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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Jonathan G. Brinson (#025045) 

jbrinson@polsinelli.com 

Andrew T. Fox (#034581) 

afox@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033

Attorneys for Defendants State of Arizona, Silbert, 

Kalkowski, Milstead, Hunter, Heape, Pinnow, and Falcone 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., a single man, 

Plaintiff, 

vs. 

State of Arizona, a body politic; Bill 

Montgomery, the elected Maricopa 

County Attorney, in his official and 

individual capacities; Maricopa County, 

a body politic; Heston Silbert, in his 

individual capacity; Christopher 

Kalkowski, in his individual capacity; 

Frank Milstead, in his individual 

capacity; Ken Hunter, in his individual 

capacity; Kelly M. Heape, in his 

individual capacity; Jennifer Pinnow, in 

her individual capacity, Anthony 

Falcone, in his individual capacity; 

Edward Leiter, in his individual 

capacity; Vanessa Losicco, in her 

individual capacity. 

Defendants. 

Case No. CV17-4540-PHX-DGC 

DEFENDANT STATE OF ARIZONA’S 

RESPONSE IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR ISSUE 

PRECLUSION; COUNTER-MOTION 

PRECLUDING MENTION AT TRIAL OF 

NOTATION OF CLEARANCE 

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Merritt’s Petition for Notation of Clearance (“Petition”) was based on erroneous 

factual assertions that Plaintiff’s counsel knew were unsupported and directly contrary to this 

Court’s previous findings on summary judgment. Compare E.R. 3.3 (“A lawyer shall not 

knowingly: (1) make a false statement of fact or law to a tribunal [or] (2) fail to disclose to 

the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly 

adverse to the position of the client”) with table at 11-12 herein (comparing Plaintiff’s 

assertions of fact in his Petition that were already found erroneous or unsupported by this 

Court). Plaintiff has provided no evidence that he corrected these misleading statements to 

the commissioner. 

Plaintiff’s counsel used these misrepresentations to obtain the Notation of Clearance, 

and now seeks to use the Notation of Clearance to overturn the very findings and conclusions 

in this Court’s November 15, 2019 Order that he failed to disclose to the commissioner. See

E.R. 8.4(d) (stating that a lawyer shall not “engage in conduct that is prejudicial to the 

administration of justice”). This type of gamesmanship should not be tolerated. See Arizona 

Rules of the Supreme Court 41 (c), (e) (Lawyers are obligated “[t]o maintain the respect due 

to courts of justice” and “[t]o be honest in dealings with others and not make false or 

misleading statements of fact or law”). 

By making the state court ruling an issue in this case, Plaintiff has waived any claim 

of confidentiality and cannot cherry-pick what he wants to disclose. Merritt should be ordered 

to provide this Court and the State with any pleadings, evidence, and hearing transcripts 

related to the state court proceeding.1

The Notation of Clearance (“Notation” or “Notation of Clearance”) should have no 

legal effect in this matter. First, whether Merritt is in fact the I-10 freeway shooter is not an 

issue in this case. Granting Plaintiff’s request will confuse the jury regarding the only two 

1

 As an exhibit to his motion, Merritt filed a copy of the State court’s order, requesting it be 

filed under seal. Merritt declined to do the same with the underling pleadings, evidence, and 

transcripts offered in support of his Petition. The State requests that the Court order Merritt 

to file the entire record under seal, and, if necessary, that the State be given leave to 

supplement its arguments based on information contained therein. 

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issues in this case – probable cause to arrest and alleged damages. Second, under Arizona law 

courts decline to apply issue preclusion where special circumstances exist that would render 

preclusion manifestly unjust. Such circumstances exist here, where a party attempts to use 

another tribunal as an end-run on the Court’s summary judgment order by representing to the 

other tribunal as “fact” matters already determined to lack sufficient evidence. Third, the 

“State of Arizona” was represented by the Maricopa County Attorney in the state court action. 

The County lacked the adequate incentive to litigate Merritt’s Petition because the County 

had already dismissed the criminal case, and no civil monetary liability is at issue in the 

Petition. Fourth, Merritt failed to notify this Court in his motion that still pending before the 

state court is DPS’ motion to intervene in the state court action to set aside the order as one 

procured by fraud or misrepresentation. 

