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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie A. Merritt, Jr.

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.

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Case No.: CV17-4540-PHX-DGC

SECOND AMENDED

COMPLAINT

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Plaintiff Leslie A. Merritt, Jr. alleges as follows: 

JURISDICTION AND VENUE

1. This action arises under 42 U.S.C. § 1983 based on violations of the Fourth 

and Fourteenth Amendments to the United States Constitution and the common 

law of the State of Arizona.

2. This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. 

§ 1343 and supplemental jurisdiction under 28 U.S.C. § 1367.

3. Venue is proper as the actions arising from this case occurred in Maricopa 

County, Arizona.

4. Plaintiff demands a trial by jury.

PARTIES

5. Plaintiff Leslie Merritt, Jr. is a single man and a current resident of Clay 

County, Florida.

6. Defendant State of Arizona is a body politic with administrative jurisdiction 

over the Arizona Department of Public Safety (DPS) and the DPS Central Regional 

Crime Lab (CRCL). The State is responsible for the administration, operation, 

maintenance, policies, procedures and functions of DPS and the CRCL. The State is 

the employer, master, and/or principal of each individual DPS Defendants and the 

other DPS and CRCL personnel who participated in the investigation, arrest, and/or 

criminal prosecution of Leslie Merritt, Jr. 

7. The following individual Defendants work at the relevant times to this lawsuit 

in the stated capacities with the Arizona Department of Public Safety: DPS Deputy 

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Director Heston Silbert; DPS criminalist Christopher Kalkowski; DPS Director Col. 

Frank Milstead; DPS Lt. Col Ken Hunter; DPS Major Kelly Heape; DPS Captain 

Jennifer Pinnow; and DPS Detective Anthony Falcone (collectively "DPS 

Defendants"). Each DPS Defendant is sued in his or her individual capacity. Each 

DPS Defendant acted under color of state law. 

8. Defendant Bill Montgomery, in his official capacity, is and was, at all times 

relevant to this lawsuit, the elected Maricopa County Attorney. As the Maricopa 

County Attorney, Montgomery is responsible for the administration, operation, 

maintenance, policies, procedures and functions of the Maricopa County Attorneys’ 

Office, the implementation of policies and procedures, the training and supervision 

of staff, and the provision of criminal justice to all residents of Maricopa County, 

including Leslie Merritt, Jr. Defendant Montgomery is the employer, master, 

and/or principal of each individual Deputy County Attorney and staff member in 

the Maricopa County Attorney’s Office who participated in the investigation, arrest,

and/or criminal prosecution of Leslie Merritt, Jr.

9. The following individual Defendants work in the stated capacities with the 

Maricopa County Attorney Office: Maricopa County Attorney Bill Montgomery, 

Deputy County Attorney Edward Leiter, and Deputy County Attorney Vanessa 

Losicco (collectively "MCAO Defendants"). Each MCAO Defendant is sued in his or 

her individual capacity. Each MCAO Defendant acted under color of state law. 

10. Defendant Maricopa County is a body politic. Maricopa County is also the 

employer, master, and/or principal of each individual Deputy County Attorney and 

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staff member in the Maricopa County Attorney’s Office who participated in the 

investigation and/or criminal prosecution of Leslie Merritt, Jr. 

COMMON FACTS

A. The DPS Defendants undertook to investigate the I-10 Freeway 

Shooting Case.

11. In the summer of 2015, the DPS Defendants undertook responsibility for 

investigating a series of shootings that occurred along or near the I-10 freeway in 

Phoenix, Arizona, which became known as the “I-10 Freeway Shooting Case.”

12. During its investigation, DPS retrieved bullets and/or bullet fragments from 

four separate shooting incidents: Incidents A, B, C, and D. 

13. Incident A occurred August 29, 2015, at approximately 1103 hours involving 

a Cadillac Escalade traveling eastbound on the I-10 near 19th Avenue. 

14. Incident B occurred at approximately 1109 hours involving a passenger bus 

traveling westbound on the I-10 near 43rd Avenue.

