Plaintiff Kang, a former Savannah police officer, filed a lawsuit against Police Chief Roy Minter and the City of Savannah alleging he was wrongfully terminated.
Kang alleges that his termination, which followed his involvement in a group complaint and filing his own complaint against Chief Minter, was based on racial discrimination and retaliation. He also stated that the the process governing the disciplinary proceedings that led to his termination was inappropriate. Kang has filed various claims, including a claim for retaliation for engaging in constitutionally protected speech, loss of employment rights, and violation of equal protection rights under federal laws.
Kang has also brought claims against the City of Savannah, where he alleges retaliation, loss of employment rights, procedural due process violations, and a Monell claim for policies contributing to the violation of his rights.
Both parties have submitted Motions for Summary Judgment, which are awaiting a decision from the district judge. Additionally, Kang wants to exclude expert testimony from Chief Minter’s expert, Louis M. Dekmar, and Chief Minter seeks to exclude certain opinions from Kang’s experts, Richard Register and Gary Vowell. These motions are now awaiting a decision.
Law Enforcement Expert Witnesses
Louis M. Dekmar has 45 years of civilian police experience and four years of military police practice as a law enforcement specialist (USAF). His experience includes serving as police chief or chief of public safety for 31 years. Presently, he is the Chief of Police for the City of LaGrange, Georgia. He is responsible for the supervision, personnel, and management of the LaGrange Police Department. In the police department, he instituted significant personnel, operational, and service-related initiatives, improving training and educational curriculum, developing, and expanding community and problem-solving policing programs, while reducing liability and crime rates and increasing citizen confidence and community partnerships.
Gary Vowell has retired effective September of 2020 as the head of the Georgia Department of Public Safety. These duties included being in charge of the Georgia State Patrol and the Georgia State Capitol Police. He formerly served as the Sheriff of Tift County, Georgia between 1997 and 2012 (4 terms). He currently serves on the board of directors of the Georgia Department of Natural Resources. He has taught numerous courses dealing with policing at the Georgia Police Academy in Forsyth, Georgia.
Richard E. Register is a retired Special Agent with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and had been in this position since 1999. Prior to this position, he served as a Firearm/Toolmark Examiner with ATF from 1996 to 1999. He also served as a Police Officer for the Fulton County Police Department between 1993 and 1996.
Discussion by the Court
The Plaintiff in the case sought to exclude the testimony of the Defendant’s expert, Louis M. Dekmar, who has 45 years of law enforcement experience and was offered by Defendant Minter to provide opinions on whether certain actions align with reasonable police practices. The Plaintiff argued that Dekmar’s entire testimony fell into three inadmissible categories: (1) legal conclusions, (2) opinions on the ultimate issue, and (3) opinions more prejudicial than probative.
The Court agreed with the Plaintiff regarding legal conclusions, citing Hanson v. Waller (888 F.2d 806, 811, 11th Cir. 1989). The Court determined that while Dekmar could testify about practices followed by police departments regulated by laws, he could not instruct the jury on the legal requirements of statutes and regulations. For instance, Dekmar couldn’t opine on whether Defendant Minter included the legal requirements of ‘due process’ as defined by the United States Supreme Court in his disciplinary process or specify what those requirements were. The Court clarified that it, not Dekmar, must be the jury’s sole source of law regarding the Due Process Clause’s requirements.
However, the Court acknowledged that Dekmar’s testimony might touch on the law to the extent industry custom and practice were shaped by legal requirements. While Dekmar could not assert that a “totality-of-circumstances test” is the law, he could offer an opinion that it is common practice for police departments to use that approach in disciplinary proceedings. In other words, the Court permitted Dekmar’s statement that a competent police chief considered the seriousness of charges and reviewed evidence based on the ‘totality-of-circumstances test, rather than a rigid step-by-step analysis, deeming it acceptable as it pertained to industry practices without providing specific legal conclusions or requirements. The Court thus allowed certain aspects of Dekmar’s testimony that aligned with industry practices but prohibited him from providing legal conclusions or opinions on the specific legal requirements.
The Court determined that Louis M. Dekmar could not offer opinions on the specific legal authority bestowed upon Defendant Minter by City of Savannah practices, policies, ordinances, contracts, codes, forms, or other instruments. The Court clarified that while Dekmar could speak to customary authority or how a reasonable police chief might interpret a document in line with accepted practices, he could not definitively opine on the scope of Defendant Minter’s legal authority as Chief of Police.