The State also counter-moves to preclude any mention at trial of the Notation of 

Clearance because: (1) Merritt’s counsel already stipulated that the Notation would not be 

raised in this case; and (2) introduction of the Notation is unduly prejudicial given that it is 

not relevant to the only remaining issues in this case—whether probable cause existed at the 

time of arrest based on the information known to the officers and alleged damages—and it is 

likely to confuse the jury. The potential prejudice from mention of the Notation before the 

jury was amplified by Merritt’s counsel when he publicly commented on the Notation, and 

in doing so, discussed matters essential to the resolution of this case and beyond those at issue 

in the Petition. 

The State requests that the Court deny Merritt’s Motion for Issue Preclusion, and grant 

the State’s counter-motion to preclude mention of the Notation in argument or as evidence at 

trial. 

LEGAL STANDARD 

The doctrine of issue preclusion, or collateral estoppel, “precludes relitigating an issue 

of fact in a later case when, in a previous case, the same issue was ‘actually litigated, a final 

judgment was entered, and the party against whom the doctrine is to be invoked had a full 

and fair opportunity to litigate.’” Crosby-Garbotz v. Fell, 434 P.3d 143, 144 ¶ 1 (Ariz. 2019) 

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(quoting Chaney Bldg. Co. v. City of Tucson, 716 P.2d 28, 30 (Ariz. 1986)). Issue preclusion 

requires that: (1) the issue was actually litigated in the previous proceeding; (2) the parties 

had a full and fair opportunity and motive to litigate the issue; (3) a valid and final decision 

on the merits was entered; (4) resolution of the issue was essential to the decision; and (5) 

there is common identity of the parties. Campbell v. SZL Properties, Ltd., 62 P.3d 966, 968 

¶ 9 (Ariz. Ct. App. 2003) (citation omitted); see also Restatement (Second) of Judgments § 

27 (Am. Law Inst. 1982). 

“When one of these elements is not met, preclusion does not apply.” Crosby-Garbotz, 

246 Ariz. at 57 ¶ 10, 434 P.3d at 146. The party seeking to assert collateral estoppel bears the 

burden of establishing the requisite elements. See State Comp. Fund v. Yellow Cab Co. of 

Phx., 3 P.3d 1040, 1044 (Ariz. Ct. App. 1999); PPG Indus., Inc. v. United States, 746 F. 

Supp. 119, 134 (CIT 1990) (applying Restatement (Second) of Judgments) (“The burden on 

the party seeking issue preclusion is and should be exacting.”). 

“Arizona recognizes that, ‘even in cases in which the technical requirements for the 

application of collateral estoppel are met, courts do not preclude issues when special 

circumstances exist.’” In re Anderson, No. AZ-17-1071, 2017 WL 5163443, at *6 (B.A.P. 

9th Cir. 2017) (citing Hullett v. Cousin, 63 P.3d 1029, 1035 (Ariz. 2003)); see also Ferris v. 

Hawkins, 660 P.2d 1256, 1258 (Ariz. Ct. App. 1983) (“Principles of issue preclusion should 

not be applied ...where ‘there is some overriding consideration of fairness to a litigant, which 

the circumstances of the particular case would dictate.’”)). 

ARGUMENT 

As a preliminary matter, “offensive collateral estoppel generally is unavailable against 

the government.” Tostado v. City of Lake Havasu, 204 P.3d 1044, 1047 ¶ 10 n.5 (Ariz. Ct. 

App. 2008) (citing First Interstate Bank of Ariz. v. State Dep’t of Revenue, 916 P.2d 1149, 

1152 (Ariz. Ct. App. 1995), abrogated on other grounds by Rogers Corp. v. State Dep’t of 

Revenue, 927 P.2d 817 (Ariz. Ct. App. 1996). Even assuming that issue preclusion is 

available against the State, Merritt’s motion for issue preclusion fails for at least five reasons. 

First, the issue is not relevant nor identical to the issues still remaining in this case. Second, 

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the State did not have a full and fair opportunity and motive to litigate the issue before the 

superior court. Third, there has yet to be a valid and final decision on the merits in that case. 

