plaintiff may call the following witnesses to testify at trial:

1.) Peter A. Schulte, Esq.

Schulte & Apgar, PLLC

4131 N. Central Expwy, Suite 680

Dallas, Texas 75204

(214) 521-2200

Plaintiff’s Expert Witness

Mr. Schulte is Plaintiff’s expert witness, and is of the opinion that the arrest, property

seizure, and prosecution of Plaintiff by Defendant in this case were not appropriate, not based on

probable cause, not supported by the law, and not justified and that Defendant Sergeant Frank

Gorka should not be entitled to qualified immunity. Mr. Schulte is expected to testify on and

present evidence under Rules 702, 703, and 705 of the Federal Rules of Evidence on the subject

of the propriety of the arrest and prosecution of Plaintiff, as well as the property seizure, by

Defendant and whether Defendant Gorka should be entitled to qualified immunity.

Case 3:10-cv-01280-N Document 119 Filed 05/12/14 of 8 PageID 1256


Mr. Schulte is a licensed attorney in Texas, a former prosecutor, and former police officer.

He continues to maintain both his Texas Commission on Law Enforcement Officer Standards and

Education (TCLEOSE) Instructor License and his Peace Officer License. He teaches area police

officers arrest, search, and seizure law at police academies in North Texas.

Mr. Schulte’s estimate length of direct examination is thirty (30) minutes.

2.) Nicola Longford

c/o Randy A. Nelson

Thompson, Coe, Cousins, & Irons, L.L.P.

700 N. Pearl Street, Twenty-Fifth Floor

Dallas, Texas75201

(214) 871-8228

Ms. Longford is an employee of The Sixth Floor Museum at Dealey Plaza, and was

involved in development and execution of the plan to eliminate competitors of The Sixth Floor

Museum at Dealey Plaza by wrongfully arresting Plaintiff Groden. Ms. Longford knew that the

legal basis for Plaintiff’s arrest was invalid, and she is expected to testify as to this.

Ms. Longford’s estimate length of direct examination is thirty (30) minutes.

3.) Bradley Hamilton

c/o Randy A. Nelson

Thompson, Coe, Cousins, & Irons, L.L.P.

700 N. Pearl Street, Twenty-Fifth Floor

Dallas, Texas75201

(214) 871-8228

Mr. Hamilton is a former employee of The Sixth Floor Museum at Dealey Plaza, and was

involved in development and execution of the plan to eliminate competitors of The Sixth Floor

Museum at Dealey Plaza by wrongfully arresting Plaintiff Groden. Mr. Hamilton contacted the

City of Dallas Police Department about Plaintiff prior to his wrongful arrest, and is expected to

testify as to this.

Mr. Hamilton’s estimate length of direct examination is thirty (30) minutes.

4.) Vincent Golbeck

c/o Patricia M. De Le Garza

Assistant City Attorney’s Office

1500 Marilla Street, Room 7D North

Dallas, Texas 75201

(214) 670-3519

Mr. Golbeck is a former police officer for the City of Dallas, and was involved in

development and execution of the plan with The Sixth Floor Museum at Dealey Plaza to eliminate



competitors of The Sixth Floor Museum at Dealey Plaza. Mr. Golbeck contacted Defendant Gorka

about Plaintiff prior to his wrongful arrest, and is expected to testify regarding this.

Mr. Golbeck’s estimate length of direct examination is one (1) hour.

5.) Carla Newson




Dallas, Texas 75201

(214) 670-3519

Ms. Newson is a former employee the City of Dallas, and signed the criminal Complaint

dated July 13, 2010, wherein Plaintiff was wrongfully charged by Defendant Gorka. Ms. Newson

is expected to testify as to whether the facts stated in the criminal Complaint she signed are true

or false, and whether that Defendant Gorka actually provided her with valid grounds to charge

Plaintiff.

Ms. Newson’s estimate length of direct examination is thirty (30) minutes.

6.) Raquel Hernandez




Dallas, Texas 75201

(214) 670-3519

Ms. Hernandez is a former employee the City of Dallas, and signed the criminal Complaint

dated June 13, 2010, wherein Plaintiff was wrongfully charged by Defendant Gorka. Ms.

Hernandez is expected to testify as to whether the facts stated in the criminal Complaint she signed

are true or false, and whether Defendant Gorka actually provided her with valid grounds to charge

Plaintiff.

Ms. Hernandez’s estimate length of direct examination is thirty (30) minutes.

7.) Steve Worden

1301 E. Spring Valley Road

Richardson, Texas 75081

Mr. Worden is a former employee the City of Dallas and conspired with The Sixth Floor

Museum at Dealey Plaza to eliminate the competitors of The Sixth Floor Museum at Dealey Plaza,

pursuant to which Plaintiff was wrongfully arrested by Defendant Frank Gorka. Mr. Worden knew

that Chapter 32, Section 32-10 of the Dallas City Ordinance was not applicable, and is expected

to testify as to this plan

Mr. Worden’s estimate length of direct examination is thirty (30) minutes.



8.) Plaintiff Robert Groden

c/o D. Bradley Kizzia

Brown Fox Kizzia & Johnson PLLC

750 N. St. Paul Street, Suite 1320

Dallas, Texas 75201

(214) 613-3350

Mr. Groden is the Plaintiff in this case and is knowledgeable about his First Amendment

activities in Dealey Plaza in which he was engaged at the time of his unlawful arrest and

incarceration by Defendant Gorka. He is also knowledgeable about the fact that he has engaged in

those activities protected by the First Amendment for more than fifteen (15) years, as well as the

periodic harassment and legally unjustified prosecution of unjustified charges against him by the

City of Dallas. He is also knowledgeable about property that was wrongfully seized by Defendant

Gorka and withheld from him by the Dallas Police Department. He is also knowledgeable about

the damages resulting from Defendants’ wrongful, illegal, and unconstitutional actions. See

Plaintiff’s Fifth Amended Complaint on file herein for more specific allegations about which

Plaintiff has knowledge.

Plaintiff Groden’s estimate length of direct examination is two (2) hours.

9.) Defendant Sergeant Frank Gorka

c/o James C. Butt

Assistant City Attorney

City Attorney’s Office

1500 Marilla Street, Room 7B North

Dallas, Texas 75201

(214) 670-3519

Defendant Gorka is a named Defendant and a police officer for the City of Dallas Police

Department. He is knowledgeable about the unjustified, illegal, and unconstitutional “crackdown”

policy that the City of Dallas implemented prior to Plaintiff’s unlawful arrest and incarceration.

He is knowledgeable about the unlawful arrest and incarceration of Plaintiff, as well as the

unlawful seizure of Plaintiff’s property and the withholding thereof. He should be knowledgeable

about the training provided by the City of Dallas Police Department related to the events that are

the subject of this suit and the factual basis for why he is not entitled to qualified immunity.

Defendant Gorka is also knowledgeable that the criminal Complaint filed against Plaintiff

contained false information

Defendant Gorka’s estimate length of direct examination is two (2) hours.



10.) Kevin Johnson

Platinum Security

400 North St. Paul Street

Dallas, Texas 75202

(214) 747-6660

Mr. Johnson may be an eyewitness to the Defendant’s illegal harassment and/or arrest of

Plaintiff and may be knowledgeable about complaints leading to the Dallas Police Department’s

“crackdown” in Dealey Plaza and/or Plaintiff’s arrest. Mr. Johnson may also be knowledgeable

about the Sixth Floor Museum at Dealey Plaza’s involvement in the illegal harassment, arrest and

prosecution of Plaintiff by the City of Dallas Police Department. He may also be knowledgeable

about the fact that his employer is not in good standing with the State of Texas.

Mr. Johnson’s estimate length of direct examination is thirty (30) minutes.

11.) Joan Walne

Contact information currently unknown at this time.

Ms. Walne may have knowledge about Chapter 32, Section 32-10 of the Dallas City

Ordinance and its lack of application to Plaintiff’s activities in Dealey Plaza, as well as the

amendments to that Ordinance recently enacted by the Dallas City Council, and about the

“crackdown” on vendors in Dealey Plaza.

Ms. Walne’s estimate length of direct examination is thirty (30) minutes.