15. Incident C occurred at approximately 2215 hours involving a Kia traveling

eastbound on the I-10 near the exit for northbound SR51 and eastbound SR 202. 

16. Incident D occurred August 30, 2015, between 2145 and 2215 hours involving 

a BMW traveling westbound on the I-10 near SR 51. 

17. Defendants have failed to produce any evidence that Incident D occurred at 

any other time other than between 2145 hours and 2215 hours on August 30, 2015.

18. Defendants have produced no evidence that Leslie Merritt, Jr. was at or near 

the scene of any of the shooting incidents.

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19. On August 31, 2015, DPS Detective Ron Baroldy requested that the DPS crime 

lab (hereinafter “CRCL”) analyze and compare the bullets and bullet fragments 

recovered from the four shooting incidents. 

20. Defendant Christopher Kalkowski at the DPS crime lab told DPS detectives 

that the evidentiary bullets and fragments from all four incidents all came from a 

single firearm with certain class characteristics.

21. Kalkowski identified the evidentiary bullets and fragments as having been 

fired from a 9mm handgun that caused cartridges to spiral three times with a 

leftward twist as they emerged from the barrel. Based on these characteristics, 

Kalkowski determined that the make and model of the firearm as a Model C9 

manufactured by Hi-Point. 

22. DPS crime lab personnel contacted Hi-Point and learned that the company 

had produced about 286,800 Model C9 firearms that are capable of creating the 

characteristics that CRCL personnel purportedly found on the bullets and bullet 

fragments recovered in the various shooting incidents.

B. The Pawn Shop Connection

23. Meanwhile, the DPS Defendants were under intense public pressure and 

media scrutiny to solve the I-10 Freeway Shooting Case. 

24. By September 2015, DPS personnel were working overtime on the 

investigation. Detectives normally assigned to other details within DPS were 

temporarily assigned to work on the I-10 Freeway Shooting Case as well. All the 

detectives in the General Investigations Unit were assigned to the I-10 Freeway 

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Shooting Case. 

25. On September 5, 2015, DPS officer Travis Graff started as a new detective on 

the General Investigations Squad. He was immediately assigned to the I-10 Freeway 

Shooting Case.

26. Detective Graff had not at that time received any training in investigating 

weapons-related offenses, gun identification, or ballistics.

27. While still being trained, Detective Graff was aware or became aware that DPS 

had access to a computerized PAWN database. 

28. The PAWN database, which is designed to assist in the recovery of stolen 

property, identifies the items in possession of various pawn shops.

29. Detective Graff asked his supervisor, Sgt. Tony Mapp, whether he could use 

the system to see if any Hi-Point 9 mm firearms were in pawn shops.

30. Sgt. Mapp responded that “if you want to buy a lottery ticket to go ahead,” or 

words to that effect.

31. Accordingly, on September 17, 2015, Detective Graff traveled to various pawn 

shops to collect Hi-Point 9mm Model C9 firearms that were in pawn. DPS collected 

eight such firearms, including more than one from Mo Money Pawn Shop, located 

at 1152 East Indian School Road, Phoenix, Arizona.

32. The PAWN database contained information about the various eight firearms, 

including the dates and times at which they were respectively pawned and retrieved 

by their owners.

33. At the time that Detective Graff collected one of the Hi-Point C9 firearms from 

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Mo Money Pawn, he knew from the PAWN database that it had been pawned by its 

owner on August 30, 2016, at approximately 5:31 p.m., more than four hours 

before the occurrence of Incident D.

34. Records from Mo Money Pawn Shop confirmed that the firearm which

Detective Graff seized had been pawned there by Leslie Merritt, Jr. on August 30, 

2016, at about 5:31 p.m.

35. On September 17, 2015, Detective Graff took the pawn shop firearms, 

including Leslie Merritt’s, to the DPS crime lab. Defendant Kalkowski was waiting 

for him. 

