Merritt v. Arizona, State of

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Leslie A. Merritt, Jr., No. CV-17-04540-PHX-DGC

10 Plaintiff, ORDER

11 v.

12 State of Arizona, et al.,

13 Defendants. 14 15 This order will address the pending motions in limine and one additional issue that 16 has been briefed by the parties – whether evidence arising after the indictment date, but 17 reflecting what was known on the date of arrest, should be admissible to prove lack of 18 probable cause to arrest. See Doc. 374. 19 I. Plaintiff’s MIL 1 (Doc. 290) and Defendant’s MILs 8 and 10 (Docs. 335, 336). 20 The parties disagree on the admissibility of conclusions by several criminalists who 21 considered whether Plaintiff’s gun fired the bullets collected from the four freeway 22 shootings (the “evidence bullets”). Plaintiff seeks to exclude evidence that Arizona 23 Department of Public Safety’s (“DPS”) Cade Shaw conducted an independent ballistic 24 analysis, claiming that he did not, but does not oppose evidence that Shaw verified 25 Christopher Kalkowski’s opinion that Plaintiff’s gun fired the bullets. Doc. 290 at 2-3. 26 Plaintiff also seeks to exclude evidence that DPS’s John Maciulla, Aaron Brudenell, or 27 Lisa Peloza conducted independent ballistic analyses that confirmed Kalkowski’s 28 conclusion. Id. 1 Defendant seeks to exclude evidence that criminalists John Murdock, Greg Klees, 2 and Lucien Haig failed to find sufficient evidence to match Plaintiff’s gun to the evidence 3 bullets. The parties make various arguments. The Court will address those arguments, but 4 is unable to make final decisions on some issues without additional briefing. 5 A. The Post-Arrest Opinions Are Relevant. 6 Both sides argue that criminalist opinions formed after Plaintiff’s arrest are not 7 relevant because probable cause must be based on information known to officers at the 8 time of the arrest. See Doc. 290 at 2 (Plaintiff: “These criminalists reached their views 9 about the ballistic evidence after Merritt’s arrest and cannot relate to the probable cause 10 determination before Merritt’s arrest.”); Doc. 343 at 2 (Defendant: “the Court should 11 exclude from trial any reference or evidence relating to post-arrest analyses”). Plaintiff 12 also argues, however, that post-arrest criminalist opinions that favor his position should be 13 admitted on the question of whether Kalkowski’s identification of Plaintiff’s gun was 14 reasonable. See Doc. 345 at 3 (“The evidence of Haag’s ballistic comparison and results 15 are relevant to impeach the defendant’s claim of probable cause to arrest and to show the 16 unreasonable nature of the crime lab personnel in instigating a false arrest.”). The Court 17 concludes that post-arrest opinions can be relevant in this case. 18 “Probable cause to arrest exists where the arresting officer has reasonably 19 trustworthy information sufficient to lead a reasonable person to believe that an offense 20 has been committed and that the person to be arrested committed it.” State v. Dixon, 735 21 P.2d 761, 763 (Ariz. 1987); In re Aubuchon, 309 P.3d 886, 895 (Ariz. 2013) (citing Dixon 22 standard). Probable cause must be evaluated by “the facts as they existed at the time of the 23 arrest, and not afterward,” Reams v. City of Tucson, 701 P.2d 598, 601 (Az. Ct. App. 1985), 24 and must consider the “totality of the circumstances,” Gasho v. United States, 39 F.3d 25 1420, 1428 (9th Cir. 1994) (citation omitted). Although probable cause usually is a 26 question of law for the court, Sarwark Motor Sales, Inc. v. Woolridge, 354 P.2d 34, 36 27 (Ariz. 1960), where “the evidence is conflicting, so that on one conclusion as to the facts 28 therefrom probable cause exists, while from another it does not, it is then for the jury to 1 determine the true state of facts and to apply the law as laid down by the court to those 2 facts.” Id. 3 Thus, the jury in this case will be required to determine whether, at the time of 4 Plaintiff’s arrest, a reasonable person would have had reasonably trustworthy information 5 from which to believe that Plaintiff committed the freeway shootings. The jury must 6 consider the totality of the circumstances, including the information known to all members 7 of the investigation team whose knowledge is cumulated for purposes of determining 8 probable cause. See Doc. 374. This includes the knowledge of Christopher Kalkowski, 9 the DPS criminalist who made the primary match between Plaintiff’s gun and the evidence 10 bullets. Id. For the jury to decide whether a reasonable person with Kalkowski’s 11 knowledge would have made the match, the jury must determine whether Kalkowski’s 12 conclusion was reasonable and based on reasonably trustworthy information. 13 Conclusions of criminalists who agreed with Kalkowski and conclusions of other 14 experts who did not are relevant to the jury’s evaluation of whether Kalkowski’s match 15 was reasonable. That is true even for conclusions reached after Plaintiff’s arrest, because 16 it is the basis and strength of the conclusions, not their timing, that sheds light on whether 17 Kalkowski’s conclusion was reasonable. To be clear, post-arrest conclusions by any expert 18 are not relevant as part of the facts known at the time of arrest – they were not known then. 19 But they are relevant on the question of whether Kalkowski’s match was reasonable. 20 B. Were Rule 26 Expert Disclosures Required? 21 Plaintiff argues that Maciulla, Brudenell, and Peloza were never disclosed as experts 22 and therefore cannot provide expert opinions at trial. Doc. 290 at 2. Defendant makes a 23 similar argument, asserting that Lucien Haag, who has been disclosed as a fact witness and 24 not an expert, “is precluded from testifying ‘based on scientific, technical, or other 25 specialized knowledge within the scope of Rule 702,’” and that “[t]here is no way to avoid 26 such expert testimony given that Haag performed his analysis specifically as an expert 27 retained by Maricopa County.” Doc. 335 at 2 (quoting Fed. R. Evid. 701(c)). 28 1 Rule 26 requires a party to disclose information regarding any witness it may use at 2 trial to present evidence under Rule 702. Fed. R. Civ. P. 26(a)(2). This includes the 3 identity of such witness (26(a)(2)(A)), an expert report if the witness has been retained or 4 specially employed to provide expert testimony or if her duties as the party’s employee 5 regularly involves giving expert testimony (26(a)(2)(B)), and, if a report is not required, a 6 summary of the witness’s opinions (26(a)(2)(C)). 