12.) Janet Hyde

City of Dallas Parks and Recreation Department

c/o James C. Butt




Dallas, Texas 75201

(214) 670-3519

Ms. Hyde is or was an employee with the City of Dallas Parks and Recreation Department.

Plaintiff was referred to Ms. Hyde by Defendant Gorka concerning a possible permit regarding

Plaintiff’s activities in Dealey Plaza, but she told Plaintiff that no such permit or agreement existed.

She may have knowledge about Chapter 32, Section 32-10 of the Dallas City Ordinance and its

lack of application to Plaintiff’s activities in Dealey Plaza, as well as the amendments to that

Ordinance recently enacted by the Dallas City Council, and about the “crackdown” on vendors in

Dealey Plaza.

Ms. Hyde’s estimate length of direct examination is thirty (30) minutes.



13.) Paul D. Dyer

Contact information currently unknown at this time.

Mr. Dyer is former head of the City of Dallas Parks and Recreation Department, and is

knowledgeable about the recent amendments to Chapter 32, Section 32-10 of the Dallas City

Ordinance, and that the purpose of the amendments was to clarify the Ordinance so as to prevent

further arrest or prosecution of vendors like Plaintiff.

Mr. Dyer’s estimate length of direct examination is thirty (30) minutes.

14.) Robert Miklos

Milby, PLLC

1909 Woodall Rodgers, Suite 500

Dallas, Texas 75201

(214) 220-1210

Mr. Miklos is knowledgeable about the City of Dallas’ efforts years ago to prosecute

Plaintiff, but is and was then of the view that the ordinances in question were not legally

enforceable against Plaintiff.

Mr. Miklos’ estimate length of direct examination is thirty (30) minutes.

15.) Willis Winters

City of Dallas Parks and Recreation Department

c/o James C. Butt




Dallas, Texas 75201

(214) 670-3519

Mr. Winters should have similar information to that of Ms. Walne above.

Mr. Winters’ estimate length of direct examination is thirty (30) minutes.

16.) Rodney Nevils

City of Dallas Police Department

c/o James C. Butt




Dallas, Texas 75201

(214) 670-3519

Rodney Nevils is a Dallas police officer. Officer Nevils participated in and/or witnessed

Plaintiff’s harassment by the Dallas Police Department.



Mr. Nevils’ estimate length of direct examination is thirty (30) minutes.

17.) Marshall Evans

604 Hanover Drive

Waxahachie, Texas 75165

(972) 825-1217

Marshall Evans is Plaintiff’s friend and co-worker. Mr. Evans witnessed Plaintiff’s arrest

and incarceration.

Mr. Evans’ estimate length of direct examination is thirty (30) minutes.

18.) Lieutenant Anthony Williams

City of Dallas Police Department

c/o James C. Butt




Dallas, Texas 75201

(214) 670-3519

Lt. A. Williams is a City of Dallas police officer who allegedly received complaints about

Plaintiff’s First Amendment activities in Dealey Plaza, and thereafter contacted Defendant Gorka

to investigate. Lt. Williams had communications with Plaintiff before his arrest and told him he

would initially be issued a ticket, but that did not happen on June 13, 2010.

Lt. Williams’ estimate length of direct examination is thirty (30) minutes.

19.) D. Bradley Kizzia

Brown Fox Kizzia & Johnson PLLC


Dallas, Texas 75201

(214) 613-3350

Mr. Kizzia is of the opinion that Plaintiff has incurred reasonable and necessary attorneys’

fees and expenses due to his illegal arrest and criminal prosecution by Defendant and in connection

with this case. Those fees and expenses are ongoing, but will likely exceed $100,000 and, Mr.

Kizzia is of the opinion that Defendant should be ordered to pay all of such fees and expenses.

Mr. Kizzia is a licensed attorney, has practiced in Dallas, Texas for approximately thirty

(30) years, and is familiar with the reasonable and necessary legal services, attorney's fees, charges

and expenses incurred in the defense of the City's criminal prosecution of Plaintiff (trial court and

appeal) and in the prosecution of this suit. Mr. Kizzia is of the opinion that Plaintiff should be

awarded in excess of $100,000 in attorney's fees in this case.

Mr. Kizzia’s testimony will be presented by affidavit to the court, after the jury verdict.



Respectfully submitted,

s/ D. Bradley Kizzia

D. BRADLEY KIZZIA

State Bar No. 11547550

[email protected]

SARAH B. SPARLING


[email protected]

BROWN FOX KIZZIA & JOHNSON PLLC


Dallas, Texas 75201

(214) 613-3350

Fax: (214) 613-3330

ATTORNEYS FOR PLAINTIFF

Dated this 12th day of May, 2014.

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the above and foregoing instrument

has been forwarded to all counsel of record on the 12th day of May, 2014, in accordance with the

Federal Rules of Civil Procedure.


D. BRADLEY KIZZIA


mailto:[email protected]

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DALLAS DIVISION

ROBERT GRODEN,

Plaintiff,

v.

CITY OF DALLAS, TEXAS and

SERGEANT FRANK GORKA

Defendants.

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CIVIL ACTION NO.

3:10-cv-01280-F

PLAINTIFF ROBERT GRODEN’S PROPOSED JURY CHARGE AND QUESTIONS

TO THE HONORABLE UNITED STATES DISTRICT COURT:

COMES NOW Plaintiff Robert J. Groden and files this his Proposed Jury Instructions

and Questions.



D. BRADLEY KIZZIA


[email protected]

SARAH B. SPARLING


[email protected]

BROWN FOX KIZZIA & JOHNSON PLLC


Dallas, Texas 75201

(214) 613-3350

Fax: (214) 613-3330

ATTORNEYS FOR PLAINTIFF

Dated this 12th day of May, 2014.

Case 3:10-cv-01280-N Document 117 Filed 05/12/14 Page 1 of 37 PageID 1215


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The undersigned certifies that a true and correct copy of the above and foregoing

instrument has been forwarded to all counsel of record on the 12th day of May, 2014, in

accordance with the Federal Rules of Civil Procedure.


D. BRADLEY KIZZIA


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MEMBERS OF THE JURY:

Now that you have heard the evidence in the case, I will instruct you on the law you must

apply. First, I will give you some general instructions which apply in every case: for example,

instructions about burden of proof and how to judge the believability of witnesses. Then I will

give you some specific rules of law about this particular case, and finally I will explain to you

the procedures you should follow in your deliberations. After I instruct you on the law, the

attorneys will have an opportunity to make their closing arguments.

GENERAL INSTRUCTIONS

You, as jurors, are the judges of the facts. But in determining what actually happened -

that is, in reaching your decision as to the facts - it is your sworn duty to follow all of the rules of

law as I explain them to you. You have no right to disregard or give special attention to any one

instruction, or to question the wisdom or correctness of any rule I may state to you. You must not

substitute or follow your own notion or opinion as to what the law is or ought to be. It is your

duty to apply the law as I explain it to you, regardless of the consequences.

Answer each question from the facts as you find them. Do not decide who you think

should win and then answer the questions accordingly. Your answers and your verdict must be

unanimous.

The Plaintiff in this case is Robert Groden, whom I will refer to as “Groden” or the

“Plaintiff.” The Defendant in this case is Sergeant Frank Gorka, whom I will refer to as “Gorka”

or the “Defendant.”

Certain questions require a “preponderance of the evidence” for an affirmative answer.

Preponderance of the evidence means the greater weight and degree of credible evidence before

you. In other words, a preponderance of the evidence means the amount of evidence that


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persuades you that a claim is more likely true than not true. Other questions require “clear and

convincing evidence,” which is a greater burden of proof, for an affirmative answer. Clear and

convincing evidence means that it is highly probable that a certain fact is true. In determining

whether any fact has been proven by a preponderance of the evidence or by clear and convincing

evidence, you may, unless otherwise instructed, consider the parties’ stipulations, testimony of

all witnesses, regardless of who may have called them, and all exhibits received in evidence,

regardless of who may have produced them. Groden has the burden of proof by a preponderance

of the evidence on Questions 1, 2, 3, 4, 5, 6, 7, 8, 9 and any subparts thereof. Groden has the

burden of proof by clear and convincing evidence on Questions 10, 12, and any subparts thereof.

