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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A. Merritt, Jr.,

Plaintiff,

v. 

State of Arizona, et al.,

Defendants.

No. CV-17-04540-PHX-DGC

ORDER 

This action arises out of Plaintiff Leslie Merritt’s arrest, detention, and prosecution 

for the I-10 freeway shootings in Phoenix, Arizona in August 2015. Plaintiff’s false arrest 

and imprisonment claims against Defendant State of Arizona were tried to a jury last fall. 

The jury returned a defense verdict. See Docs. 463, 469.

Pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure, Plaintiff now 

moves for judgment notwithstanding the verdict and a new trial. Doc. 502. The motion is 

fully briefed. Docs. 507, 510. The Court denies Plaintiff’s request for oral argument 

because it will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For 

reasons stated below, the Court will deny the motion.

I. Background.

Three shootings occurred on the I-10 freeway on August 29, 2015, and a fourth 

between August 27 and 30, 2015. Plaintiff was arrested and indicted for the shootings in 

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September 2015. See State v. Merritt, CR2015-144211 (Maricopa Cty. Super. Ct. 2015). 

He was released from custody and the charges against him were dismissed in April 2016.

Plaintiff pawned a Hi-Point C9 9mm handgun around 5:30 p.m. on August 30, 2015, 

about four hours before Plaintiff alleges the fourth shooting occurred. The fourth shooting 

involved Alfred Hackbarth’s BMW. Around 9:00 p.m. on August 30, Hackbarth landed at 

Phoenix Sky Harbor Airport and returned to his BMW in the Terminal 2 parking garage, 

where he had parked it three days earlier. The BMW’s front left tire lost pressure rapidly 

on Hackbarth’s drive home. A bullet was found in the tire the next day.

The Arizona Department of Public Safety (“DPS”) recovered four bullets during its 

investigation of the shootings, including the bullet found inside the BMW tire. On 

September 7, 2015, the DPS crime lab identified all four bullets as coming from a Hi-Point 

C9 9mm handgun. On September 17, officers located from various pawn shops eight 

Hi-Point C9 9mm handguns to submit to the DPS crime lab for ballistics testing. The next 

day, DPS criminalist Christopher Kalkowski identified one of the guns as the source of the 

bullets recovered in all four shootings. A DPS officer reviewed the list for the pawned 

guns and identified Plaintiff as the owner of the gun in question.

DPS officers arrested Plaintiff without a warrant on September 18. A grand jury 

indicted him for the I-10 shootings six days later. In February 2016, while preparing for 

trial, the Maricopa County Attorneys’ Office asked Lucien Haag to conduct an independent 

firearms identification analysis. Haag’s findings were inconclusive – the four evidence 

bullets could neither be excluded nor identified as having been fired from Plaintiff’s gun. 

As a result, Plaintiff was released from jail on April 19, 2016. The charges against him 

were dismissed without prejudice six days later.

Plaintiff filed suit against Maricopa County, various County officers and employees, 

the State of Arizona, and various DPS officers and employees. Docs. 1, 8. Plaintiff later 

dismissed the claims against the County Defendants. Docs. 41, 224. The remaining 

Defendants – the State of Arizona and the DPS officers – moved for summary judgment. 

Doc. 264. The Court granted summary judgment on all claims except state law false arrest, 

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false imprisonment, and aiding and abetting, with respect to any pre-indictment damages. 

Doc. 278.1 The Court found that Defendants had failed to show as a matter of undisputed 

fact that they had probable cause to arrest and detain Plaintiff before the indictment issued 

given their failure to resolve the discrepancy between the ballistics evidence and the timing 

of the BMW shooting. Id. at 4-14.

The false arrest and imprisonment claims against Defendant State of Arizona were 

tried to a jury over an eight-day period in October and November 2020. See Docs. 447-63.2 

The jury found Defendant not liable on each claim. Doc. 469.

II. Plaintiff’s Motion for Judgment as a Matter of Law Under Rule 50.

Plaintiff asks the Court to enter judgment notwithstanding the verdict. Doc. 502 

at 2.3 Rule 50(a)(1) provides for motions for judgment as a matter of law during trial:

If a party has been fully heard on an issue during a jury trial and the court 

finds that a reasonable jury would not have a legally sufficient evidentiary 

basis to find for the party on that issue, the court may . . . grant a motion for 

judgment as a matter of law against [that] party[.]

Fed. R. Civ. P. 50(a)(1)(B). Subsection (a)(2) states that a Rule 50(a) motion must be made

“before the case is submitted to a jury.” Fed. R. Civ. P. 50(a)(2); see Williams v. Gaye, 

895 F.3d 1106, 1131 (9th Cir. 2018) (“Under Rule 50, a party must make a Rule 50(a) 

motion for judgment as a matter of law before a case is submitted to the jury.”) (quoting 

EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)).

Plaintiff made no Rule 50(a) motion during trial. See Doc. 507 at 2 & n.2. 

Defendant argues that this failure is fatal to Plaintiff’s present motion under Rule 50. Id.

