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Plaintiffs' Brief in Opposition to Defendants' Motion To Case 2:15-cv-00286-JLQ Document 184 Filed 05/24/17 1 Emily Chiang, WSBA No. 50517 2 [email protected] AMERICAN CIVIL LIBERTIES UNION 3 OF WASHINGTON FOUNDATION 4 901 Fifth Avenue, Suite 630 Seattle, WA 98164 5 Phone: 206-624-2184 6 Dror Ladin (admitted pro hac vice) 7 Steven M. Watt (admitted pro hac vice) 8 Hina Shamsi (admitted pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 9 10 Lawrence S. Lustberg (admitted pro hac vice) Kate E. Janukowicz (admitted pro hac vice) 11 Daniel J. McGrady (admitted pro hac vice) 12 Avram D. Frey (admitted pro hac vice) GIBBONS P.C. 13 14 Attorneys for Plaintiffs 15 UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF WASHINGTON 17 SULEIMAN ABDULLAH SALIM, No. CV-15-0286 (JLQ) 18 MOHAMED AHMED BEN SOUD, OBAIDULLAH (AS PERSONAL 19 REPRESENTATIVE OF GUL RAHMAN), PLAINTIFFS’ BRIEF IN OPPOSITION TO 20 DEFENDANTS’ MOTION TO Plaintiffs, TAKE JUDICIAL NOTICE 21 22 v. Motion Hearing: 23 To Be Scheduled At Court’s JAMES ELMER MITCHELL and JOHN Discretion 24 “BRUCE” JESSEN 25 Defendants. 26 AMERICAN CIVIL LIBERTIES PLAINTIFFS’ BRIEF IN OPPOSITION TO UNION OF WASHINGTON FOUNDATION DEFENDANTS’ MOTION TO TAKE JUDICIAL 901 Fifth Ave, Suite 630 NOTICE Seattle, WA 98164 No. 15-CV-286 (JLQ) (206) 624-2184 Page | i Case 2:15-cv-00286-JLQ Document 184 Filed 05/24/17 1 Plaintiffs respectfully submit this short opposition to Defendants’ request 2 3 that the Court take judicial notice of the fact that (1) the United States was 4 attacked in a number of discrete locations on September 11, 2001 (“9/11”), (2) 5 al-Qaeda is responsible for those attacks, and (3) 2,996 people died and 5,000 6 people were injured in those attacks. ECF 165. Plaintiffs wish their position to 7 be perfectly clear: they do not seek to deny the truth of these horrific facts, but 8 those facts are not relevant to the issues raised in this case and are not 9 10 admissible. As Defendants know, Plaintiffs had absolutely nothing to do with 11 the 9/11 crimes; indeed, this Court has already determined that the Plaintiffs 12 were not even determined to be “enemy combatants.” ECF 135 at 14. And 13 Plaintiffs’ torture cannot be legally justified by reference to the tragedy. 14 Indeed, Defendants do not seek to introduce the evidence at issue because 15 it in any way bears upon a claim or defense in this case. Defendants’ motion for 16 17 summary judgment makes this plain, as it never even cites those facts. Rather, 18 Defendants’ sole purpose is to inflame the jury and prejudice it against the 19 Plaintiffs. It was for this reason that Plaintiffs would not consent to Defendants’ 20 motion. As Plaintiffs said then, and for the reasons stated in detail below, 21 Defendants’ motion should be denied because the facts at issue are inadmissible 22 under Federal Rules of Evidence Rule 401 and 403. 23 24 25 26 AMERICAN CIVIL LIBERTIES PLAINTIFFS’ BRIEF IN OPPOSITION TO UNION OF WASHINGTON FOUNDATION DEFENDANTS’ MOTION TO TAKE JUDICIAL 901 Fifth Ave, Suite 630 NOTICE Seattle, WA 98164 No. 15-CV-286 (JLQ) (206) 624-2184 Page | 1 Case 2:15-cv-00286-JLQ Document 184 Filed 05/24/17 1 ARGUMENT 2 I. JUDICIAL NOTICE IS INAPPROPRIATE WHEN THE 3 SUBMITTED MATERIAL IS INADMISSIBLE UNDER EITHER RULE 401 OR 403. 4 5 Defendants’ proffered evidence does not meet the requirements of the 6 Federal Rules of Evidence. Of course, the asserted facts are “generally known” 7 and thus satisfy Federal Rule of Evidence 201(b)(1). And as set forth above, 8 Plaintiffs by no means deny the truth of the statements at issue. However, the 9 rule allowing judicial notice requires that the fact at issue also be “an 10 adjudicative fact,” Fed. R. Evid. 201(a), and, based upon this requirement, 11 12 courts require that such facts satisfy the evidentiary rules regarding relevance as 13 well. See Blye v. Cal. Supreme Court, No. 11-5046, 2014 U.S. Dist. LEXIS 14 7329, *3 (N.D. Cal. Jan. 21, 2014) (“[A]n irrelevant fact is one not of 15 consequence in determining the action, see Fed. R. Evid. 401(b), and therefore 16 cannot be classified as an adjudicative fact.”); La Spina v. Wucherer, No. 96- 17 1359, 1996 U.S. Dist. LEXIS 16095 (S.D. Cal. Oct. 9, 1996) (explaining that 18 19 judicial notice is used to establish “relevant” facts). 