Gorka has the burden of proof by a preponderance of the evidence on Question 11.

You may have heard of the phrase “proof beyond a reasonable doubt.” That is a stricter

standard that applies in criminal cases. It does not apply at all in this case. You should therefore

put it out of your minds.

As I told you earlier, it is your duty to determine the facts. Remember that any

statements, objections, or arguments made by the lawyers are not evidence. The function of the

lawyers is to point out those things that are most significant or most helpful to their side of the

case, and in so doing to call your attention to certain facts or inferences that might otherwise

escape your notice. In the final analysis, however, it is your own recollection and interpretation

of the evidence that controls in the case. What the lawyers say is not binding upon you.

During the course of the trial, you have heard counsel make objections to evidence. It is

the duty of the attorneys on each side of a case to object when the other side offers testimony or

other evidence that the attorney believes is not properly admissible. You should not hold it

against an attorney or his client because the attorney has made objections.


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When I allowed testimony or other evidence to be introduced over the objection of any

attorney, the Court was not indicating any opinion as to the weight or effect of such evidence,

and you may give such evidence the significance you believe appropriate. If the Court sustained

an objection to a question addressed to a witness, you are to disregard the question entirely and

may draw no inference from the wording of it or speculate as to what the witness would have

said if the witness had been permitted to answer. If I struck any testimony and instructed you to

disregard it, you must do so. If I instructed you to consider an exhibit only for a limited purpose,

you must do so.

Do not assume from anything I may have done or said during the trial that I have any

opinion concerning any of the issues in this case. Except for the instructions to you on the law,

you should disregard anything I may have said during the trial in arriving at your own findings as

to the facts.

You are the sole judges of the credibility or believability of each witness and the weight

to be given to his or her testimony. You should carefully examine all the testimony given, the

circumstances under which each witness has testified, and every matter in evidence tending to

show whether a witness is worthy of belief. In weighing the testimony of a witness, you should

consider the witness’s motive; any bias or prejudice the witness may have; the witness’s

demeanor or manner while testifying; the witness’s interest, if any, in the outcome of the case;

the witness’s candor, fairness and intelligence; the witness’s opportunity and ability to see or

hear or know things that the witness testified about; the quality of the witness’s memory; and

whether the witness’s testimony has been supported or contradicted by other credible evidence.

You may accept or reject the testimony of any witness in whole or in part.


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In weighing the credibility of a witness, you may consider the fact that he has previously

been convicted of a felony, a crime involving dishonesty or a false statement. Such a conviction

does not necessarily destroy the witness’ credibility, but it is one of the circumstances you may

take into account in determining the weight to give to his testimony.

A witness may be “impeached,” or discredited, by a showing that the witness testified

falsely concerning some important fact, or by evidence that at some other time the witness said

or did something, or failed to say or do something, that was different from the testimony the

witness gave before you during the trial. If you believe any witness has been impeached and thus

discredited, you may give the testimony of that witness such credibility, if any, as you think it

deserves.

You should keep in mind, of course, that a simple mistake by a witness does not

necessarily mean that the witness was not telling the truth as he or she remembers it, because

people may forget some things or remember other things inaccurately. So if a witness has made a

misstatement, you need to consider whether that misstatement was an intentional falsehood or

simply an innocent lapse of memory; and the significance of that may depend on whether it has

to do with an important fact, or only with an unimportant detail. Inconsistencies or discrepancies

in the testimony of a witness, or between the testimony of different witnesses, may or may not

cause you to discredit such testimony. Two or more persons seeing an event may see or hear it

differently. In weighing the effect of a discrepancy, always consider whether it pertains to a

matter of importance or an unimportant detail, and whether the discrepancy results from innocent

error or intentional falsehood.

While you should consider only the evidence, you are permitted to draw such reasonable

inferences from the testimony and exhibits as you feel are justified in the light of common


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experience. In other words, you may make deductions and reach conclusions that reason and

common sense lead you to draw from the facts that have been established by the testimony and

evidence.

The testimony of a single witness may be sufficient to prove any fact, even if a greater

number of witnesses may have testified to the contrary, if after considering all the other

evidence, you believe that single witness.

There are two types of evidence that you may consider in properly finding the truth as to

the facts in the case. One is direct evidence––such as testimony of an eyewitness. The other is

indirect or circumstantial evidence––the proof of a chain of circumstances that indicates the

existence or nonexistence of certain other facts. As a general rule, the law makes no distinction

between direct and circumstantial evidence, but simply requires that you find the facts from all

the evidence, both direct and circumstantial.

When knowledge of technical subject matter may be helpful to the jury, a person who has

special training or experience in that technical field––an expert witness––is permitted to state an

opinion on those technical matters. However, you are not required to accept that opinion. As with

any other witness, it is up to you to decide whether to rely upon it.

In deciding whether to accept or rely upon the opinion of an expert witness, you may

consider any bias of the witness, including any bias you may infer from evidence that the expert

witness has been or will be paid for reviewing the case and testifying, or from evidence that he

testifies regularly as an expert witness and his income from such testimony represents a

significant portion of his income.

Certain testimony has been presented to you through depositions. A deposition is the

sworn, recorded answers to questions asked a witness in advance of the trial. Under some


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circumstances, that witness’s testimony may be presented, under oath, in the form of a

deposition. Sometime before this trial, attorneys representing the parties in this case questioned

the witness under oath. A court reporter was present and recorded the testimony. The questions

and answers have been read and/or shown to you. This deposition testimony is entitled to the

same consideration and is to be judged by you as to credibility and weighed and otherwise

considered by you insofar as possible in the same way as if the witness had been present and had

testified from the witness stand in court.

In deciding the facts of this case, you must not be swayed by bias, prejudice, or favor as

to any party. Our system of law does not permit jurors to be governed by prejudice, sympathy, or

public opinion. The parties and the public expect that you will carefully and impartially consider

all of the evidence in the case, follow the law as stated by the Court, and reach a just verdict

regardless of the consequences.

Any notes that you have taken during this trial are only aids to memory. If your memory

should differ from your notes, then you should rely on your memory and not on the notes. The

notes are not evidence. A juror who has not taken notes should rely on his or her independent

recollection of the evidence and should not be unduly influenced by the notes of other jurors.

Notes are not entitled to any greater weight than the recollection or impression of each juror

about the testimony.


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SPECIFIC INSTRUCTIONS CONTENTIONS OF THE PARTIES

Groden asserts that Gorka, while acting under color of authority of the State of Texas as a

member of the Police Department of the City of Dallas, violated Groden’s constitutional rights.

The constitutional rights that Groden claims Gorka violated are: the right to freedom of speech

and freedom of assembly, the right to not be deprived of liberty without due process of law, the

right to be secure in his person and property against unreasonable seizure, and the right to be

free from arrest without probable cause. Gorka denies that he violated Groden’s constitutional

rights, and contends that his conduct was objectively reasonable. Groden also asserts that Gorka

subjected him to false imprisonment and a malicious prosecution. Gorka denies that he subjected

Groden to a malicious prosecution and false imprisonment, and contends that he is entitled to

official immunity. Groden asserts that he has suffered and will suffer mental anguish and

emotional pain and suffering, damage to his reputation, loss of income, and loss of earning

capacity and that he incurred reasonable attorneys’ fees and expenses in defending himself.

42 U.S.C. § 1983 AND CONSTITUTIONAL RIGHTS

Groden has brought suit against Gorka under 42 U.S.C. § 1983, which provides for

redress of injuries, in the form of money damages, resulting from a violation of an individual’s

constitutional or federal statutory rights by a person acting under color of state law. Section 1983

provides that: “every person who, under color of any statute, ordinance, regulation, custom,

usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or other proper legal proceeding for redress.”