1 Because a post-arrest indictment cuts off the length of detention, and thus damages, 

stemming from a false arrest, any damages recoverable on Plaintiff’s arrest-related claims 

were limited to the period between his arrest on September 18 and his indictment on 

September 24, 2015. See id. at 6, 34-35 (citations omitted).

2 Plaintiff dismissed the aiding and abetting claim. Doc. 423.

3 Plaintiff seeks a “judgment notwithstanding the verdict” (Doc. 502 at 1), but for 

more than a decade that phrase and the term “directed verdict” have been combined and 

simply termed “judgment as a matter of law.” Tortu v. Las Vegas Metro. Police Dep’t, 556 

F.3d 1075, 1082 n.2 (9th Cir. 2009).

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at 2-4. The Court agrees, and will deny Plaintiff’s Rule 50(a) motion as untimely. Fed. R. 

Civ. P. 50(a)(2); see Williams, 895 F.3d at 1131; Tortu, 556 F.3d at 1081-83.

4

III. Plaintiff’s Motion for a New Trial Under Rule 59.

A. Rule 59 Standard.

Rule 59 allows a district court to grant a new trial on all or some issues “for any 

reason for which a new trial has heretofore been granted in an action at law in federal 

court[.]” Fed. R. Civ. P. 59(a)(1)(A). Because “Rule 59 does not specify the grounds on 

which a motion for a new trial may be granted,” the court is “bound by those grounds that 

have been historically recognized.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035

(9th Cir. 2003). These “grounds include: ‘that the verdict is against the weight of the 

evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to 

the party moving.’” Dawkins v. City & Cty. of Honolulu, No. CIV. 10-00086 HG-KSC, 

2012 WL 1982461, at *4 (D. Haw. May 31, 2012) (quoting Molski v. M.J. Cable, Inc., 481 

F.3d 724, 729 (9th Cir. 2007)); see also Crowley v. EpiCept Corp., 883 F.3d 739, 751 (9th 

Cir. 2018) (a court may grant a new trial “to prevent a miscarriage of justice”); Passantino 

v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 510 (9th Cir. 2000) (“The trial 

court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, 

is based upon false or perjurious evidence, or to prevent a miscarriage of justice.”).

“[T]he district court, in considering a Rule 59 motion for new trial, is not required 

to view the trial evidence in the light most favorable to the verdict.” Goldstine v. FedEx 

Freight Inc., No. C18-1164 MJP, 2021 WL 952354, at *1 (W.D. Wash. Mar. 11, 2021)

(quoting Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th 

Cir. 2014)). Instead, the court may “weigh the evidence and assess the credibility of the 

witnesses[.]” Id. “Nevertheless, the burden of proof on a motion for a new trial is on the 

4 A party may file a post-trial “renewed motion” for judgment as a matter of law 

under Rule 50(b), but only after having made a timely Rule 50(a) motion. See Tortu, 556 

F.3d 1081 (“As explicitly stated in the Rule, a Rule 50(b) motion may be considered only 

if a Rule 50(a) motion for judgment as a matter of law has been previously made.”); Exxon 

Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (“A motion under Rule 50(b) is not 

allowed unless the movant sought relief on similar grounds under Rule 50(a) before the 

case was submitted to the jury.”).

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moving party, and the court should not lightly disturb a plausible jury verdict.” Anglo-Am. 

Gen. Agents v. Jackson Nat. Life Ins., 83 F.R.D. 41, 43 (N.D. Cal. 1979) (citing 11 Wright 

& Miller, Federal Practice & Procedure: Civil § 2806 at 49); see Girbes-Pierce v. City of 

New York, No. 16-CV-7510 (JLC), 2019 WL 1522631, at *8 (S.D.N.Y. Apr. 9, 2019), 

aff’d, 803 F. App’x 509 (2d Cir. 2020) (noting that “movants for a new trial are . . . held to 

‘a heavy burden’”).

B. Ballistics Evidence and Probable Cause.

Plaintiff argues that Defendant failed to produce a reliable ballistics identification 

necessary to establish probable cause. Doc. 502 at 2-7. Plaintiff makes several different 

arguments. He asserts that, contrary to the Range of Conclusions established by the 

Association of Firearms and Toolmark Examiners (“AFTE”), which permits four findings

– identification, elimination, inconclusive, and unsuitable for examination – “[b]oth

Kalkowski and John Maciulla testified that the categories of the AFTE Range of 

Conclusions are not mutually exclusive.” Id. at 3-4 (citing Doc. 502-1 at 4); see Doc. 489 

at 118-31.5 He claims that Kalkowski and Maciulla “grossly overstated the certainty of

[their] purported ballistic identification and . . . presented ballistic evidence inconsistent

with the accepted scientific consensus.” Doc. 502 at 2. He further argues that Defendant’s

ballistics evidence “could not be offered to a degree of practical certainty, such that it 

should never have been presented under Rule 702.” Id. at 6. In his reply brief, Plaintiff 

argues that Defendant’s witnesses failed to establish the reliability of the ballistics evidence 

to the “level of certainty” required of experts under Arizona law, and presented “evidence 

of a claimed scientific ballistic identification that does not pass the rigors of Rule 702.” 

