Robert Groden V Frank Gorka and City of Dallas

PLAINTIFFS 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.

CIVIL ACTION NO.
3:10-cv-01280-F

PLAINTIFFS WITNESS LIST

COMES NOW, Robert Groden (Plaintiff or Groden), and pursuant the Courts October
30, 2013 Order Setting Trial, Local Rule 26.2, and Rule 26(a)(3) of the Federal Rules of Civil
Procedure, files this Plaintiffs Witness List, and for same would respectfully show unto the Court
as follows:
I.
PLAINTIFFS 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
Plaintiffs Expert Witness

Mr. Schulte is Plaintiffs 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 Page 1 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. Schultes 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 Plaintiffs arrest was invalid, and she is expected to testify as to this.

Ms. Longfords 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. Hamiltons estimate length of direct examination is thirty (30) minutes.

4.) Vincent Golbeck
c/o Patricia M. De Le Garza
Assistant City Attorneys 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. Golbecks 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. Newsons 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. Hernandezs 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. Wordens 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
Plaintiffs Fifth Amended Complaint on file herein for more specific allegations about which
Plaintiff has knowledge.

Plaintiff Grodens estimate length of direct examination is two (2) hours.

9.) Defendant Sergeant Frank Gorka
c/o James C. Butt
Assistant City Attorney
City Attorneys 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 Plaintiffs unlawful arrest and incarceration.
He is knowledgeable about the unlawful arrest and incarceration of Plaintiff, as well as the
unlawful seizure of Plaintiffs 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 Gorkas 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 Defendants illegal harassment and/or arrest of
Plaintiff and may be knowledgeable about complaints leading to the Dallas Police Departments
crackdown in Dealey Plaza and/or Plaintiffs arrest. Mr. Johnson may also be knowledgeable
about the Sixth Floor Museum at Dealey Plazas 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. Johnsons 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 Plaintiffs 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. Walnes 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
Plaintiffs 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 Plaintiffs 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. Hydes 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. Dyers 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
Plaintiffs 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 Plaintiffs friend and co-worker. Mr. Evans witnessed Plaintiffs 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
Plaintiffs 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. Kizzias 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
brad@brownfoxlaw.com
SARAH B. SPARLING
sarah@brownfoxlaw.com
BROWN FOX KIZZIA & JOHNSON PLLC
Dallas, Texas 75201
(214) 613-3350
Fax: (214) 613-3330

ATTORNEYS FOR PLAINTIFF

Dated this 12
th
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 12
th
day of May, 2014, in accordance with the
Federal Rules of Civil Procedure.

D. BRADLEY KIZZIA

PAGE 1 OF 37
DALLAS DIVISION

ROBERT GRODEN,

Plaintiff,

v.

CITY OF DALLAS, TEXAS and
SERGEANT FRANK GORKA

Defendants.

CIVIL ACTION NO.
3:10-cv-01280-F

PLAINTIFF ROBERT GRODENS 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
brad@brownfoxlaw.com
SARAH B. SPARLING
sarah@brownfoxlaw.com
BROWN FOX KIZZIA & JOHNSON PLLC
Dallas, Texas 75201
(214) 613-3350
Fax: (214) 613-3330

ATTORNEYS FOR PLAINTIFF

Dated this 12
th
day of May, 2014.

PAGE 2 OF 37

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 12
th
day of May, 2014, in
accordance with the Federal Rules of Civil Procedure.

D. BRADLEY KIZZIA

PAGE 3 OF 37
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
PAGE 4 OF 37
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.
PAGE 5 OF 37
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 witnesss motive; any bias or prejudice the witness may have; the witnesss
demeanor or manner while testifying; the witnesss interest, if any, in the outcome of the case;
the witnesss candor, fairness and intelligence; the witnesss opportunity and ability to see or
hear or know things that the witness testified about; the quality of the witnesss memory; and
whether the witnesss 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.
PAGE 6 OF 37
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
PAGE 7 OF 37
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 evidencesuch as testimony of an eyewitness. The other is
indirect or circumstantial evidencethe 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 fieldan expert witnessis 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
PAGE 8 OF 37
circumstances, that witnesss 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.
PAGE 9 OF 37
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 Grodens 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 Grodens 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 individuals
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.
PAGE 10 OF 37
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
Grodens 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 Gorkas acts were the legal cause of Grodens 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.
PAGE 11 OF 37
To succeed on his unlawful arrest claim, Groden must present evidence establishing
misconduct that is more than mere negligence. Normally, a neutral magistrates 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 claimlegal 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 Grodens
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 Gorkas 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.
PAGE 12 OF 37
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 Grodens burden to prove that Gorka is not entitled to qualified immunity.
If, however, you find that Gorkas 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 Grodens rights were in fact
violated as a result of Gorkas 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.