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In order to prevail on his claim under this statute, Groden must prove each of the

following three elements by a preponderance of the evidence:

1. That Gorka intentionally or recklessly committed acts that violated one or more of

Groden’s constitutional rights that I have described to you;

2. That in so doing, Gorka acted under color of the authority of the State of Texas;

and

3. That Gorka’s acts were the legal cause of Groden’s damages.

A person acts intentionally when it is his conscious objective or desire to engage in the

conduct challenged. A person acts recklessly with respect to the nature of his conduct or to the

result of his conduct when he is aware of, but consciously disregards, a substantial and

unjustifiable risk that the circumstances exist or the result will occur.

You must first decide whether Gorka committed the acts that Groden claims that Gorka

committed; and, if so, you must then decide whether Gorka was acting within or beyond the

bounds of his authority under law. If Gorka acted within the limits of his lawful authority under

law, then he did not deprive Groden of any right without due process of law.

There is a clearly established constitutional right to be free from arrest without probable

cause. A police officer has probable cause to arrest and detain an individual when the facts and

circumstances within the knowledge of the arresting officer and of which he has reasonably

trustworthy information are sufficient in themselves to warrant in a person of reasonable caution

the belief that a criminal offense has been or is being committed and that the individual to be

arrested has committed that offense. A showing of probable cause requires more than mere

suspicion but less evidence than that needed to support a conviction, which is beyond a

reasonable doubt, or that needed to support a finding by a preponderance of the evidence.


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To succeed on his unlawful arrest claim, Groden must present evidence establishing

misconduct that is more than mere negligence. Normally, a neutral magistrate’s determination

that probable cause existed will shield an officer from a claim of unlawful arrest. However, if the

officer, acting intentionally or with reckless disregard for the truth, fails to provide the magistrate

with information that is critical to a finding of probable cause, or misrepresents a known fact,

this may be considered as unreasonable or reckless behavior that may support liability for

unlawful arrest.

Groden must also prove, by a preponderance of the evidence, the third element of his

Section 1983 claim––legal causation. First, he must prove that the act or failure to act by Gorka

was a cause-in-fact of injury or damage Groden suffered. An act or a failure to act is a cause-in-

fact of an injury or damages if it appears from the evidence that the act or omission played a

substantial part in bringing about or actually causing the injury or damages. Groden must also

prove by a preponderance of the evidence that the act or failure to act by Gorka was a proximate

cause of the damage Groden suffered. An act or omission is a proximate cause of Groden’s

injuries or damages if it appears from the evidence that the injury or damage was a reasonably

foreseeable consequence of the act or omission. Whether Gorka had probable cause for his

actions is measured at the time of his challenged actions.

QUALIFIED IMMUNITY

If you find that Groden has proven his claim, you must then consider Gorka’s at the time of the

incident at issue, and that he is therefore not liable.

Police officers are presumed to know about the clearly established constitutional rights of

citizens. United States citizens are protected against an arrest without probable cause by virtue of

their Fourth Amendment right against unreasonable searches and seizures.


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If, after considering the scope of discretion and responsibility generally given to police

officers in the performance of their duties, and after considering all of the surrounding

circumstances of the case as they would have reasonably appeared at the time that Gorka

submitted his sworn affidavit to the magistrate for an arrest warrant, you find from a

preponderance of the evidence that Groden has proven that Gorka, acting intentionally or with

reckless disregard for the truth, failed to provide the magistrate with information that was critical

to a finding of probable cause, or that he misrepresented a material fact, you must find for

Groden. It is Groden’s burden to prove that Gorka is not entitled to qualified immunity.

If, however, you find that Gorka’s actions were objectively reasonable, and he had a

reasonable belief that his actions did not violate the constitutional rights of Groden, then you

cannot find him liable for a violation of Section 1983, even if Groden’s rights were in fact

violated as a result of Gorka’s actions.

FIRST AMENDMENT RIGHTS

Groden claims damages alleged to have been sustained as the result of a depravation,

under the color or state law, of a right secured to Groden by the First Amendment of the United

States Constitution and by a federal statute protecting the civil rights of all persons within the

United States.

The First Amended to the Constitution provides that:

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.”


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Groden alleges Defendant Gorka subjected Groden to depravation of rights and privileges

secured and protected by the Constitution and laws of the United States, namely the freedom of

speech and freedom of assembly.

Gorka denies that any of his actions during the time in question violated Groden’s

constitutional rights. Gorka claims that he was acting in good faith and with probable cause and

that his actions were reasonable. Gorka further claims that he was not guilty of any fault or

wrongdoing in regarding to the incident sued upon.

Groden also claims damages alleged to have been proximately cause by this depravation.

An injury or damage is proximately cause by an act, or a failure to act, whenever it appears from

the evidence in the case that the act or omission played a substantial part in bringing about or

actually causing the injury or damage to Groden, and that Groden’s injury or damage was either

a direct result or a reasonably probable consequence of the act or omission.

Groden has the burden of proving each and every element of Groden’s claim by a

preponderance of the evidence, If you find Groden has not proved any one of the elements by a

preponderance of the evidence, you must return a verdict for Gorka.

FOURTH AMENDMENT RIGHTS


under the color or state law, of a right secured to Groden by the Fourth Amendment of the

United States Constitution and by a federal statue protecting the civil rights of all persons within

the United States.

The Fourth Amendment to the Constitution provides that:

“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly


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describing the place to be searched, and the persons or things to be

seized.”


secured and protected by the Constitution and laws of the United States, namely the illegal

search and seizure of his property.













FOURTEENTH AMENDMENT RIGHTS


under the color or state law, of a right secured to Groden by the Fourteenth Amendment of the

United States Constitution and by a federal statue protecting the civil rights of all persons within

the United States.


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The Fourteenth Amendment to the Constitution provides that:

“All persons born or naturalized in the United States and subject to

the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.”


secured and protected by the Constitution and laws of the United States, namely the right to due

process of law.













FALSE IMPRISONMENT

Groden also asserts a claim under state law for false imprisonment. False imprisonment is

the willful detention of another without his consent and without legal justification.


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To prove false imprisonment, Groden must show his arrest was (1) a willful detention;

(2) performed without consent; and (3) without the authority of law.

A person procures a criminal prosecution if his actions were enough to cause the

prosecution, and but for his actions the prosecution would not have occurred. A person does not

procure a criminal prosecution when the decision whether to prosecute is left to the discretion of

another, including a law enforcement official or the grand jury, unless the person fails to fully

and fairly disclose all material information known to him or knowingly provides false

information.

Causation is an element of a malicious prosecution case. To recover for malicious

prosecution when the decision to prosecute is within another’s discretion, a plaintiff has the

burden of proving that that decision to prosecute would not have been made but for the false

information supplied by the defendant.

MALICIOUS PROSECUTION

Groden also asserts a claim under state law for malicious prosecution. Malicious

prosecution occurs when a person initiates or procures, with malice, and without probable cause,

the prosecution of an innocent person.

To prove malicious prosecution, Groden must show the (1) commencement of a criminal

prosecution against him, (2) initiated or procured by Gorka, (3) without probable cause, (4)

terminated in favor of Groden, (5) who was innocent, (6) with malice, and (7) resulting in

damage to Groden.

“Malice” means ill will, bad or evil motive, or such gross indifference to the rights of

others as to amount to a willful or wanton act.


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A person procures a criminal prosecution if his actions were enough to cause the

prosecution, and but for his actions the prosecution would not have occurred. A person does not

procure a criminal prosecution when the decision whether to prosecute is left to the discretion of

another, including a law enforcement official or the grand jury, unless the person fails to fully

and fairly disclose all material information known to him or knowingly provides false

information.

Causation is an element of a malicious prosecution case. To recover for malicious

prosecution when the decision to prosecute is within another’s discretion, a plaintiff has the

burden of proving that that decision to prosecute would not have been made but for the false

information supplied by the defendant.

OFFICIAL IMMUNITY

Gorka denies that he subjected Groden to a malicious prosecution and false

imprisonment, and asserts official immunity as a defense to Groden’s malicious prosecution and

false imprisonment claims, and he has the burden of proof on his defense. Peace officers are

entitled to official immunity from liability for actions arising from the performance of: (1) their

discretionary duties (2) in good faith (3) as long as they are acting within the scope of their

authority.