Doc. 510 at 3. For several reasons, Plaintiff’s arguments are not persuasive.

1. Plaintiff Did Not Object Under Rule 702.

Plaintiff argues in several places that the testimony of Kalkowski and Maciulla did 

not meet the requirements of Rule 702. See Doc. 502 at 6, 13; Doc. 510 at 3. But Plaintiff 

made no Rule 702 objection during the trial testimony of these witnesses. See Docs. 488 

5 Plaintiff cites to trial testimony from Maciulla, but not Kalkowski. See id.

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at 124-36, 489 at 44-95 (Kalkowski); Doc. 489 at 110-31 (Maciulla). “Having failed to 

object at trial, the admission of this evidence cannot serve as the basis for a new trial unless 

it resulted in ‘plain or fundamental error where the integrity or fundamental fairness of the 

[trial] is called into serious question.’” Estate of Brown v. Lambert, 478 F. Supp. 3d 1006, 

1027 (S.D. Cal. 2020) (quoting Bird v. Glacier Elec. Coop., 255 F.3d 1136, 1148 (9th Cir. 

2001)). 

The Court cannot find that the testimony of Kalkowski and Maciulla resulted in 

plain or fundamental error. Both witnesses were qualified to testify under Rule 702 about 

firearms examination and ballistics analysis. Kalkowski has been a trained firearms 

examiner for more than 24 years. Doc. 488 at 124-25. He is a member of AFTE, 

consistently has passed required proficiency exams, and has an excellent reputation as a 

forensic scientist. Id. at 125; Doc. 489 at 31, 111, 114. Maciulla has been a trained firearms 

examiner since 2004 and was a technical lead in the DPS Crime Lab from 2014 to 2018. 

Id. at 110-11. He has been tasked by national organizations with reviewing the competency 

of other crime labs. Id. at 112-13. Plaintiff moved to preclude Maciulla’s expert testimony 

before trial, but on the basis of non-compliance with the disclosure requirements of 

Rule 26(a), not on a lack of expertise under Rule 702. See Docs. 290, 382, 387. What is 

more, for reasons explained below, the testimony of Kalkowski and Maciulla was highly 

relevant to the jury’s task of assessing probable cause in this case.

2. Plaintiff Mischaracterizes the Key Issue in this Case.

Plaintiff asserts that the jury’s defense verdict was unfounded because Defendant 

failed to present the necessary level of expert testimony to show that Kalkowski’s ballistics 

match was correct: “Plaintiff’s primary argument is that the jury’s verdict fails to conform 

to the evidence because Defendant fails to meet its burden of proof by failing to establish

a level of certainty to Kalkowski’s ballistic conclusion.” Doc. 510 at 4. Plaintiff cites 

Arizona medical malpractice, medical causation, and tort cases for the proposition that 

Defendant could prevail only if its experts testified that the bullets and his gun were a match 

“to a reasonable probability.” Id. at 2. This argument has three significant problems.

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First, Plaintiff cites no case suggesting that the causation standard for tort cases 

applies to the probable cause defense in false arrest and false imprisonment cases.

Second, and more importantly, the argument misconstrues the key issue in this case. 

The jury was not required to determine whether Plaintiff’s gun was a match to the four 

evidence bullets. Rather, the jury was required to determine whether Defendant had 

probable cause to arrest Plaintiff. The question was whether Defendant had a reasonably 

objective basis to believe, at the time of arrest, that Plaintiff had shot the four vehicles, not 

whether Plaintiff was actually guilty of the shootings. Thus, Plaintiff’s tort causation cases, 

which require a level of certainty when the jury must determine whether the defendant 

actually caused the plaintiff’s injury, are not relevant when the jury need not determine 

whether Plaintiff’s gun actually fired the evidence bullets. Probable cause deals in 

reasonable probabilities, not absolute certainties. As the final jury instructions explained:

Probable cause exists when, under all of the circumstances known at the time, 

an objectively reasonable law enforcement officer would conclude there is a 

fair probability that a particular person has committed a crime. Because 

probable cause deals with probabilities and depends on the totality of the 

circumstances, it is a fluid concept and cannot be reduced to a set of legal 

rules. It requires only a probability or substantial chance of criminal activity, 

not an actual showing of such activity, but it may not be based on mere 

suspicion. 

Doc. 461 at 14.

Third, even if a particular level of certainty in the testimony of defense witnesses 

was required, it was provided. As explained below, Defendant’s firearms examiners 

testified unequivocally that their ballistics conclusion was correct, and Maciulla testified 

that identifications are made to the standard of a “practical certainty.” Doc. 489 at 121.

3. There Was Ample Evidence to Support the Jury’s Verdict.

Before the trial of this case, the Court reached the following conclusions regarding 

the question and proof of probable cause:

“Probable cause to arrest exists where the arresting officer has reasonably 

trustworthy information sufficient to lead a reasonable person to believe that 

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an offense has been committed and that the person to be arrested committed 

it.” State v. Dixon, 735 P.2d 761, 763 (Ariz. 1987); In re Aubuchon, 309 

P.3d 886, 895 (Ariz. 2013) (citing Dixon standard). Probable cause must be 

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

afterward,” Reams v. City of Tucson, 701 P.2d 598, 601 (Az. Ct. App. 1985), 

and must consider the “totality of the circumstances,” Gasho v. United States, 

39 F.3d 1420, 1428 (9th Cir. 1994) (citation omitted). Although probable 

cause usually is a question of law for the court, Sarwark Motor Sales, Inc. v. 