Fourth, the notation of clearance did not have a common identity of parties. Fifth, even if the 

technical requirements for issue preclusion are met, special circumstances prevent the Court 

from applying the doctrine in this case. 

I. Whether Merritt is the I-10 Freeway Shooter is Not at Issue 

Merritt’s only remaining claim before this Court – for false arrest and imprisonment – 

is defined “as the detention of a person without his consent and without lawful authority.” 

Slade v. City of Phx., 541 P.2d 550, 552 (Ariz. 1975). “A detention which occurs pursuant to 

legal authority . . . is not an unlawful detention.” Id. In this case, Merritt was arrested on the 

evening of September 18, 2015. Accordingly, the only remaining issue relating to liability is 

whether the State had probable cause to arrest Merritt based on the totality of circumstances 

known to the arresting officers. See, e.g., Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 

(9th Cir. 2011) (the probable cause analysis is limited to “the facts known to the officer at the 

time of the arrest.”). 

Simply put, whether the superior court commissioner issued a notation of clearance is 

not an element that needs to be proved to and decided by the jury. See, e.g., Luna v. Cty. of 

L.A., 2008 WL 11410093, at *3 (C.D. Cal. 2008) (“Here, [Plaintiff’s] first argument for 

relevance, that the ‘favorable termination of the criminal proceedings is a necessary element 

of’ his false arrest and malicious prosecution actions is incorrect. . . . whether the criminal 

proceedings terminated in favor of [Plaintiff] is . . .not an element that needs to be proved to 

and decided by a jury.”). Merritt’s innocence or guilt is not an issue in this case, therefore 

issue preclusion does not apply because the issue in this case is not identical to the one 

litigated before the superior court. See Johnson v. O’Connor, 327 P.3d 218, 223 ¶ 20 (Ariz. 

Ct. App. 2014) (declining to apply issue preclusion where the “[t]he issues in the two 

proceedings are not identical”). 

In fact, courts have overwhelmingly found that “[t]he results of later criminal 

proceedings are not relevant in determining whether police officers on the scene had probable 

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cause to make a warrantless arrest, as that determination is to be made in light of the facts 

confronting the officer at the time of the arrest.”); see also Taylor v. Hudson, No. CIV 02-

0775 JB/RHS, 2003 U.S. Dist. LEXIS 26737 (D. N.M. Nov. 21, 2003) (“Given this 

conceptual separation between probable cause and guilt, the fact that another jury found 

[plaintiff] not guilty . . . does not make it more or less probable that the [d]efendants had 

reason to think probable cause for an arrest existed.”). The rationale for the general rule of 

exclusion of acquittal or notation of clearance evidence is that “[t]he state’s failure to prove 

guilt beyond a reasonable doubt does not mean that it did not meet the lesser probable cause 

standard—a reasonable belief that an offense has been committed and that the criminal 

defendant committed the crime. Borunda v. Richmond, 885 F.2d 1384, 1387-88 (9th Cir. 

1988; see also Hita, 2006 WL 844332, at *12; Calhoun v. Buck, 71 F. Supp.3d 1008, 1014 

(D. Utah 2019);Leon v. Summit Cty., No. 2:17-cv-165, 2017 WL 5891771, at *4 (D. Utah 

2017); Sisneros v. Fisher, 685 F. Supp.2d 1188, 1208 (D. N.M. 2010); Jensen v. Bd. of Cty. 

Com’rs Wash. Cty., No. 06-CV-68, 2007 WL 2902881, at *6 (N.D. Okla. 2007); Thompson 

v. City of Lawrence, 1994 WL 262598, at *5 n. 6 (D. Kan. 1994). 

As further evidence that the notation is not relevant in this case, the applicable statute 

allows for lawfully arrested individuals to obtain a notation of clearance. See Mohajerin, 244 

P.3d at 111-12 ¶ 14 (remedy provided under § 13-4051 is available to “petitioners . . . seeking 

relief for wrongful arrests or charges that were lawful when they occurred.”) (emphasis 

added). Evidence of Merritt’s Notation of Clearance is irrelevant to the jury’s determination 

of the existence of probable cause.

