Free Motion in Limine - District Court of Colorado - Colorado

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

Document 274

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-00319-PSF-PAC LILLIAN BARTON, Plaintiff, v. RICHARD BLEA NICK SAGAN JOSH VASCONCELLOS Defendants. _____________________________________________________________________________ PLAINTIFF'S MOTION IN LIMINE FOR ISSUE PRECLUSION RE LACK OF PROBABLE CAUSE, UNREASONABLENESS AND ILLEGALITY OF PLAINTIFF'S ARREST & FAILURE TO MIRANDIZE PLAINTIFF _____________________________________________________________________________

Plaintiff, LILLIAN BARTON, by her attorney, A. THOMAS ELLIOTT, JR., P.C. moves for an order of issue preclusion as follows:

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1. On December 24, 2002 Denver County Court Judge Mary Celeste declared Lillian Barton's arrest illegal because under the totality of circumstances it was not based upon probable cause. Judge Celeste entered an Order finding that under the totality of circumstances the Defendant police officers did not have probable cause to arrest Plaintiff Lillian Barton for interference and that it was unreasonable to believe that Lillian Barton committed a crime. The Court further ordered that none of Lillian Barton's statements were admissible since there was uncontroverted testimony that her Miranda rights were not given. Doc. 262-2 filed July 7, 2006; Joint Exhibit List, Exhibit No. 9, Doc. 265; Plaintiff's Proposed Exhibit A attached hereto. Plaintiff has a certified copy of this document to be admitted into evidence at trial. Extrinsic evidence of its authenticity is therefore not required under Rule 902 of the Federal Rules of Evidence. 2. On January 28, 2003 Denver County Court Judge Mary Celeste granted the Motion of

Lillian Barton's attorney to dismiss the interference with police authority charge against her. Judge Celeste did this by writing "Granted 1/28/03, Rel Bond, Reimburse Jury Fee MAC" across the face of a Motion to Dismiss filed by Plaintiff's defense attorney in that case and her legal counsel in this case. Plaintiff's Proposed Exhibit B attached. That document is Doc. 262-3 filed with this Court on July 7, 2006. Plaintiff has a certified copy of that document to be admitted into evidence at trial. Extrinsic evidence of its authenticity is therefore not required under Rule 902 of the Federal Rules of Evidence. 3. Judge Celeste entered the Orders referred to in paragraphs 1 and 2 above based upon a Motions hearing in the Denver County Court which clearly establishes that the three officers who are defendants in this case are the same three officers referred to in the December 24, 2002 order who were represented by an Assistant City Attorney of the City of Denver. A 139 page transcript of that hearing (which is too voluminous to attach here) certified as complete and accurate by the

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Court Transcriber who prepared it is listed on the Joint Exhibit List, Exhibit No. 9, Doc. 265 filed July 10, 2006. Plaintiff Lillian Barton's testimony can also establish the facts as to the Judge, parties, officers involved and dates. 4. The United States Supreme Court has defined the doctrine of collateral estoppel, also known as issue preclusion, as "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 153 (1979). Kremer v. Chemical Construction Corporation, 456 U.S. 461 (1982). 5. "The concept of issue preclusion is in substance that any fact, question or matter in issue and directly adjudicated or necessarily involved in a determination of an action before a court of competent jurisdiction in which a judgment or decree is rendered on the merits, is conclusively settled by the judgment therein and cannot be relitigated in any future action between the parties or privies, either in the same court or a court of concurrent jurisdiction, while the judgment remains unreversed or unvacated by proper authority, regardless of whether the claim or cause of action, purpose or subject matter of the suits is the same." Palma v. Powers, 295 F. Supp. 924, 933 (D.C. Ill. 1969). 6. Issue preclusion applies in 42 U.S.C. §1983 cases in the 10th Circuit. Wilkinson v. Pitkin County Board of County Commissioners, 142 F. 3d 1319 (10th Cir. 1998): "This court gives full faith and credit to state court judgments. See Strickland v. City of Albuquerque, 130 F.3d 1408, 1411 (10th Cir. 1997) (citing 28 U.S.C. §§ 1738); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80-85 (1984). The preclusive effect of a state-court decision in a §§ 1983 action filed in federal court is a matter of state law. See Heck v. Humphrey, 512 U.S. 477, 480 n.2 (1994); Migra, 465 U.S. at 81. Thus, we apply Colorado law to determine if the district court properly granted summary judgment on the grounds of res judicata and collateral estoppel. "Res judicata constitutes an absolute bar to subsequent actions only when both the prior and subsequent suits have identity of subject matter, identity of cause of action, and identity of capacity in the persons for which or against whom the claim is made." Michaelson v. Michaelson, 884 P.2d 695, 699 (Colo. 1994) (quotation omitted). "The

