1 Marquis Aurbach Craig R. Anderson, Esq. 2 Nevada Bar No. 6882 10001 Park Run Drive 3 Las Vegas, Nevada 89145 Telephone: (702) 382-0711 4 Facsimile: (702) 382-5816 canderson@maclaw.com 5 Attorneys for Defendants
6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA 8 BRIAN BALLENTINE, an individual; Case Number: CATALINO DAZO, an individual; KELLY 2:14-cv-01584-APG-EJY 9 PATTERSON, an individual; and GAIL SACCO, an individual, 10 JOINT PRE-TRIAL ORDER Plaintiffs, 11 vs. 12 LAS VEGAS METROPOLITAN POLICE 13 DEPARTMENT, in its official capacity; DETECTIVE CHRISTOPHER T. TUCKER, 14 as an individual and in his official capacity as a Las Vegas Metropolitan Police Department 15 Detective; SERGEANT MIKE WALLACE, as an individual and in his official capacity as 16 a Las Vegas Metropolitan Police Department Sergeant; and LIEUTENANT JOHN 17 LIBERTY, as an individual and in his official capacity as a Las Vegas Metropolitan Police 18 Department Lieutenant,
19 Defendants.
20 I. NATURE OF THE ACTION 21 A. BACKGROUND 22 This is a 42 U.S.C. §1983 First Amendment retaliatory arrest lawsuit. The only 23 remaining claim for trial is whether LVMPD Detective Christopher Tucker (“Detective 24 Tucker”) violated the Plaintiffs’ First Amendment rights when he obtained arrest warrants for 25 the Plaintiffs’ arrests for chalking anti-police messages on the sidewalk. An issue of fact 26 remains as to whether Detective Tucker obtained the arrest warrants in retaliation for the 27 1 Plaintiffs involvement in anti-police groups and for chalking anti-police messages. See 2 Ballentine v. Tucker, 28 F. 4th 54 (9th Cir. 2022). 3 B. PROCEDURAL HISTORY 4 Plaintiffs filed their original complaint on September 26, 2014. (ECF No. 1) On 5 November 4, 2014, Defendants moved for dismissal of a number of plaintiffs’ claims and for 6 qualified immunity. In its order on defendants’ motion to dismiss, this court found probable 7 cause existed for the plaintiffs’ citations and arrests and/or qualified immunity protected the 8 officers because a reasonable officer could believe using chalk on a public sidewalk 9 constituted defacement under NRS 206.330. (ECF No. 36 at 9-11.) The first order dismissed 10 a number of causes of action including plaintiffs’ Fourth Amendment claim (fifth cause of 11 action), false imprisonment claim (eleventh cause of action), unlawful detention claim 12 (seventh cause of action), substantive and procedural due process claims (sixth and eighth 13 causes of action) and negligence claims (tenth cause of action). (Id. at 16-17) Further, the 14 court dismissed the official capacity claims against the defendants. (Id.) 15 On December 9, 2016, after the close of discovery, the defendants moved for summary 16 judgment on all remaining claims and again raised the affirmative defense of qualified 17 immunity. On August 21, 2017, this court granted in part and denied in part defendants’ 18 motion for summary judgment. (ECF No. 207) Specifically, this court entered summary 19 judgment in favor of defendants Wallace, Liberty and LVMPD finding there was no evidence 20 to support any of the alleged claims against those defendants. (Id. at 8-10.) However, this 21 court denied summary judgment to defendant Detective Tucker on plaintiffs’ First 22 Amendment retaliation/chilling claim finding that the case of Ford v. City of Yakima, 706 F.3d 23 1188 (9th Cir. 2013), clearly established that it is unconstitutional to arrest an individual for 24 retaliatory motive, even if probable cause exists. 25 Detective Tucker appealed to the Ninth Circuit. After the appeal was fully briefed, the 26 Supreme Court issued its decision in Nieves v. Bartlett, 587 U.S. ___, 139 S.Ct. 1715 (2019). 27 The Ninth Circuit vacated and remanded the appeal back to this Court in light of Nieves. After 1 entitled to qualified immunity because the law governing First Amendment retaliation claims 2 was not clearly established. (ECF No. 237.) 3 Plaintiffs then appealed the Court’s second summary judgment order (ECF No. 237) 4 to the Ninth Circuit. After briefing and oral argument, the Ninth Circuit, in a published 5 opinion, affirmed in part, reversed in part, and remanded. See Ballentine v. Tucker, 28 F. 4th 6 54 (9th Cir. 2022). The Ninth Circuit held that a reasonable factfinder could conclude that 7 Detective Tucker violated the Plaintiffs’ First Amendment rights and that it was “clearly 8 established” that an arrest supported by probable cause, but made in retaliation for protected 9 10 speech violates the First Amendment. 