II. Full and Fair Opportunity to Litigate 

Issue preclusion does not apply “when the party against whom the earlier decision is 

asserted did not have a ‘full and fair opportunity’ to litigate the claim or issue.” State v. 

Walker, 768 P.2d 668, 671 (Ariz. Ct. App. 1989) (quoting Kremer v. Chemical Const. Corp., 

456 U.S. 461, 480-81 (1982)). “Redetermination of issues is warranted if there is reason to 

doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” 

Kremer, 456 U.S. at 480-81. 

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In deciding whether an opportunity to litigate is “full and fair,” a “court must consider 

the parties’ incentive to litigate in the two actions.” Maciel v. CIR, 489 F.3d 1018, 1023 (9th 

Cir. 2007). As the Supreme Court has cautioned, “[i]ssue preclusion may be inapt if ‘the 

amount in controversy in the first action was so small in relation to the amount in controversy 

in the second that preclusion would be plainly unfair.’” B & B Hardware, Inc. v. Hargis 

Indus., Inc., 575 U.S. 138, 159 (2015) (quoting Restatement (Second) of Judgments § 28 cmt. 

j) (emphasis added). After all, “few litigants would spend $50,000 to defend a $5,000 claim.” 

Id. (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice 

& Procedure § 4423 (2d ed. 2002)). 

Indeed, “Arizona courts have [] recognized that, in certain circumstances, the state 

lacks incentive to litigate a case fully.” Walker, 768 P.2d at 671. For instance, the Arizona 

Court of Appeals in Ferris found that a party lacked the incentive to litigate the first case 

fully where the amount at issue in the first action was $1,530.00 and the amount at issue in 

the second action was $17,715.77. Ferris, 660 P.2d at 1259 n. 3 (Restatement (Second) of 

Judgments § 28 cmt. j)); see also Red Bluff Mines v. Indus. Com’n of Ariz., 969 P.2d 1348, 

1354 (Ariz. Ct. App. 1984) (declining to apply issue preclusion where prior claim for burial 

expenses was proportionally so small as to not provide an incentive for the employer to 

actively challenge the claim).2

Section 13-4051, which governs petitions for clearance, “does not allow a petitioner 

to seek damages for any past conduct by law enforcement that was unlawful or illegal.” State 

v. Mohajerin, 244 P.3d 107, 112 ¶ 16 (Ariz. Ct. App. 2010) (emphasis added). A petitioner 

prevailing on his or her petition receives “a notation that the person has been cleared” and the 

2

 Other states following the Restatement (Second) have also applied this exception to issue 

preclusion. See, e.g., Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001) (in 

following Restatement, Colorado Supreme Court found that “[a] party necessarily lacks the 

same incentive to defend where its exposure to liability is substantially less at the earlier 

proceeding.”); Weaver v. City of Everett, 450 P.2d 464, 475 ¶¶ 18-21 (Wash. 2019) (“the 

disparity of relief between [plaintiff’s] two claims was dramatic, which is reason enough to 

conclude that preclusion would be unjust.”) (emphasis added). 

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records from the underlying criminal matter are sealed. A.R.S. §§ 13-4051(A), (B).3 Given 

that Merritt’s Petition created no monetary liability of the State, it would be plainly unfair to 

apply issue preclusion in this matter, where the State’s potential monetary liability is 

significantly greater. Likewise, the County which nominally represented the State lacked the 

adequate incentive to litigate against Merritt’s Petition because the County had voluntary 

dismissed the criminal case against him in April 2016. 

In drafting § 13-4051 the Arizona legislature did not allow for monetary damages 

arising out of any past conduct by law enforcement that was unlawful or illegal. Yet, if a 

petition for clearance has a preclusive effect in subsequent civil suits for monetary damage, 

the Court, in effect, circumvents the legislature’s intent and requires the State to defend 

against petitions as if damages are at stake. As observed by the Ferris Court, “[t]he judicial 

efficiency which can be obtained through application of principles of issue preclusion must 

give way where their rigid application would result in frustration of legislative purpose.” 

