Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02633-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02633-PSF-PAC LILLIAN BARTON, Plaintiff, v. OFFICER R. BLEY, Badge No. 99006 OFFICER N. SAGEN, Badge No. 96-021 OFFICER JOHN DOE Defendants. and Civil Action No. 04-cv-319-PSF-PAC LILLIAN BARTON, Plaintiff, v. RICHARD BLEA NICK SAGAN JOSH VASCONCELLOS Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF' MOTION IN LIMINE S FOR ISSUE PRECLUSION ______________________________________________________________________________ Defendants, OFFICER RICHARD BLEA (incorrectly designated as "Bley"), OFFICER NICK SAGAN (incorrectly designated as "Sagen"), and OFFICER JOSH VASCONCELLOS (hereinafter "Defendants"), by their attorneys, SONJA S. McKENZIE and BRETT A. McDANIEL of SENTER GOLDFARB & RICE, L.L.C., and in response to Plaintiff' Motion in Limine for Issue Preclusion Regarding Lack of Probable Case, s

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Unreasonableness, and Illegality of Plaintiff' Arrest and Failure to Mirandize Plaintiff, state as s follows: I. INTRODUCTION As the Court is aware, the parties filed mutual Motions in Limine on September 27, 2006 with regard to those the substance of Plaintiff' present Motion in Limine (hereinafter "Plaintiff's s Motion"). Accordingly, Defendants hereby adopt by reference those arguments set forth within their Supplemental Motions in Limine (hereinafter "Defendants' Supplemental Motion") filed with the Court on September 27, 2006. I. ARGUMENT In addition to those matters previously set forth by Defendants within their Supplemental Motion, Defendants respond to Plaintiff' motion as follows: s 1. As an initial matter, Judge Celeste' ruling with regard to Plaintiff' Miranda s s

rights in the underlying criminal proceeding has no relevance to the present matter. Thus, this Court should disallow any evidence regarding Miranda warnings. 2. As previously articulated, it is Plaintiff' burden to prove four essential elements s

for issue preclusion to apply. These elements include: "(1) the issue sought to be precluded must be identical to an issue actually and necessarily decided at a prior proceeding; (2) there must have been a final judgment on the merits at the first proceeding; (3) there must be identity of parties or privity of parties against whom the doctrine is asserted; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding." Schenck v. Minolta Office Systems, Inc., 802 P.2d 1131 (Colo. App.

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1990) (citing Williamsen v. People, 735 P.2d 176 (Colo. 1987). In accord therewith, Plaintiff has wholly failed to meet her burden for issue preclusion to apply in this instance. 3. As these matters have been addressed extensively within Defendants'

Supplemental Motion, we will not reiterate these arguments in support of same. That said, it is important to note the overriding and fundamental aspect of issue preclusion which Plaintiff has failed to establish, "identity of parties." See, id. 4. As the Schenck Court held, the issue of probable cause in a proceeding for

malicious prosecution is "not identical to the probable cause issue in the preliminary hearing." Id. at 1134. Indeed, "the sole focus at the preliminary hearing was whether the State had probable cause to believe Plaintiff committed a crime... [h]owever, in the malicious prosecution proceeding, the issue was whether the Defendants had probable cause to believe Plaintiff committed the crime." Id. at 1135 (emphasis added). Accordingly, as the parties and issues involved in Plaintiff' underlying criminal proceedings are not identical to the present matter, s collateral estoppel/issue preclusion does not apply. Industrial Commission, 749 P.2d 412 (Colo. 1988). 5. While Plaintiff relies heavily upon Wilkinson v. Pitkin County Board of County See, id. (citing Colorado Springs v.

Commissioners, 142 F.3d 1319 (10th Cir. 1998), this case does not address those arguments proffered by Defendants in support of their Supplemental Motion. Wilkinson involves primarily the issue of "identity of claims and issues." See, id. at 1323 (emphasis added). The Court was not confronted with the question of identity of parties.

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6.

In the present case, the State was effectively the Plaintiff in the underlying

criminal case and Defendants were merely witnesses. See, e.g., Schenck at 1135. However, Officer Vasconcellos did not even testify at the prior criminal proceeding. 7. Accordingly, not only do the two matters not involve identity of parties, but

Defendants also were not previously afforded a "full and fair opportunity" to litigate the issues. See, e.g., Burrell v. Armijo, 456 F.3d 1159, 1167 (10th Cir. 2006). Although Plaintiff argues Defendants had "able legal counsel to litigate the issues of the legality of Plaintiff' arrest, s probable cause, whether she had been given her Miranda advisements, and the reasonableness of her arrest," this attorney was clearly acting on behalf of the State and not the individual Defendants. [See, Plaintiff' Motion at p. 4.] The City Attorney did not represent the personal s interests of these officers in the underlying criminal matter. 8. Moreover, Defendants had no standing or ability to appeal. Accordingly, there

was certainly no full and fair opportunity afforded Defendants to litigate these issues. As such, issue preclusion for those matters argued by Plaintiff does not apply. See, e.g., Schenck, supra; Burrell, supra. 9. In addition, where the criminal court' review of Defendants' actions was s

necessarily performed with every benefit of 20/20 hindsight, that standard does not apply herein. In evaluating Plaintiff' claim for false arrest, the jury must look at the evidence from the s perspective of a "reasonable officer on the scene rather than the 20/20 vision of hindsight." See, Graham v. Connor, 490 U.S. 386, 396 (1989). Again, this dramatic distinction makes not only introduction of these exhibits improper in the context of Plaintiff' Fourth Amendment claim, but s

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their preclusive effect and/or introduction with regard to Plaintiff' allegation of malicious s prosecution unduly prejudicial. F.R.E. 403. 10. Finally, Defendants note Judge Celeste' Order of January 28, 2003 was not s

identified as an exhibit in the Final Pretrial Order or timely exchanged in accord therewith. As such, exclusion of Judge Celeste' January 28, 2003 is proper as a procedural matter alone. This s is notwithstanding the fact that said Order was handwritten on a pleading drafted by Plaintiff's counsel comprised of self-serving hearsay. F.R.E. 802. WHEREFORE, for those reasons stated herein and Defendants' Supplemental Motion, neither of Judge Celeste' Orders should be admitted into evidence or the findings contained s therein adopted as preclusive of the disputed issues. Respectfully submitted,

s/ Sonja S. McKenzie Sonja S. McKenzie

s/ Brett A. McDaniel Brett A. McDaniel SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] Attorneys for Defendants Officer Richard Blea, Officer Nick Sagan, and Officer Josh Vasconcellos

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29th day of September, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' RESPONSE TO PLAINTIFF' MOTION IN LIMINE FOR ISSUE PRECLUSION REGARDING LACK S OF PROBABLE CAUSE, UNREASONABLENESS, AND ILLEGALITY OF PLAINTIFF' ARREST AND FAILURE TO MIRANDIZE PLAINTIFF with the Court S using the CM/ECF system, which will send notification of such filing to the following e-mail address: A. Thomas Elliott, Jr. [email protected] I FURTHER CERTIFY that I have mailed said DEFENDANTS' RESPONSE TO PLAINTIFF' MOTION IN LIMINE FOR ISSUE PRECLUSION REGARDING LACK S OF PROBABLE CAUSE, UNREASONABLENESS, AND ILLEGALITY OF PLAINTIFF' ARREST AND FAILURE TO MIRANDIZE PLAINTIFF to the following S non-CM/ECF participant by U.S. Mail, first class postage prepaid: John Eckhardt, Esq. Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202-5375

s/ Kathleen Bertz

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