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'same claim or cause of action' requirement is determined by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claims relies." Id. Where a judgment on the merits is rendered in favor of a defendant in an action in which the plaintiff may have two or more alternate remedies, res judicata bars maintenance of a subsequent action to enforce a remedy the plaintiff did not seek in the former action. See Miller v. Lunnon, 703 P.2d 640, 643 (Colo. Ct. App. 1985). Thus, res judicata bars litigation of all issues actually decided and all issues that might have been decided. See Klein v. Zavaras, 80 F.3d 432, 434 (10th Cir. 1996) (applying Colorado law); Batterman v. Wells Fargo Ag Credit Corp., 802 P.2d 1112, 1118 (Colo. Ct. App. 1990). " "The doctrine of collateral estoppel precludes a claim if the issue is identical to an issue actually litigated and necessarily decided in the prior action, the plaintiff was a party or was in privity with a party in the prior action, there was a final merits judgment in the prior action, and the plaintiff had a full and fair opportunity to litigate the issue in the prior action. See Michaelson, 884 P.2d at 700-01." 142 F. 3d 1319, 1322. "Federal courts must give the same preclusive effect to state court judgments that those judgments would be given in courts of the state in which the judgments were rendered. See 28 U.S.C. §§ 1738; Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319, 1322 (10th Cir. 1998). "The preclusive effect of a state court decision . . . is a matter of state law." ". Vanover v. Cook, 260 F.3d 1182 (10th Cir. 2001) 7. The Denver County Court was and is a court of competent jurisdiction. The Defendants had a full and fair opportunity with able legal counsel to litigate the issues of the legality of Plaintiff's arrest, probable cause, whether she had been given her Miranda advisements, and the reasonableness of her arrest. WHEREFORE, Plaintiff requests that the Court order preclusive effect be given in this case to the December 24, 2002 Order of Denver County Court Judge Mary Celeste declaring Lillian Barton's arrest illegal because under the totality of circumstances it was not based upon probable cause, that under the totality of circumstances the Defendant police officers did not have probable cause to arrest Plaintiff Lillian Barton for interference, that it was unreasonable to believe that Lillan Barton committed a crime, that none of Lillian Barton's statements were admissible since there was

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uncontroverted testimony that her Miranda rights were not given, and that the interference with police authority charge against her was dismissed. RESPECTFULLY SUBMITTED, A. THOMAS ELLIOTT, JR., P.C.

BY: s/ A. Thomas Elliott, Jr. A. Thomas Elliott, Jr. 1816 Race Street Denver, CO 80206 (303)322-5490 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on September 27, 2006, an electronic copy of the foregoing Plaintiff's Motion in Limine for Issue Preclusion re Lack of Probable Cause, Unreasonableness and Illegality of Plaintiff's Arrest, and Failure to Mirandize Plaintiff with the Court via CM/ECF system which will send notice to: Brett Anthony McDaniel [email protected] Sonja S. McKenzie [email protected] and also sent via the U.S. Mail, first class postage prepaid, addressed as follows: Lillian Barton 97 Soda Creek Rd. Evergreen, CO 80439 s/A. Thomas Elliott, Jr. A. Thomas Elliott, Jr.