Ferris, 135 Ariz. at 333. The Court should deny Merritt’s motion because the State lacked 

the adequate incentive to litigate, and because it would thwart the legislature’s intent that a 

notation of clearance not create liability for any past conduct of law enforcement. UNUM Life 

Ins. Co. v. Craig, 26 P.3d 327, 329-30 ¶ 11 (Ariz. 2001) (“The primary aim of statutory 

construction is to find and give effect to legislative intent.”).

III. No Final Judgment 

Merritt’s Petition does not have a preclusive effect because it is yet to be final. 

Merritt’s motion fails to inform the Court that the State has a timely pending motion to 

intervene before the superior court, filed on August 25, 2020. If the State is permitted to 

intervene, it intends to have the superior court’s order set aside because it was procured by 

fraud or misrepresentation. A “‘judgment ceases to be final if it is in fact set aside by the trial 

3

 The statute “authorizes damages only if officials fail to comply with a clearance order issued 

by the court,” and these damages would be the harm resulting from their release. Mohajerin, 

226 Ariz. at 108 ¶ 16. Stated differently, any monetary damages from a successful petition 

arise from a future act by an official violating the superior court’s order sealing the case. The 

damages are not related to, nor arising out of, the investigation into Mr. Merritt. 

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court[.]’” Campbell, 62 P.3d at 969 ¶ 14 (citing Restatement (Second) of Judgments § 13 cmt. 

f). 

Rule 60(b), Ariz. R. Civ. P., provides in relevant part: “On motion and upon such terms 

as are just the court may relieve a party . . . from [an] order [] for the following reasons: (3) 

fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other 

misconduct of an adverse party.” The State’s motion to the superior court was timely made. 

See Ariz. R. Civ. P. 60(c)(1) (“no more than 6 months after the entry of judgment or order”). 

Moreover, under Arizona’s Rules of Civil Appellate Procedure 9(e), “[i]f a party timely and 

properly files” a motion for relief under Rule 60, “the time to file a notice of appeal . . . begins 

to run from the entry by the superior court clerk of a signed written order disposing of the last 

such remaining motion.” Therefore, the Court should decline to give the superior court’s 

order issue-preclusive effect until the State’s pending motion before the state court has been 

decided. 

IV. No Common Identity of Parties 

Relying on the superior court’s caption to find that there is a common identity of 

parties is to accept form over substance. Merritt correctly notes that Maricopa County 

Attorney’s Office (“MCAO”) “shall [a]ttend the superior and other courts within the county 

and conduct, on behalf of the state, all prosecutions for public offenses.” A.R.S. § 11-

532(A)(1); See also In re Estate of Gordon, 87 P.3d 89, 93 ¶ 19 (Ariz. Ct. App. 2004) (when 

“statute’s meaning is plainly apparent from its language, we simply are not authorized to add 

anything to it unless an absurdity would otherwise result”). Public offenses, as defined by 

statute, “means conduct for which a sentence to a term of imprisonment or of a fine is 

provided by any law of the state in which it occurred or by any law, regulation or ordinance 

of a political subdivision of that state[.]” A.R.S. § 13-105(27). Although MCAO represented 

the State in Merritt’s criminal case, when he filed his Petition for notation of clearance, it 

became a civil action. Mohajerin, 244 P.3d at 110 ¶ 7 (“Although § 13–4051 is part of 

Arizona’s criminal code, a petition filed pursuant to this statute initiates a special proceeding 

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that is in the nature of a civil action.”) (emphasis added) At that juncture, MCAO’s 

representation of the State exceeded its statutory authority. 

Moreover, Merritt’s contention that the State’s counsel in this matter “consulted and 

coordinated” with MCAO is untrue. Based on review of the record in the state court action, 

prior to the superior court’s order sealing, it did not appear that MCAO made the Court aware 

that Merritt’s Petition was itself based on a number of misrepresented factual assertions that 

are directly contrary to the federal court’s express findings at summary judgment. It is the 

State’s understanding that MCAO did not put on any evidence or witnesses in the hearing on 

Merritt’s Petition, nor did it rebut the erroneous factual assertions that this Court previously 

rejected. 