PAGE 13 OF 37
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 Grodens
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 Grodens 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 Grodens 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
PAGE 14 OF 37
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.
PAGE 15 OF 37
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.
PAGE 16 OF 37
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 anothers 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.
PAGE 17 OF 37
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 anothers 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 Grodens 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
PAGE 18 OF 37
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 Grodens actual damages. These damages are
called compensatory damages. The purpose of compensatory damages is to make Groden
wholethat 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 Grodens 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 Gorkas allegedly wrongful conduct. If you decide to award damages to
Groden, they must be fair compensation for all of Grodens 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
PAGE 19 OF 37
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
PAGE 20 OF 37
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 Grodens claims under 1983
that Gorka acted willfully, maliciously, or with callous and reckless disregard of Grodens
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
PAGE 21 OF 37
Gorkas 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.
PAGE 22 OF 37
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.

PAGE 23 OF 37
Question 2:

Did Groden prove that Gorkas 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: ___________________


PAGE 24 OF 37
Question 3:

Did Groden prove that Gorka maliciously prosecuted him?

Answer Yes or No: ___________________


PAGE 25 OF 37
Question 4:

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

Answer "Yes" or "No": ___________________


PAGE 26 OF 37
Question 5:

Did Groden prove that but for Gorkas actions, the prosecution of Groden would not have
occurred?

Answer "Yes" or "No": ___________________

PAGE 27 OF 37
Question 6:

Did Groden prove that Gorka violated his First Amendment rights?

Answer Yes or No: ___________________

PAGE 28 OF 37
Question 7:

Did Groden prove that Gorka violated his Fourth Amendment rights?

Answer Yes or No: ___________________

PAGE 29 OF 37
Question 8:

Did Groden prove that Gorka violated his Fourteenth Amendment rights?

Answer Yes or No: ___________________


PAGE 30 OF 37
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: ________________

PAGE 31 OF 37
j. Legal expenses, including costs of bail, reasonable attorneys fees, and investigative costs
in defense of the criminal case.

Answer: ________________


PAGE 32 OF 37
Question 10(a):

Did Groden prove that Gorkas actions, as found by you in your answer to Question 1, were
willful, malicious, or were done in callous and reckless disregard of Grodens constitutional
rights?

Answer: ________________

Question 10(b):

What amount of punitive damages, if any, should be assessed against Gorka for his violations of
Grodens constitutional rights? Answer in dollars and cents, if any, or zero.

Answer: ________________

PAGE 33 OF 37
Question 11:

Did Gorka prove that he is entitled to official immunity?

Answer: ________________


PAGE 34 OF 37
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.
PAGE 35 OF 37
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 witnesss 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
PAGE 36 OF 37
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
PAGE 37 OF 37
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


Defendants 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.
DEFENDANTS WITNESS LIST
TO THE HONORABLE COURT:
Pursuant to the Courts 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 Gorkas
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. Gor ka 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. Gor ka will testify that at all times relevant to Grodens

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 Nevils
1

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 Nevilss 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 Johnsons 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 Holts 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
Dallass 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. Holts 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
james.butt@dallascityhall.com

Jason G. Schuette
Executive Assistant City Attorney
jason.schuette@dallascityhall.com

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 Gorkas 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 GORKAS PROPOSED JURY INSTRUCTIONS AND
INTERROGATORIES
TO THE HONORABLE COURT:
Pursuant to this Courts directive to the parties at the pretrial conference, Defendant,
Frank Gorka (Gorka), submits his proposed jury instructions and jury interrogatories.
I. PARTIES CONTENTIONS
Grodens Contentions
(To be provided by Plaintiff)
Gorkas Contentions
Gorka denies Grodens 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 Gorkas circumstances could have
believed that Grodens seizure was lawful.
Gorka contends that Groden is not entitled to recover any damages, or any attorneys 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 defendants acts were the legal cause of the
plaintiffs 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 Plaintiffs 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 Grodens constitutional rights. Gorka denies that he violated
Grodens 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 (Plaintiffs 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 officers 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 Grodens arrest, it was unlawful for any person
to sell or offer for sale any food, drinks, confections, merchandise or services in areas under its
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. Defendants
modifications unlink the lawfulness of an officers conduct from the limitations of state law, per
the Supreme Courts holding in Virginia v. Moore, 533 U.S. 164, 177-78 (2008) (holding that
constitutionality of an officers 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
plaintiffs 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 Gorkas 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 Gorkas 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 Courts 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 Grodens constitutional
rights, you must find for Groden. If, however, you find that Gorka had a reasonable belief that
his actions did not violate Grodens constitutional rights, then you cannot find Gorka liable even
if Grodens rights were in fact violated as a result of Gorkas 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 Grodens 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 damageswhat the law calls compensatory
damagesthat 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 Grodens 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 Grodens 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 Gorkas
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 Grodens 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 Grodens 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 Gorkas actions as found by you in answer to Question 1 deliberate, willful,
or made with reckless disregard of Grodens 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
james.butt@dallascityhall.com

s/ Jason G. Schuette
Executive Assistant City Attorney
jason.schuette@dallascityhall.com

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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IN THE UNITED STATES DISTRICT COURT

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