11 C. REMAINING ISSUES FOR TRIAL 12 1. Remaining claims/issues for trial 13 The only remaining claim/issue for trial is whether the Plaintiffs’ First Amendment 14 rights were violated when Detective Tucker arrested the Plaintiffs in retaliation for their 15 chalked messages and/or their involvement in anti-police organizations. 16 2. Dismissed claims and parties 17 1. Plaintiffs’ Fourth Amendment claim has been dismissed. (ECF No. 36.) 18 2. Plaintiffs’ false imprisonment claim has been dismissed. (Id.) 19 3. Plaintiffs’ unlawful detention claim has been dismissed. (Id.) 20 4. Plaintiffs’ substantive and procedural due process claim has been dismissed. 21 (Id.) 22 5. Defendant Wallace has been dismissed from the lawsuit. (ECF No. 207.) 23 6. Defendant Liberty has been dismissed from the lawsuit. (Id.) 24 7. Plaintiff’s Monell claim against LVMPD has been dismissed. (Id.) 25 8. Defendant LVMPD has been dismissed from the lawsuit. (Id.) 26 9. Plaintiffs’ negligent hiring, training and supervision claim has been dismissed 27 (Id.) 1 10. Plaintiffs’ Intentional Infliction of Emotional Distress and Negligent Infliction 2 of Emotional Distress claims have been dismissed. (Id.) 3 11. Plaintiff Gail Sacco is no longer a Plaintiff due to death. (ECF No. 228.) 4 II. STATEMENT OF JURISDICTION 5 This Court has jurisdiction over this lawsuit because Plaintiffs’ remaining claim 6 brought pursuant to 42 U.S.C. §1983. 7 III. STATEMENT OF ADMITTED/UNCONTESTED FACTS 8 1. Detective Tucker was acting in the course and scope of his employment as an 9 LVMPD detective at all times relevant to this lawsuit. 10 2. Plaintiffs were members of the Sunset Activist Collective, a local activist 11 group, and are associated with CopBlock, an activist group critical of law enforcement. 12 3. Since 2011, Plaintiffs have conducted protests by using chalk to write anti- 13 police messages on the sidewalks in Las Vegas, Nevada. 14 4. On June 8, 2013, Plaintiffs chalked anti-police messages in front of LVMPD 15 headquarters. Sgt. Wallace issued citations to each Plaintiff for violation of Nevada’s graffiti 16 statute - NRS § 206.330. Plaintiff Patterson asked to speak with Sgt. Wallace’s supervisor, 17 Lieutenant Liberty. After arrival, Lt. Liberty told the Plaintiffs that chalking was illegal but 18 they would not be cited if they cleaned the sidewalk. Plaintiffs disagreed that chalking was 19 illegal, refused to clean the sidewalk, and were issued citations. 20 5. Detective Tucker was assigned to investigate the citations. 21 6. Detective Tucker researched Plaintiffs’ messages and monitored their social 22 media. In doing so, he learned that Plaintiffs were affiliated with anti-police organizations. 23 7. On July 13, 2013, Plaintiffs Ballentine and Patterson chalked anti-police 24 messages outside LVMPD’s headquarters. Although LVMPD officers witnessed the chalking, 25 the Plaintiffs were not cited or talked to. 26 8.
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1 Marquis Aurbach Craig R. Anderson, Esq. 2 Nevada Bar No. 6882 10001 Park Run Drive 3 Las Vegas, Nevada 89145 Telephone: (702) 382-0711 4 Facsimile: (702) 382-5816 canderson@maclaw.com 5 Attorneys for Defendants
6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA 8 BRIAN BALLENTINE, an individual; Case Number: CATALINO DAZO, an individual; KELLY 2:14-cv-01584-APG-EJY 9 PATTERSON, an individual; and GAIL SACCO, an individual, 10 JOINT PRE-TRIAL ORDER Plaintiffs, 11 vs. 12 LAS VEGAS METROPOLITAN POLICE 13 DEPARTMENT, in its official capacity; DETECTIVE CHRISTOPHER T. TUCKER, 14 as an individual and in his official capacity as a Las Vegas Metropolitan Police Department 15 Detective; SERGEANT MIKE WALLACE, as an individual and in his official capacity as 16 a Las Vegas Metropolitan Police Department Sergeant; and LIEUTENANT JOHN 17 LIBERTY, as an individual and in his official capacity as a Las Vegas Metropolitan Police 18 Department Lieutenant,
