Merritt v. Arizona

Leslie A. Merritt, Jr., Plaintiff, v. State of Arizona, et al., Defendants.

No. CV-17-04540-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

April 20, 2021

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 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,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.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 themoving 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. 488at 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...