7 “Whether a [witness’s] testimony is expert testimony subject to Rule 702 or 8 non-expert fact testimony (including non-expert opinions subject to Rule 701) must be 9 determined by looking at the Federal Rules of Evidence.” Alsadi v. Intel Corp., No. CV- 10 16-03738-PHX-DGC, 2020 WL 4035169, at *13 (D. Ariz. July 17, 2020). Rule 702 covers 11 opinions based on the witness’s “knowledge, skill, experience, training, or education.” 12 Fed. R. Evid. 702. Lay opinion testimony is admissible only if it is “not based on scientific, 13 technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 14 701(c). Thus, the Court must look at the nature of the offered evidence, and its basis, to 15 decide whether it is expert opinion evidence subject to the admissibility requirements of 16 Rule 702 and the disclosure requirements of Rule 26(a)(2), or lay opinion evidence 17 admissible under the Rule 701. See S. Gensler, Federal Rules of Civil Procedure, Rules 18 and Commentary, at 703 (2020 ed.) (“The relevant inquiry is the nature of the testimony 19 rather than the status of the witness.”). 20 Any witness who will testify in this case that Plaintiff’s gun is or is not a match with 21 the evidence bullets will provide testimony based on “scientific, technical, or other 22 specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c). This is true 23 even if the witness’s opinion was formed during the course of work performed for the 24 parties rather than as a specially retained litigation expert. A witness “is providing expert 25 testimony if the testimony consists of opinions based on ‘scientific, technical, or other 26 specialized knowledge’ regardless of whether those opinions were formed during the scope 27 of interaction with a party prior to litigation.” Musser v. Gentiva Health Servs., 356 F.3d 28 751, 757 n.2 (7th Cir. 2004); Alsadi, 2020 WL 4035169, at *14 (“Plaintiffs are incorrect in 1 their claim that Dr. Garcia can testify about his treatment of Plaintiff without regard to 2 Rule 702. If he expresses opinions formed during the course of treatment, those opinions 3 likely will be based on based on Dr. Garcia’s scientific, technical, or other specialized 4 knowledge and therefore will be subject to the requirements of Rule 702.”). 5 Thus, to the extent that any witness in this case will testify that Plaintiff’s gun is or 6 is not a match with the evidence bullets, that witness’s opinion must be admissible under 7 Rule 702. The testimony must also have been disclosed under Rule 26(a)(2) as expert 8 testimony, but a violation of that disclosure obligation requires consideration of whether 9 the nondisclosure was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). The 10 parties do not address these issues, and the Court therefore cannot determine at this point 11 whether any criminalist’s opinion should be excluded for nondisclosure under Rule 26. 12 C. Hearsay Objections. 13 Defendant argues that reports written by Haag, Murdock, and Klees are inadmissible 14 hearsay. Docs. 335 at 2-3, 336 at 3. Plaintiff appears to suggest that at least some of the 15 reports are admissible under Rule 801(d)(2) because they have either been adopted by 16 Defendant or were issued as agents of Defendant. Doc. 355 at 5-6. This argument is not 17 developed in any detail by either side. 18 D. Criminalist Conclusions. 19 For reasons explained above, the Court will not exclude opinions of criminalists 20 simply because they were formed after Plaintiff’s arrest. The Court will require the parties 21 to provide further briefing on two issues: (1) if the witnesses were not disclosed under 22 Rule 26(a)(2), is their nondisclosure substantially justified or harmless under 23 Rule 37(c)(1); and (2) are the expert reports admissible under Rule 801(d)(2) or some other 24 hearsay exception. The parties shall file memoranda on these issues, not to exceed 8 pages 25 each, by August 28, 2020.1 26 / / /

27 1 Defendant also argues that neither Murdock nor Klees will be testifying at trial and their 28 expert opinions cannot be “bootstrapped” into the case by Plaintiff’s retained expert, Weller. Doc. 336 at 3. This argument is resolved below. 1 II. Defendant’s Motion to Exclude Weller Testimony (Doc. 331). 2 Defendant seeks to exclude all four opinions to be offered by Plaintiff’s ballistics 3 expert, Todd Weller. The Court will provide general background information and then 4 discuss Weller’s four opinions in reverse order. 5 A. Background. 6 Weller provides this description of his expertise: 7 I am the president and owner of Weller Forensics, LLC, a Burlingame, 8 California-based forensic science consulting firm. I am the current chair of Organization of Scientific Area Committees (OSAC) Firearms and 9 Toolmarks Subcommittee and the past-President of the California 10 Association of Criminalistics. I am a certified diplomate of the American Board of Criminalistics (ABC). I have worked as an independent forensic 11 consultant since October 2016. Before that, I was employed as a forensic 12 scientist for over 16 years at the Oakland Police Department. I have performed firearm and toolmark examinations on thousands of evidence 13 items during my career. I have been recognized by the trial courts in California and Missouri as an expert in the area of firearms identification. I 14 hold a Bachelor of Arts in Biochemistry/Molecular Biology from Dartmouth 15 College and received my Master of Science in Forensic Science from the University of California, Davis. I have specialized training and experience 16 in Firearm and Toolmark Identification, shooting reconstruction, drug 17 analysis, forensic biology (DNA), crime scenes, and crime lab operations. 18 I am a member of the Association of Firearm and Toolmark Examiners 19 (AFTE), California Association of Criminalistics (CAC), and Academy of Forensic Sciences (AAFS). 20 21 Doc. 331-1 at 1. Weller has testified 23 times in the last five years – 22 times on firearm 22 examinations and once on DNA evidence – and has co-authored four papers related to 23 firearms examinations. Id. at 2-3. 