19 Defendants.
20 I. NATURE OF THE ACTION 21 A. BACKGROUND 22 This is a 42 U.S.C. §1983 First Amendment retaliatory arrest lawsuit. The only 23 remaining claim for trial is whether LVMPD Detective Christopher Tucker (“Detective 24 Tucker”) violated the Plaintiffs’ First Amendment rights when he obtained arrest warrants for 25 the Plaintiffs’ arrests for chalking anti-police messages on the sidewalk. An issue of fact 26 remains as to whether Detective Tucker obtained the arrest warrants in retaliation for the 27 1 Plaintiffs involvement in anti-police groups and for chalking anti-police messages. See 2 Ballentine v. Tucker, 28 F. 4th 54 (9th Cir. 2022). 3 B. PROCEDURAL HISTORY 4 Plaintiffs filed their original complaint on September 26, 2014. (ECF No. 1) On 5 November 4, 2014, Defendants moved for dismissal of a number of plaintiffs’ claims and for 6 qualified immunity. In its order on defendants’ motion to dismiss, this court found probable 7 cause existed for the plaintiffs’ citations and arrests and/or qualified immunity protected the 8 officers because a reasonable officer could believe using chalk on a public sidewalk 9 constituted defacement under NRS 206.330. (ECF No. 36 at 9-11.) The first order dismissed 10 a number of causes of action including plaintiffs’ Fourth Amendment claim (fifth cause of 11 action), false imprisonment claim (eleventh cause of action), unlawful detention claim 12 (seventh cause of action), substantive and procedural due process claims (sixth and eighth 13 causes of action) and negligence claims (tenth cause of action). (Id. at 16-17) Further, the 14 court dismissed the official capacity claims against the defendants. (Id.) 15 On December 9, 2016, after the close of discovery, the defendants moved for summary 16 judgment on all remaining claims and again raised the affirmative defense of qualified 17 immunity. On August 21, 2017, this court granted in part and denied in part defendants’ 18 motion for summary judgment. (ECF No. 207) Specifically, this court entered summary 19 judgment in favor of defendants Wallace, Liberty and LVMPD finding there was no evidence 20 to support any of the alleged claims against those defendants. (Id. at 8-10.) However, this 21 court denied summary judgment to defendant Detective Tucker on plaintiffs’ First 22 Amendment retaliation/chilling claim finding that the case of Ford v. City of Yakima, 706 F.3d 23 1188 (9th Cir. 2013), clearly established that it is unconstitutional to arrest an individual for 24 retaliatory motive, even if probable cause exists. 25 Detective Tucker appealed to the Ninth Circuit. After the appeal was fully briefed, the 26 Supreme Court issued its decision in Nieves v. Bartlett, 587 U.S. ___, 139 S.Ct. 1715 (2019). 27 The Ninth Circuit vacated and remanded the appeal back to this Court in light of Nieves. After 1 entitled to qualified immunity because the law governing First Amendment retaliation claims 2 was not clearly established. (ECF No. 237.) 3 Plaintiffs then appealed the Court’s second summary judgment order (ECF No. 237) 4 to the Ninth Circuit. After briefing and oral argument, the Ninth Circuit, in a published 5 opinion, affirmed in part, reversed in part, and remanded. See Ballentine v. Tucker, 28 F. 4th 6 54 (9th Cir. 2022). The Ninth Circuit held that a reasonable factfinder could conclude that 7 Detective Tucker violated the Plaintiffs’ First Amendment rights and that it was “clearly 8 established” that an arrest supported by probable cause, but made in retaliation for protected 9 10 speech violates the First Amendment. 11 C. REMAINING ISSUES FOR TRIAL 12 1. Remaining claims/issues for trial 13 The only remaining claim/issue for trial is whether the Plaintiffs’ First Amendment 14 rights were violated when Detective Tucker arrested the Plaintiffs in retaliation for their 15 chalked messages and/or their involvement in anti-police organizations. 16 2. Dismissed claims and parties 17 1. Plaintiffs’ Fourth Amendment claim has been dismissed. (ECF No. 36.) 18 2. Plaintiffs’ false imprisonment claim has been dismissed. (Id.) 19 3. Plaintiffs’ unlawful detention claim has been dismissed. (Id.) 20 4. Plaintiffs’ substantive and procedural due process claim has been dismissed. 21 (Id.) 22 5. Defendant Wallace has been dismissed from the lawsuit. (ECF No. 207.) 