20 Despite having been informed by Plaintiffs that relevance was the basis of 21 their opposition to this motion, however, Defendants ignored that courts in this 22 Circuit (and elsewhere) consistently deny requests to take judicial notice of 23 irrelevant facts, especially in the context of summary judgment, where courts 24 “consider only alleged facts that would be admissible in evidence.” Rosa v. 25 26 TASER Int’l, 684 F.3d 941, 948 (9th Cir. 2012); Cuellar v. Joyce, 596 F.3d 505, PLAINTIFFS’ BRIEF REGARDING DEFENDANTS’ AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON MOTION FOR JUDICIAL NOTICE FOUNDATION No. 15-CV-286 (JLQ) 901 Fifth Ave, Suite 630 Seattle, WA 98164 Page | 2 (206) 624-2184 Case 2:15-cv-00286-JLQ Document 184 Filed 05/24/17 1 512 (9th Cir. 2010) (denying judicial notice because materials submitted were 2 3 “not relevant to the disposition of this appeal”); Donastorg v. Riverside County 4 Sheriff's Dep’t, No. 12-1654, 2014 U.S. Dist. LEXIS 91169, *6-7 (C.D. Cal. 5 May 7, 2014) (denying judicial notice where evidence irrelevant to summary 6 judgment motion); Chyna v. Bayview Loan Servicing, LLC, No. 14-cv-01415, 7 2016 U.S. Dist. LEXIS 133849, *9 n.3 (S.D. Cal. Sept. 27, 2016) (same).1 8 Defendants’ motion also fails to address—again, despite advance notice 9 10 of Plaintiffs’ position that the proffered facts fall afoul of Federal Rule of 11 Evidence 403—the many decisions within and outside the Ninth Circuit denying 12 requests for judicial notice on the grounds of undue prejudice. See, e.g., Keyes v. 13 Coley, No. 09-1297, 2011 U.S. Dist. LEXIS 59625, *8-9 (E.D. Cal. June 2, 14 2011) (sustaining objection to request for judicial notice on the basis that the 15 evidence was irrelevant, unduly prejudicial, and hearsay); Cooper v. Redding, 16 17 No. 8:15CV441, 2017 U.S. Dist. LEXIS 10942, *2 (D. Neb. Jan. 26, 2017) 18 (denying judicial notice request under Fed. R. Evid. 201(b) because “taking 19 judicial notice of such matters could unduly prejudice Defendant.”). 20 21 1 Defendants point to In re September 11 Litig., 751 F.3d 86, 90 (2d Cir. 2014), 22 as a case in which a court took judicial notice of the 9/11 attacks, but that case 23 was one in which there was no dispute that those attacks were relevant to 24 CERCLA’s “act of war” affirmative defense. Thus, the case stands for the 25 unremarkable proposition that the September 11, 2001 attacks may be judicially 26 noticed in a case in which they actually are relevant. PLAINTIFFS’ BRIEF REGARDING DEFENDANTS’ AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON MOTION FOR JUDICIAL NOTICE FOUNDATION No. 15-CV-286 (JLQ) 901 Fifth Ave, Suite 630 Seattle, WA 98164 Page | 3 (206) 624-2184 Case 2:15-cv-00286-JLQ Document 184 Filed 05/24/17 1 As set forth in greater detail below, the 9/11 facts fail the evidentiary tests 2 3 for relevance set forth in Federal Rules of Evidence 401 and 403. Therefore, 4 despite Defendants’ arguments that the attacks satisfy Rule 201 simply because 5 they are “undisputed” and “generally known,” the Court should deny 6 Defendants’ request to judicially notice them. 7 II. DEFENDANTS’ REQUEST FAILS UNDER FED. R. EVID. 8 401. 9 Under Federal Rule of Evidence 401, evidence is deemed relevant if: “(a) 10 it has any tendency to make a fact more or less probable than it would be 11 12 without the evidence, and (b) the fact is of consequence in determining the 13 action.” Accordingly, “only facts having rational probative value are 14 admissible,” i.e., only where it is “[e]vidence which has any tendency in reason 15 to prove any material fact[.]” United States v. Amaral, 488 F.2d 1148, 1152 (9th 16 Cir. 1973). The requirement of materiality is unqualified—the proposed 17 evidence must go to “a matter properly provable in the case” and must be “of 18 19 consequence in the determination of the action.” Fed. R. Evid. 401 advisory 20 committee’s notes to 1972 Proposed Rules. 21 The tragic events of 9/11 are not probative of any fact “of consequence in 22 determining the action” as Defendants’ now-pending Motion for Summary 23 Judgment makes clear. Critically, Defendant’s Motion never cites the specific 24 facts for which they now seek judicial notice, which are identified at ¶ 4 of their 25 26 Statement of Facts. ECF 170 ¶4. Indeed, Defendants motion only mentions 9/11 PLAINTIFFS’ BRIEF REGARDING DEFENDANTS’ AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON MOTION FOR JUDICIAL NOTICE FOUNDATION No. 15-CV-286 (JLQ) 901 Fifth Ave, Suite 630 Seattle, WA 98164 Page | 4 (206) 624-2184 Case 2:15-cv-00286-JLQ Document 184 Filed 05/24/17 1 in two contexts, neither of which requires judicial notice of the specific facts 2 3 Defendants now assert are “adjudicative.” ECF 169 at 2-3. First, in discussing 4 the political question defense, Defendants state, “In the months after 9/11, at a 5 meeting at HQS discussing ways to get Zubaydah to provide information about 6 threats to the U.S., Mitchell mentioned 12 potential interrogation techniques .
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