IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SUSAN CARNABY, INDIVIDUALLY, and )(
AS REPRESENTATIVE OF THE ESTATE
OF ROLAND CARNABY, )( CIVIL ACTION NO.:4:08-cv-01366
DECEASED,
Plaintiff, )(
v.
)(
CITY OF HOUSTON, HPD OFFICER
CECIL FOSTER and HPD )(
OFFICER ANDREW J. WASHINGTON,
Defendants. )(
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PLAINTIFF SUSAN CARNABY
PLAINTIFF SUSAN CARNABY
MOTION TO PRESERVE EVIDENCE
TO THE HONORABLE JUDGE OF THIS COURT:
NOW COMES SUSAN CARNABY, INDIVIDUALLY and AS
REPRESENTATIVE OF THE ESTATE OF ROLAND CARNABY, DECEASED,
’S MOTION TO PRESERVE EVIDENCE PAGE 1’S RESPONSE TO MOTION TO QUASH AND
and files’s motion to quash and moves the Court order the City of
this as a response to the City of Houston
FACTS
1. Plaintiff
convicted or arrested for a crime in her entire life. Her husband Roland, 52, frequently worked as
a contractor for various federal agencies providing information and investigations into security
risks to the interests of the United States for at least the Central Intelligence Agency, the Federal
Bureau of Investigation and the Secret Service.
Susan Carnaby (Susan) is an eighth grade teacher and has never been1 Roland was president of the Houston Office ofLocal Houston TV news has reported that several reliable sources have confirmed that Roland
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Association For Intelligence (AFIO) Officers and had scheduled illustrious speakers for their
May 15, 2008, Spring Dinner including Michael F. Scheuer, PH.D., CIA Chief of the Bin Laden
Unit at the CIA
The Houston Division, and Carlos J. Barron, FBI Assistant Special Agent in Charge of The FBI
Counter Terrorism Intelligence Group, (CTIG) Houston Division, An FBI Joint Task Force
(JTIF) initiative. For the AFIO Houston
speakers former Chief of Disguise and former Chief of the Graphics and Authentication, Antonio
J. Mendez and his wife CIA former Chief of Disguise, Jonna H. Mendez and retired KGB Major
General Oleg D. Kalugin, former Chief, KGB Foreign Counterintelligence (Directorate KR).
2. During daylight hours on April 29, 2008, the Houston Police Department stopped
Roland
sensitive information in his laptop computer and elsewhere regarding his national security
interest investigations. Roland showed the officer his identification and the officer checked
Roland
Roland
concealed handgun permit
had
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handgun if the person: (1) is a legal resident of this state for the six-month period preceding the
date of application under this subchapter or is otherwise eligible for a license under Section
411.173(a); (2) is at least 21 years of age; (3) has not been convicted of a felony; (4) is not
’s Counterterrorism Center, Andrew R. Bland III, Special Agent in Charge Of’s Summer 2007 dinner Roland has procured featuredCarnaby, 52, for speeding in the south of Houston, Texas. In his vehicle Roland had’s background via the HPD squad car computers. The officer at the scene learned’s address and that Roland had passed the rigorous requirements to obtain a Texas2 and that Roland had never been convicted or even arrested for a“good information” on United States’ agency interests.GC §411.172. ELIGIBILITY. (a) A person is eligible for a license to carry a concealed
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PLAINTIFF SUSAN CARNABY
charged with the commission of a Class A or Class B misdemeanor or an offense under Section
42.01, Penal Code, or of a felony under an information or indictment; (5) is not a fugitive from
justice for a felony or a Class A or Class B misdemeanor; (6) is not a chemically dependent
person; (7) is not incapable of exercising sound judgment with respect to the proper use and
storage of a handgun; (8) has not, in the five years preceding the date of application, been
convicted of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code;
’S MOTION TO PRESERVE EVIDENCE PAGE 2
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(9) is fully qualified under applicable federal and state law to purchase a handgun; (10) has not
been finally determined to be delinquent in making a child support payment administered or
collected by the attorney general; (11) has not been finally determined to be delinquent in the
payment of a tax or other money collected by the comptroller, the tax collector of a political
subdivision of the state, or any agency or subdivision of the state; (12) has not been finally
determined to be in default on a loan made under Chapter 57, Education Code; (13) is not
currently restricted under a court protective order or subject to a restraining order affecting the
spousal relationship, other than a restraining order solely affecting property interests; (14) has
not, in the 10 years preceding the date of application, been adjudicated as having engaged in
delinquent conduct violating a penal law of the grade of felony; and (15) has not made any
material misrepresentation, or failed to disclose any material fact, in an application submitted
pursuant to Section 411.174 or in a request for application submitted pursuant to Section
411.175. (b) For the purposes of this section, an offense under the laws of this state, another
state, or the United States is: (1) a felony if the offense is so designated by law or if confinement
for one year or more in a penitentiary is affixed to the offense as a possible punishment; and (2) a
Class A misdemeanor if the offense is not a felony and confinement in a jail other than a state jail
felony facility is affixed as a possible punishment. (c) An individual who has been convicted two
times within the10-year period preceding the date on which the person applies for a license of an
offense of the grade of Class B misdemeanor or greater that involves the use of alcohol or a
controlled substance as a statutory element of the offense is a chemically dependent person for
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PLAINTIFF SUSAN CARNABY
purposes of this section and is not qualified to receive a license under this subchapter. This
subsection does not preclude the disqualification of an individual for being a chemically
dependent person if other evidence exists to show that the person is a chemically dependent