23 6. Defendant Liberty has been dismissed from the lawsuit. (Id.) 24 7. Plaintiff’s Monell claim against LVMPD has been dismissed. (Id.) 25 8. Defendant LVMPD has been dismissed from the lawsuit. (Id.) 26 9. Plaintiffs’ negligent hiring, training and supervision claim has been dismissed 27 (Id.) 1 10. Plaintiffs’ Intentional Infliction of Emotional Distress and Negligent Infliction 2 of Emotional Distress claims have been dismissed. (Id.) 3 11. Plaintiff Gail Sacco is no longer a Plaintiff due to death. (ECF No. 228.) 4 II. STATEMENT OF JURISDICTION 5 This Court has jurisdiction over this lawsuit because Plaintiffs’ remaining claim 6 brought pursuant to 42 U.S.C. §1983. 7 III. STATEMENT OF ADMITTED/UNCONTESTED FACTS 8 1. Detective Tucker was acting in the course and scope of his employment as an 9 LVMPD detective at all times relevant to this lawsuit. 10 2. Plaintiffs were members of the Sunset Activist Collective, a local activist 11 group, and are associated with CopBlock, an activist group critical of law enforcement. 12 3. Since 2011, Plaintiffs have conducted protests by using chalk to write anti- 13 police messages on the sidewalks in Las Vegas, Nevada. 14 4. On June 8, 2013, Plaintiffs chalked anti-police messages in front of LVMPD 15 headquarters. Sgt. Wallace issued citations to each Plaintiff for violation of Nevada’s graffiti 16 statute - NRS § 206.330. Plaintiff Patterson asked to speak with Sgt. Wallace’s supervisor, 17 Lieutenant Liberty. After arrival, Lt. Liberty told the Plaintiffs that chalking was illegal but 18 they would not be cited if they cleaned the sidewalk. Plaintiffs disagreed that chalking was 19 illegal, refused to clean the sidewalk, and were issued citations. 20 5. Detective Tucker was assigned to investigate the citations. 21 6. Detective Tucker researched Plaintiffs’ messages and monitored their social 22 media. In doing so, he learned that Plaintiffs were affiliated with anti-police organizations. 23 7. On July 13, 2013, Plaintiffs Ballentine and Patterson chalked anti-police 24 messages outside LVMPD’s headquarters. Although LVMPD officers witnessed the chalking, 25 the Plaintiffs were not cited or talked to. 26 8. On July 18, 2013, Plaintiffs chalked anti-police messages at the Regional 27 Justice Center. The chalking spanned approximately 1,000 square feet. Detective Tucker 1 witnessed and photographed the messages. He discussed the messages with Plaintiff 2 Ballentine, but he did not stop or cite the Plaintiffs. 3 9. On August 9, 2013, Detective Tucker drafted warrants for Plaintiffs’ arrests. 4 Detective Tucker’s warrant outlined the Plaintiffs’ prior alleged chalking activities, described 5 the messages being chalked, and the surfaces to which chalk was applied. 6 10. The District Attorney accepted the warrants and submitted them to a Justice of 7 the Peace who approved arrest warrants for each Plaintiff. 8 11. On August 10, 2013, Plaintiffs were arrested. 9 12. The District Attorney ultimately dropped all charges. 10 IV. STATEMENT OF UNCONTESTED FACTS 11 The following facts, although not admitted, will not be contested at trial by evidence 12 to the contrary: 13 1. The Plaintiffs’ anti-police messages are protected speech under the First 14 Amendment. 15 V. STATEMENT OF CONTESTED ISSUES OF FACT 16 The following are issues of fact to be tried and determined at trial. 17 1. Whether Detective Tucker had probable cause to obtain the arrest warrants. 18 2. Whether the “loss” due to chalking was over $250.00 regarding the incidents 19 for which the Plaintiffs were arrested and incarcerated. 20 3. Whether, in response to increased chalking activity and incurred cleaning 21 costs, the City of Las Vegas indicated to LVMPD that it was willing to prosecute if LVMPD 22 observed someone chalking the sidewalks. 23 4. Whether Detective Tucker’s arrest warrants were obtained by Detective 24 Tucker in retaliation for the Plaintiffs’ chalking of anti-police messages and/or due to 25 Plaintiffs’ lawful involvement in anti-police organizations (i.e., Detective Tucker’s subjective 26 intent for obtaining the arrest warrants). 27 5. Whether the Plaintiffs suffered damages and, if so, the amount of Plaintiffs’ 1 6. Whether Detective Tucker’s actions were the proximate cause of Plaintiffs’ 2 claimed damages. 3 VI. STATEMENT OF CONTESTED ISSUES OF LAW 4 The following are issues of law to be tried and determined at trial. 