Woolridge, 354 P.2d 34, 36 (Ariz. 1960), where “the evidence is conflicting, 

so that on one conclusion as to the facts therefrom probable cause exists, 

while from another it does not, it is then for the jury to determine the true 

state of facts and to apply the law as laid down by the court to those facts.” 

Id. 

Thus, the jury in this case will be required to determine whether, at the time 

of Plaintiff’s arrest, a reasonable person would have had reasonably 

trustworthy information from which to believe that Plaintiff committed the 

freeway shootings. The jury must consider the totality of the circumstances, 

including the information known to all members of the investigation team 

whose knowledge is cumulated for purposes of determining probable cause. 

See Doc. 374. This includes the knowledge of Christopher Kalkowski, the 

DPS criminalist who made the primary match between Plaintiff’s gun and 

the evidence bullets. Id. For the jury to decide whether a reasonable person 

with Kalkowski’s knowledge would have made the match, the jury must 

determine whether Kalkowski’s conclusion was reasonable and based on 

reasonably trustworthy information. 

Conclusions of criminalists who agreed with Kalkowski and conclusions of 

other experts who did not are relevant to the jury’s evaluation of whether 

Kalkowski’s match was reasonable. That is true even for conclusions 

reached after Plaintiff’s arrest, because it is the basis and strength of the 

conclusions, not their timing, that sheds light on whether Kalkowski’s 

conclusion was reasonable. To be clear, post-arrest conclusions by any 

expert are not relevant as part of the facts known at the time of arrest – they 

were not known then. But they are relevant on the question of whether 

Kalkowski’s match was reasonable.

Doc. 382 at 2-3.

Applying these conclusions, the Court permitted the parties to present evidence on 

whether Kalkowski’s ballistics match was reasonable. Both sides presented such evidence, 

Plaintiff’s witnesses testifying that the match was unreasonable and unscientific and 

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defense witnesses testifying to the contrary. The jury was clearly instructed on its task to 

determine whether Kalkowski’s match, and the DPS investigators’ reliance on that match, 

were objectively reasonable:

The standard for evaluating probable cause is objective. You must ask what 

an objectively reasonable law enforcement officer would conclude. 

Therefore, the facts known to Defendant at the time of arrest or detention are 

relevant to your inquiry, but the intent, belief, or motive of individual officers 

is not relevant to your evaluation of whether probable cause existed. 

Because you must make a reasonableness determination – that is, you must 

determine whether an objectively reasonable law enforcement officer would 

have found probable cause to arrest or detain Plaintiff – you may take into 

account opinions expressed by expert witnesses who testified during trial, 

even though their opinions were formed after the arrest and detention. These 

opinions may be considered only in evaluating the objective reasonableness 

of Defendant’s probable cause decision. The opinions were not known at the 

time of Plaintiff’s arrest or detention, and therefore may not be considered as 

part of the totality of the circumstances that were known to Defendant at the 

time.

Doc. 461 at 14 (paragraph numbering omitted).

Defendant provided ample evidence from which the jury could find that 

Kalkowski’s match, and the other investigators’ reliance on it, were objectively reasonable. 

As noted above, Kalkowski has specialized training and more than 24 years of experience 

as a firearms examiner. He provided the jury with a detailed explanation of how he 

conducts a firearm examination and how he reached his conclusions in this case. Docs. 488 

at 125-36, 489 at 44-93. He testified that he stands by his conclusion that the evidence 

bullets match Plaintiff’s gun, and remains confident of this opinion. Doc. 489 at 94-95. 

Cade Shaw, whose experience is also mentioned above, testified that he confirmed 

the match found by Kalkowski before it was shared with the DPS investigators. His 

conclusion has not changed, and he has no doubt it is correct. Doc. 490 at 12-13.

Vince Figarelli, Superintendent of the DPS Crime Lab who has more than 30 years’

experience in forensic science, testified that Kalkowski and Shaw have fine reputations as 

forensic scientists and that their work in this case was excellent. Doc. 489 at 31-32, 38-39. 

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He also noted that the crime lab is the second oldest certified crime lab in the country, 

having been certified since 1982. Id. at 23-24. 

John Maciulla testified that Kalkowski and Shaw have never had difficulty in their 

proficiency testing, have wonderful reputations, and followed the Crime Lab’s policies and 

procedures in this case. Id. at 111, 114-15. 

This evidence, along with other testimony and exhibits, provided a clearly sufficient 

basis for the jury to find that DPS investigators acted reasonably in making and relying on 

the ballistics match. See Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235 F.3d 1184, 

1192 (9th Cir. 2000) (weighing the credibility of conflicting witness testimony is the 

province of the jury); Humetrix, Inc., v. Gemplus S.C.A., 268 F.3d 910, 919 (9th Cir. 2001)

(“Authority to determine the victor in such a ‘battle of expert witnesses’ is properly reposed 

in the jury.”).