24 B. Weller’s Fourth Opinion – Tire Deflation. 25 Weller testified that the BMW tire would have deflated within minutes of being 26 struck by a bullet, and that Defendant’s experts are incorrect in their opinions that the tire 27 could have retained air during the days it was parked at the airport. But Weller’s training 28 on the effect of a bullet striking a tire is very limited. It consists of a one-hour segment in 1 a one-week course, less than an hour in two one-day courses, watching three tires being shot 2 during one of these training segments, and reviewing three to four pages in a textbook on 3 crime scene reconstruction. Doc. 331-3 at 3-7, 15. Weller has never worked on a 4 tire-deflation case (id. at 3), admits that he does not have specialized expertise in tires 5 (id. at 16), and has never had training on a run-flat tire like the one in this case (id. at 7). 6 In an attempt to show he is qualified to opine on bullets striking tires, Plaintiff 7 emphasizes that Weller has “witnessed shooting numerous automobile tires.” Doc. 363 at 3. 8 But Weller made clear in his deposition that he observed the shooting of three tires within 9 a one-hour period during one of his brief training courses. Doc. 363-1 at 14. Plaintiff also 10 asserts that Weller relied on a “vast experimental data base” in forming his opinion 11 (Doc. 363 at 3), but the data base Weller referred to in his deposition was Lucien Haag’s 12 data base, not Mr. Weller’s, and was not reviewed by Weller. See Doc. 363-1 at 20. Finally, 13 Plaintiff notes that Weller conducted a literature search to find instances of tires being shot 14 and retaining air, and could find none. Doc. 363 at 3. But a non-expert’s inability to find 15 contrary literature does not make him an expert, and Weller does not identify the sources 16 he searched (other than the ATFE Journal), the methods he used, or how he identified 17 potential locations for such information. Doc, 363-1 at 21. 18 Mr. Weller is qualified as an expert in firearms examination, but Plaintiff has failed 19 to show by a preponderance of the evidence that he is qualified as an expert on tire deflation 20 after a bullet strike. See Triant v. Am. Med. Sys. Inc., No. CV-12-00450-PHX-DGC, 2020 21 WL 4049844, at *2 (D. Ariz. July 20, 2020) (“The proponent of expert testimony has the 22 ultimate burden of showing by a preponderance of the evidence that the requirements of 23 Rule 702 have been satisfied.”). Mr. Weller therefore cannot testify on the effects of the 24 bullet striking the BMW tire, and this opinion will be excluded. 25 C. Weller’s Second and Third Opinions. 26 Defendant seeks to exclude Weller’s opinions that the DPS Crime Lab violated 27 forensic standards and department policy, and that the Crime Lab’s quality assurance 28 response was inadequate. The sole basis for this request is Defendant’s assertion that the 1 knowledge of civilian forensic scientists cannot be imputed to investigating officers. 2 Doc. 331 at 3. The Court has rejected this argument (Doc. 374), and will deny this portion 3 of Defendant’s motion. 4 D. Weller’s First Opinion – Plaintiff’s Gun Was Not A Match. 5 Weller opines that Kalkowski misidentified Plaintiff’s pistol as the gun that fired 6 the evidence bullets. Doc. 331-1 at 10. Weller explains that “[f]irearm and toolmark 7 examination is a two-part test.” Doc. 331-1 at 5. “The first step involves characterizing 8 any class characteristics present on fired evidence.” Id. “The second examination step 9 involves the use comparison microscopy to compare individual toolmarks.” Id. at 6. 10 Weller did not follow these two steps in forming his opinion that Plaintiff’s gun did not 11 fire the evidence bullets. Doc. 331-3 at 17. He bases his opinion on two other conclusions. 12 First, he concludes that the BMW’s tire would have deflated rapidly after being shot, 13 and notes that Plaintiff’s gun was in the pawn shop when the rapid deflation occurred. He 14 therefore concludes that the gun could not have shot the BMW bullet. For reasons 15 explained above, however, Weller is not qualified to give the tire-deflation opinion on 16 which this conclusion rests. Without that opinion, Weller’s first conclusion is not based 17 on reliable principles and methods applied reliably, and therefore is not admissible under 18 Rule 702. Further, he testified that firearms examiners should not consider outside 19 evidence, such as the details and timing of the BMW shooting, when forming opinions 20 about whether a weapon fired a bullet. Doc. 331-1 at 18-19. And yet that is precisely what 21 he does in forming his first conclusion. 22 Second, Weller notes that three ballistics experts – John Murdock, Greg Klees, and 23 Lucien Haig – did not find a match, and opines that it is not reasonable to conclude that all 24 three could be wrong: 25 The DPS crime lab . . . concluded that [the evidence bullets] were all fired in 26 the same firearm. Mr. Haag also concluded that evidence bullets were fired from a single firearm. Mr. Haag concluded there was insufficient agreement 27 for identification when comparing evidence items to test fires from the 28 Hi-Point pistol. This provides evidence that DPS had insufficient data to conclude an identification to the Hi-Point for any of the evidence. Mr. 1 Haag’s analysis is supported by two additional independent examinations that also concluded there was insufficient toolmark agreement to reach an 2 identification conclusion. One analysis was conducted by Mr. Murdock and 3 the other by Mr. Klees. The evidence has undergone substantial reanalysis. None of the re-analysis supports the DPS conclusion that Merritt’s Hi-Point 4 pistol fired the recovered evidence. All three independent examiners, Lucian 5 Haag, John Murdock and Gregory Klees, reached an inconclusive result. This means that when these examiners compared evidence items to test fires 6 from Item 4, they concluded there was insufficient agreement of firearm 7 produced marks to reach an opinion of identification. This is different to the Arizona DPS results, where it was determined there was sufficient agreement 8 to reach an identification. Given the low error rates of the profession, the 9 chance of all three independent examiners reaching the same conclusion and all being incorrect is not reasonable. 