36. At the time, Kalkowski was suffering from a severe back injury and had been 

taking narcotic pain medication prescribed by at least one physician. 

37. At or around the same time, DPS personnel were searching Leslie Merritt’s 

Facebook profile and saw that he had shared newspaper articles about the I-10 

Freeway Shooting Case. 

38. DPS personnel told the crime lab to test Leslie Merritt’s gun first. 

39. Defendant Kalkowski intentionally, knowingly and recklessly falsified his 

methodology to analyze the evidentiary bullets and fragments.

40. The evidentiary bullets and fragments submitted to the DPS crime lab 

contained insufficient data for a firearm examiner to make a positive individualized 

match to any particular firearm.

41. Defendant Kalkowski intentionally, knowingly and recklessly failed, among 

other things, to line up the driving edges of the lands when comparing test fire and 

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evidentiary bullets. As a result, Kalkowski's conclusions were false.

42. Despite his knowing and reckless use of flawed methodology, on September 

18, 2015, at 8:08 a.m., Defendant Kalkowski called Detective Graff and told him that 

the evidence bullets from all four shooting were a “100% match” to Leslie Merritt’s 

gun. 

43. Defendant Kalkowski told Detective Graff that the “100% match” was true of 

all four incidents with respect to Merritt’s gun.

44. The statement of Defendant Kalkowski that Merritt’s gun was the firearm that 

fired the bullets in all four shootings to a “100% certainty” was the only evidence 

that linked Merritt to any of the shooting incidents. 

45. Without the statement of Defendant Kalkowski, Leslie Merritt would not have 

been subject to an arrest, incarceration, attempted prosecution, deprivation of his 

civil rights, and damages. 

46. Leslie Merritt, Jr. is factually innocent of any of the crimes with which he was 

charged or arrested.

C. Defendant Kalkowski Misled the Police About the Probability of 

an Identification

47. Defendant Kalkowski intentionally and/or recklessly misled detectives that 

they could identify Leslie Merritt’s firearm as the source of the evidentiary bullets 

and fragments for all four incidents with “100% certainty.”

48. Firearms examiners, like other applied scientists, are subject to cognitive 

biases and distortions, such as confirmation bias, hindsight bias, contextual bias, 

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and outcome bias, which compromise the accuracy of their conclusions. Firearms 

examiners are particularly prone to such biases and distortions when working under 

the pressure of a high profile case. 

49. The Arizona Department of Public Safety Crime Lab failed to implement 

safeguards to detect and eradicate bias among its firearms examiners.

50. In this case, Defendant Kalkowski had only identified general class 

characteristics of the evidentiary bullets. He failed to identify the individual 

characteristics of the evidence bullets as having been fired from any particular 

firearm. 

51. Defendant Kalkowski's actions and omissions lacked a scientific basis and 

violated the standards of the firearms community.

D. DPS Defendants Knew that the Crime Lab Had Botched the 

Identification

52. On September 18, 2015, DPS detectives executed a search warrant at the MO 

Money Pawn Shop and picked up several pawn slips.

53. Before arresting Leslie Merritt, Defendants recognized that Leslie Merritt’s 

gun was at the pawn shop on August 30, 2015, at 5:31 p.m., before the time of the 

fourth shooting, Incident D.

54. Defendants recognized that it was physically impossible for Leslie Merritt’s 

firearm to have been used in Incident D when it was in the pawn shop. 

55. Defendants lacked any evidence that Leslie Merritt did not pawn his gun at 

5:31 p.m. on August 30, 2015.

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56. Since the Kalkowski identified each of the evidentiary bullets and fragments 

to Leslie Merritt’s gun with 100% certainty for each of the four incidents, DPS 

Defendants recognized that if Incident D could not be linked Leslie Merritt’s 

firearm, then none of the incidents could be linked to the firearm. 

57. In other words, Defendants recognized before the arrest of Leslie Merritt, Jr. 

that only one of two scenarios could be true: either (a) Kalkowski misidentified the 

evidentiary bullets as having been fired from Leslie Merritt’s gun, or (b) Incident D

did not occur when Merritt’s gun was in the custody of Mo Money Pawn Shop.