Regarding the objection to Dekmar testifying on ultimate issues, the Court noted that while Rule 704(a) of the Federal Rules of Evidence allows opinions embracing ultimate issues, it emphasized that an expert cannot simply instruct the jury on the desired result. The Court agreed with the Plaintiff’s objection, stating that Dekmar’s conclusion that Minter’s termination of Kang was not due to racial discrimination or retaliatory motive essentially directed the jury on how to decide those specific claims. The Court asserted that in this case, the jury had the responsibility to determine the weight and implications of the evidence without being guided by the expert witness.
The Court rejected the Plaintiff’s Rule 403 argument which stated that expert testimony, even if admissible under Rule 702, is still subject to other rules, including Rule 403. The Plaintiff claimed potential prejudice, arguing that the jury might give undue weight to Dekmar’s determinations because he is presented as an expert. However, the Court found this argument unpersuasive, stating that Dekmar’s anticipated testimony, within the limitations outlined in the order, is not likely to confuse or mislead the jury, be cumulative, or unnecessarily time-consuming. The Court granted in part and denied in part the Plaintiff’s Motion to Exclude Expert Testimony of Louis M. Dekmar, limiting Dekmar’s testimony to exclude legal conclusions and opinions directing the jury on the desired result. The Court did not provide an exhaustive list of excluded opinions, allowing either party to seek guidance on specific opinions through a motion in limine consistent with the court’s instructions.
Defendant Minter sought to exclude certain opinions from Plaintiff’s experts, Richard Register and Gary Vowell, regarding Minter’s conduct during the disciplinary process. Minter argued that these opinions lacked a sufficient factual basis and were unreliable. Register and Vowell, retired law enforcement officials, had decades of experience. Minter challenged opinions such as Minter’s use of draft policies, involvement in the disciplinary process, the absence of any precipitating factor for Plaintiff’s termination, and unequal discipline compared to another officer.
The Court, however, held that Register and Vowell’s opinions, although possibly not the best evidence, had a factual foundation based on their review of pleadings, disclosures, and Plaintiff’s affidavit. The Court noted that failure to consider all available documents might affect the weight of their opinions but did not render them inadmissible. The Court concluded that Register and Vowell had a factual basis for their analysis, and any weaknesses could be addressed through cross-examination during trial. Consequently, Plaintiff met the burden of demonstrating that Register and Vowell’s opinions were based on sufficient facts and data, and therefore, were reliable.
In response to Defendant Minter’s claim that Register and Vowell’s opinions lacked reliability due to a lack of identified guidelines or standards, both experts clarified that their opinions were grounded in their extensive law enforcement experience in Georgia, particularly in supervisory roles. The Court emphasized that for expert opinions based on experience, the expert must explain how that experience led to the conclusions, why it suffices as a basis, and how it is reliably applied to the facts.
The Court clarified that, in this case, there was no requirement for the police practices experts to cite scientific or empirical data or explicitly refer to recognized policing guidelines for their opinions to be deemed reliable. Register and Vowell’s opinions were based on their education, research, experience, and document review, and the Court found nothing inherently unreliable in the methodology. Any perceived methodological flaws could be addressed through cross-examination during the trial.
Held
The Court has granted in part and denied in part Plaintiff’s Motion to Exclude Expert Testimony of Louis M. Dekmar, stipulating that Dekmar is restricted from providing legal conclusions or instructing the jury on the desired result. Conversely, the Court has denied Defendant Minter’s Motion in Limine to Preclude Certain Opinions of Plaintiff’s Experts. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaway:
The Court’s rulings on expert testimony in this case have established clear parameters for admissibility. The Court prohibited experts from offering legal conclusions or instructing the jury on the desired result, firmly delineating the separation of roles between experts and the court in interpreting legal requirements and allowing the jury to make decisions. It also underscored the importance of a factual foundation for expert opinions, allowing them even if not all available documents were considered, with potential flaws subject to cross-examination during trial. The Court recognized the reliability of experience-based opinions, emphasizing that experts must explain how their extensive experience supports their conclusions. Furthermore, the Court rejected the argument that expert testimony could be excluded under Rule 403 merely because the expert is presented as an ‘expert,’ clarifying that potential undue weight given to expert opinions does not render the testimony unduly prejudicial if it is otherwise probative. The Court encouraged addressing any perceived weaknesses in expert methodologies through cross-examination rather than wholesale exclusion. Lastly, the Court affirmed that expert opinions need not explicitly cite scientific or empirical data or recognized guidelines to be deemed reliable, recognizing the practical application of knowledge and expertise in the given field.
Case Details
| Case Caption | Kang V. The Mayor And Aldermen Of The City Of Savannah Et Al |
| Docket Number | 4:21cv111 |
| Court | United States District Court, Georgia Southern |
| Citation | 2024 U.S. Dist. LEXIS 6954 |
| Order Date | January 12, 2024 |
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