10 11 Doc. 331-1 at 11 (footnotes and citations omitted). 12 This conclusion is not based on forensic analysis; it is based on the probability of 13 Haag, Murdock, and Klees being wrong. And yet Weller is not an expert in statistics, as 14 he admitted in his deposition. Doc. 331-1 at 21. Defendant also asserts that this second 15 conclusion “simply attempts to parrot that of Haag, Murdock and Klees, and vouches for 16 their veracity over that of the five DPS Crime Lab forensic scientists.” Doc. 331 at 3. The 17 Court agrees. Weller’s explanation is little more than a comment on the evidence. He 18 finds the witnesses who support Plaintiff’s position to be credible and the witnesses who 19 support Defendant’s position not credible, but he does not do the work necessary to form 20 his own forensically-based opinion on whether Plaintiff’s weapon fired the evidence 21 bullets. As the Court has held in other cases, experts are not “permitted at trial to simply 22 parrot the opinions of other experts, or to vouch for those experts[.]” In re Bard IVC Filters 23 Prods. Liab. Litig., No. MDL 15-02641-PHX DGC, 2018 WL 495188, at *3 (D. Ariz. 24 Jan. 22, 2018). 25 Weller’s two conclusions in support of his misidentification opinion are not the 26 product of reliable principles and methods applied reliably. Fed. R. Evid. 702 (c), (d). His 27 misidentification opinion therefore is not admissible under Rule 702. 28 / / / 1 III. Plaintiff’s Motion Regarding Vouching for Crime Lab (Doc. 292). 2 Plaintiff asks the Court to preclude Defendant from presenting “argument or 3 evidence that the [DPS crime lab] has a reputation for providing credible ballistic 4 identifications.” Doc. 292 at 1. But the jury must determine whether, under the totality of 5 the circumstances known to officers at the time of the arrest, a reasonable person would 6 believe Plaintiff committed the freeway shootings. This includes a determination of 7 whether the information relied upon was reasonably viewed as credible. State v. Crowley, 8 41 P.3d 618, 623 (Ariz. Ct. App. 2002) (for probable cause, informant’s veracity, 9 reliability, and basis of knowledge are relevant in determining the value of the informant’s 10 information); Illinois v. Gates, 462 U.S. 213, 238 (1983) (totality of the circumstances 11 approach requires that a judge consider “all the circumstances set forth in the affidavit 12 before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay 13 information” when determining whether probable cause exists). Plaintiff’s motion will be 14 denied. 15 IV. Plaintiff’s Motion Regarding Lodging of Bullet in Tire (Doc. 293). 16 Plaintiff asks the Court to preclude Defendant from introducing argument or 17 evidence that a bullet lodged in the BMW tire, asserting that the Court has precluded 18 defense expert Noedel from giving such an opinion and that Defendant failed to disclose 19 John Maciulla as an expert. Doc. 293 at 1. But Plaintiff overlooks the fact that the Court 20 denied his motion to exclude expert Joseph Grant from giving this very opinion. Doc, 269 21 at 10-12. Plaintiff also asserts that the lodged bullet theory was developed after his arrest, 22 but Defendant presents evidence to the contrary. See Doc. 353 at 1. This is a jury question. 23 The Court will deny Plaintiff’s motion. 24 V. Plaintiff’s Motion Regarding Grand Jury Indictment (Doc. 295). 25 Plaintiff asks the Court to preclude Defendant “from arguing, implying, or 26 insinuating the plaintiff’s guilt because he was indicted by a Maricopa County Grand Jury.” 27 Doc. 295 at 1. Defendant responds that it “does not intend to argue that Defendant is guilty 28 because he was indicted by the grand jury.” Doc, 352 at 2. In a lengthy footnote, however, 1 Defendant suggests that it should be permitted to show the jury in this case what evidence 2 was before the grand jury, and that “[i]t would be contradictory for a grand jury to exercise 3 their authority and find such probable cause, but then allow another court to consider the 4 same facts and determine there was not probable cause.” Id. at 2 n.1. Defendant argues 5 that it “should be permitted to put forth evidence from which a jury could find that the 6 evidence presented to the Maricopa County Grand Jury, which found probable cause to 7 indict Merritt, was not materially different than the evidence considered by the officers at 8 the time of arrest.” Id. Defendant seems to be suggesting that it should be allowed to argue 9 to the jury in this case that it should find probable cause because the grand jury did. 10 The Court does not agree. The Arizona Court of Appeals has held that it was 11 reversible error for a trial court in a false arrest case to admit evidence of a subsequent 12 grand jury indictment and to instruct the jury that the indictment was evidence of probable 13 cause to arrest. Reams, 701 P.2d at 601-02. “Admission of evidence of the indictment and 14 the trial court’s corresponding instruction to the jury could only serve as a kind of 15 imprimatur on the statements of the prosecution’s witnesses, and were inherently 16 prejudicial.” Id. at 602. 17 In light of the clear holding in Reams, the Court will preclude Defendant from 18 presenting evidence of the grand jury indictment and from arguing that the indictment 19 constitutes evidence of probable cause. Although this is not precisely the relief sought by 20 Plaintiff, the Court must avoid plain error and the law of Arizona on this point is clear. The 21 parties should seek to agree on a stipulation that can be read to the jury to explain that 22 Plaintiff’s false arrest claim extends only from the date of his arrest to September 24, 2015 23 (the date of his indictment), and should present it to the Court before the final pretrial 24 conference. 25 VI. Plaintiff’s Motion Regarding Facebook Pages (Doc. 296). 26 Plaintiff asks the Court to preclude Defendant from presenting various categories of 27 Plaintiff’s Facebook posts to the jury. As noted above, the jury will be required to consider 28 the totality of the information considered by Defendant in finding probable cause, and 1 Defendant asserts that Plaintiff’s Facebook posts were in fact considered, something that 2 would make them relevant. Whether the probative value of particular pages is substantially 3 outweighed by the danger of unfair prejudice can best be determined during trial. To avoid 4 unexpected prejudice, Defendant is instructed to discuss with the Court any Facebook posts 5 it intends to present to the jury, before mentioning the posts in court. Plaintiff’s motion 6 will be denied. 