On May 26, 2020, South Bend police officers began clearing a homeless encampment on city property after prior notice and concerns about crime and COVID-19. Tracy Leliaert, a person with a home who protested the clearing, refused to leave even when warned repeatedly. Officer Joshua Morgan and Officer Ryan Williams eventually arrested her and two others for trespassing. She pursued excessive force claims under the Fourth Amendment and a First Amendment right-to-assembly claim, though only one claim remains today.
Leliaert retained Chet Epperson to review the evidence and opine on police practices and standards. Chet Epperson opined that the City of South Bend, Indiana, Officers Joshua Morgan, Ryan Williams, and Police Chief Scott Ruszkowski deviated from Nationally Accepted Principles of First Amendment Right to Assembly, Use of Force in Their Interactions with Leliaert, Internal Affairs Investigations and Early Identification Systems in the Complaint of Tracy Leliaert.
Defendants argued that Epperson did not have the necessary facts or knowledge to reach his conclusions, that some of his opinions did not fit the case, and that he at times supplanted the jury’s role.
Law Enforcement Expert Witness
Chet Epperson earned a bachelor’s degree in sociology and anthropology, and then a master’s degree in public administration from Rockford University. He has published and taught seminars on police standards. He has served as a police practices consultant and appointed court monitor for police practices since 2015.
Discussion by the Court
The Court held that the opinions neither fit nor serve the legitimate purpose of educating the jury, much less without substantial and overweighing confusion.
Epperson also proposed to opine about the First Amendment claim (first opinion), but this claim too cannot survive summary judgment as a matter of law. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on the First Amendment claim (or Eighth Amendment claim); and that proves truer still when no such claim survives at summary judgment.
Epperson also acknowledged that whether the land was a public forum would make a difference to a First Amendment claim, but he admitted that he has no information to determine whether it was. He admitted he hasn’t done any investigation and doesn’t have any facts that would make the tent city a public forum.
When Epperson opined that Officer Morgan deviated from nationally accepted principles of use of force, the Court held that the jury is well positioned to decide whether Officer Morgan acted reasonably.
Epperson intended to opine that Officer Morgan deviated from a nationally-accepted practice on less lethal encounters in using a knee over Leliaert’s neck. The Court held that the Fourth Amendment standard for excessive force is an objective standard, and his testimony about standards of police practice are immaterial to determining what is objectively reasonable under the Fourth Amendment.
Held
The Court granted the motion to exclude the testimony of Chet Epperson.
Key Takeaway:
Epperson’s opinion has a glaring factual gap at the start that renders it unreliable—it assumes Leliaert was homeless when she was not. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on a First Amendment claim (or Eighth Amendment claim) for someone who was not homeless.
Epperson just assumes Leliaert had a right to be there because, simply stated in his words, she was there and it was property owned by the City. His factual gaps thus reveal gaps in his methodology, and reveal his opinion to be barely more than his say-so.
Case Details:
| Case Caption: | Leliaert V. City Of South Bend Et Al |
| Docket Number: | 3:22cv359 |
| Court: | United States District Court for the Northern District of Indiana, South Bend Division |
| Order Date: | August 20, 2024 |
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