Plaintiff has not shown that the jury’s determination from the conflicting ballistics 

evidence was against the weight of the evidence, see Molski, 481 F.3d at 729, or was a 

miscarriage of justice, see Crowley, 883 F.3d at 751. Nor has Plaintiff shown that “the 

integrity or fundamental fairness of the [trial] is called into serious question.” Bird, 255 

F.3d at 1148. The Court accordingly will deny Plaintiff’s request for a new trial. See 

Allman v. Smith, No. 1:12-cv-00568-TWP-DML, 2017 WL 3970668, at *2 (S.D. Ind. 

Sept. 8, 2017) (“Parties seeking a new trial under Rule 59 ‘bear a particularly heavy burden 

because a court will set aside a verdict as contrary to the manifest weight of the evidence 

only if no rational jury could have rendered the verdict.’”) (quoting Marcus & Millichap 

Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 313 (7th Cir. 2011)); see also Crowley, 

883 F.3d at 751 (noting that the denial of a Rule 59 motion on a weight-of-the-evidence

basis will be reversed “only where there is an absolute absence of evidence to support the 

jury’s verdict”) (citations omitted; emphasis in original).

4. Plaintiff’s “Mutually Exclusive” Argument Is Unpersuasive.

Plaintiff’s motion focuses on defense witnesses’ testimony about the AFTE Range 

of Conclusions. See Doc. 502 at 3-5. Plaintiff argues that the four possible conclusions 

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within the range – identification, inconclusive, elimination, or unsuitable for comparison –

are “mutually exclusive” and defense witnesses’ testimony to the contrary was erroneous 

and prejudicial. Id. Plaintiff never clearly defines what he means by “mutually exclusive,” 

but it appears to be an argument that two reasonable firearms examiners could never look 

at the same ballistic evidence and reach different conclusions, such as one finding an 

“identification” and the other finding the evidence “inconclusive.” As support for this 

assertion, Plaintiff cites an affidavit of his own expert, Lucien Haag. Id. at 3 (citing 

Doc. 502-2). But the affidavit – which was not admitted at trial – does not appear to support 

Plaintiff’s claim. The affidavit says: “These four categories of accepted conclusions are 

mutually exclusive from one another when utilized by a properly trained and experienced 

forensic firearms or toolmark examiner.” Doc. 502-2 ¶ 5 (emphasis added). This seems 

to be saying that a single examiner cannot reach more than one of these conclusions, not 

that two different examiners can never disagree.6 

Lucien Haag testified at trial that two well-trained firearms examiners “should”

reach the same conclusion when examining the same evidence: “We should come to that 

same conclusion. It is either an inconclusive, we both say that, or we both say, yes, there’s 

enough there to say this is the firearm.” Doc. 481 at 45. But saying that two reasonable 

examiners “should” come to the same conclusion is not the same as saying that they can 

“never” reach different conclusions, as Plaintiff now appears to suggest. And Haag did not 

cite to any specific AFTE statement that supports Plaintiff’s assertion. See id.

Most importantly, this issue was fully vetted before the jury. Kalkowski testified 

that the AFTE Range of Conclusions does not mention mutual exclusivity, and he 

disagreed with Haag’s suggestion that it does. Doc. 488 at 136. Maciulla testified that two 

trained examiners can reach different conclusions about the same evidence, and he was 

6 Plaintiff also cites a response by AFTE to a 2016 report from the President’s 

Council of Advisors on Science and Technology. Doc. 502 at 3. But the AFTE response, 

which also was not admitted at trial, does not support Plaintiff’s assertion. The portion 

quoted by Plaintiff states: “It has been consistently demonstrated that when the AFTE 

Theory of Identification is properly applied, examiners are able to conduct quality, accurate 

analysis.” Id. (citing https://afte.org/uploads/documents/AFTE-PCAST-Response.pdf). It 

does not say that two competent examiners can never disagree on an identification.

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cross-examined in some detail on this point by Plaintiff’s counsel. Doc. 489 at 118-24. 

“Authority to determine the victor in such a ‘battle of expert witnesses’ is properly reposed 

in the jury.” Humetrix, 268 F.3d at 919; see also Wyler, 235 F.3d at 1192 (“Weighing the 

credibility of conflicting expert witness testimony is the province of the jury.”). The 

competing testimony about the AFTE Range of Conclusions provides no ground for a new 

trial.

C. Notation of Clearance.

Pursuant to A.R.S. § 13-4051, “[a]ny person who is wrongfully arrested, indicted or 

otherwise charged for any crime may petition the superior court for entry on all . . . 

records . . . a notation that the person has been cleared.” A.R.S. § 13-4051(A); see State v. 

Saucier, No. 2 CA-CR 2018-0289, 2019 WL 1952732, at *1 (Ariz. Ct. App. Apr. 30, 2019). 