7 VII. Plaintiff’s Motion Regarding Family Members (Doc. 297). 8 Plaintiff asks the Court to preclude Defendant from presenting evidence of his 9 dysfunctional family, his parents’ substance abuse and incarceration, and other problems 10 Plaintiff has encountered during his life. Defendant responds that this information is 11 relevant to the jury’s consideration of his claim for emotional distress damages, and notes 12 that Plaintiff’s own damages expert took these facts into account. Because this is an issue 13 that must be addressed during trial, the Court will deny the motion. Before mentioning 14 these matters to the jury, however, Defendant should raise them with the Court outside the 15 hearing of the jury. 16 VIII. Plaintiff’s Motion Regarding Past Contact With Law Enforcement (Doc. 299). 17 Plaintiff asks the Court to exclude from evidence various police contacts in his 18 personal history. Defendant responds that these contacts were considered in determining 19 whether there was probable cause to arrest Plaintiff, and that these contacts are relevant to 20 Plaintiff’s claim for emotional distress damages. The relevancy of these incidents and 21 whether they should be precluded under Rule 403 due to a danger of unfair prejudice must 22 be decided at trial. The motion will be denied, but Defendant should raise these instances 23 with the Court before presenting them to the jury. 24 IX. Plaintiff’s Motion Regarding Search Warrants (Doc. 303). 25 Plaintiff asks the Court to preclude evidence of various search warrants obtained by 26 Defendant as part of the investigation that led to his arrest. Defendant responds that search 27 warrants that produced evidence after his arrest are not relevant, but that it should be 28 permitted to show the extent of its investigation if Plaintiff argues that the investigation 1 was faulty. The Court sees no relevancy in the search warrants themselves, and will grant 2 the motion. If Plaintiff argues at trial that Defendant’s investigation was deficient, 3 Defendant may raise with the Court the possibility of presenting evidence of the 4 investigation to rebut this charge, including evidence of search warrants. 5 X. Plaintiff’s Motion to Preclude Defense Expert Bernie Click (Doc. 315). 6 Plaintiff asks the Court to exclude Bernie Click, a police practices expert, from 7 testifying at trial because (1) he did not consider the possibility that Plaintiff did not commit 8 the shooting or that the DPS crime lab could have erred, (2) he opines that public safety is 9 a factor to consider in deciding whether probable cause exists, (3) he opines that Defendant 10 might have faced civil liability if it did not arrest Plaintiff, and (4) he relied on the untrue 11 fact that Plaintiff attempted to remove material from his Facebook page. Doc. 315. None 12 of these arguments justifies exclusion of Click’s testimony. 13 (1) Defendant notes that Click states no opinion on the accuracy of the crime lab’s 14 determination, and Plaintiff cites no authority for the proposition that his testimony is 15 inadmissible because he has not considered Plaintiff’s possible innocence. Doc. 348 at 3-4. 16 (2) Defendant asserts that Click does not consider public safety as part of the analysis for 17 probable cause, and supports the assertion with a statement to that effect from Click’s 18 deposition. Id. at 5. (3) Defendant asserts that Click “does not offer any opinions about 19 civil liability.” Id. at 6. (4) Defendant presents evidence that Plaintiff did attempt, after 20 his arrest, to remove material from his Facebook page. Id. at 5.2 21 In short, Plaintiff selects individual statements from Click’s deposition and attempts 22 to weave them into a basis for precluding his opinions altogether. Plaintiff does not 23 challenge his qualifications and fails to undercut the broad factual basis for his opinion. 24 The motion will be denied. 25 / / / 26 / / / 27 28 2 Because this event occurred after Plaintiff’s arrest, it is not relevant to probable cause and will not be admissible. But it shows that Click’s statement is not unfounded. 1 XI. Defendant’s Motion on Extra-Judicial Comments (Doc. 316). 2 Defendant asks the Court to restrain Plaintiff’s counsel from making comments to 3 the press in advance of trial. Defendant cites a newspaper article published several months 4 ago that quoted from a filing Plaintiff made in a state court case, and asserts that the state 5 court filing misrepresented facts found by this Court in its summary judgment ruling. 6 Defendant expresses concern that Plaintiff’s counsel will attempt to taint the jury pool by 7 making similar comments to the press in advance of trial. Doc. 316. 8 Both parties cite Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991), for 9 the proposition that a Court may restrain a lawyer from making pretrial comments that the 10 lawyer knows present a “substantial likelihood of material prejudice” to the trial. 11 Plaintiff’s counsel assert that they have not talked to the press and understand the ethical 12 and court rules that limit press contact. 13 On this record, the Court does not find a sufficient basis to enter an order limiting 14 comments made by counsel on either side. But the Court provides the same admonition 15 Judge Teilborg provided in another case: 16 This Court would remind counsel for both parties that they have a duty to 17 refrain from attempting to gain leverage in this case by speaking to and through the media. . . . Local Rule of Civil Procedure 83.8 prohibits a lawyer 18 in a civil action from “making an extrajudicial statement, other than a 19 quotation from or reference to public records . . . if there is a reasonable likelihood that such dissemination will interfere with a fair trial . . . .” 