Merritt also ignores that several other defendants in this matter, including Silbert, 

Kalkowski, Milstead, Hunter, Heape, Pinnow, and Falcone were not a party to the Petition 

for Notation of Clearance.4 Nor could MCAO’s representation constitute virtual 

representation for these individuals. See Calpine Const. Fin. Co. v. Ariz. Dep’t of Revenue, 

211 P.3d 1228, 1234 ¶ 28 (Ariz. Ct. App. 2009) (declining to apply virtual representation in 

cases of collateral estoppel). “It is a fundamental tenet of American law that a non-party is 

simply not bound by a judgment in an action to which it was not a party.” See State ex rel. 

Napolitano v. Brown & Williamson Tobacco Corp., 998 P.2d 1055, 1059 ¶ 17 (Ariz. 2000) 

(Martone, J. concurring). The Court’s order dismissing these individuals in this case is not 

final and is still subject to appeal. Given that Merritt intends to use the Petition collaterally, 

these individuals should have had the opportunity to contest the Petition. 

V. Special Circumstances 

“Arizona recognizes that, ‘even in cases in which the technical requirements for the 

application of collateral estoppel are met, courts do not preclude issues when special 

circumstances exist.’” In re Anderson, No. AZ-17-1071, 2017 WL 5163443, at *6 (B.A.P. 

4

 Defendants Silbert, Kalkowski, Milstead, Hunter, Heape, Pinnow, and Falcone are 

represented by undersigned counsel. 

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9th Cir. 2017) (citing Hullett, 63 P.3d at 1035); see also Ferris, 660 P.2d at 1258 (“Principles 

of issue preclusion should not be applied ...where ‘there is some overriding consideration of 

fairness to a litigant, which the circumstances of the particular case would dictate.’”)). 

Collateral estoppel is not to be “rigidly applied” and “must be qualified or rejected where 

their use would contravene an overriding public policy or result in manifest injustice.” Ferris, 

660 P.2d at 1258. 

Here, special circumstances exist preventing the Court from giving preclusive effect 

to the State court’s order of notation. On November 15, 2019, the Court in this case issued its 

summary judgment order. [Doc. 278]. Then, on December 12, 2019, the Court issued its order 

setting trial for April 2020. [Doc. 283]. In mid-January 2020, only two months after this 

Court had already found insufficient evidence for a number of Merritt’s factual assertions, 

Mr. Lamm filed the Petition on behalf of Merritt in superior court. [Doc. 316-1 at 1-19]. Mr. 

Lamm knew that the Petition filed on behalf of Merritt relied on factual assertions directly 

contrary to this Court’s findings at summary judgment. 

Merritt should not be permitted to use affirmative collateral estoppel in this case, given 

the superior court’s order was based on representations this Court has already rejected: 

Merritt Petition5 Court’s Summary Judgment Order 

 “DPS fabricated ballistic evidence.” 

(Petition for Clearance at 3 § (B)(i).) 

 “[Plaintiff] has failed to provide 

sufficient evidence from which a 

reasonable jury could find that the 

ballistics results were intentionally 

fabricated.” (Doc. 278 at 28-29.) 

 “Baroldy perjured himself before the 

grand jury . . . .” (Id. at 12 ¶ 46.) 

 This Court already dispelled this 

contention, finding that Plaintiff’s 

evidence did not prove perjury in the 

grand jury proceeding. (Doc. 278 at 

27 (“Nor does Plaintiff’s other 

evidence prove perjury in the grand 

jury proceeding.”); 39 (“[T]he Court 

already disagreed with Plaintiff’s 

purported inferences of . . . perjury[.]”)

5

 The Petition has since been sealed, but is part of this Court’s record at Doc. 316-1 at 1-19. 

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 “[T]he BMW was shot on August 30, 

2015 at about 9:45 p.m.” (Id. at 3 ¶ 8.)

 The Court found the timing of the 

BMW shooting unresolved and noted 

that it occurred “sometime between 

August 27 and August 30, 2015.” 

(Doc. 278 at 2.) 

 “According to Lucien Haag, a worldrenowned expert hired by MCAO, 

DPS Criminalist Christopher 

Kalkowski misidentified Merritt’s 

gun. (Id. at 4 ¶ 11.) 

 “In his report dated April 14, 2016, 

Haag concluded that the four evidence 

bullets could not be excluded or 

identified as having been fired from 

Plaintiff’s gun.” (Doc. 278 at 3.) 