5 1. Whether Detective Tucker is protected by qualified immunity. 6 2. Whether Detective Tucker acted unconstitutionally by including the Plaintiffs’ 7 chalked anti-police messages in Declaration of Arrest used to obtain the arrest warrants. 8 3. Whether Detective Tucker acted unconstitutionally by failing to include 9 sufficient or accurate facts related to the elements of the alleged offense including: the amount 10 of actual loss, whether or not the chalking was without permission and how the chalk defaced 11 the property at issue. 12 4. Whether a neutral magistrate’s independent determination of probable cause 13 insulates Detective Tucker from liability from a retaliatory arrest claim. 14 5. Whether it is unlawful to have drawn chalk on a sidewalk owned and 15 maintained by the City of Las Vegas in 2013. 16 6. Whether Plaintiffs can meet their burden to introduce medical records and 17 medical testimony regarding their claimed damages. 18 VII. EXHIBITS 19 A. THE FOLLOWING EXHIBITS ARE STIPULATED INTO EVIDENCE IN THIS CASE AND BE SO MARKED BY THE CLERK 20 1. Joint Exhibits 21 1. Booking Voucher (Bates No. LVMPD 00001); 22 2. Declaration of Arrest - Ballentine (Bates No. LVMPD 000002); 23 3. Incident Recall for 7/18/13 (Bates No. LVMPD 000004-000005); 24 4. Justice Court Disposition Notice – Kelly Patterson (Bates No. LVMPD 25 000007); 26 5. Property Report Kelly Patterson (Bates No. LVMPD 000009); 27 6. Temporary Custody Record – Ballentine (Bates No. LVMPD 000011); 1 7. Unit Log for 7/18/13 (Bates No. LVMPD 000013); 2 8. Witness List (Bates No. LVMPD 000014-000015); 3 9. Brian Ballentine Arrest Records: 4 a. Inmate Assessments (Bates No. LVMPD 000016) 5 b. Temporary Custody Record (Bates No. LVMPD 000017) 6 c. Justice Court – Notice of Bond Acceptance (Bates No. LVMPD 000018) 7 d. Agreement to Appear in Court and to Waive Extradition After Admissions 8 to Bail (Bates No. LVMPD 000019) 9 e. CCDC Arrest Warrant Abstract (Bates No. LVMPD 000020) 10 f. Inventory of Personal Property (Bates No. LVMPD 000021) 11 g. Bulk Property Tag (Bates No. LVMPD 000022) 12 h. Housing Locations by Inmate (Bates No. LVMPD 000023) 13 i. Inmate Demographics (Bates No. LVMPD 000024) 14 j. NaphCare Mental Health Evaluation (Bates Nos. LVMPD 000025- 15 000059) 16 k. Booking Funds (Bates No. LVMPD 000060) 17 10. Kelly Patterson Arrest Records: 18 a. Inmate Assessments (Bates No. LVMPD 000061) 19 b. Temporary Custody Record (Bates No. LVMPD 000062) 20 c. Clark County Pretrial Services Release Agreement (Bates No. LVMPD 21 000063) 22 d. CCDC Arrest Warrant Abstract (Bates No. LVMPD 000064) 23 e. Inventory of Personal Property (Bates No. LVMPD 000065) 24 f. Bulk Property Tag (Bates No. LVMPD 000066) 25 g. Housing Locations by Inmate (Bates No. LVMPD 000067) 26 h. Inmate Demographics (Bates No. LVMPD 000068) 27 i. NaphCare Mental Health Evaluation (Bates Nos. LVMPD 000069- 1 j. Booking Funds (Bates No. LVMPD 000077) 2 11. Photographs (Bates Nos. LVMPD 000081-000322); 3 12. 7/18/13: 4 a. Case Report (Bates Nos. LVMPD 000366-000376); 5 b. Property Report (Patterson) (Bates No. LVMPD 000377); 6 c. City of Las Vegas Official Damage Estimate (Bates No. LVMPD 000378); 7 d. City of Las Vegas Official Damage Estimate with Photos (Bates Nos. 8 LVMPD 000379-000408); 9 e. Thumbnail photos for Event #LLV130608002756 (Bates Nos. LVMPD 10 000409-000415); 11 f. Declaration of Warrant/Summons (Patterson) for 7/13/13, 7/16/13, 7/18/13 12 (Bates Nos. LVMPD 000416-000420); 13 13. 7/31/13: 14 a. Patterson Justice Court Disposition Notice for 7/31/13 Warrant (Bates No. 15 LVMPD 000421); 16 14. 8/1/2013: 17 b. Dazo Justice Court Disposition Notice for 8/1/13 Warrant (Bates No. 18 LVMPD 000422); 19 15. Arrest Warrant (Dazo) (Bates Nos. LVMPD 000423-000426); 20 16. Temporary Custody Record (Dazo) (Bates Nos. LVMPD 000427); 21 17. Hand-written note (Bates No. LVMPD 000428); 22 18. Arrest Warrant (Patterson) (Bates Nos. LVMPD 000429-000430); 23 19. Arrest Warrant (Ballentine) (Bates Nos. LVMPD 000431-000432); 24 20. Temporary Custody Record (Patterson) (Bates No. LVMPD 000433); 25 21. Declaration of Arrest (Patterson) (Bates No. LVMPD 000434); 26 22. Temporary Custody Record (Ballentine) (Bates No. LVMPD 000435); 27 23. Declaration of Arrest (Ballentine) (Bates No. LVMPD 000436); 1 25. ID Card (Dazo) (Bates Nos. LVMPD 000438-000439); 2 26. LVMPD Witness List (Bates Nos. LVMPD 