You are instructed that peace officers are performing discretionary duties within the

scope of their authority when performing the duties generally assigned to them, including

conducting criminal investigations, swearing out affidavits for arrest warrants, and testifying at

examining hearings.

A peace officer acts in good faith if his actions are objectively reasonable. In other words,

to establish good faith, Gorka must prove that a reasonably prudent peace officer could have


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believed that the actions he took, or failed to take, were appropriate in light of the information

possessed by Gorka at the time the conduct occurred.

DAMAGES

If Groden has proven his claims against Gorka by a preponderance of the evidence, you

must determine the damages to which Groden is entitled. If you find that Gorka is liable to

Groden, you must award such amount as you may find by a preponderance of the evidence

constitutes full and just compensation for all of Groden’s actual damages. These damages are

called compensatory damages. The purpose of compensatory damages is to make Groden

whole—that is, to compensate Groden for any damage that he has suffered. You also will be

asked to determine if Gorka is liable for punitive damages, and, if so, you will be asked to fix the

amount of those damages. Because the method of determining punitive damages and

compensatory damages differ, I will instruct you separately on punitive damages.

You should not interpret the fact that I have given instructions about Groden’s damages

as task first to decide whether Gorka is liable. I am instructing you on damages only so that you

will have guidance in the event you decide that Gorka is liable and that Groden is entitled to

recover money from Gorka.

COMPENSATORY DAMAGES

You may award compensatory damages only for injuries that Groden has proven were

proximately caused by Gorka’s allegedly wrongful conduct. If you decide to award damages to

Groden, they must be fair compensation for all of Groden’s damages, no more and no less. You

should not award compensatory damages for speculative injuries, but only for those injuries

which Groden has actually suffered or that Groden is reasonably certain to suffer in the future.

However, compensatory damages are not restricted to actual loss of time or money; they include


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both the mental and physical aspects of injury, tangible and intangible. They are an attempt to

make a plaintiff whole, or to restore him to the position she would have been in if the incident

had not happened.

If you decide to award compensatory damages, you should be guided by dispassionate

common sense. Computing damages may be difficult, but you must not let that difficulty lead

you to engage in arbitrary guesswork. On the other hand, the law does not require that Groden

prove the amount of his losses with mathematical precision, but only with as much definiteness

and accuracy as the circumstances permit.

You must use sound discretion in fixing an award of damages, drawing reasonable

inferences where you find them appropriate from the facts and circumstances in evidence.

You should consider the following elements of damages, to the extent you find that

Groden has established such damages by a preponderance of the evidence: (1) mental anguish

and emotional pain and suffering sustained in the past or reasonably certain to be sustained in the

future; (2) damage to reputation sustained in the past or reasonably certain to be sustained in the

future; (3) loss of income that Groden sustained in the past or that he is reasonably certain to

sustain in the future; (4) loss of earning capacity that Groden has sustained in the past or is

reasonably certain to sustain in the future; (5) the value of the property seized from Groden; and

(6) his legal expenses, including the costs of bail, reasonable attorneys’ fees, and investigative

costs in defense of the criminal case.

Some of these damages, such as mental or physical pain and suffering, are intangible

things about which no evidence of value is required. In awarding these damages, you are not

determining value, but you should award an amount that will fairly compensate Groden for his


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injuries. There is no exact standard for fixing the compensation to be awarded for these elements

of damage. Any award that you make should be fair in the light of the evidence.

In considering the damages of Groden, if any, you are to consider only the actual

damages suffered by him as outlined in these instructions and not base your award, if any, on an

abstract value of a constitutional right unaccompanied by actual injury.

Mental anguish implies a relatively high degree of pain and distress; it is more than mere

disappointment, anger, resentment, or embarrassment, although it may include all of these, and it

includes mental sensation of pain resulting from such painful emotions such as grief, severe

disappointment, indignation, wounded pride, shame, despair, and public humiliation.

PUNITIVE DAMAGES

If you find that Gorka is liable, you are also to decide whether Groden is entitled to an

award of punitive damages. The function of punitive damages is to punish a defendant for

malicious or shocking conduct and to deter similar conduct by others.

Whether you decide to award any punitive damages for Groden’s claims under § 1983

that Gorka acted willfully, maliciously, or with callous and reckless disregard of Groden’s

constitutional rights. A willful and malicious act is one that is knowingly done out of ill will,

spite, evil motive or intent or is plainly intended to harm another. One acts with reckless

indifference to the rights of others when he acts in disregard of a high and excessive degree of

danger about which he knows, or which would be apparent to a reasonable person in his

condition. To recover punitive damages for false imprisonment, Groden must show by clear and

convincing evidence that the harm for which he seeks recovery resulted from malice. To recover

punitive damages for malicious prosecution, Groden must show by clear and convincing

evidence that the harm for which he seeks recovery results from malice. If you determine that


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Gorka’s conduct was so shocking and offensive as to justify an award of punitive damages, you

may exercise your discretion to award those damages. The law does not require you to award

punitive damages; however, if you decide to award punitive damages, you must use sound reason

in setting the amount of the damages. The amount of an award of punitive damages must not

reflect bias, prejudice, or sympathy toward any party. It should be presumed a plaintiff has been

made whole by compensatory damages, so punitive damages should be awarded only if a

defendant's misconduct, after having paid compensatory damages, is so reprehensible as to

warrant the imposition of further sanctions to achieve punishment or deterrence.


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JURY QUESTIONS

Question l:

Did Groden prove that Gorka, acting intentionally or with reckless disregard for the truth, illegal

arrest Groden seize his property and incarcerate him?

Answer “Yes” or “No”: ___________________

Proceed to Question 2.


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Question 2:

Did Groden prove that Gorka’s actions, as found by you in answer to Question l, were the cause-

in-fact and proximate cause of injury to Groden?

Answer “Yes” or “No”: ___________________



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Question 3:

Did Groden prove that Gorka maliciously prosecuted him?

Answer “Yes” or “No”: ___________________



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Question 4:

Did Groden prove that Groden was falsely imprisoned by Gorka without legal authority or

probable case?

Answer "Yes" or "No": ___________________



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Question 5:

Did Groden prove that but for Gorka’s actions, the prosecution of Groden would not have

occurred?

Answer "Yes" or "No": ___________________



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Question 6:

Did Groden prove that Gorka violated his First Amendment rights?

Answer “Yes” or “No”: ___________________



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Question 7:

Did Groden prove that Gorka violated his Fourth Amendment rights?

Answer “Yes” or “No”: ___________________



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Question 8:

Did Groden prove that Gorka violated his Fourteenth Amendment rights?

Answer “Yes” or “No”: ___________________



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Question 9:

What sum of money, if any, if now paid in cash, would fairly and reasonably compensate

Groden for is compensatory damages which were directly and proximately caused by the

conduct by Gorka found in your answer to Question l or 3 or both? In answering this question,

you may consider the following categories of damages. Do not include interest on any amount of

damages you may find. Answer in dollars and cents, if any, or zero.

a. Mental anguish and emotional pain and suffering Groden sustained in the past.

Answer: ________________

b. Mental anguish and emotional pain and suffering that in reasonable certainty Groden will

sustain in the future.

Answer: ________________

c. Damage to his reputation that Groden sustained in the past.

Answer: ________________

d. Damage to his reputation that in reasonable certainty Groden will sustain in the future.

Answer: ________________

e. Loss of income that Groden sustained in the past.

Answer: ________________

f. Loss of income that in reasonable certainty Groden will sustain in the future.

Answer: ________________

g. Loss of earning capacity that Groden has sustained in the past.

Answer: ________________

h. Loss of earning capacity that in reasonable certainty Groden will sustain in the future.

Answer: ________________

i. Value of property seized from Groden

Answer: ________________


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j. Legal expenses, including costs of bail, reasonable attorneys’ fees, and investigative costs

in defense of the criminal case.

Answer: ________________



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Question 10(a):

Did Groden prove that Gorka’s actions, as found by you in your answer to Question 1, were

willful, malicious, or were done in callous and reckless disregard of Groden’s constitutional

rights?

Answer: ________________

Question 10(b):

What amount of punitive damages, if any, should be assessed against Gorka for his violations of

Groden’s constitutional rights? Answer in dollars and cents, if any, or zero.