E. All Defendants Fabricated a Timeline to Fit a Theory

58. In response to their dilemma, Defendants should have obtained independent 

firearms analysis from outside DPS. Instead, Defendants blithely chose to 

completely discount the first scenario and, rather, invented a theory that the tire 

involved in Incident D must have been shot days earlier, with the bullet lodging in 

the sidewall of the tire, only to later dislodge and deflate the tire on the night of 

August 30, 2015, after Leslie Merritt’s gun was in the pawn shop.

59. To bolster their fabricated theory, DPS detectives conducted a second 

interview with the driver of the BMW involved in Incident D and suggested that he 

was incorrect in his timing of the fourth shooting. The BMW driver disregarded their 

suggestion, reiterating that he could tell that the tire deflated promptly upon being 

shot.

60. During the pendency of the criminal case against Plaintiff, DPS consulted 

with forensic scientist Lucien C. Haag to examine the BMW tire. Haag informed DPS 

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that the bullet striking the tire caused it to deflate almost immediately and no bullet 

ever lodged for a period of days before causing the tire to deflate. 

61. In fact, Defendants knew that the gouge marks on the BMW tire from Incident 

D establish that the bullet passed immediately through the tire causing it to deflate 

almost instantaneously. 

62. In two separate interviews with DPS detectives, the driver of the vehicle of 

Incident D was adamant that the shooting occurred between approximately 9:45 

and 10:15 p.m. on Sunday, August 30, 2015, and that that the bullet did not lodge in 

the sidewall based on all of his observation and knowledge.

63. DPS knew or had reason to know that no objective evidence had ever 

supported the claim that the bullet was lodged in the tire for days before it finally 

caused the tire to deflate. 

64. Defendants knew that without evidence to support a change in the time of 

Incident D, Defendant Kalkowski's statements were unreliable and failed to support 

that Leslie Merritt had committed any crime. Rather than obtain an independent 

firearms analysis to resolve their dilemma, Defendants rushed ahead to blame Leslie 

Merritt, Jr.

F. All Defendants were Integral Participants in the Arrest.

65. All Defendants caused or were an integral participant in the arrest of Leslie 

Merritt, Jr. without probable cause that he committed a crime.

66. On September 18, 2015, Defendants Silbert, Milstead, Hunter, Heape, and 

Pinnow ordered that Leslie Merritt should be arrested. 

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67. According to Defendant Milstead, the MCAO Defendants also participated in 

the decision to arrest Leslie A. Merritt, Jr..

68. Without the participation of each Defendant, Leslie Merritt would not have 

been arrested.

69. The arrest of Leslie Merritt, Jr. occurred without an arrest warrant. 

70. Defendants failed to produce any evidence that Mr. Merritt was present at the 

scene of any of these shootings or that he unlawfully fired a gun. As Mr. Merritt was 

and is factually innocent of the charges, there was no such evidence that could be 

produced.

G. Leslie Merritt, Jr. was Working and Taking Care of His Family

71. On September 18, 2015, Leslie Merritt was 21 years old. He was working as a 

landscaper and parenting two young children.

72. At about 6:15 p.m., Leslie Merritt was driving to Walmart to buy some diapers 

and wipes for his five-month-old daughter.

73. After completing his purchase, he proceeded to the parking lot to return to his 

car. Suddenly, he saw Department of Public Safety SWAT officers rushing toward 

him, pointing their automatic rifles, and yelling at him to get on the ground. 

74. Defendants forced him to face lay down on the parking lot. 

75. Next, DPS drove him to an interrogation room and interrogated him for over 

an hour, accusing him of a crime he did not commit. 

76. Leslie repeatedly declared his innocence. 

77. During the interrogation, DPS detectives lied to Leslie Merritt and told him 

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that they had a video of him.