000440-000441); 3 27. Gangs/Graffiti Crime Unit File (Bates Nos. LVMPD 000462-000667); 4 28. Andrew Burnett Emails (Bates Nos. LVMPD 000668-000788); 5 29. Christopher Tucker Emails (Bates Nos. LVMPD 000789-000805); (see also 6 00484-000500; 000625); 7 30. PCA Cleaning Concrete Article (Bates Nos. LVMPD 000836-000837); 8 31. LVMPD Department Manual Parts 4-7 (7-26-13) (Bates Nos. LVMPD 9 001195-001363);1 10 32. Graffiti Pamphlet (Bates Nos. LVMPD 001364-001365); 11 33. Graffiti Investigations Pamphlet (Bates Nos. LVMPD 001366-001367); 12 34. Graffiti Investigations PowerPoint and Quiz (Bates Nos. LVMPD 001368- 13 001406); 14 35. General Response to Graffiti Calls – Pamphlet (Bates Nos. LVMPD 001407- 15 001408); 16 36. LVMPD Photographs – 7/18/2013 (LVMPD 002239-002307); 17 B. AS TO THE FOLLOWING ADDITIONAL EXHIBITS, THE PARTIES HAVE REACHED THE FOLLOWING STIPULATIONS. 18 1. Plaintiff's Exhibits 19 n/a 20 2. Defendants' Exhibits 21 n/a 22
23 24 25 26 27
1 See Fourth Supplemental Privilege Log regarding redactions. 1 C. AS TO THE FOLLOWING EXHIBITS, THE PARTY AGAINST WHOM THE SAME WILL BE OFFERED OBJECTS TO THEIR 2 ADMISSIONS UPON THE GROUNDS STATED. 3 1. Plaintiff's Exhibits 4 1. Emails between Detective Scott Black, Assistant Deputy City Attorney Ben 5 Little, and Sergeant Drew Burnett in June and July 2013. (LVMPD 00498-00500); 6 2. Defendants’ Exhibits 7 1. Lt. Liberty Documents: Hand-Written Notes of Lt. Liberty (redacted – see 8 privilege log) (Bates Nos. LVMPD 000078-000080). 9 2. 10/22/12: 10 a. Case Report (Bates Nos. LVMPD 000323-000337) 11 b. Field Interview (Bates Nos. LVMPD 000338-000340) 12 3. Criminal History Printout (Patterson) 7/17/13 (Bates Nos. LVMPD 000442- 13 000443) (CONFIDENTIAL); 14 4. 6/8/13: 15 a. Case Report (Bates Nos. LVMPD 000341-000349); 16 b. Patterson Citation Voided (Bates No. LVMPD 000350); 17 c. Ballentine Citation (Bates Nos. LVMPD 000351-000352); 18 d. Ballentine Citation Voided (Bates Nos. LVMPD 000353-000354); 19 e. Dazo Citation (Bates Nos. LVMPD 000355-000356); 20 f. Dazo Citation Voided (Bates No. LVMPD 000357); 21 g. Case Report (Bates Nos. LVMPD 000358-000365); 22 5. ID Card (Ballentine) 7/17/13 (Bates Nos. LVMPD 000446-000447) 23 (CONFIDENTIAL); 24 6. DMV Query (Patterson) 7/17/13 (Bates Nos. LVMPD 000448-000450) 25 (CONFIDENTIAL); 26 7. NCJIS Inquiry (Patterson) 7/17/13 (Bates No. LVMPD 000451) 27 (CONFIDENTIAL); 1 8. NCIC Inquiry (Patterson) 7/17/13 (Bates No. LVMPD 000452) 2 (CONFIDENTIAL); 3 9. Person Base Record (Ballentine) 7/17/13 (Bates No. LVMPD 000453) 4 (CONFIDENTIAL); 5 10. DMV Query (Ballentine) 7/17/13 (Bates No. LVMPD 000454) 6 (CONFIDENTIAL); 7 11. NCIC Inquiry (Ballentine) 7/17/13 (Bates No. LVMPD 000455) 8 (CONFIDENTIAL); 9 12. NCJIS Inquiry (Ballentine) 7/17/13 (Bates No. LVMPD 000456) 10 (CONFIDENTIAL); 11 13. NCIC/NCJIS Inquiry (Dazo) 7/17/13 (Bates Nos. LVMPD 000457-000459) 12 (CONFIDENTIAL); 13 14. ID Card (Dazo) 7/18/13 (Bates Nos. LVMPD 000460-000461) 14 (CONFIDENTIAL); 15 15. Det. Scott Black Emails (Bates Nos. LVMPD 000806-000835); 16 16. Employment File for Tucker (Bates Nos. LVMPD 000838-000865) 17 (CONFIDENTIAL); 18 17. Employment File for Liberty (Bates Nos. LVMPD 000866-000995) 19 (CONFIDENTIAL); 20 18. Employment File for Wallace (Bates Nos. LVMPD 000996-001135) 21 (CONFIDENTIAL); 22 19. Training History for Tucker (Bates Nos. LVMPD 001136-001149); 23 20. Training History for Liberty (Bates Nos. LVMPD 001150 -001167); 24 21. Training History for Wallace (Bates Nos. LVMPD 001168-001183); 25 22. LVMPD Policy - Department Response to Criminal Street Gang (Bates Nos. 26 LVMPD 001184-001188); 27 23. Printout: Officer Complaint History for Liberty (REDACTED) (Bates Nos. 1 24. Printout: Officer Complaint History for Wallace (REDACTED) (Bates No. 2 LVMPD 001192) (CONFIDENTIAL); 3 25. Printout: Officer Complaint History for Tucker (Bates No. LVMPD 001193) 4 (CONFIDENTIAL); 5 26. Printout: Brady Findings for Tucker, Wallace and Liberty (Bates No. LVMPD 6 001194) (CONFIDENTIAL); 7 27. Graffiti Calls – PowerPoint (Bates Nos. LVMPD 001409-001439); and 8 28. CAD Reports referring Chalk (REDACTED) (Bates Nos. LVMPD 001440- 9 001443);2 10 29. Citation and Property Report (LVMPD 001444-001446); 11 30. Photographs regarding Digital Evidence for Event #LLV140813003835 12 (LVMPD 001447-001452); 13 31. CAD Report for Event #LL140813003835 (LVMPD 001453-001455); 14 32. Gail Sacco’s Facebook post dated July 19, 2013 (LVMPD 001456); 15 33. Naphcare Contract and Amendments (LVMPD 001457-001525); 16 34. 