Answer: ________________



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Question 11:

Did Gorka prove that he is entitled to official immunity?

Answer: ________________



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Question 12:

What amount of punitive damages, if any, should be assessed against Gorka for his malicious

prosecution of Groden? Answer in dollars and cents, if any, or zero.

Answer: ________________

This concludes the Questions you are to answer. The foreperson should sign and date the

verdict form at the last page.


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FINAL INSTRUCTIONS

To reach a verdict, all of you must agree. Your verdict must be unanimous. Your

deliberations will be secret. You will never have to explain your verdict to anyone.

It is your sworn duty as jurors to discuss the case with one another in an effort to reach

agreement if you can do so. Each of you must decide the case for yourself, but only after full

consideration of the evidence with the other members of the jury. While you are discussing the

case, do not hesitate to re-examine your own opinion and change your mind if you become

convinced that you are wrong. However, do not give up your honest beliefs solely because the

others think differently, or merely to finish the case. Remember that in a very real way you are

judges-judges of the facts. Your only interest is to seek the truth from the evidence in the case.

I want to advise you that although our court reporter has taken down all of the testimony,

it is not done in such a way that we can read back or furnish testimony to you at your request.

Only when you have a specific disagreement as to a particular witness’s testimony on a specific

subject can we attempt to obtain that information for you.

If you need to communicate with the Court during your deliberations, the foreperson

should write the message and give it to the court security officer. The Court will always first

show the attorneys your question and my response before the Court answers your question. The

Court will either reply to you in writing or bring you back into the courtroom to answer your

message. I caution you, however, with respect to any message or question you might send, that

you should never state or specify your numerical division at the time.

When you retire to the jury room to deliberate, you will be given this charge and the

exhibits that the Court has admitted into evidence. You should select one of your members as

your foreperson, who will help to guide your deliberations and will speak for you here in the


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courtroom. During your deliberations you will set your own work schedule, deciding for

yourselves when and how frequently you wish to recess and for how long. If you recess during

your deliberations, follow all of the instructions that I have given you concerning your conduct

during the trial. After you have reached a unanimous verdict, your foreperson must fill in your

answers to the written questions and sign and date the verdict form. Unless instructed otherwise,

you are not to disclose your numerical division on any question. Finally, do not reveal your

answers to the questions until I direct you to do so. After you have reached a verdict, you are not

required to talk with anyone about the case. You may now retire to the jury room to conduct your

deliberations.

Signed this ____________ day of ____, 2014.

DAVID G. GODBEY

UNITED STATES DISTRICT JUDGE



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VERDICT OF THE JURY

We, the jury, have answered the above and foregoing questions as indicated, and

herewith return the same into Court as our verdict

Signed this ____________ day of ____, 2014.

FOREPERSON


Defendant’s Witness List Groden v. Gorka, Civil Action No. 3:110-cv-1280-N Page 1


FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT GRODEN, §

Plaintiff, § CIVIL ACTION NO.

§

v. § 3:10-CV-1280-N

§

FRANK GORKA, §

Defendant. §

DEFENDANT’S WITNESS LIST

TO THE HONORABLE COURT:

Pursuant to the Court’s Scheduling Order, entered on October 30, 2013 (ECF #109),

Defendant Frank Gorka (“Gorka”) files his list of witnesses to be called in his case-in-chief.

1. Witness Name: Frank Gorka

Estimated length of direct examination: 2.00 hours

Gorka is a Dallas police Sergeant. As a brief summary of the substance of Gorka’s

testimony, Defendants disclose: Gorka will testify about his background, training as a

police officer, specifically including instruction received on Dallas Police Department

(“DPD”) general orders relating to the laws of arrest. Gorka will testify that he observed

Robert Groden selling merchandise at Dealey Plaza Park on June 13, 2010 and had

previously observed the same activity on June 12, 2010. Should the Court view the June

19, 2010 incident relevant, Gorka will testify he also responded to a call at a parking lot

near Dealey Plaza on June 19, 2010 and attempted to resolve a dispute between the

parking lot representative and Groden.

Gorka will testify that all of his actions regarding Groden were performed within and

pursuant to the scope of his duties as a police officer for the DPD, which duties generally

include the investigation, apprehension, and arrest of persons who have violated Texas laws.

Gorka will testify that at all times relevant to his actions, he was acting within a

reasonable belief that his actions were proper and legal and that his conduct did not

violate any clearly established statutory or constitutional right of which a reasonable person

would have known. Gorka will testify that he believed that probable cause existed to arrest

Groden. Gorka will testify that his position as a police officer requires the exercise of

official discretion, and that all of his actions with respect to his criminal investigation

and seizure of Groden were within the scope of his discretionary authority as a police

officer. G o r k a will testify that, at all relevant times, he acted in good faith, without malice

or ill-will toward Groden, and without intent to deprive Groden of any legally protected

right. Gorka will testify that he is a TCLEOSE-certified peace officer, and received

training regarding the laws of arrest. G o r k a will testify that at all times relevant to Groden’s



claim, that he was acting within the course and scope of his employment as a Dallas police

officer, and that he was acting under color of state law.

2. Witness Name: Rodney Nevils1

Estimated length of direct examination: .50 hours

Nevils is a Dallas police officer. Nevils will testify generally about his background,

training and experience as a police officer, and his involvement with an incident which

occurred on June 19, 2010 at a parking lot near Dealey Plaza Park. Nevils will testify that

he is a TCLEOSE- certified peace officer and was employed by the City of Dallas as a

police officer, and received training regarding the laws of arrest.

As a brief summary of the substance of Nevils’s testimony, Defendant discloses: At

about 1:00 p.m. on June 19, 2010, Nevils responded to a call from the Dallas Downtown

Safety Patrol Dispatcher to an incident at a parking lot located at 400 North Houston

Street, Dallas, Texas. Frank Gorka was also present. A representative of the parking lot

advised Nevils and Gorka that Mr. Robert Groden was selling videos and magazines from

his parked vehicle in violation of the terms of his parking privileges. Sergeant Gorka

advised Mr. Groden that until he could produce an official document granting vending

privileges, he would have to refrain from such activity in the parking lot. No one was

cited or arrested during this incident.

3. Witness Name: Kevin Johnson


Kevin Johnson is a representative of the Platinum Security, security for the Sixth Floor

Museum.

As a brief summary of the substance of Johnson’s testimony, Defendant discloses: At

about 1:00 p.m. on June 19, 2010, Johnson observed Robert Groden selling merchandise

from his vehicle which was parked at the commercial parking lot located at 400 North

Houston Street, Dallas. Johnson was present when Nevils and Gorka investigated the

incident.

4. Witness Name: Scott Holt


Holt is a surveyor for the City of Dallas. He is as an expert witness. He will testify

concerning his review of property records and his expert opinion that Dealey Plaza Park

is a public park owned and managed by the City of Dallas.

As a brief summary of the substance of Holt’s testimony, Defendants disclose:

He is a surveyor licensed by the State of Texas with 36 years experience;

1 Defendant has filed a motion in limine to exclude evidence of the June 19, 2010. If that motion is granted,

Defendant will not call witnesses Nevils and Johnson.



As Survey Program Manager for the City of Dallas, he maintains the City of

Dallas’s survey records vault;

At the request of attorneys in this case, he has reviewed historical City of

Dallas deeds and maps of real property bounded on the North by the original

alignment of Elm Street, on the South by the original alignment of Commerce

Street, on the West by the Triple Underpass, and on the East by Houston

Street;

He has reviewed ordinances and minutes of the City of Dallas and Dallas Park

Board;

Based upon his review of historical deeds and other documents, and within a

reasonable degree of surveying probability, it is Mr. Holt’s opinion that the

property now known as Dealey Plaza has been maintained by the City of

Dallas since 1933 as a public park and has been placed under the jurisdiction

of the Dallas Park Board for such use.

.


