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Phoenix seeks to dismiss Mouseketeer lawsuit

Defending the missing persons investigation that ended with a body found inside Dennis Day’s Southern Oregon home and the yearlong delay in arresting a suspect, the city of Phoenix is arguing that a $1.7 million lawsuit should be dismissed.

Lawyers representing the city of Phoenix and Phoenix police Lt. Jeff Price are arguing that the lawsuit filed by Day’s sister, niece and nephew should be dismissed based on arguments that include a legally insufficient “degree of kinship” with Day and that the police department is not liable for postmortem fractures found on Day’s body — allegedly caused by police stepping on the body during searches of Day’s home — because they “occurred accidentally during a lawful police search.”

Day, who lived in Phoenix with his husband, Ernie Caswell, was best known for his child acting role as a founding “Mouseketeer” cast member of Walt Disney’s “Mickey Mouse Club” television series in the 1950s. He went missing in July 2018, and police found his body in April 2019 inside of his home, according to the court document filed July 20 in U.S. District Court in Medford and earlier news reports.

After Day’s remains were located, Oregon State Police took control of the investigation.

Daniel James Burda, a handyman who lived with Day and Caswell at the time of his disappearance, was arrested in July 2019 on homicide charges in Jackson County Circuit Court.

The lawsuit filed earlier this year by Day’s sister, Nelda Adkins of Coalinga, California, among other nieces and nephews accuses Phoenix police and Price of badly compromising the Jackson County District Attorney’s Office’s case against Burda.

Lawyer Molly Silver, representing the city and Price, argued that her clients “cannot be held liable for failing to arrest Mr. Burda simply because there was ‘substantial evidence of his involvement in Mr. Day’s disappearance,’” and is therefore “not actionable” under Oregon law.

“Warrantless arrests and felony prosecution require probable cause indicating a particular person committed a particular crime,” Silver wrote. “As any arrest without probable cause would be illegal, defendants cannot be held civilly liable for declining to arrest Mr. Burda until July 2019.”

Silver argues that the city of Phoenix should not be named in the suit because the allegations are “threadbare” and not caused by any inadequate policies or training.

“Accordingly, the city of Phoenix may not be held civilly liable simply because its employee, Lt. Jeffery Price, played a role in the missing persons investigation,” Silver’s reply states.

Silver separately argues that claims against Price should be dismissed on the grounds of qualified immunity, which “protects government officials from liability for civil damages for conduct that does not violate clearly established statutory or constitutional rights.

“The doctrine gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law,” Silver writes.

The city disputes that it “deprived” the victim’s sister, nieces and nephew from the right to control Day’s remains on grounds that it didn’t prevent the family members from accessing the home, where the body was found.

“Plaintiffs concede that the body was situated in the home of Mr. Caldwell and Mr. Day for nine months,” Silver writes, but argues that his family also had nine months to locate his body.

“Defendants had not seized the remains or prohibited plaintiffs from accessing the residence or the body,” Silver Writes

The lawsuit points out that neither the estates of Day nor Caswell are named in the lawsuit, and disputes Adkins’ legal rights as next of kin crime victims because the “degree of kinship between the decedent and plaintiffs is not sufficient.”

Adkins has stated that she first learned of her brother’s disappearance after Day and Adkins' nephew saw a KOBI news report about his uncle's disappearance in Roseburg. (Corrected)

The city, however, argues that they were under no obligation to contact extended family.

“No reasonable official would understand that they were obligated to proactively provide comprehensive and up-to-date information regarding an ongoing police investigation to the extended family of a missing person, especially if the family member’s contact information and identity were unknown,” Silver writes.

Day’s family intends to dispute the city’s motion to dismiss the lawsuit by Aug. 10, court records show.

As of Friday, the charges against Burda in the homicide case are still pending while the state waits on an appeal of a Jackson County Circuit Court judge’s order prohibiting a jury from hearing eight pieces of evidence, according to court records and earlier news reports. The disputed evidence allegedly includes a 911 call Day made prior to his disappearance.

Burda’s next court appearance is a pretrial conference set for Dec. 7. He is currently out of jail on supervised release, and no trial date is set for his charges of second-degree manslaughter, criminally negligent homicide, second-degree abuse of a corpse, first-degree criminal treatment and aggravated identity theft, fraudulent use of a credit card and second-degree theft.

Reach reporter Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTCrimeBeat.

Correction: Dennis Day's sister Nelda Adkins learned of Day's disappearance from a nephew who saw a TV news report in Roseburg. An earlier version of this story incorrectly identified the man as Adkins' son.

Daniel James Burda
Photos of Dennis Day distributed by friends during the missing persons investigation.