IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) )

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1 David J. Euchner North Stone Avenue, Suite 00 Tucson, AZ 0 TEL (0 - David J. Euchner, SBN #0 Ellinwood & Francis LLP W. Washington Street Tucson, AZ 0 TEL (0-00 Ralph E. Ellinwood, SBN # TERRENCE BRESSI, vs. IN THE UNITED STATES DISTRICT COURT Plaintiff, MICHAEL FORD, ERIC O DELL, GEORGE TRAVIOLIA, RICHARD SAUNDERS, and JOSEPH DELGADO, FOR THE DISTRICT OF ARIZONA Defendants. Case No. CIV 0- TUC-AWT RESPONSE TO DEFENDANTS MOTION IN LIMINE (SECOND TO ADMIT INCIDENT REPORTS OF OTHER INCIDENTS Assigned to Honorable A. Wallace Tashima Plaintiff, through undersigned counsel, responds to Defendants Motion in Limine (Second To Admit Incident Reports of Other Incidents (Dkt # and requests that this Court deny the motion. Defendants Sixth motion in limine (Dkt # seeks to preclude Romero s statement in his report that he was in service assisting with a checkpoint to locate intoxicated drivers, stolen vehicles, undocumented alien smuggling, and drug contraband. This Court has already deemed that statement relevant toward determining whether a primary purpose of the

2 0 0 roadblock in question was general crime control by relying on Romero s statements in denying summary judgment to both parties on this issue. Dkt #00, pp.-. Plaintiff submits that none of the reports is admissible as substantive evidence under Rule 0((A(ii, Fed. R. Evid. See also Dkt #0 pp. & (Plaintiff stated objection on this ground in joint pre-trial order; Dkt #, item # (Plaintiff s motion in limine to exclude police reports. Acknowledging this objection, Defendants assert that in a civil case such as this one, Rule 0( allows the admission of such police reports. Dkt #, p.. In support of its position, Defendants cite three cases, one of which is a thirty-year-old Ninth Circuit case that directly contradicts the text of the rule, one of which is a published District Court case from California, and one which is unpublished and should not be considered. Even though this case is a civil case, those reports were generated in conjunction with criminal cases. It is the intent of the statements at the time they are made that matters. According to the advisory committee notes to the modifications to Rule 0(: The House approved rule 0(, as submitted by the Supreme Court, with one substantive change. It excluded from the hearsay exception reports containing matters observed by police officers and other law enforcement personnel in criminal cases. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. The committee accepts the House s decision to exclude such recorded observations where the police officer is available to testify in court about his observation.

3 0 0 Even though the rule speaks of criminal cases, the rationale applies equally in this case, where the adversarial process between arresting officers and arrestee is on full display, albeit with the parties reversed (the arrestee is the Plaintiff and officers are Defendants. At the time these police reports were created in preparation for a criminal case, at a time when the officers creating those reports expected them to be used in adversarial proceedings. The text of the rule, and the advisory committee notes, show that the public records exception is supposed to be applied to allow admission of non-adversarial records that are kept in the normal course of business. This rationale wsa explained in United States v. Quezada, F.d 0, (th Cir. 0, where the Fifth Circuit distinguished between public records that are generated in a routine and ministerial manner and police reports that are generated in an adversarial setting. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant were not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. [cite omitted] Thus, a number of courts have drawn a distinction for purposes of Rule 0((B between law enforcement reports prepared in a routine, non-adversarial setting, and those resulting from the arguably more subjective endeavor of investigating a crime and evaluating the results of that investigation. The Fifth Circuit then concluded that Rule 0( is designed to permit the admission into evidence of public records prepared for purposes independent of specific litigation. (emphasis added.

4 0 0 All of the police reports generated in this case were done so in the spirit of preparing for specific litigation. The fact that they might be offered by a party in some other proceeding somewhat unrelated to the original criminal case does not alter the state of the mind of the report authors at the time the reports were written. The purpose of this exception is to allow reliable documents into evidence; since police reports are inherently unreliable when created in this context, they should be excluded. Romero s report in which he refers to the purpose of the roadblock as locating not only drunk drivers but also smugglers and stolen vehicles is not admissible either. His testimony about the report is admissible, however, because he is testifying about his present sense impressions, and where his testimony contradicts the report, the report is admissible as a prior inconsistent statement. The reports of Ford and Traviolia may be permissibly be used for refreshing recollection or impeachment. The difference is these are live witnesses who gave testimony under oath. To the extent Defendants wish to introduce police reports of nonwitnesses, Rule 0((A(ii holds that such reports are unreliable and may not be admitted. For these reasons, Defendants Motion in Limine (Second should be denied. RESPECTFULLY SUBMITTED this 0th day of May, 0. BY: /s/ David J. Euchner David J. Euchner BY: /s/ David J. Euchner, for Ralph E. Ellinwood

5 0 ORIGINAL of the foregoing electronically Filed May 0, 0, with: Clerk, U.S. District Court District of Arizona 0 W. Congress Street Tucson, Ariz. 0 COPY of the foregoing electronically served May 0, 0, to: Roger W. Frazier Gust Rosenfeld, P.L.C. South Church Avenue, Suite 00 Tucson, Arizona 0- Attorney for Defendants COPY of the foregoing mailed served May 0, 0, to: Hon. A. Wallace Tashima U.S. Circuit Judge sitting by Designation c/o Evo A. DeConcini Courthouse 0 W. Congress Tucson, Arizona 0 BY: /s/ David J. Euchner 0