A district judge in Washington refused to admit the Law Enforcement Expert Witness’ testimony with regard to the claims of outrage, negligence and assault filed against the Seattle Police Department.
On May 30, 2020, organizers planned two demonstrations in downtown Seattle to protest the May 25, 2020 killing of George Floyd in Minneapolis: (1) “The March for George Floyd,” scheduled from 12:00 p.m. to 6:00 p.m. on Fifth Avenue, and (2) “The Defiant Walk of Resistance Against Injustice,” scheduled to begin at 3:00 p.m. and to go from Westlake Park to the federal courthouse at Seventh Avenue and Stewart Street. Sergeant Sean Moore served as the leader of Platoon 1’s West Bikes #3 at The Defiant Walk of Resistance Against Injustice.
After learning about the demonstrations through his parents or his church, Avery decided to attend the events along with his young son J.A., other family members, and church members.
Plaintiffs Are Injured During the May 30, 2020 Demonstrations
An escalation between officers and demonstrators ensued after the arrest of one of the demonstrators. Several demonstrators, including two female demonstrators (one wearing a black sweatshirt and one wearing a white t-shirt and bike helmet), moved toward the police line. At one point, Officer Moore ran up to the line from behind and repeatedly yelled “Move back!” with a blast ball in his left hand and OC spray in his right hand. The female demonstrator wearing the bike helmet then shouted “You move back!” while pushing over the line, grabbing an officer’s baton, and pushing back against him.
At the beginning of this disturbance, Avery moved quickly to his left towards the disturbance, holding J.A. to his right side and approaching until he was immediately behind the female demonstrator. Then, without verbal warning, Officer Moore deployed OC spray in the direction of this demonstrator.
When Officer Moore deployed the OC spray at the female demonstrator in the bike helmet, Avery had his left arm around her waist as she turned away from the spray, exposing his left side to Officer Moore’s deployment. Avery had his right arm around J.A., who stood behind his father and the female demonstrator. As Avery and J.A. retreated from the altercation, Avery placed his left hand on or near J.A.’s face and kept his arms around him as they walked away. Moments later, J.A. began reacting to the OC spray’s painful effects and received assistance from other demonstrators.
Motion to exclude
Avery initiated this action in April 2022, raising claims for violations of the Washington Law Against Discrimination, outrage, negligence, assault, and constitutional violations under 42 U.S.C. § 1983.
The City moved to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks, because his report consisted of opinions which were “improper legal conclusions and lacked any expert analysis that might be helpful to a jury.”
Law Enforcement Expert Witness
Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. He was a commissioned police officer from 1991-2016. He was also an instructor at the Washington State Criminal Justice Training Commission (WSCJTC) from 2007-2021.
Discussion by the Court
Many of Hicks’ Opinions Consisted of Legal Conclusions
The Court agreed with the City when it contended that many of Hicks’ opinions consisted of legal conclusions. For instance, Hicks repeatedly characterized the actions of Seattle Police Department “SPD” as “negligent,” concluded that Officer Moore’s use of force was “excessive,” and stated that Plaintiffs “were seized” by Officer Moore’s use of force. The Court held that almost all of Hicks’ opinions are supported by nothing more than conclusory statements.
Hicks’ Opinions Were Mostly Unsupported
Hicks speculated that it is more likely than not that if Officer Moore had provided a warning about the pepper spray, she would have let go of the baton and Sgt. Moore wouldn’t have deployed this MK-9 pepper spray. The Court held that Hicks provided no support whatsoever for this opinion, rendering it unreliable. He did not explain how his experience led to the conclusion reached.
As for Hicks’ opinion that SPD’s failure to “provide or call for aid for Avery and his 7-year-old son” was contrary to law, training, and policy, the Court held that it did not offer any specialized knowledge and in fact contradicted the video evidence. He asserted that the alleged failure to aid was contrary to training, explaining only that officers “are provided with instruction on providing first aid to subjects injured by law enforcement” at WSCJTC training. The Court held that he did not explain how such training bears on the facts at issue beyond the suggestion that officers knew how to administer first aid.
The Court found Hicks’ opinion that “Officer Moore deviated from SPD policy regarding providing warnings in advance of deploying pepper spray despite having enough time to give a warning” similarly unsupported because untrained layman would be qualified to determine that issue.
Finally, Hicks opined that Officer Moore should have used the MK-4 pepper spray instead of the MK-9 because “it is possible that the smaller dispersal area [of the MK-4] would have satisfied the immediate safety goal.” The Court, once again, held that Hicks failed to “back up his opinion with specific facts.”
Held
The Court granted the City’s motion to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks.
Key Takeaway:
The Court held that almost all of Hicks’ opinions were supported by nothing more than conclusory statements. Conclusory assertions like those contained in Hicks’ report would not assist the trier of fact to understand the evidence.
Nothing in either Daubert or Rule 702 requires the district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
Case Details:
| Case Caption: | Avery V. City Of Seattle Et Al |
| Docket Number: | 2:22cv560 |
| Court: | United States District Court, Washington Western |
| Order Date: | June 12, 2024 |
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