person. (d) For purposes of Subsection (a)(7), a person is incapable of exercising sound judgment
with respect to the proper use and storage of a handgun if the person: (1) has been diagnosed by a
licensed physician as suffering from a psychiatric disorder or condition that causes or is likely to
cause substantial impairment in judgment, mood, perception, impulse control, or intellectual
ability; (2) suffers from a psychiatric disorder or condition described by Subdivision (1) that:
(A) is in remission but is reasonably likely to redevelop at a future time; or (B) requires
continuous medical treatment to avoid redevelopment; (3) has been diagnosed by a licensed
physician or declared by a court to be incompetent to manage the person's own affairs; or
(4) has entered in a criminal proceeding a plea of not guilty by reason of insanity. (e) The
following constitutes evidence that a person has a psychiatric disorder or condition described by
Subsection (d)(1): (1) involuntary psychiatric hospitalization in the preceding five-year period;
(2) psychiatric hospitalization in the preceding two-year period; (3) inpatient or residential
substance abuse treatment in the preceding five-year period; (4) diagnosis in the preceding fiveyear
period by a licensed physician that the person is dependent on alcohol, a controlled
substance, or a similar substance; or (5) diagnosis at any time by a licensed physician that the
person suffers or has suffered from a psychiatric disorder or condition consisting of or relating to:
(A) schizophrenia or delusional disorder; (B) bipolar disorder; (C) chronic dementia, whether
caused by illness, brain defect, or brain injury; (D) dissociative identity disorder; (E) intermittent
explosive disorder; or (F) antisocial personality disorder.
’S MOTION TO PRESERVE EVIDENCE PAGE 3
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crime and had no warrants for his arrest. The officers at the scene were told by an HPD superior
to arrest Roland
including the laptop computer with the sensitive security data entrusted to Roland. Roland knew
that arrest means jailing without the ability to communicate to anyone for many hours and that
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“for something” which would entail impounding the vehicle and its contents
PLAINTIFF SUSAN CARNABY
vehicle contents are often stolen from impound lots and police property rooms. Roland then
drove off and a police chase ensued. Despite the knowledge of Roland
and home address HPD chased Roland at high speeds through Houston
endangering any man, woman or child that they passed. At no time during the pursuit did Roland
display a weapon or attempt to hit any police officer with his vehicle.
3. During the chase the Federal Bureau of Investigation contacted HPD, confirmed
Roland
4. Roland came to stop. With full knowledge of Roland
above police attacked the vehicle with nightsticks and weapons drawn shouting for Roland to get
out smashing in the passenger window. When Roland complied by getting out of the SUV an
officer slammed Roland with the SUV door. Two Houston Police officers, Cecil Foster and
Andrew J. Washington, shot at Roland
not in objectively reasonable fear of their lives or the lives of another. Instead of administering
any aid to the gunshot wound(s) the HPD officers handcuffed Roland and left him lying
facedown on the street. When Houston paramedics arrived at least twelve minutes later they did
not take Roland to the nearest emergency room--Roland was fully covered by medical insurance-
-but to Ben Taub Hospital ten miles away through busy Houston streets.
5. The shooting may have been caused by negligent use, condition or maintenance of
officer
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’S MOTION TO PRESERVE EVIDENCE PAGE 4’s exemplary background’s streets and highwaysCarnaby’s status and asked HPD to call off the chase. HPD refused.’s background as set forthCarnaby striking him in the lower back when they were’s firearms.
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6.
Before he died Roland experienced great pain and the knowledge and fear of his impending
death. Houston Police Chief Hurtt, policymaker for the City of Houston, viewed the various
videotapes of the shooting and evidence and stated that the actions of the police were consistent
with the policies and practices of Houston, Texas.
7. Officer Washington, who shot at Roland, has a sustained disciplinary record
including suspension from duty. His record includes discipline for the violent striking of a
prisoner, failure to abide by laws, insubordination and speeding.
8.
civilians in vehicles when the HPD officers were not in objectively reasonable fear of the lives or
the lives of another.
PROCEDURE AND ARGUMENT
Roland died of a gunshot wound to the BACK which caused fatal loss of blood.3Houston Police Department officers have shot and wounded or killed many
9.
the Rule 26 hearing. Plaintiff served subpoenas upon the City of Houston to obtain mobile date
transmissions and 911 tapes. HPD
only 30 days. 911 tapes are kept 90 days by policy. The MDTs and 911 tapes are critical to this
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Susan filed this lawsuit May 2, 2008. The Court set July 3, 2008, as the date for’s mobile data transmissions (MDTs) are saved, by policy, for
PLAINTIFF SUSAN CARNABY
case as they are discoverable and relevant to ascertain whether officers followed City policy and
exactly what those policies were regarding police chases and high risk vehicle approaches. Also,
they go to the objective reasonableness of any officer being in fear of his life or the life of
another before the shooting--the MDTs can reveal if the police knew anything other than Roland
’S MOTION TO PRESERVE EVIDENCE PAGE 5
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was 52 and had never been convicted or even arrested for any crime in his life and hadPlaintiff has not obtained the disciplinary record of Cecil Foster.
passed the rigorous and extensive concealed handgun application process. The City filed a
motion to quash requesting a blanket ban on most discoverable evidence until after internal and
criminal investigations are complete.