78. Leslie Merritt asked to see the alleged video. No such video exists.

79. Leslie never asked for a lawyer. He thought that since he was answering all 

of their questions and has never fired a weapon at anyone, he would be going home. 

80. Instead, DPS officers booked Leslie Merritt into 4th Avenue Jail. Defendant 

Falcone intentionally used false information in booking paperwork because he 

recognized that no probable cause existed to arrest Leslie Merritt. 

81. Merritt would not be released until he had spent over two hundred days in 

solitary confinement. 

H. Defendants Suppressed Material Exculpatory Evidence Before 

the Grand Jury and Delayed Disclosure to Merritt’s Counsel.

82. After the warrantless arrest of Leslie Merritt, MCAO Defendants chose to 

bring the case before the Grand Jury.

83. The Maricopa County prosecutor, Defendant Edward Leiter, misled the 

Grand Jury that Incident D occurred between the dates of August 22, 2015, and 

August 27, 2015. 

84. All Defendants knew that Leslie Merritt did not have access to his gun at the 

time of the fourth shooting incident.

85. Defendants knew that zero evidence supported their fabricating a timeline to 

account for Incident D and hence grant credence to Kalkowski's misidentification. 

86. Defendants deliberately misled the Grand Jury that they had any evidence to 

support their theory that the bullet lodged in the inner sidewall of the BMW tire. 

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87. Defendants deliberately failed to disclose to the Grand Jury the physical 

evidence of gouge marks on the BMW tire showing conclusively that the bullet 

passed right through the tire, and that the Defendants’ theory of the bullet lodging

in the tire was baseless. 

88. Defendants misled the Grand Jury that the crime lab had “definitively” and 

had “100 percent ballistically identified” Leslie Merritt’s firearm to have fired the 

bullets from the four shooting incidents. 

89. Defendants deliberately misled the Grand Jury that the driver of the vehicle 

in Incident D was “assuming or guessing” or “unsure” about when his BMW tire 

sustained damage. 

90. Defendants deliberately suppressed material, exculpatory evidence during 

the prosecution, including specifically the second interview of the BMW driver in 

Incident D and license plate reader (LPR) data.

I. Montgomery Knew that Merritt was not the Freeway Shooter 

91. Montgomery, MCAO Defendants, and Maricopa County recognized that the 

DPS Crime Lab had botched the identification. 

92. As a result, Montgomery, MCAO Defendants, and Maricopa County retained 

criminalist Lucien C. Haag to examine the ballistic evidence in the case. 

93. On or about February 3, 2016, Haag collected Merritt’s gun and the 

evidentiary bullets and bullet fragments from the DPS crime lab.

94. Mr. Haag reviewed the DPS criminalists’ work and conducted his own 

investigation. He failed to match Leslie Merritt’s gun as the source of any of the 

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evidentiary bullets or bullet fragments in any of the shootings.

95. In February 2016, Haag informed Montgomery, MCAO Defendants, and 

Maricopa County that he could not match Leslie Merritt's gun as the source of any 

evidence in the case.

96. In April 2016, Montgomery, MCAO Defendants, and Maricopa County also 

retained John E. Murdock, Forensic Consultant, who also examined the ballistic 

evidence. Mr. Murdock informed Montgomery, MCAO Defendants, and Maricopa 

County that he could not match Leslie Merritt's gun as the source of any evidence in 

the case.

97. On or about April 19, 2016, Leslie Merritt, Jr. was released from jail.

98. On April 22, 2016, Montgomery and MCAO Defendants filed a motion to 

dismiss the criminal case against Leslie Merritt, Jr.

99. On April 25, 2016, the court dismissed the criminal case.

100. On or about April 29, 2016, at the request of Defendant Silbert, forensic 

scientist Gregory Klees of the Bureau of Alcohol, Tobacco, and Firearms conducted 

an independent examination of Merritt’s firearm and the evidentiary bullets. Mr. 

Klees, along with Mr. Haag and Mr. Murdock, failed to match Leslie Merritt's 

firearm as the source of any evidence in the I-10 Freeway Shooting Case.