WARREN M. S. ERNST

Dallas City Attorney

s/James C. Butt


Texas Bar No. 24040354

[email protected]

Jason G. Schuette

Executive Assistant City Attorney


[email protected]



Dallas, Texas 75201

Telephone: 214-670-3519

Telecopier: 214-670-0622

ATTORNEYS FOR DEFENDANT






I certify that on 12 May 2014, I electronically filed the foregoing document with the clerk

of court for the U.S. District Court, Northern District of Texas, using the electronic case filing

system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the

following attorneys of record who have consented in writing to accept this Notice as service of

this document by electronic means:

D. Bradley Kizzia

Brown Fox Kizzia & Johnson

750 North Saint Paul Street

Suite 1320

Dallas, Texas 75201

Attorney for Plaintiff

s/ James C. Butt



Defendant Gorka’s Proposed Jury Instructions and Interrogatories

Robert Groden v. Frank Gorka; No. 3:10-CV-1280-N Page 1

UNITED STATES DISTRICT COURT


DALLAS DIVISION

ROBERT GRODEN, §

Plaintiff, § CIVIL ACTION NO.

§

v. § 3:10-CV-1280-N

§

FRANK GORKA, §

Defendant. §

DEFENDANT GORKA’S PROPOSED JURY INSTRUCTIONS AND

INTERROGATORIES

TO THE HONORABLE COURT:

Pursuant to this Court’s directive to the parties at the pretrial conference, Defendant,

Frank Gorka (“Gorka”), submits his proposed jury instructions and jury interrogatories.

I. PARTIES’ CONTENTIONS

Groden’s Contentions

(To be provided by Plaintiff)

Gorka’s Contentions

Gorka denies Groden’s allegations and contends that he did not arrest Groden without

probable cause to believe that Groden had committed an offense. Rather, Gorka asserts that his

actions were objectively reasonable under the circumstances as reasonably perceived by Gorka.

Gorka also asserts his entitlement to qualified immunity because at all relevant times he

was discharging his official duties as a Dallas police officer and was not clearly incompetent, did

not violate clearly established law of which a reasonable person would have known, and did not

knowingly violate the law. A reasonable police officer in Gorka’s circumstances could have

believed that Groden’s seizure was lawful.

Gorka contends that Groden is not entitled to recover any damages, or any attorney’s fees




or costs.

II. REQUESTED INSTRUCTIONS AND INTERROGATORIES

Requested Instruction Number 1 (Introductory Information on Section 1983 Claims)

INSTRUCTIONS FOR QUESTIONS: 42 U.S.C. § 1983

Title 42, Section 1983 of the United States Code allows a citizen to seek redress by way

of damages against any person who, acting under color of state law or custom, intentionally

deprives that citizen of any rights, privileges, or immunities secured by the Constitution or laws

of the United States. In order to prove a claim under this statute, a plaintiff must establish by a

preponderance of the evidence each of the following elements:

(1) that the defendant intentionally committed acts which

operated to deprive the plaintiff of a right secured by the

Constitution of the United States;

(2) that the defendant acted under color of law; and

(3) that the defendant’s acts were the legal cause of the

plaintiff’s damages.

In this case the parties have stipulated, or agreed, that Gorka acted “under color” of state

law and you must accept that fact as proven.

Source: This instruction is taken from other jury charges used by this Court.

Requested Instruction Number 2 (Summary of the Plaintiff’s Contentions)

The Plaintiff, Robert Groden, claims that the Defendant, Frank Gorka, while acting under

color of authority of the State of Texas, as a Sergeant of the Police Department of the City of

Dallas, intentionally violated Groden’s constitutional rights. Gorka denies that he violated

Groden’s constitutional rights, and contends that his conduct was objectively reasonable. If you

find that Gorka was merely negligent, even if you find that Groden was injured as a result of

those acts, you must return a verdict for Gorka.




The constitutional rights that Groden claims that Gorka violated are these:

1. The right not to be deprived of liberty without due process of law.

Under the Constitution of the United States, a citizen has both the right to his liberty and the

right not to be arrested without due process of law. Those rights are secured by the Fourth

Amendment to the United States Constitution.

Source: This instruction is taken from other jury charges used by this Court.

Requested Instruction Number 3 (Plaintiff’s Unlawful Seizure Claim)

Groden claims that he was arrested and deprived of liberty “without due process of law.”

This means he was deprived of liberty without authority of law. You must first decide whether

Gorka committed the acts that Groden claims Gorka committed; and, if so, you must then decide

whether Gorka was acting within or beyond the bounds of his lawful authority under law. If

Gorka acted within the limits of his lawful authority under law, then he did not deprive Groden

of any right “without due process of law.”

In that regard, you are instructed that a police officer may detain a person when the police

officer has a reasonable suspicion that the person may be involved in criminal activity. An

officer has reasonable suspicion of criminal activity when the officer can point to specific and

articulable facts that, when taken together with rational inferences from those facts, reasonably

warrant the officer’s belief that criminal activity is occurring or has occurred.

You are further instructed that a police officer has the right to arrest a person without a

warrant whenever the officer has probable cause to believe that the person has, is committing, or

has committed, a felony or misdemeanor offense.

A police officer has “probable cause” to detain and arrest an individual when the facts

and circumstances within the knowledge of the arresting officer and of which he has reasonably




trustworthy information are sufficient in themselves to warrant in a person of reasonable caution

the belief that an offense has been or is being committed. In dealing with probable cause we deal

with probabilities. These are not technical considerations, but rather factual and practical ones of

everyday life on which reasonable and prudent persons, not legal technicians, act. A showing of

probable cause requires far less evidence than that sufficient to support a conviction. If an

officer has probable cause that an individual has committed even a very minor criminal offense

in his presence, he may, without violating the Fourth Amendment, arrest the offender. Groden

has the burden of proving that the Gorka lacked probable cause to arrest him at the time of the

incident in question.

Under the Dallas City Code at the time of Groden’s arrest, it was unlawful for any person

to sell or offer for sale any food, drinks, confections, merchandise or services in areas under it’s

control of the park board unless such person has a written agreement or a permit issued from the

office of the park board permitting the sale of such items.

Source: Fifth Circuit Pattern Jury Instructions – Civil (2008), section 10.1. Defendant’s

modifications unlink the lawfulness of an officer’s conduct from the limitations of state law, per

the Supreme Court’s holding in Virginia v. Moore, 533 U.S. 164, 177-78 (2008) (holding that

constitutionality of an officer’s conduct must be judged under constitutional standards, without

regard to limitations imposed by state law). Specific offenses, however, are defined by reference

to state law.

Authority to engage citizens for purposes of investigating potential criminal activity is provided

by Terry v. Ohio, 392 U.S. 1 (1968). United States v. Pack, 612 F.3d 341, 352 (5th Cir. 2010).

“Reasonable suspicion exists when the detaining officer can point to specific and articulable

facts that, when taken together with rational inferences from those facts, reasonably warrant the

. . . seizure.” United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006). Reviewing courts

making reasonable suspicion determinations “must look at the totality of the circumstances of

each case to see whether the detaining officer has a particularized and objective basis for

suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266 (2002) (internal quotation

marks omitted).




Probable cause instructions were derived from Brinegar v. United States, 338 U.S. 160, 175

(1949); United States v. Woolery, 670 F.2d 113, 515 (5th Cir. 1982); United States v. Ashcroft,

607 F.2d 1167, 1170 (5th Cir. 1979). See also, e.g., Haggerty v. Texas Southern University, 391

F.3d 653, 656 (5th Cir. 2004) (probable cause “requires more than a bare suspicion but less than

a preponderance of evidence”); United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001)

(same); United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (probable cause “is something

more than bare suspicion, but need not reach the fifty percent mark.”).

Atwater v. LagoVista, 532 U.S. v. 318, 354 (2001)

Dallas City Code Section 32-10.

Requested Instruction Number 4 (Proximate Cause)

Groden must also prove by a preponderance of the evidence that the act or failure to act

by Gorka was a cause-in-fact of the damage Groden suffered. An act or a failure to act is a

cause-in-fact of an injury or damages if it appears from the evidence that the act or omission

played a substantial part in bringing about or actually causing the injury or damages. Groden

must also prove by a preponderance of the evidence that the act or failure to act by Gorka was a

proximate cause of the damage Groden suffered. An act or omission is a proximate cause of a

plaintiff’s injuries or damages if it appears from the evidence that the injury or damage was a

reasonably foreseeable consequence of the act or omission.

