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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 TO PLAINTIFF’S MOTION

IN LIMINE NO. 9
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Plaintiff’s prior police encounters are highly relevant and material to the “totality of

circumstances” known to officers at the time of arrest. There is no question that officers had

knowledge of Merritt’s prior police interactions at the time of his arrest, and that these

interactions informed their decision to make the arrest. Some of these interactions included

“two parking lot light posts glass covers [that] had been shot out” “with a BB handgun,”

shooting out of multiple windows with a BB gun, “mishandling of black powder causing

extensive damage,” and domestic violence.1[Doc. 299-1]. The State’s witnesses will testify

that these prior interactions were consistent with a profile that they expected for the I-10

shootings. Excluding this information will preclude the jury from considering the “totality

of circumstances” that officers relied upon to make the arrest. This is unfairly prejudicial

and contrary to law. [Doc. 278 at 5:8-11 (“Probable cause to arrest exists when, ‘under the

totality of the circumstances known to the arresting officers, a prudent person would have

concluded that there was a fair probability’ the defendant committed a crime”)].

Moreover, where Plaintiff alleges to have suffered mental distress as a result of a

wrongful arrest, Defendant should not be precluded from offering evidence of Plaintiff’s

prior police encounters to rebut the cause and degree of Merritt’s mental distress. See, e.g.,

Brooks v. Haggett, No. 07-2615-MEJ, 2010 WL 4226693, at *8 (N.D. Cal. Oct. 21, 2010)

(“Defendant is correct . . . that the jury cannot decide how much distress to attribute to a

particular incident in a vacuum. Accordingly, subject to a limiting instruction that the

information can be used only in determining plaintiff’s damages, defendant can elicit

testimony that plaintiff has a history of prior police encounters”) (emphasis added);

Halverson v. Baird, 146 F.3d 680, 686–87 (9th Cir. 1998) (affirming the trial court’s

admission of evidence concerning plaintiff’s prior admission to a detox facility in instances

other than the one at issue because it is highly relevant to the plaintiff’s damages, which

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Plaintiff references “noise complaints.” A review of Exhibit 1 shows that none of Merritt’s

11 police interactions between 2009 and 2014 involved noise complaints.
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included claims of mental distress as a result of his involuntary hold in the detox facility

because distress would be far less than previous times admitted to the facility).

The evidence is highly probative of Plaintiff’s mental distress because an individual

with frequent run-ins with law enforcement may not be as damaged by being arrested as

another person with no such run-ins. See, e.g., Ford v. Wells, 347 F. Supp. 1026, 1030 (D.

Tenn. 1972). Even the legal authority cited by Plaintiff recognizes as much. See Monroe v.

Griffin, No. 14-cv-795, 2015 WL 5258115, at *3 (N.D. Cal. Sept. 9, 2015) (noting that the

court would reconsider its ruling on evidence of prior arrests if plaintiff opens the door by

framing his emotional distress claim in a broad manner, and that “defendants may seek to

introduce such evidence”).

Moreover, Plaintiff has put his mental state at issue when he “claimed to have

suffered, among other things, emotional distress as a result of the defendants’ conduct.”

[Jill Hayes Report, attached hereto as Exhibit A at 2]. He also offers Jill Hayes as an expert

who was “asked . . . to evaluate to what extent, if any, the alleged conduct of the

Defendants is/was proximately related to [Plaintiff’s] claimed emotional distress.” [Id.]. As

part of this analysis, Hayes was asked to opine on, among other things, “[w]hether any

stressors apart from subject matters of the litigation have contributed to Mr. Merritt’s

emotional distress, to the extent they exist?” [Id.]. In answering this question, Hayes stated

that Merritt’s “several contacts with law enforcement as a juvenile and as an adult” were

merely “remote” psychosocial stressors. [Id. at 29-30]. In dispelling the effects of these

“remote” stressors, Hayes provides in full: “Mr. Merritt has demonstrated the capacity to

overcome his remote psychosocial stressors.” [Id. at 29-31]. Defendant should be permitted

to rebut this testimony.

To the extent Merritt alleges loss of companionship with his family, this evidence is

relevant and material. Contrary to Plaintiff’s characterization of these events as “minor

disturbances involving family members,” Merritt “punched [Sauceda] with a closed fist,”

“punched his sister Janice Merritt in the mouth,” “punched [Janice] with his right fist,” and
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“punched his aunt Tonja Merritt in the face” “causing her nose to bleed.” [Doc. 299-1 at 2-

4]. As such, the State should not be precluded from introducing evidence directly relevant

to Merritt’s claim for damages.

Accordingly, Defendant hereby requests that the Court deny Plaintiff’s Motion in

Limine No. 9.

RESPECTFULLY SUBMITTED this 6th day of March, 2020.

POLSINELLI PC

By: /s/ Jonathan G. Brinson

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 6th day of March, 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

6245 North 24th Parkway, Suite 208

Phoenix, AZ 85016-2030

jlamm@cyberlawaz.com

By: /s/ Erika Cano