Free Motion in Limine - District Court of Colorado - Colorado

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

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Filed 09/27/2006

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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' SUPPLEMENTAL MOTIONS IN LIMINE ______________________________________________________________________________ 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., hereby file the following Supplemental Motions In Limine:

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

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I. INTRODUCTION At the Supplemental Final Trial Preparation Conference held on September 22, 2006 in the above-referenced matter, Plaintiff' counsel directed the Court to Orders issued by Judge s Mary Celeste in the underlying criminal matter involving Plaintiff. Plaintiff' counsel indicated s that not only should these Orders be admitted into evidence but should be preclusive of the issues addressed therein, and specifically a lack of probable cause to support Plaintiff' arrest. s In light of these issues, the Court recommended the parties to file mutual motions in limine with regard to these matters. In support thereof, Defendants state as follows: II. FOURTH MOTION IN LIMINE (Motion in Limine to Exclude Judge Mary Celeste' Orders of s December 24, 2002 and January 28, 2003) Plaintiff bears the burden of proving four essential elements for issue preclusion. These elements include: "(1) the issues 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. 1990) (citing Williamsen v. People, 735 P.2d 176 (Colo. 1987). 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

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issue was whether the Defendants had probable cause to believe Plaintiff committed the crime." Id. at 1135 (emphasis added). Thus, the issues involved in Plaintiff' underlying criminal s proceedings and the subject civil action are not identical, collateral estoppel/issue preclusion does not apply. See, id. (citing Colorado Springs v. Industrial Commission, 749 P.2d 412 (Colo. 1988). Relying largely upon Whitley v. Seibel, 676 F.2d 245 (7th Cir. 1982), the Schenck Court recognized the dissimilarity between the underlying criminal proceeding and Plaintiff' civil s action. In addition to non-identity of parties, Schenck sets forth another fundamental distinction between the two proceedings and the issues involved. Specifically, whether "Defendants had lied to, or concealed evidence from, law enforcement authorities" is a matter fundamental to a civil proceeding and ancillary to the criminal matter. In so doing, the Court recognized the difference between witnesses to an alleged crime (such as responding officers) and the State itself. The two groups are not the same or in privity with regard to the disputed issue. A primary factor with regard to issue preclusion is a party' "full and fair opportunity" to s litigate the critical issue to represent their interests in the underlying criminal matter. See, e.g. Burrell v. Armijo, 456 F.3d 1159, 1167 (10th Cir. 2006). This requirement cannot be met in this instance. A "full and fair opportunity" to litigate would include the right to appeal an adverse ruling. In this instance, Defendants had did not have the standing to appeal. Defendants also did not have personal counsel representing them in the criminal proceedings. Vasconcellos did not even testify at the underlying criminal proceedings. Moreover, should the court determine that issue preclusion applies, the result would be inequitable. Specifically, where probable cause is found not to exist, a jury may infer malice. Defendant

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See, Montgomery Wary & Co. v. Pherson, 272 P.2d 643, 646 (Colo. 1954). As such, it bears upon the fundamental interest of justice and fairness to allow Defendants to not only litigate this issue on their own behalf, but enjoy the benefit of a jury' full consideration (as opposed to a s trial to court). Additionally, the Court must address Plaintiff' assertion of issue preclusion in a context s of her claim for false arrest in violation of the Fourth Amendment. In evaluating this claim, the jury must look at the evidence from the perspective of a "reasonable officer on the scene rather than with the 20/20 vision of hindsight." See, Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20 ­ 22 (1968). On the other hand, the primary purpose of a criminal proceeding is to evaluate the issues with the benefit of 20/20 hindsight. This dramatic distinction makes the introduction of these exhibits improper in terms of the Fourth Amendment claim. Moreover, where the parties did not have a full and fair opportunity to litigate the issue of probable cause, admitting Judge Celeste' Orders would result in prejudice far beyond their s prohibitive value. See, Schenk, supra; F.R.E. 403. Additionally, as Judge Celeste' Order of s January 28, 2003 was not identified as an exhibit in the Final Pretrial Order, this document should be excluded from consideration. Additionally, since the Court' Order of January 28, s 2003 "relates back" to the December 24, 2002 Order, it is cumulative. F.R.E. 403. Finally, the Order is handwritten on the Motion to Dismiss, the Motion itself is self-serving hearsay (F.R.E. 802) and adopted by the Court. [See, Exhibit 1 attached hereto.]

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For those reasons stated, neither of Judge Celeste' Orders should be admitted into s evidence or the findings contained therein adopted as preclusive of the disputed issues, specifically probable cause. II. SUPPLEMENTAL ARGUMENT IN SUPPORT OF SECOND MOTION IN LIMINE (Motion in Limine to Exclude any Evidence or Testimony Pertaining to Plaintiff' Damages) s Following the Supplemental Pretrial Conference of September 22, 2006, Defendants have again attempted to confer further with Plaintiff regarding the existence and/or provision of documentation supporting Plaintiff' alleged itemization of damages as contained within s Plaintiff' Exhibit No. 14 and Exhibit No. 15 both by telephone and in writing. To date, no s response has been received as to the availability and/or existence of documents underlying Plaintiff' purported damages itemization. s To the extent such documentation does exist, providing the documents at this late hour will neither afford Defendants opportunity for a meaningful review and/or an opportunity for objection where such production may be incomplete. Thus, Defendants reincorporate their prior arguments justifying the exclusion of these exhibits. Plaintiff' Exhibits Nos. 14 and 15. s As such, this Court should exclude

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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-mails: [email protected] [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 27th day of September, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' SUPPLEMENTAL MOTIONS IN LIMINE with the Court via CM/ECF system and served via CM/ECF system and served via the U.S. mail, first class postage prepaid, addressed as follows:

A. Thomas Elliott, Jr. [email protected]

and also served via the U.S. mail, first class postage prepaid, addressed as follows: John Eckhardt, Esq. Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202-5375

s/ Kathleen Bertz Kathleen Bertz E-mail: [email protected] Secretary for Attorney Brett A. McDaniel

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