20 Similarly, Rule 3.6(a) of the Arizona Rules of Professional Conduct prohibits 21 attorneys from making any “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public 22 communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although neither 23 Local Rule of Civil Procedure 83.8 nor Rule 3.6 of the Arizona Rules of 24 Professional Conduct create an absolute prohibition on all statements to the media, counsel for both parties are cautioned to use professional discretion 25 and limit any statements to what is explicitly authorized by the applicable 26 Rules. In the event that future extrajudicial statements to the media threaten the integrity of these proceedings, the Court will address the issue at that 27 time. 28 1 Mizioch v. Montoya, No. CV10-01728-PHX-JAT, 2011 WL 4900033, at *8 (D. Ariz. 2 Oct. 14, 2011) (footnote omitted). The Court will deny Defendant’s motion. 3 XII. Defendant’s Motion on Criminal Charges and Detention (Doc. 326). 4 Defendant asks the Court to preclude Plaintiff from presenting evidence that the 5 charges against him were eventually dismissed and evidence regarding the length of his 6 detention. Because Plaintiff’s damages are limited to the six-day period between his arrest 7 and indictment, Defendant contends that this evidence is irrelevant and unduly prejudicial. 8 Doc. 326. Plaintiff responds that the jury must know of the dismissal of charges to avoid 9 any speculation that he was found guilty of the offenses for which he was arrested and to 10 understand the full factual context of this case. 11 The Court sees merit in the arguments of both sides, and concludes that a carefully 12 crafted jury instruction will be necessary to apprise the jury of relevant facts but avoid 13 speculation and unwarranted conclusions. The Court therefore will instruct the jury that 14 (a) the trial concerns only Plaintiff’s claim of false arrest on September 18, 2015; 15 (b) Plaintiff was actually in custody until April 2016, when charges against him were 16 dismissed, but the Court has ruled, for legal reasons, that Plaintiff may recover damages 17 for false arrest, if any, only for the six-day period between September 18 and 24, 2015; 18 (c) the jury should not speculate as to why the charges against Plaintiff were dismissed, 19 should not consider the dismissal of charges as a fact in favor of or against any party, and 20 should confine its attention to Plaintiff’s claim that his arrest on September 18, 2015 lacked 21 probable cause and his claim for damages during the following six days. The parties should 22 confer and see if they can agree upon a stipulated instruction that covers these and related 23 relevant points and should present it to the Court before the final pretrial conference. 24 Defendant’s motion will be denied. 25 XIII. Defendant’s Motion Regarding PCAST and Similar Studies (Doc. 327). 26 Defendant moves to preclude any evidence or argument about the September 2016 27 President’s Council of Advisors on Science and Technology Report on Forensic Science 28 in Criminal Courts (the “PCAST Report”), or any other scientific study not known to law 1 enforcement at the time of Merritt’s arrest, as irrelevant and likely to confuse the issues 2 and mislead the jury. Doc. 327. Defendant notes that the report was issued a year after 3 Plaintiff’s arrest and could not have been known to the arresting officers. 4 The Court cannot rule on Defendant’s concern in advance of trial. As Plaintiff notes, 5 criminalists and ballistics experts may testify during trial about studies related to ballistics 6 evidence, and opposing counsel may seek to use published studies in cross-examination of 7 various witnesses. See Fed. R. Evid. 803(18). The Court cannot conclude at this time that 8 all such uses would be improper, and therefore cannot grant Defendant’s motion. The 9 Court will rule on objections as they are made during trial. 10 XIV. Defendant’s Motion on Daws Report, Opinions, and Attachments (Doc. 328). 11 Defendant asks the Court to preclude the use of the report and opinions of John W. 12 Daws, a tire-deflation expert retained by Plaintiff for this case, who unfortunately died 13 before he could be deposed or testify at trial. Doc. 328. Plaintiff responds that no witness 14 should be permitted to express tire deflation opinions formed after Plaintiff’s arrest – a 15 position with which the Court does not agree – and, alternatively, that Daws’s opinions and 16 reports may be used at trial because defense experts relied on them, and for impeachment 17 of defense experts. Doc. 346. 18 Mr. Daws is not available to testify at trial, and his report is an out-of-court 19 declaration that would be offered for the truth of the matter asserted. Plaintiff may not 20 present such hearsay as direct evidence. Ariz., Dep’t of Law, Civil Rights Div. v. ASARCO, 21 L.L.C., 844 F. Supp. 2d 957, 965 (D. Ariz. 2011) (“The court finds that Dr. Pitt’s report is 22 nevertheless inadmissible, because it is hearsay – indeed, ‘classic’ hearsay – because it 23 represents Dr. Pitt’s out of court declaration offered for its truth.”). Nor does the fact that 24 Plaintiff intends to use the report as impeachment overcome the hearsay problem; the Court 25 is not aware of an impeachment exception to the hearsay rule. 26 If Defendant’s experts testify on direct that they have relied on the Daws report, 27 Plaintiff may cross-examine them about the report. If Plaintiff believes a defense expert 28 has testified in a way that permits Plaintiff to cross-examine with the Daws report, Plaintiff 1 shall raise that issues outside the hearing of the jury. Otherwise, Defendant’s motion will 2 be granted. 3 XV. Defense Motion to Preclude Claims of Evidence Fabrication, etc. (Doc. 329). 4 Defendant asks the Court to preclude Plaintiff from arguing or introducing evidence 5 on matters the Court has already determined no reasonable jury could find, including: 6 (1) DPS fabricated ballistics results; (2) Officer Baroldy perjured himself; and (3) DPS 7 withheld exculpatory information from Plaintiff, including the license plate reader, 8 honeypot website, pole cameras, or Hackbarth’s second interview. Doc. 329. Plaintiff has 9 filed no response. The Court will grant the motion as follows: Plaintiff is precluded from 10 asserting that DPS intentionally fabricated ballistics evidence or that Officer Baroldy 11 committed perjury before the grand jury, and from asserting that DPS withheld the 12 identified categories of allegedly exculpatory evidence from Plaintiff. 13 XVI. Defense Motion Regarding Aaron Saucedo (Doc. 330). 