On August 13, 2020, the state court granted Plaintiff’s petition for a notation of clearance, 

finding that, “for purposes of the [DPS] investigation resulting in the investigative reports 

regarding Leslie Allen Merritt, Jr. and Maricopa County Superior Court Cause Number 

CR2015-144211-001, Leslie Allen Merritt, Jr. has been cleared on any allegation or

charge[.]” Doc. 415 at 2.

7

Plaintiff contends that a finding of innocence is a necessary component of the state 

court’s ruling under § 13-4051, and, “under settled Arizona law, that the State had no 

probable cause to arrest or imprison” him for the I-10 shootings. Doc. 502 at 7-8. But as 

already noted, Plaintiff’s innocence or guilt for the I-10 shootings was not at issue in this 

civil case. The key question was whether his arrest was supported by probable cause – “a 

probability or substantial chance” that he was the I-10 shooter. Gates, 462 U.S. at 243 

n.13. The fact that a state trial court, years later, issued a notation of clearance at the request 

of Plaintiff’s lawyers does not preclude a finding by the jury, based on all the evidence 

before it, that probable cause existed at the time of his arrest. 

7 See also Maricopa County Superior Court, Criminal Court Case Information –

Case History, http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/case

Info.asp?caseNumber=CR2015-144211 (noting only “Clearance of Record” for the case 

history) (last visited Apr. 9, 2021).

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Courts have routinely held that “[t]he results of later criminal proceedings are not 

relevant in determining whether police officers on the scene had probable cause to make a 

warrantless arrest, as that determination is to be made in light of the facts confronting the 

officer[s] at the time of the arrest.” Hita v. Stansell, No. CIV 05-1088 LFG/LCS, 2006 

WL 8443323, at *12 (D.N.M. 2006); see Borunda v. Richmond, 885 F.2d 1384, 1389 (9th 

Cir. 1988) (“The state’s failure to prove guilt beyond a reasonable doubt does not mean in 

connection with the arrests 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.”); Baker v. McCollan, 443 U.S. 137, 145 (1979) (“The Constitution 

does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a 

cause of action for every defendant acquitted – indeed, for every suspect released.”); see 

also State v. Mohajerin, 244 P.3d 107, 112 (Ariz. Ct. App. 2010) (explaining that “the 

remedy set forth in § 13-4051 is manifestly not directed at punishing unlawful or illegal 

police conduct” and “the statute does not allow a petitioner to seek damages for any past 

conduct by law enforcement that was unlawful or illegal”).

Furthermore, Plaintiff stipulated before trial that he would not raise the notation of 

clearance with the jury. See Joint Final Pretrial Order, Doc. 334 at 3 (“Neither party will 

elicit testimony about Plaintiff’s Petition for Notation of Clearance that is currently 

pending adjudication in Maricopa County Superior Court.”); Doc. 507-1 at 67 (January 29, 

2020 email from Plaintiff’s counsel to defense counsel stating that “[w]e will stipulate that 

no mention of the NOC will be made to the jury during trial”). Plaintiff later moved for 

issue preclusion based on the notation of clearance, arguing that “the jury should be advised 

that [he] is not the I-10 Freeway Shooter” (Doc. 401 at 1), but Plaintiff withdrew the motion 

before trial (Doc. 416). Plaintiff acknowledges in his reply that he “agreed not to raise 

filing the notation of clearance with the jury” and “adhered to that position and did not 

mention the notation of clearance before the jury.” Doc. 510 at 5. 

In light of these pretrial and trial positions, Plaintiff cannot now argue that the 

notation of clearance should have compelled the jury to find that no probable cause existed

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for his arrest and pre-indictment detention. “Although it should go without saying, . . . a 

party cannot obtain judgment as a matter of law or the grant of a new trial in reliance on 

evidence that was never admitted at trial [or] on the repudiation of positions it adopted 

before and during trial.” Third Wave Techs., Inc. v. Stratagene Corp., 405 F. Supp. 2d 991, 

997 (W.D. Wis. 2005).

8

D. Dissipation of Probable Cause.

“It is well-established that a ‘person may not be arrested, or must be released from 

arrest, if previously established probable cause has dissipated.’” Nicholson v. City of Los 

Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (quoting United States v. Ortiz-Hernandez, 427 

F.3d 567, 574 (9th Cir. 2005)); see also Doc. 461 at 14 (final jury instruction on probable 

cause).

Plaintiff contends that the evidence presented at trial “unequivocally demonstrated” 

that any probable cause had dissipated between the time of his arrest on September 18, 

2015 and the issuance of the indictment six days later. Doc. 502 at 8. Specifically, Plaintiff 

asserts that Trial Exhibit 1, a map generated by the Scottsdale Police Department on

September 22, 2015, reflects that the BMW shooting occurred at 9:45 p.m. on August 30, 

2015 – about four hours after Plaintiff had pawned his gun – and that he was in Glendale 

when the Escalade and bus shootings occurred. Id. at 9. Plaintiff further asserts that Trial 

Exhibit 13, historical cell phone site data generated by the FBI on September 22, 2015,

places him in Glendale at the time of the first two shootings. Id. Plaintiff claims that these 

two trial exhibits negated any probable cause to detain him between September 22 and 24, 

2015. Id. at 10; see also Doc. 510 at 7.

Defendant responds that the map of shootings reflected in Trial Exhibit 1 was 

created by the Scottsdale Police Department, not DPS, and that it was never established at 

trial that DPS received the map on September 22 or that the map represented DPS’s 

understanding of events in its investigation of the shootings. Doc. 507 at 13 & n.9. 