 Statement that “DPS did not use 

LPR’s the Freeway Shooter 

Investigation . . . was an outright lie.” 

(Id. at 15-16 ¶ 56.) 

 “Further, considering that the DPS did 

not itself use LPRs in the 

investigation, and that the DPS 

officers learned nothing of value from 

the report, it is not at all clear that the 

officers lied when they testified that 

LPRs were not used to investigate 

these shootings.” (Doc. 278 at 21.) 

 “Pole cameras were used by DPS as 

part of this investigation . . .” (Id. at 

16 ¶ 58.) 

 “But Plaintiff does not provide any 

actual evidence of pole camera usage, 

much less any evidence that the pole 

camera data was clearly exculpatory.” 

(Doc. 278 at 25.) 

 “But for Falcone’s false statements 

and suppression of exculpatory 

information in his probable cause 

statement, [the court] could not have 

found probable cause and would likely 

release Merritt from custody 

immediately.” (Id. at 10 ¶ 37.) 

 [T]he Court already disagreed with 

Plaintiff’s purported inferences of . . . 

deliberate fabrication . . . of evidence.” 

(Doc. 278 at 39.) 

As the Ninth Circuit observed in Mozart Company v. Mercedes-Benz of North 

America, Incorporated, 

It would be a curious use of affirmative collateral estoppel to permit one who 

had lost before the jury on certain facts to overturn that verdict by pointing 

out that on different facts, but identical legal principles, the winner before 

the jury had lost a jury verdict to a stranger on an earlier day and in a different 

court. Issue preclusion in its affirmative form is not that expansive. 

83 F.2d 1342, 1348 (9th Cir. 1987) (emphasis added). Yet this is exactly what Merritt 

endeavors to do here. 

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The Court in this case made findings at summary judgment that certain allegations 

lacked sufficient factual support for a jury to find in Merritt’s favor. In turn, Merritt’s counsel 

subsequently filed his Petition and argued at a hearing that Merritt was entitled to a notation 

of clearance, relying on evidence already deemed to be insufficient by this Court. The 

commissioner issued a Notation of Clearance wholly unaware that his order relied on factual 

assertions already dispelled in this matter. Now, Merritt returns to this Court, arguing that his 

Notation, which was obtained via misrepresentations of fact, is issue preclusive.6 To allow as 

much would not only be manifestly unjust, but would also circumvent this Court’s findings 

at summary judgment. 

STATE’S COUNTER-MOTION TO EXCLUDE ARGUMENT OR 

EVIDENCE OF THE NOTATION OF CLEARANCE 

The Court should preclude Merritt from introducing it to the jury for three reasons. 

First, Merritt already stipulated that the parties would not introduce evidence or argument 

concerning Plaintiff’s Notation of Clearance. See [Doc. 316 n. 4]; see also [January 29, 2020 

Email from J. Lamm to E. Novak, attached hereto as Exhibit A (Lamm: “We will stipulate 

that no mention of the NOC will be made to the jury at trial.”)]. Second, as set forth above, 

the Notation of Clearance is wholly irrelevant to this case. 

Third, the danger of unfair prejudice and confusion of the issues otherwise 

substantially outweighs any probative value. See Fed. R. Evid. 403; See, e.g., Borunda, 885 

F.2d at 1387-88 (citing S. Gard, 2 Jones on Evidence § 12:25, at 391 (6th ed. 1972)) 

(“Evidence of an acquittal is not generally admissible in a subsequent civil action between 

the same parties since it constitutes a ‘negative sort of conclusion lodged in a finding of failure 

of the prosecution to sustain the burden of proof beyond a reasonable doubt.’”). In Borunda, 

6

 Nor is it clear how Merritt’s motion does not run afoul of the law of the case doctrine, which 

provides that the decision of a court in a case is the law of that case on the issues decided 

throughout all subsequent proceedings in both the trial and appellate courts, provided the 

facts, issues and evidence are substantially the same as those upon which the first decision 

rested. Dancing Sunshines Lounge v. Indus. Com’n of Ariz., 720 P.2d 81, 83 (Ariz. 1986). 

Here, there has been no change in the facts, issues, or evidence, warranting a change in the 

Court’s ruling. 

