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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

TERRENCE BRESSI,

Plaintiff, vs.

MICHAEL FORD, ERIC O’DELL, GEORGE TRAVIOLIA, RICHARD SAUNDERS, and JOSEPH DELGADO, Defendants. ) ) ) ) ) ) ) ) ) ) ) )

Case No. CIV 04-264 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 #218) and requests that this

Court deny the motion.

Defendants’ Sixth motion in limine (Dkt #222) 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 David J. Euchner

33 North Stone Avenue, Suite 2100 Tucson, AZ 85701

TEL (520) 243-6842

David J. Euchner, SBN #021768 Attorney for Plaintiff

Ellinwood & Francis LLP 117 W. Washington Street Tucson, AZ 85701

TEL (520) 882-2100

Ralph E. Ellinwood, SBN #003890 Attorney for Plaintiff

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roadblock in question was general crime control by relying on Romero’s statements in

denying summary judgment to both parties on this issue. Dkt #200, pp.5-6.

Plaintiff submits that none of the reports is admissible as substantive evidence under

Rule 803(8)(A)(ii), Fed. R. Evid. See also Dkt #207 pp.11 & 39 (Plaintiff stated objection on

this ground in joint pre-trial order); Dkt #216, item #2 (Plaintiff’s motion in limine to exclude

police reports). Acknowledging this objection, Defendants assert that “in a civil case such as

this one, Rule 803(8) allows the admission of such police reports.” Dkt #218, p.2. 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case from California, and one which is unpublished and should not be considered.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 1974 modifications to Rule 803(8):

The House approved rule 803(9), 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.

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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, 754 F.2d 1190, 1194 (5th

Cir. 1980), 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 803(8)(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 803(8) is designed to permit the admission into

evidence of public records prepared for purposes independent of specific litigation.”

(emphasis added).

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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 non

-witnesses, Rule 803(8)(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 10th day of May, 2012.

BY: /s/ David J. Euchner David J. Euchner Attorney for Plaintiff

BY: /s/ David J. Euchner, for Ralph E. Ellinwood Attorney for Plaintiff

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ORIGINAL of the foregoing electronically Filed May 10, 2012, with:

Clerk, U.S. District Court District of Arizona 405 W. Congress Street Tucson, Ariz. 85701

https://ecf.azd.uscourts.gov

COPY of the foregoing electronically served May 10, 2012, to:

Roger W. Frazier Gust Rosenfeld, P.L.C.

1 South Church Avenue, Suite 1900 Tucson, Arizona 85701-1627

Attorney for Defendants

COPY of the foregoing mailed served May 10, 2012, to:

Hon. A. Wallace Tashima

U.S. Circuit Judge sitting by Designation c/o Evo A. DeConcini Courthouse

405 W. Congress Tucson, Arizona 85701

BY: /s/ David J. Euchner

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