101. All the while, Leslie Merritt has suffered intensely and immensely from the 

false accusations which all Defendants have levied against him.

102. As a result of Defendants’ actions, Leslie Merritt, Jr. is afraid that DPS is 

continuing to conduct covert surveillance of him. He feels threatened and 

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vulnerable. He has had difficulty sleeping and experienced loss of appetite. He 

tends to avoid social situations and is sometimes recognized in public and 

confronted by strangers. 

103. Even after the dismissal of all charges against Merritt, Defendant Milstead 

and Defendant Silbert have testified that DPS still believes that Merritt is the I-10 

Freeway Shooter.

104. Some or all of the DPS Defendants have caused ongoing surveillance of Leslie 

Merritt, Jr. causing him emotional distress.

105. Defendant Montgomery still makes public comments that Leslie Merritt, Jr. 

is a suspect, although the evidence supporting his innocence is only getting stronger.

FIRST CAUSE OF ACTION – False Arrest

(Against All DPS and MCAO Defendants)

106. Plaintiffs re-allege each and every allegation contained above as though more 

fully set forth herein.

107. This Cause of Action is brought pursuant 42 U.S.C. § 1983 and the Fourth 

Amendment to the Constitution of the United States.

108. All Defendants acted during all relevant times under color of law.

109. On September 18, 2015, the defendants, individually and in concert with the 

others, did deprive Leslie A Merritt, Jr. of his rights secured by the Fourth 

Amendment to the United States Constitution, including his right to be secure in his 

person and free from unlawful arrest. 

110. Defendants' actions were a direct and proximate cause of DPS officers 

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arresting Leslie Merritt, Jr. without a warrant. 

111. Defendants are unable to establish that the arrest was founded upon probable 

cause.

112. As a direct and proximate result of Defendants’ misconduct, Leslie Merritt 

suffered severe physical pain, mental anguish, and emotional distress, medical 

expenses, and lost wages in an amount to be proven at trial.

SECOND CAUSE OF ACTION- False Imprisonment

(Against All DPS and MCAO Defendants)

113. Plaintiff re-alleges and incorporates by reference each and every allegation 

contained above as though more fully set forth herein.

114. This Cause of Action is brought pursuant 42 U.S.C. § 1983 and the Fourteenth 

Amendment to the Constitution of the United States.

115. Defendants’ actions as indicated above constitute false imprisonment.

116. Defendants caused Leslie Merritt to be imprisoned against his will. 

117. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical pain, 

mental anguish, and emotional distress, medical expenses, and lost wages in an 

amount to be proven at trial.

THIRD CAUSE OF ACTION -Malicious Prosecution

(Against All DPS and MCAO Defendants)

118. Plaintiff re-alleges by reference every allegation contained above as though 

more fully set forth herein. 

119. This Cause of Action is brought pursuant to the Fourteenth Amendment and 

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42 U.S.C. § 1983. 

120. Defendants initiated or caused a criminal proceeding to be brought against 

Leslie Merritt, Jr.

121. The Defendants’ criminal prosecution of Leslie Merritt, Jr. terminated in his

favor.

122. The prosecution lacked probable cause.

123. Defendants acted with malice, or with a primary purpose other than to bring 

Leslie Merritt, Jr. to justice. 

124. Defendants acted with the intent to deprive Leslie Merritt, Jr. of equal 

protection of the laws and intended to subject him to a denial of his constitutional 

rights.

125. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt, Jr. suffered severe physical 

pain, mental anguish, emotional distress, medical expenses, and lost wages in an 

amount to be proven at trial.

FOURTH CAUSE OF ACTION - 42 U.S.C. § 1983 Brady claim

(Against All DPS and MCAO Defendants)

126. Plaintiff re-alleges by reference every allegation contained above as though 

more fully set forth herein. 

127. This Cause of Action is brought pursuant to the due process clause of the 

Fourteenth Amendment and 42 U.S.C. § 1983. 