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the plaintiff brought an action under 42 U.S.C. § 1983, which included a demand for 

attorney’s fees. In that case, the Ninth Circuit found that the trial court did not abuse its 

discretion in allowing evidence of the plaintiffs’ acquittals “solely for the purpose of showing 

that the plaintiffs incurred damages in the form of attorneys’ fees in successfully defending 

against the state criminal charges.” 885 F.2d at 1388. The Ninth Circuit observed that, even 

for that limited purpose, the potential for prejudice was “not insubstantial” and that the trial 

court “must exercise great care in formulating appropriate limiting instructions if it chooses 

to venture forth into this hazardous area.” Id. at 1389. 

Here, unlike in Borunda, Plaintiff does not have a § 1983 claim remaining and cannot 

recover such damages under his surviving state law claims. In light of the factual distinctions 

between this case and Borunda, evidence of the notation should be excluded. Id. (“This court 

would have been inclined to exclude the evidence of acquittals altogether” except that 

plaintiffs sought recovery of attorneys’ fees as part of their § 1983 claim); see also Wisler v. 

City of Fresno, No. CV F 06–1694 AWI SMS, 2008 WL 2880442, *2 (E.D. Cal. July 22, 

2008) (“. . . the probative value of the dismissal is substantially outweighed by its unfair 

prejudice to Defendants and the undue consumption of Court time.”). 

The adverse inference that the jury is likely to draw from hearing that Merritt was 

granted a Notation of Clearance warrants its exclusion from trial evidence. The superior 

court’s ruling, which was not based on whether the arresting officer reasonably believed there 

was probable cause to arrest the defendant, relied on representations by Plaintiff’s counsel 

contrary to factual findings already made in this case. Moreover, the jury’s speculation about 

the Notation of Clearance here could be very damaging to the defendant officers, especially 

after Plaintiff’s counsel gave interviews to the media in which he deliberately intermingled 

his discussion about the Notation with facts only relevant in this case. 

CONCLUSION 

Merritt’s Petition was based on erroneous factual assertions that Plaintiff’s counsel 

knew were unsupported and directly contrary to this Court’s previous findings on summary 

judgment. Such conduct violates several ethical rules. Plaintiff’s counsel used these 

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misrepresentations to obtain the Notation of Clearance, used the Notation to make improper 

and inappropriate comments to the media in an effort to taint the jury pool, and now seeks to 

use the Notation of Clearance to overturn the very findings and conclusions in this Court’s 

summary judgment order. 

Merritt’s Motion should be denied because the State did not have a full and fair 

opportunity and motive to litigate the issue before the superior court, there has yet to be a 

valid and final decision on the merits in that case, and the notation of clearance did not have 

a common identity of parties. Even if the Court finds that the technical requirements for issue 

preclusion are met—they are not—special circumstances, namely Merritt’s reliance on 

factual assertions already dispelled by this Court before the superior court, prevent the Court 

from applying the doctrine in this case. Finally, the issue is neither identical to the issues still 

remaining in this case, nor is it relevant for a jury to determine their outcome. 

The State also requests that the Court grant its counter-motion, enforcing the parties’ 

prior stipulation and preventing any argument or evidence of the Notation at trial. In the 

alternative, the State requests that the Court find mention of the Notation is unduly 

prejudicial. 

RESPECTFULLY SUBMITTED this 30th day of September, 2020.

POLSINELLI PC 

By: /s/ Edward F. Novak 

Edward F. Novak 

Melissa Ho 

Jonathan G. Brinson 

Andrew T. Fox 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 30th day of September, 2020, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 

Clerk of the Court 

United States District Court, District of Arizona 

Sandra Day O’Connor Courthouse 

401 W. Washington Street 

Phoenix, AZ 85003 

Jason D. Lamm 

Law Office of Jason Lamm 

2501 North Seventh Street 

Phoenix, Arizona 85006-1062 

jlamm@cyberlawaz.com

David J. Don 

Law Office of David J. Don, PLLC 

301 E. Bethany Home Road, Suite B-100 

Phoenix, AZ 85012 

david@azcivilrights.com

By: /s/ Erika Cano 

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