4/105.11 Records Maintenance and Retention Policy (LVMPD 001526); 17 35. Retention Destruction Schedule Policy (LVMPD 001527-001575); 18 36. Incident Recall for 06/08/2013 (LVMPD 001576-001577); 19 37. Email exchange between LVMPD counsel and Andrew Burnett (LVMPD 20 000759); 21 38. Documents obtained from LVMPD Internal Affairs (LVMPD 001578-001785) 22 (CONFIDENTIAL); 23 a. Wallace IA records (previously produced on 12/10/15: LVMPD 24 001748-1760; 001772-1781; 001782-001784 – with redactions per Court Order at ECF No. 25 107). 26 39. DVD of July 18, 2013 Regional Justice Center Video (LVMPD 001786); 27
2 See Fifth Supplement to Privilege Log. 1 40. Eldora Medical Associates/Dr. Peprah Medical Records (LVMPD 001787- 2 001829) (CONFIDENTIAL); 3 41. Valley View Health Center/Dawn Lantz, APN Medical Records (LVMPD 4 001830-001853) (CONFIDENTIAL); 5 42. The Olympia Free Clinic Medical Records (LVMPD 001854-001863) 6 (CONFIDENTIAL); 7 43. 2013 First Friday Permits (LVMPD 001864-001899); 8 44. Clark County School District Records (LVMPD 001900-002052); 9 45. LVMPD Detective Report for Event #LLV140813003835 (LVMPD 002053- 10 002055); 11 46. Behavioral Health Resources – Medical Records (LVMPD 002056-002085); 12 47. Incident Recall – 10/22/12 (LVMPD 002086-002089); 13 48. Incident Recall – 7/14/13 (LVMPD 002090); 14 49. CSI Report - 10/22/12 (LVMPD 002091); 15 50. LVMPD Photographs – 10/22/12 (LVMPD 002092-002160); 16 51. LVMPD Photographs – 6/08/2013 (LVMPD 002161-002207); 17 52. John Liberty Email (LVMPD 002208-002213); 18 53. Documents produced by D.A. Office pursuant to Plaintiffs’ November 18, 19 2015 Subpoena Duces Tecum; 20 54. 2013 First Friday Permits; 21 55. Michael Wallace Email (LVMPD 002214-002234); 22 56. Gang Activity Reports (LVMPD 002235-002238); 23 57. LVMPD Policy: Demonstrations/Activities (LVMPD 002308); and 24 58. Henkel Photograph (LVMPD 002309). 25 Plaintiffs object to the above exhibits on relevance, foundation, and hearsay. 26 VIII. DEPOSITIONS 27 The parties will offer the depositions for witnesses who are unavailable at the time of 1 IX. OBJECTIONS TO DEPOSITIONS 2 The parties do not object to the use of depositions for impeachment purposes. 3 X. WITNESSES 4 A. PLAINTIFF 5 The Plaintiff anticipates calling the following witnesses at trial: 6 1. Brian Ballentine, c/o McLetchie Law, 602 S. Tenth Street, Las Vegas, Nevada 7 89101 8 2. Catalino Dazo, c/o McLetchie Law, 602 S. Tenth Street, Las Vegas, Nevada 9 89101 10 3. Kelly Patterson, c/o McLetchie Law, 602 S. Tenth Street, Las Vegas, Nevada 11 89101. 12 4. Detective Christopher Tucker, c/o Marquis Aurbach, 10001 Park Run Drive, 13 Las Vegas, Nevada 89145 14 5. Bernard G. Little, 5381 Painted Mirage, Las Vegas, Nevada 89149. 15 The Plaintiff does not anticipate calling the following witnesses but, reserves the right 16 to do so should the need arise. 17 1. Dave Schissler, City of Las Vegas, Graffiti Abatement Departments, 400 18 Stewart Avenue, 2nd Floor, Las Vegas, Nevada 89101. 19 The Plaintiff reserves the right to call any witness identified by the defendant as a 20 witness or potential witness as listed below. 21 B. DEFENDANTS 22 The defendants anticipate calling the following witnesses at trial: 23 1. Detective Christopher Tucker, c/o Marquis Aurbach, 10001 Park Run Drive, 24 Las Vegas, Nevada 89145 25 2. Lieutenant Michael Wallace (Ret.), c/o Marquis Aurbach, 10001 Park Run 26 Drive, Las Vegas, Nevada 89145 27 3. Lieutenant John Liberty, c/o Marquis Aurbach, 10001 Park Run Drive, Las 1 4. Brian Ballentine, c/o McLetchie Law, 602 S. Tenth Street, Las Vegas, Nevada 2 89101 3 5. Catalino Dazo, c/o McLetchie Law, 602 S. Tenth Street, Las Vegas, Nevada 4 89101 5 6. Kelly Patterson, c/o McLetchie Law, 602 S. Tenth Street, Las Vegas, Nevada 6 89101 7 7. Christopher J. Lalli, Esq., Assistant District Attorney, Office of the District 8 Attorney, 200 Lewis Avenue, Las Vegas, Nevada 89101, (702) 671-2501 9 8. Scott Mitchell, Esq., (address treated as confidential for privacy/safety 10 purposes) 11 9. Jack Ryan, Expert Witness. 12 The defendants do not anticipate calling the following witnesses but, reserve the right 13 to do so should the need arise. 