10.
preserves, intact and unaltered, the following relevant materials:
1) video and audio from all local TV news channels including helicopter videos, ground
videos, raw video and all televised news reports regarding any aspect of this case that comes into
the City of Houston
2) HPD squad car videos and audios of the original stop, chase and shooting scene
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Susan requests an order from the court addressed to the City of Houston which’s possession
PLAINTIFF SUSAN CARNABY
3) the subject vehicle and all its contents including any weapons and DNA and fingerprint
analysis of the weapons
4) all identifications and any evaluations of the identifications or other document found in
the vehicle
5)
dvds or other electronic information storage items found in the vehicle or in the laptop
6) notebooks, papers or any other documents or tangible things collected from the vehicle
Carnaby
7) all photographs of the original stop, chase, or shooting scene
8) all correspondence, emails of other communications from any source regarding Roland
Carnaby
9) all clothing of the deceased Roland
that comes into the possession of HPD or the City of Houston
10) all cell phones and electronic devices arguably possessed by
anywhere in
11) all autopsy reports and their drafts including toxicology reports and ME investigation
reports that come into the possession of HPD or the City of Houston
12) HPD mobile data transmissions regarding the incident
13) police helicopter videos and audios and mobile data transmissions
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’S MOTION TO PRESERVE EVIDENCE PAGE 6Carnaby’s laptop computer and the information therein, as well as floppies, discs, cds,was drivingexcept for attorney/client privilege materialsCarnaby and any items found on or near his personCarnaby’s or any foundCarnaby’s vehicle with all stored numbers and information intact
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14)
15) all other photos, videos or recordings of any aspect of the incident or subsequent
investigation
16) all 911 calls or other recordings or notations of any communication Roland
made to any law enforcement officer or agency or acquaintance during the before during or after
the chase on the day of the shooting
17) all communications, emails, letters in the ten years prior to the incident to or from any
employee of the Harris County DA's office or any law enforcement agency regarding any police
shooting by an HPD officer
18) any DNA or biological samples of Roland
19) any other document or tangible thing related to Roland
attorney client privilege.
20) all emails and documents regarding any police pursuit policy or high risk vehicle
approach policy changes or proposed changes from January 2000 to the present
21) all black box computers and the data therein from Roland's vehicle
22) the vehicle Roland was driving, and
23) the cell phone records for the day of the shooting of all involved officer, supervisors,
chiefs or any other HPD officer.
In the order
items may result in sanctions up to and including the striking of the City of Houston
and an award of attorneys fees.
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the involved officers' weapons, bullets, casings, clips and any fingerprint or DNACarnabyCarnaby or any other involved personCarnaby or his death that is notSusan requests that destroying, altering, deleting, or hiding any of the above’s pleadings
PLAINTIFF SUSAN CARNABY
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’S MOTION TO PRESERVE EVIDENCE PAGE 7
PRAYER
Plaintiff requests that this Honorable Court ORDER the City of Houston to preserve and
not to destroy, alter, delete, or hide away any of the above items and that this ORDER may be
enforced by sanctions up to and including the striking of the City of Houston
entering of judgment for plaintiff against the City of Houston and an award of attorney
expenses for all other relief to which plaintiff shows herself entitled.
:
RESPECTFULLY SUBMITTED
LAW OFFICE OF RANDALL L. KALLINEN
/s/ Randall L. Kallinen
_______________________________________
Randall L. Kallinen
State Bar of Texas No. 00790995
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’s pleadings and’s fees and
PLAINTIFF SUSAN CARNABY
SAodumthiteterdn, DFiisftthri cUt So fC Tirecxuaits CBoaurr tN oof. :A 1p9p4e1a7ls
1406 Castle Court
Houston, Texas 77006
Telephone: 713/528-8586
Cellular: 713/320-3785
FAX: 713/528-8586
E-mail: AttorneyKallinen@aim.com
Attorney for Plaintiff
’S MOTION TO PRESERVE EVIDENCE PAGE 8
CERTIFICATE OF CONFERENCE
Plaintiff has in good faith conferred with defendant City of Houston by email and
telephone and the City of Houston, however, all issues were not agreed upon making the filing of
this motion necessary
/s/ Randall L. Kallinen
______________________________
Randall L. Kallinen
.
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CERTIFICATE OF SERVICE
A true and correct copy of the document to which this certificate is affixed has been
served on the attorneys as indicated by the ECF system on May 21
L. A. Teehan, Senior Assistant City Attorney
P.O. Box 368
st, 2008.
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Houston, Texas 77001-0368
/s/ Randall L. Kallinen
______________________________
Randall L. Kallinen
1
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