8 The Court also notes that Defendant has long contended that the notation of 

clearance was obtained through misstatements of the evidence against Plaintiff. See 

Doc. 507 at 12-13.

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Defendant further notes that there was no testimony conclusively showing that DPS knew

about Trial Exhibit 13 (or its underlying data) prior to Plaintiff’s indictment, and that there 

was testimony to the contrary, including that the phone at issue belonged to Plaintiff’s 

fiancée, Eddina Sauceda. Id. at 14-15 (citing Doc. 507-1 at 88-89, 127; Doc. 507-2 at 18, 

22, 26-27, 52, 55).

The Court agrees with Defendant. Whether the information in Trial Exhibits 1 and 

13 reflected facts known to Defendant before the grand jury indictment on September 24, 

2015, was hotly contested during trial. The Court cannot conclude that the jury erred in 

finding that probable cause did not dissipate before that date. 

Defendant further argues, correctly, that Plaintiff ignores trial evidence that the 

BMW tire may have been shot before Plaintiff pawned his gun, including: Hackbarth’s

testimony that he believed the BMW’s tire was shot before August 30, 2015; Detective

Baroldy’s testimony about information learned from Hackbarth regarding the timing of the

tire being shot; expert Joe Grant’s testimony that Hackbarth’s observations and experience 

were consistent with the tire having been shot prior to his arrival at the airport; Captain 

Pinnow’s testimony that she had professional experiences in which a shot tire did not lose 

air immediately; and DPS’s identification of Plaintiff’s gun as the source of the bullets

recovered from the I-10 shootings. Id. at 13-14 (citing Doc. 507-1 at 71-80, 84-87, 92, 

96-111, 123-26, 129). The timing of the BMW shooting was another vigorously contested 

issue during trial. Plaintiff has not shown that Trial Exhibits 1 and 13 compelled the jury 

to find that probable cause to detain Plaintiff dissipated before the indictment issued. 

E. Tracy Foster’s Testimony.

DPS criminal analyst Tracy Foster testified at trial about Plaintiff’s prior police 

contacts and certain posts he made on Facebook before his arrest. Foster testified that DPS 

investigators discovered these facts before Plaintiff’s arrest, and that they were “indicators” 

of the I-10 shooter that raised “red flags” with respect to Plaintiff. Doc. 502 at 11-12 (citing 

Doc. 502-6 at 3-8). Plaintiff argues that a new trial is warranted based on three “significant 

errors” in the admission of Foster’s testimony. Id. at 11.

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Plaintiff first contends that Foster’s testimony regarding “indicators”’ included

non-disclosed expert opinions about a “profile” of the I-10 shooter, and that Defendant 

violated the disclosure rules and a pretrial agreement between the parties precluding Foster 

from offering opinions at trial. Id.; see Doc. 510 at 7-9. Before Foster took the witness 

stand, Plaintiff argued that it would be “improper for her to offer opinions about her beliefs 

as to the background analysis” because she had “been disclosed as a fact witness, not an 

expert.” Doc. 495 at 6. Defendant responded that it “[did] not intend to have Foster offer 

any opinions,” and she would testify solely “as a fact witness to the information she and 

her analysts collected and provided to the investigators.” Id. On the basis of nondisclosure, the Court precluded Foster from offering any opinions during her testimony

about a “profile” she created of the freeway shooter, including opinions as to why certain 

Facebook posts were “significant” to DPS’s investigation. Id. at 10; see also Doc. 458 at 1 

(“Ms. Foster is not permitted to offer any opinions.”); Doc. 486 at 96-97 (same).

Consistent with this ruling, the Court later sustained Plaintiff’s trial objection to profile 

testimony. Doc. 495 at 81.

The Court also explained to the parties, however, that while it would preclude Foster 

from offering opinions that Plaintiff met a particular profile of the freeway shooter, it would 

not preclude her from testifying about facts gathered and considered by DPS during the 

investigation. Id. at 10-11. The Court recognized that there was a fine line “between 

what’s an opinion and what’s a fact[,]” and said it would draw those lines as needed during 

trial on a “question and answer” basis. Id. at 11. Plaintiff’s counsel thus knew that further 

objections could made during trial if they felt Foster was straying into expert or profile 

testimony.