128. During the pendency of the criminal action against Leslie Merritt, Jr., 

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Defendants acted with deliberate indifference or reckless disregard by withholding 

or concealing evidence that strongly indicated Merritt's innocence of the crimes for 

which he was held and which were reasonably likely to have resulted in a dismissal 

of the charges against him if revealed.

129. In particular, Defendants failed to timely disclose, among other things, the 

second interview of Alfred Hackbarth which occurred on September 22, 2015, 

License Plate Reader data, undercover ("honeypot") website data, and crime lab 

notes.

130. The failure of Defendants to disclose such highly exculpatory evidence 

occurred while Defendants understood the risks to the Plaintiff's rights by virtue of 

their withholding the information, or they were completely indifferent to those 

risks.

131. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt, Jr. was detained for an 

excessive and unusual period of time. 

132. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical pain, 

mental anguish, and emotional distress, medical expenses, and lost wages in an 

amount to be proven at trial.

133. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical pain, 

mental anguish, and emotional distress, medical expenses, and lost wages in an 

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amount to be proven at trial.

FIFTH CAUSE OF ACTION – False Arrest

(Against State of Arizona)

134. Plaintiffs re-allege each and every allegation contained above as though more 

fully set forth herein.

135. This Cause of Action is brought pursuant to Arizona common law. 

136. On September 18, 2015, DPS officers arrested Leslie Merritt, Jr. without a 

warrant. 

137. The State is unable to establish that the arrest was founded upon probable 

cause.

138. The State of Arizona is liable under the doctrine of respondeat superior for 

the tortious acts of its law enforcement and crime lab personnel committed within 

the scope of their employment.

139. As a direct and proximate result of Defendants’ misconduct, Leslie Merritt 

suffered severe physical pain, mental anguish, and emotional distress, medical 

expenses, and lost wages in an amount to be proven at trial.

SIXTH CAUSE OF ACTION- False Imprisonment

(Against Defendants State of Arizona, Maricopa County, and Bill 

Montgomery)

140. Plaintiffs re-allege and re-incorporate by reference each and every allegation 

contained above as though more fully set forth herein.

141. This Cause of Action is brought pursuant to Arizona common law. 

142. Defendants’ actions as indicated above constitute false imprisonment.

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143. Defendants caused Leslie Merritt to be imprisoned against his will. 

144. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical pain, 

mental anguish, and emotional distress, medical expenses, and lost wages in an 

amount to be proven at trial.

SEVENTH CAUSE OF ACTION -Malicious Prosecution

(Against Defendants State of Arizona, Maricopa County, and Bill 

Montgomery)

145. Plaintiffs re-allege by reference every allegation contained above as though 

more fully set forth herein. 

146. This Cause of Action is brought pursuant to Arizona law. 

147. Defendants initiated or caused a criminal proceeding to be brought against 

Leslie Merritt, Jr.

148. The Defendants’ criminal prosecution of Leslie Merritt, Jr. terminated in 

Leslie’s favor.

149. The prosecution lacked probable cause.

150. In their investigatory process, Defendants acted with malice, or a primary 

purpose other than to bring Leslie Merritt to justice. 

151. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical pain, 

mental anguish, and emotional distress, medical expenses, and lost wages in an 

amount to be proven at trial.

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EIGHTH CAUSE OF ACTION- Negligence and/or Gross Negligence

(Against Defendants State of Arizona, Maricopa County, and Bill 

Montgomery)

152. Plaintiff re-alleges by reference every allegation contained above as though 

more fully set forth herein. 

153. This Cause of Action is brought pursuant to Arizona common law. 

154. Defendants had a legal duty of care to Leslie Merritt, Jr.

155. Defendants and each of them fell below the standard of care in their treatment 

of Leslie Merritt by, among other things, failing to follow accepted scientific 

methodology in the crime lab, concealing material fundamental evidence from the 

grand jury, failing to disclose material fundamental evidence during the course of 

the prosecution, and violating AZ CONST Art. 2 § 4. 