You must determine whether an act of failure was the cause-in-fact of the damage

separately as to Gorka’s conduct.

Source: Fifth Circuit Pattern Jury Instructions – Civil (2006), section 10.2.

Requested Instruction Number 5 (Instructions Regarding Qualified Immunity)

If you find that Groden has proven his claim, you must then consider Gorka’s defense

that his conduct was objectively reasonable in light of the legal rules clearly established at the

time of the incident in issue and that Gorka is therefore not liable.

Police officers are presumed to know about the clearly established constitutional rights of




citizens. (Announce here the Court’s ruling on what constitutional right involved was clearly

established.)

If, after considering the scope of discretion and responsibility generally given to police

officers in the performance of their duties, and after considering all of the surrounding

circumstances of the case as they would have reasonably appeared at the time of the arrest, you

find from a preponderance of the evidence that Groden has proved either (1) that Gorka was

plainly incompetent or that (2) he knowingly violated the law regarding Groden’s constitutional

rights, you must find for Groden. If, however, you find that Gorka had a reasonable belief that

his actions did not violate Groden’s constitutional rights, then you cannot find Gorka liable even

if Groden’s rights were in fact violated as a result of Gorka’s objectively reasonable action.


Requested Instruction Number 6 (General Instructions on Damages)

If you find that Gorka is liable to Groden, you must award the amount you find by a

preponderance of the evidence as full and just compensation for all of Groden’s damages. You

also will be asked to determine if Gorka is liable for punitive damages, and, if so, you will be

asked to fix the amount of those damages. Because the method of determining punitive damages

and compensatory damages differ, I will instruct you separately on punitive damages. The

instructions I now give you apply only to your award, if any, of compensatory damages.

Compensatory damages are not allowed as a punishment against a party. Such damages cannot

be based on speculation, for it is only actual damages–what the law calls compensatory

damages–that are recoverable. However, compensatory damages are not restricted to actual loss

of time or money; they include both the mental and physical aspects of injury, tangible and

intangible. They are an attempt to make the plaintiff whole, or to restore him to the position he




would have been in if the incident had not happened.

You should consider the following elements of damages, to the extent you find that

Groden has established such damages by a preponderance of the evidence: physical pain and

suffering including physical disability, impairment, and inconvenience, and the effect of the

plaintiff's injuries and inconvenience on the normal pursuits and pleasures of life; mental anguish

and feelings of economic insecurity caused by disability; and income loss in the past.

Some of these damages, such as mental or physical pain and suffering, are intangible

things about which no evidence of value is required. In awarding these damages, you are not

determining value, but you should award an amount that will fairly compensate Groden for his

injuries.


Requested Instruction Number 7 (Instruction on Mental Anguish)

Mental anguish implies a relatively high degree of pain and distress; it is more than mere

disappointment, anger, resentment, or embarrassment, although it may include all of these, and it

includes mental sensation of pain resulting from such painful emotions such as grief, severe

disappointment, indignation, wounded pride, shame, despair, and public humiliation.

Source: See Trevino v. Southwestern Bell Telephone Company, 582 S.W.2d 582, 584

(Tex.Civ.App.–Corpus Christi 1979, no writ).

Requested Instruction Number 8

In considering Groden’s damages, if any, you are to consider only the actual damages

suffered by him as outlined in these instructions and not base your award, if any, on an abstract

value of a constitutional right. The abstract value of a constitutional right may not form the basis

for a claim of violation of civil rights.

Source: Memphis Community Sch. Dist. v. Stachusa, 477 U.S. 299, 308 (1986).




Requested Instruction Number 9

You should not interpret the fact that I have given instructions about Groden’s damages

as an indication in any way that I believe that Groden should, or should not, win this case.


Requested Jury Interrogatories 1, 2, 3, and 4 [ Unlawful Arrest by Gorka ]

Question No. 1

Did Groden prove, by a preponderance of the evidence, that Gorka arrested Groden

without probable cause that Groden committed a felony or misdemeanor offense in Gorka’s

presence on June 13, 2010?

Answer “Yes” or “No.” Groden has the burden of proof as to this question.

ANSWER:

If you have answered “Yes” to Question No. 1, then proceed to Question No. 2. Other-

wise, proceed to page __________ where the foreperson should sign and date the verdict form

and return this Charge to the Court.

Question No. 2

Were the actions of Gorka in arresting Groden a direct and proximate cause of any injury

or damages to Groden?


ANSWER:

If you have answered “Yes” to Question No. 2, then proceed to Question No. 3.

Otherwise, proceed to page where the foreperson should sign and date the verdict form


Question No. 3

Did Groden prove, by a preponderance of the evidence, that no reasonable officer could




have believed that Groden’s arrest by Gorka on June 13, 2010 was lawful in light of clearly

established law and the information possessed by him?


ANSWER:

If you have answered “No” to Question No. 3, then proceed to Question No. 4.

Otherwise, proceed to page _______ and the foreperson should sign and date the verdict form


Question No. 4

What sum of money, if any, now paid in cash, would fairly and reasonably compensate

Groden for the compensatory damages you have found Gorka caused Groden as a result of the

actions found by you in answer to Question 1? Answer in dollars and cents, if any, or zero.

Plaintiff has the burden of proof as to this question. Consider the elements of damages

listed below and none other. Consider each element separately. Do not include interest on any

amount of damages that you find.

A. [ insert elements of damage as appropriate ] $

Requested Instruction Number 5 (Instructions for Punitive Damages)

If you awarded compensatory damages under Questions 4 or 8, then you are also to

decide whether Groden is entitled to the award of any punitive damages. If you did not award

compensatory damages under Question 4, then the jury foreperson should sign and date the

verdict form and return the Charge to the Court. The function of punitive damages is to punish a

defendant for malicious conduct and to deter similar conduct by others. Whether you decide to

award any punitive damages should be based on whether you find that Gorka acted willfully,

deliberately, maliciously, or with reckless disregard of Groden’s constitutional rights.




A willful and malicious act is one that is knowingly done out of ill will, spite, evil motive

or intent or is plainly intended to harm another. A police officer cannot be liable for punitive

damages unless the plaintiff establishes that the officer acted willfully, intentionally, or with a

reckless and callous indifference to the civil rights of the plaintiff.

Source: See Smith v. Wade, 461 U.S. 30 (1983); Longoria By Longoria v. Wilson, 730

F.2d 300, 305 (5th Cir. 1985); Young v. City of New Orleans, 751 F.2d 794, 799-800 (5th Cir.

1985).

Requested Jury Question 5

(a) Were Gorka’s actions as found by you in answer to Question 1 deliberate, willful,

or made with reckless disregard of Groden’s constitutional rights?

Answer (Yes or No):

If you answer “yes” to Question 5(a), then proceed to Question 5(b). Otherwise, the

foreperson should sign and date the verdict and return this Charge to the Court.

(b) What amount of punitive damages, if any, should be assessed against Gorka for

his act(s) that you found to be deliberate, willful, or made with reckless disregard?

Answer in dollars and cents, if any, or zero.

Answer:

This completes the Questions. The Jury Foreperson should sign and date this verdict

form and return this Charge to the Court.





WARREN M. S. ERNST

Dallas City Attorney

s/ James C. Butt

Senior Assistant City Attorney


[email protected]

s/ Jason G. Schuette

Executive Assistant City Attorney


[email protected]



Dallas, Texas 75201

Telephone: 214-670-3519

Telecopier: 214-670-0622

ATTORNEYS FOR DEFENDANT


I certify that on 12 May 2014, I electronically filed the foregoing document with the clerk

of the court for the U.S. District Court, Northern District of Texas, using the electronic case

filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing”

to the following attorneys of record who have consented in writing to accept this Notice as

service of this document by electronic means:

D. Bradley Kizzia

Brown Fox Kizzia & Johnson

750 North Saint Paul Street

Suite 1320

Dallas, Texas 75201

Attorney for Plaintiff

s/ James C. Butt

Senior Assistant City Attorney




robert groden v frank gorka and city of dallas

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