14 Defendant moves to preclude Plaintiff from arguing or introducing evidence about 15 Aaron Saucedo (referred to in the media as the “Maryvale Serial Shooter”), including that 16 he was arrested and charged with a number of shootings and murders. Doc. 330. 17 Defendants base this motion on Rule 401 and 403. Id. at 2. 18 In response, Plaintiff identifies 23 facts that, he claims, should have caused 19 Defendant to investigate Saucedo as the freeway shooter. Doc. 339. These facts include 20 that Saucedo was eventually arrested for a murder that occurred before Plaintiff’s arrest; 21 Saucedo purchased ammunition shortly before two of the freeway shootings and in a 22 location that would have allowed him to be at the places of the shootings when they 23 occurred; a license plate reader placed more than 800 vehicles at two or more of the freeway 24 shooting locations, including a vehicle with license plate BLA 7520, which is only one 25 digit different from Saucedo’s plate of BLA 7920; Saucedo’s gun was one of seven 26 Hi-Point Model C9’s collected by Defendant from pawn shops, and yet was not tested; and 27 similar facts. Plaintiff claims that these facts “would have caused reasonable investigators 28 1 to investigate Saucedo further and not to arrest the plaintiff until this investigation excluded 2 Saucedo as a suspect.” Id. at 5. 3 The issue in this case will be whether Defendant had probable cause to arrest 4 Plaintiff on September 18, 2015, well before most of the crimes with which Saucedo is 5 charged occurred. The focus of the trial will be on the facts Defendant relied on to form 6 probable cause. Although an argument that Defendant failed to investigate another suspect 7 could be marginally relevant, the Court concludes that Plaintiff’s assertions about Saucedo 8 would devolve into a minitrial (or a major trial) on the investigation of Saucedo, and that 9 any probative value of the Saucedo evidence would be substantially outweighed by the 10 danger of wasting time and confusing the jury. Fed. R. Evid. 403. The Court accordingly 11 will grant Defendant’s motion. 12 XVII. Defense Motion Regarding Ivan Mathew (Doc. 332). 13 Defendant asks the Court to exclude Ivan Mathew, a criminal defense lawyer, from 14 testifying at trial because his focus is whether the prosecutors’ actions violated the standard 15 of care, and if so, whether prosecutorial actions were a cause of harm to Plaintiff. Doc. 332 16 at 2. Defendant notes that the actions of prosecutors are not at issue in this case given the 17 settlement with the Maricopa County Defendants. 18 Plaintiff provides a confusing response. He asserts that “Mathew will testify that 19 but for Detective Falcone’s misleading presentation to prosecutors, prosecutors would have 20 either not filed charges or would have dismissed them before April 25, 2016.” Doc. 356 21 at 3. But the Court has ruled that Plaintiff may assert only claims for false arrest and false 22 imprisonment (which, the parties agree, are essentially the same claim), and can seek 23 damages only through September 24, 2020. Doc. 278. The case no longer contains a 24 malicious prosecution claim. Plaintiff does not explain what input, if any, prosecutors had 25 in his arrest, and asserts that he “will not ask Mathew to opine on probable cause to arrest,” 26 which is the key remaining issue in this case. Doc. 356 at 3. Because the Court can see no 27 relevance to the remaining issues in this case, the Court will grant Defendant’s motion. 28 / / / 1 XVIII. Defendant’s Motion Regarding Honeypot, LPRs, and Pole Camera (Doc. 333). 2 Defendant seeks to exclude evidence of the honeypot website, license plate readers 3 (“LPRs”), and pole cameras as irrelevant and confusing. Doc. 333. In response, Plaintiff 4 states that he “does not intend to introduce evidence about the Honey Pot or Pole Cameras.” 5 Doc. 362 at 1. The Court will grant the motion with respect to these two categories. 6 With respect to LPRs, Plaintiff returns to his arguments about Aaron Saucedo. He 7 asserts: “Under the totality of the circumstances, along with the information known to the 8 defendant before plaintiff’s arrest about Saucedo’s ownership of a Hi-Point C9, the 9 purchase of ammunition minutes before the shootings, and his association with a recent 10 murder, the LPR data is relevant.” Id. at 2. The Court has concluded above that the 11 Saucedo argument would result in a minitrial that would waste time and confuse the jury, 12 and therefore is inadmissible under Rule 403. 13 The Court previously reached this conclusion regarding the LPRs: 14 Plaintiff provides the results of a request made to the Arizona Vehicle Theft 15 Task Force to access the National Vehicle Location Service database and determine whether there were any license plates that appeared repeatedly in 16 areas and times related to the I-10 freeway shootings. Sergeant Mapp 17 requested eight incident locations and times, and the report presumably gave a list of vehicles seen around those locations and times, noting that five 18 vehicles were seen at four of the locations. The report noted that these “hits” 19 were “mostly from resident locations just north of the freeway incident locations and can be deemed normal travel to and from work or considered 20 normal travel for the resident’s area.” Sergeant Mapp did not consider this report helpful because the LPRs were not on the freeway and were owned 21 and operated outside of DPS, and he was not sure where they were located. 22 Aside from asserting that this report is “highly exculpatory” for failing to place Plaintiff anywhere near the shootings, Plaintiff offers no explanation 23 about how to interpret the report. 24 The nondisclosure of the report does not rise to the level of bad faith. It is 25 from an outside database derived from LPRs stationed in unidentified areas 26 around, but not actually at, the shooting sites, and Plaintiff has not shown that the LPRs covered all relevant areas or shooting times. With these 27 unknowns, it is not clear what conclusions, if any, the report supports with 28 respect to Plaintiff’s presence in the areas of the shootings. Even when drawing all inferences in Plaintiff’s favor, no juror could reasonably find that 1 the inconclusive report would have deterred the grand jury from finding probable cause. Further, considering that the DPS did not itself use LPRs in 2 the investigation, and that the DPS officers learned nothing of value from the 3 report, it is not at all clear that the officers lied when they testified that LPRs were not used to investigate these shootings. 