156. As a direct and proximate result of Defendants’ acts, omissions, and violations 

alleged above, Leslie Merritt suffered severe physical pain, mental anguish, and 

emotional distress, medical expenses, and lost wages in an amount to be proven at 

trial. 

NINTH CAUSE OF ACTION- Intentional Infliction of Emotional 

Distress

(Against Defendants State of Arizona, Maricopa County, and Bill 

Montgomery)

157. Plaintiff re-alleges by reference every allegation contained above as though 

more fully set forth herein. 

158. This Cause of Action is brought pursuant to Arizona common law. 

159. As described above, the conduct of each Defendant was extreme and 

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outrageous.

160. Each Defendant either intend to cause emotional distress or recklessly 

disregard the near certainty that such distress would result from their conduct.

161. As a result of each Defendants conduct, Leslie Merritt, Jr. was caused to 

endure severe emotional distress. 

162. In addition, as a direct and proximate result of Defendants’ acts, omissions, 

and violations alleged above, Leslie Merritt suffered severe physical pain, mental 

anguish, and emotional distress, medical expenses, and lost wages in an amount to 

be proven at trial. 

TENTH CAUSE OF ACTION- Aiding and Abetting Tortious Conduct

(Against Defendants State of Arizona, Maricopa County, and Bill 

Montgomery)

163. Plaintiff re-alleges by reference every allegation contained above as though 

more fully set forth herein. 

164. Each Defendant has aided and abetted others in committing tortious acts 

against Leslie Merritt.

165. This Cause of Action is brought pursuant to Arizona common law. 

166. As expressed above in causes of action One through Five, each Defendant has 

committed a tort or torts that has caused injury to Leslie Merritt, Jr. 

167. Defendants Montgomery and Maricopa County knew that the State of Arizona 

breached a duty of reasonable care to Leslie Merritt, Jr. 

168. Defendants Montgomery and Maricopa County provided substantial 

assistance or encouragement to the State of Arizona in the achievement of the 

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breach of reasonable care to Leslie Merritt, Jr.

169. Defendant State of Arizona knew that Defendants Montgomery and Maricopa 

County breached a duty of reasonable care to Leslie Merritt, Jr.

170. Defendant State of Arizona provided substantial assistance or encouragement 

to Defendants Montgomery and Maricopa County in the achievement of the breach 

of reasonable care to Leslie Merritt, Jr.

171. As a direct and proximate result of Defendants’ acts, omissions, and 

constitutional violations alleged above, Leslie Merritt suffered severe physical pain, 

mental anguish, and emotional distress, medical expenses, and lost wages in an 

amount to be proven at trial.

WHEREFORE, Plaintiff prays for judgment against Defendants as follows:

A. For general damages experienced by Leslie Merritt, Jr.;

B. For such medical and medical expenses as may be reasonably incurred 

by Plaintiff in the future and as may be proven at the time of trial;

C. For past and future loss of earnings/loss of earning capacity;

D. For exemplary damages;

E. For Plaintiff's attorney's fees under 42 U.S.C. § 1988;

F. For Plaintiff's court costs incurred herein and legal interest; and,

G. For such other and further relief as the Court may deem just and 

proper.

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Dated this 8th day of December 2017.

LAW OFFICES OF DAVID J. DON, PLLC

 By: /s/ David J Don 

 David J. Don

Attorney for Plaintiff Leslie Merritt, Jr. 

CERTIFICATE OF SERVICE 

I hereby certify that on this 8th day of December 2017, 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 St.

Phoenix, AZ 85003

Michele Iafrate, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

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Daniel P. Struck, Esq.

STRUCK LOVE BOJANOWSKI & ACEDO, PLC

3100 W. Ray Road, Ste 300

Chandler AZ 85226

Email: dstruck@strucklove.com

Attorneys for Defendants Edward Leiter

Vanessa Losicco

By: /s/David J. Don

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