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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 

MOTION IN LIMINE (FOURTH): RE 

PCAST AND SIMILAR SCIENTIFIC 

STUDIES 
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 Defendant moves to preclude any evidence or argument about the September 2016 

President’s Council of Advisors on Science and Technology Report on Forensic Science in 

Criminal Courts (the “PCAST Report”), or any other scientific study not known to law 

enforcement at the time of Merritt’s arrest, as irrelevant and likely to confuse the issues and 

mislead the jury. 

 The only issue before the Court with respect to liability is whether Merritt’s arrest 

was without lawful authority. See Slade v. City of Phx., 541 P.2d 550, 552 (Ariz. 1975). 

The existence of probable cause to arrest or indict is a defense to claims arising from the 

arrest. See, e.g., Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir. 1994) (“Under 

Arizona law, probable cause is an absolute defense to a claim of false arrest and 

imprisonment.”). In determining whether probable cause to arrest exists, courts must 

consider whether “the facts available to the officers at the moment of the arrest would 

‘warrant a man of reasonable caution in the belief’ that an offense has been committed.” 

Beck v. Ohio, 379 U.S. 89, 96 (1964) (citation omitted) (emphasis added); Rosenbaum v. 

Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (the probable cause analysis for a 

warrantless arrest involves “the facts known to the officer at the time of the arrest.”); Reams 

v. City of Tucson, 701 P.2d 598, 601 (Ariz. Ct. App. 1985) (probable cause for an arrest 

must be evaluated by “the facts as they existed at the time of the arrest, and not 

afterward.”). 

 It is undisputed that Merritt was arrested on September 18, 2015, a full year before 

the PCAST Report was published. See President’s Council of Advisors on Science and 

Technology, Report to the President Forensic Science in Criminal Courts (September 2016) 

107-112, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/ 

pcast_forensic_science_report_final.pdf. As such, it is a factual impossibility that any of 

the arresting officers could have been aware of the PCAST or its contents at the time of 

Merritt’s arrest. As such, introduction or argument about the PCAST’s findings or its 

significance can only serve to confuse the issues and mislead the jury. As Plaintiff 
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acknowledges, “[t]he trial issue on the claim of false arrest is the defendant’s knowledge at 

the time of arrest.”1 (Doc. 293 at 1.) There is no evidence that any of the law enforcement 

officers had knowledge of the unwritten PCAST report as of September 2015. 

 Moreover, to the extent that other scientific studies exist calling into question the 

reliability of ballistics evidence that pre-date Merritt’s arrest, they should be precluded 

absent a proffer of evidence from the moving party that an arresting officer was aware of 

and familiar with such information. Discovery in this case has long since closed, and 

Plaintiff can point to no evidence that the officers had knowledge of PCAST or other 

similar scientific studies. 

 Accordingly, Defendant requests the Court to grant its motion precluding argument 

or evidence concerning the existence of the PCAST Report, it contents, or any other similar 

scientific study not known to the arresting officers at the time of arrest.2 

RESPECTFULLY SUBMITTED this 27th day of February, 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 

 

1 Under Arizona law, the intentional torts of false arrest and false imprisonment are 

substantively the same and “differ only in terminology.” Martinez v. City of Avondale, No. 

12-cv-1837, 2014 WL 178144, at *7 (D. Ariz. Jan. 16, 2014) (citing Slade v. City of Phx., 

541 P.2d 550, 552 (Ariz. 1975)); Donahoe v. Arpaio, 869 F. Supp. 1020, 1064 (D. Ariz. 

2012) (“False arrest, a species of false imprisonment, is the detention of a person without 

his consent and without lawful authority.”) 

2 The State has complied with LRCiv. 7.2(l), and certifies that it had a meet and confer in an 

effort to resolve the disputed evidentiary issue.
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 27th day of February, 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 N. Seventh Street 

Phoenix, Arizona 85006 

jlamm@cyberlawaz.com 

 By: /s/ Erika Cano