4 5 Doc. 278 at 20-21 (record citations omitted). 6 Plaintiff also argues that Mr. Mathew will testify that the LPRs would have been 7 relevant to the prosecutor’s decision to charge Plaintiff. But as noted above, the 8 prosecutors’ decision is no longer at issue in this case and Mr. Mathew’s testimony has 9 been excluded. The Court will grant Defendant’s motion. 10 XIX. Defendant’s Motion to Exclude Roger Clark Opinions (Doc. 337). 11 Defendant seeks to preclude Roger Clark from testifying as an expert that DPS 12 officers violated their standard of care by not disclosing LPR data, honeypot website data, 13 and pole camera video. Doc. 337. Defendant argues that any such opinions are not 14 supported by sufficient facts. 15 Plaintiff responds that “defendant withheld exculpatory LPR data and lied to 16 prosecutors about its existence because the LPR information implicated Aaron Saucedo as 17 the Freeway Shooter and dissipated the defendant’s claim of probable cause to arrest the 18 plaintiff.” Doc. 364 at 2. Plaintiff also again states that this evidence will be relevant to 19 the Mathews opinions. The Court has rejected these arguments above, and will grant 20 Defendant’s motion. 21 XX. Joint Motion to Amend Pretrial Order (Doc. 338). 22 The parties stipulate that the final pretrial order should be amended to provide that 23 Exhibit 11 (Tweet of Governor Douglas Ducey) will be admitted into evidence. The 24 motion will be granted. 25 XXI. Remaining Issue. 26 As noted above, the Court will also address a remaining issue: whether evidence 27 arising after the indictment date, but reflecting what was known on the date of arrest, should 28 1 be admissible to prove lack of probable cause to arrest. See Doc. 374. The parties provided 2 supplemental briefing on this issue. Docs. 341, 370. 3 Defendant argues that the post-arrest conclusions of Haag, Murdock, and Klees are 4 irrelevant to what was known at the time of arrest. Doc. 341 at 7-8. The Court has rejected 5 this argument in section I.A. above. Defendant argues that other evidence – unidentified 6 cell phone records and text messages, the pawn records of Aaron Saucedo, and phone 7 records of Glenn Merritt – are inadmissible. The Court has ruled on the Saucedo evidence 8 in this order, but does not know the contents of the other evidence identified by Defendant. 9 As noted, the test for probable cause must focus on what was known to the officers and 10 Kalkowski at the time of arrest. Post-arrest evidence that sheds light on what was known 11 at the time of the arrest may well be relevant and admissible. The Court will rule on 12 objections as they are made at trial. 13 XXII. Conclusion. 14 When asked about whether a bench trial was possible in this case in light of the 15 COVID pandemic, the parties were unable to agree, but indicated that the Court’s rulings 16 on motions in limine could alter the contours of the trial. Doc. 381 at 2. Within one week 17 of the Court’s rulings on the motions at Docs. 290, 335, and 336 (after the supplemental 18 briefing is received), the parties shall file a joint memorandum (1) stating whether they can 19 agree on a bench trial, and (2) identifying the numbers of days required for trial in light of 20 the Court’s rulings. 21 IT IS ORDERED: 22 1. The motions in limine at Docs. 290, 335, and 336 are taken under advisement. 23 The parties shall file supplemental memoranda, not to exceed 8 pages each, by 24 August 28, 2020. 25 2. Defendant’s Motion to Exclude Opinions and Testimony of Todd Weller 26 (Doc. 331) is granted in part and denied in part as set forth above. 27 3. Plaintiff’s Motion Regarding Vouching for Crime Lab (Doc. 292) is denied. 28 4. Plaintiff’s Motion Regarding Lodging of Bullet in Tire (Doc. 293) is denied. 1 5. Plaintiff’s Motion Regarding Grand Jury Indictment (Doc. 295) is granted. 2 The parties should work to agree on the stipulation as described above. 3 6. Plaintiff’s Motion Regarding Facebook Pages (Doc. 296) is denied. 4 Defendant shall raise Facebooks posts with the Court before mentioning them 5 to the jury. 6 7. Plaintiff’s Motion Regarding Family Members (Doc. 297) is denied. Before 7 mentioning these matters to the jury, Defendant will raise them with the Court 8 outside the hearing of the jury. 9 8. Plaintiff’s Motion Regarding Past Contact With Law Enforcement (Doc. 299) 10 is denied. Defendant should raise these instances with the Court before 11 presenting them to the jury. 12 9. Plaintiff’s Motion Regarding Search Warrants (Doc. 303) is granted. 13 10. Plaintiff’s Motion to Preclude Defense Expert Bernie Click (Doc. 315) is 14 denied. 15 11. Defendant’s Motion on Extra-Judicial Comments (Doc. 316) is denied. 16 12. Defendant’s Motion on Criminal Charges and Detention (Doc. 326) is denied. 17 The parties shall propose a jury instruction as stated above. 18 13. Defendant’s Motion Regarding PCAST and Similar Studies (Doc. 327) is 19 denied. 20 14. Defendant’s Motion on Daws Report, Opinions, and Attachments (Doc. 328) 21 is granted, with the qualifications noted above. 22 15. Defendant’s Motion to Preclude Claims of Evidence Fabrication, etc. 23 (Doc. 329) is granted as set forth above. 24 16. Defendant’s Motion Regarding Aaron Saucedo (Doc. 330) is denied. 25 17. Defendant’s Motion Regarding Ivan Mathew (Doc. 332) is granted. 26 18. Defendant’s Motion Regarding Honeypot, LPRs, and Pole Camera (Doc. 333) 27 is granted. 28 19. Defendant’s Motion to Exclude Roger Clark Opinions (Doc. 337) is granted. 1 20. The Joint Motion to Amend Pretrial Order (Doc. 338) is granted. The final 2 pretrial order is amended to state that Exhibit 11 (Tweet of Governor Douglas 3 Ducey) shall be admitted into evidence. 4 21. Within one week of the Court’s rulings on the motions at Docs. 290, 335, and 5 336, the parties shall file a joint memorandum (1) stating on whether they can 6 agree on a bench trial, and (2) identifying the numbers of days required for 7 trial in light of the Court’s rulings. 8 Dated this 21st day of August, 2020. 9 . Dau 6 Coup David. Campbell 12 Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28