14 1. Robert Brown (P#9307), Las Vegas Metropolitan Police Dept., 400 S. Martin 15 Luther King, Las Vegas, Nevada 89106, (702) 828-3111 16 2. Det. P. Scott Black (P#5479), Las Vegas Metropolitan Police Dept., 400 S. 17 Martin Luther King, Las Vegas, Nevada 89106, (702) 828-3309] 18 3. Lisa Cologna, Deputy Marshal, Eighth Judicial District, Regional Justice 19 Center, 200 Lewis Avenue, Las Vegas, Nevada, (702) 671-4571, 20 colognal@clarkcountycourts.us 21 4. Jothan Peterson (P#7377), Clark County Detention Center, c/o Las Vegas 22 Metropolitan Police Dept., 400 S. Martin Luther King, Las Vegas, Nevada 89106, (702) 828- 23 3309 24 5. Levi Hancock (P#7083), Las Vegas Metropolitan Police Dept., 400 S. Martin 25 Luther King, Las Vegas, Nevada 89106, (702) 828-3111 26 6. Dave Schissler, City of Las Vegas, Graffiti Abatement Departments, 400 27 Stewart Avenue, 2nd Floor, Las Vegas, Nevada 89101 1 7. Captain William Teel, Las Vegas Metropolitan Police Department, 400 S. 2 Martin Luther King, Las Vegas, Nevada 89106, (702) 828-3111 3 8. Chance McClish, Las Vegas Metropolitan Police Department., 400 S. Martin 4 Luther King, Las Vegas, Nevada 89106, (702) 828-3111, 5 9. Andrew Keller (P#8796), Las Vegas Metropolitan Police Department, 400 S. 6 Martin Luther King, Las Vegas, Nevada 89106, (702) 828-3111 7 10. Jeffrey L. McNeil (P#13340), Las Vegas Metropolitan Police Dept., 400 S. 8 Martin Luther King, Las Vegas, Nevada 89106, (702) 828-3111 9 11. David W. Larrington, Las Vegas Metropolitan Police Dept., 400 S. Martin 10 Luther King, Las Vegas, Nevada 89106, (702) 828-3111 11 12. Dody Bateson, Public Works Administrator, City of Las Vegas, 333 N. 12 Rancho, Las Vegas, Nevada 89106, (702) 229-6737 13 13. Joseph M. Talamanates, Painter, Department Operations and Maintenance, 14 City of Las Vegas, 333 N. Rancho Drive, Las Vegas, Nevada 89106, (702) 229-1030 15 14. Jesse Hill, Rapid Response Team Member, Graffiti Abatement Program, 16 Department Operations and Maintenance, City of Las Vegas, 333 N. Rancho Drive, Las 17 Vegas, Nevada 89106, (702) 229-1030 18 15. Jerry Walker, City of Las Vegas, Director of Department of Operations and 19 Maintenance, 333 N. Rancho Drive, Las Vegas, Nevada 89106, (702) 229-1030 20 16. Captain Brett Primas, Las Vegas Metropolitan Police Dept., 400 S. Martin 21 Luther King, Las Vegas, Nevada 89106, (702) 828-3111 22 17. Dan Phillips, Somerset Academy Charter Schools, 4650 Losee Road, North 23 Las Vegas, NV 89081 24 18. David M. Nixon, MSW, LSWAIC, MHP, Behavioral Health Resources, 3857 25 Martin Way E., Olympia, WA 98506, (360) 704-7170 26 XI. TRIAL DATES 27 Counsel for both parties have met and submit the following two trial dates: ] 2. June 2023. 2 It is expressly understood by the undersigned that the Court will set the trial of this 3 || matter on one (1) of the agreed-upon dates if possible, if not, the trial will be set at the 4 || convenience of the court’s calendar. 5 APPROVED AS TO FORM AND CONTENT this 5th day of August, 2022. MARQUIS AURBACH MCLETCHIE LAW 7 By: /s/ Craig R. Anderson By: /s/ Margaret A. McLetchie 8 Craig R. Anderson, Esq. Margaret A. McLetchie, Esq. Nevada Bar No. 6882 Nevada Bar No. 10931 9 10001 Park Run Drive 602 South Tenth Street Las Vegas, Nevada 89145 Las Vegas, Nevada 89101 10 Attorney for Defendants Attorney for Plaintiffs 11 XII. TRIAL _ 2 It is estimated that the trial herein will take a total of 5 days. oe 13 2 > = XII. ACTION BY THE COURT
2 15 This case is set down for jury trial on the stacked calendar on April 10, 2023, at 9:00 3 gs 16 |ja-m. in Las Vegas Courtroom 6C. Calendar Call shall be held on April 4, 2023, at 9:00 a.m. 17 Las Vegas Courtroom 6C. IT IS SO ORDERED: 19 || Dated:___ August 8, 2022 20 CL, ANDREW P. GORDON 71 UNITED STATES DISTRICT JUDGE 22 |INOTICE: Due to the unusually large number of complex criminal cases set for lengthy trials before 23 |[this Court, civil trials may possibly be held in a trailing status for months or be assigned to another 24 District Court Judge for trial. Therefore, the Court strongly urges the parties to consider their option 5 ito proceed before a Magistrate Judge pursuant to Local Rule IB 2-2, in accordance with 28 USC Section 636 and FRCP 73.
27 The Clerk shall provide the parties with a link to AO 85 Notice of Availability, Consent and Order of 28 Reference - Exercise of Jurisdiction by a U.S. Magistrate Judge form on the Courts website.