Plaintiff now complains that Defendant elicited testimony about certain “indicators” 

DPS considered during its investigation. Doc. 502 at 11. Foster testified that she and her 

team assisted the DPS investigators by gathering information about suspects’ past contacts 

with law enforcement, criminal damage incidents, anger issues, anti-government social 

media posts, or posts related to the I-10 shootings. Doc. 495 at 88. She said they called 

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these “indicators.” Id. at 87. Defense counsel asked Foster a number of questions about 

her collection of information related to these indicators, and Plaintiff’s never objected –

not once. See id. 495 at 87-91, 110, 122, 124, 126, 135. Indeed, on cross-examination 

Plaintiff’s counsel questioned Foster about the “indicators,” eliciting testimony that they 

are not evidence of a crime, merely a basis for suspicion. Id. at 138. The Court cannot 

conclude that Foster’s factual testimony about indicators considered in the investigation of 

Plaintiff was error.9

Plaintiff next contends that Foster’s testimony was “immaterial to any permissible

jury issue” under Rules 401 and 403 because “[n]one of the so-called ‘indicators’ suggested 

by Foster related to an element of any crime.” Doc. 502 at 12. But Plaintiff’s previous 

police contacts, Facebook posts, and other indicators were part of the “totality of the 

circumstances” DPS considered before arresting Plaintiff, and therefore were highly 

relevant to whether DPS had probable cause for the arrest. See Doc. 382 at 11-12 (denying 

motion in limine regarding the Facebook posts); Doc. 495 at 96 (admitting Facebook posts 

over Rule 403 objections because they “are highly relevant to the question of whether 

[D]efendant had probable cause to make the arrest”); see also United States v. Dunford, 

No. 2:19-cr-00038-JRG-DHI, 2019 WL 5431614, at *5 (E.D. Tenn. Oct. 23, 2019) 

(defendant’s Facebook post was relevant to probable cause when viewed “through the 

prism of the totality of the circumstances”); United States v. Acevedo-Hernandez, No. 2:14-

CR-242 JCM VCF, 2015 WL 1546720, at *7 (D. Nev. Apr. 7, 2015) (Facebook images of 

the defendant hunting were relevant to probable cause on alleged wildlife violations); 

Burrell v. McIlroy, 464 F.3d 853, 858 (9th Cir. 2006) (“Although a prior criminal history 

cannot alone establish reasonable suspicion or probable cause to support a detention or an 

arrest, it is permissible to consider such a fact as part of the total calculus of information in 

these determinations.”) (citing Brinegar v. United States, 338 U.S. 160, 177 (1949)).

9 While acknowledging that trials are adversarial, Plaintiff asserts that “litigants 

must be able to inherently trust that adversaries, particularly experienced trial lawyers, will 

act within the bounds of professionalism and good faith.” Doc. 502 at 13; see also Doc. 510 

at 7. That is true, but Plaintiff has shown no unprofessional conduct or bad faith on the 

part of defense counsel. 

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Plaintiff further contends that the prejudicial effect of Foster’s testimony was not

adequately alleviated. Doc. 502 at 13. After overruling Plaintiff’s Rule 403 objections to 

the Facebook posts, the Court offered to give a limiting instruction that the jury should 

consider the posts only on the question of whether Defendant had probable cause. Doc. 495 

at 96. Discussions were held on the appropriate language for the instruction, and the Court 

received input from Plaintiff. Docs. 488 at 140-42, 489 at 4-8. Plaintiff agreed to the 

following instruction, which the Court gave to the jury at the close of evidence:

You have received evidence about Plaintiff’s contacts with law enforcement 

and posts he made on Facebook. This evidence has been admitted only on 

the question of whether Defendant had probable cause to arrest and detain 

Plaintiff. You should consider it for no other purpose.

Docs. 489 at 7-8, 490 at 134-135, 492 at 11; see also Doc. 461 at 9 (Instruction No. 8). 

The jury is presumed to have followed this instruction. See Kipp v. Davis, 971 F.3d 866, 

882 (9th Cir. 2020); Fields v. Brown, 503 F.3d 755, 782 (9th Cir. 2007); Richardson v. 

Marsh, 481 U.S. 200, 206 (1987).

The Court does not view Foster’s testimony as unfairly prejudicial – it reflected 

facts DPS actually considered in deciding whether it had probable cause to arrest Plaintiff. 

And Plaintiff has not shown that the limiting instruction to which he agreed failed to 

ameliorate any potential unfair prejudice. See Doc. 502 at 13-14; Maxwell v. Cty. of San 

Diego, 714 F. App’x 641, 645 (9th Cir. 2017) (affirming the denial of a motion for new 

trial where any potential prejudice stemming from improper remarks were “addressed and 

ameliorated by the district court’s curative instructions”); United States v. Toliver, 672 F. 

App’x 689, 690 (9th Cir. 2016) (finding no clear error where, “read as a whole, the jury 

instructions were sufficient to guide deliberations”).

IV. Conclusion.

Plaintiff’s request for relief under Rule 50 will be denied because Plaintiff made no 

motion for judgment as a matter of law during trial. Plaintiff’s request for a new trial under 

Rule 59 will be denied because Plaintiff has not shown that the jury’s verdict was against 

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the weight of the evidence, was the result of any unfairness at trial, or constituted a 

miscarriage of justice. 

IT IS ORDERED that Plaintiff’s motion for judgment notwithstanding the verdict 

and new trial (Doc. 502) is denied.

Dated this 20th day of April, 2021.

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