This matter involves an incident that occurred on May 29, 2020, while Plaintiff, David Zuniga was present during the George Floyd protests in Grand Park, Downtown Los Angeles. During this time, Zuniga and his experts contended that he was struck with a nonlethal projectile to his head by Officer Aaron Green. Officer Green, and the other named officer Defendants were assisting in controlling a crowd of protestors who were unlawfully protesting in the Grand Park area, after an unlawful assembly was declared and a dispersal order had been given.
Plaintiff filed a motion to preclude Defendants’ law enforcement practices expert, Edward T. Flosi‘s opinions and to preclude him from testifying in this action on the grounds that Flosi’s opinions “are unreliable and do not meet the standards as required under Fed. R. Evid. Rule 702 and Daubert,” are speculative, attempt to resolve questions of fact and thus “invade the province of the jury,” and offer improper legal conclusions.
Law Enforcement Expert Witness
Edward Flosi is a law enforcement practices expert with over 35 years of experience. He has a Masters of Science in Emergency Services Administration from the California State University Long beach and a Bachelor of Science in Criminal Justice Administration. Flosi is currently an adjunct instructor in the Administration of Justice Department at West Valley College in Saratoga, California and is a Principal Instructor/President/CEO of PROELIA Defense and Arrest Tactics, LLC. He is also a Director of Training for ShotSpotter, Inc. He was previously a San Jose Police Sergeant and San Jose Police Officer, where he was a law enforcement instructor in the training unit and was a training unit supervisor.
Discussion by the Court
Qualifications
Plaintiff first argued that Flosi’s opinions are generally unreliable because they “are based on the teachings of the Force Science Institute,” which Plaintiff contended is “a purveyor of unreliable pseudoscientific analysis engineered to justify officers’ use of force.” Plaintiff cites to another court case from this district in which the Court granted a motion in limine to exclude testimony from a “force science expert” associated with the Force Science Institute. In that case, the expert was not Flosi but a different individual who also had an extensive background in law enforcement. The Court noted that the expert’s “long career in law enforcement might qualify him as an expert in some subjects, but not in the subjects for which he is offered here, namely disciplines of behavioral science.”
Here, Defendants do not offer Flosi as a “force science expert.” Defendants’ expert disclosures stated that he will “testify about the tactics and uses of force employed by the individual Defendants in this action in relation to the conduct of Plaintiffs at the time of the subject incident. He will opine as to the use of force, if any, employed at the time of the incident, including human factors associated with threat perception, response and performance during rapidly unfolding encounters.” Plaintiff argued that Flosi’s opinions should be excluded “to the extent they are based upon FSI principles,” but no part of Flosi’s expert report indicated that any of his opinions are based upon this information. The Court found that Flosi’s extensive background and experience in law enforcement qualifies him to testify as to police practices and tactics, as Defendants’ expert disclosures state.
Legal Conclusions
Plaintiff also sought to exclude each of Flosi’s opinions because the opinions “reach legal conclusions that directly usurp the role of the jury.” Plaintiff further argued that Flosi “devoted significant portions of [his] analysis] . . . attempting to dictate what the evidence is,” which is improper.
The Court held that Flosi may testify as to his understanding of the facts, but not to legal conclusions based on what the evidence shows. For instance, the Court excluded Flosi’s opinion regarding whether it is “objectively reasonable” to fire a projectile impact weapon at a person that a reasonable officer would perceive as being armed and/or poses an immediate threat of violence or physical harm to an officer or another person. However, Flosi was allowed to testify as to whether such actions are consistent with current law enforcement practices and training.
Held
The Court granted in part and denied in part the motion to preclude Defendants’ law enforcement practices expert, Edward T. Flosi.
Key Takeaways:
- Flosi’s extensive background and experience in law enforcement qualifies him to testify as to police practices and tactics. No part of Flosi’s expert report indicated that any of his opinions are based upon Force Science Institute principles.
- Flosi’s opinion regarding whether it is “objectively reasonable” to fire a projectile impact weapon at a person that a reasonable officer would perceive as being armed and/or poses an immediate threat of violence or physical harm to an officer or another person constitutes a legal conclusion.
Case Details:
| Case Caption: | David Zuniga V. City Of Los Angeles Et Al |
| Docket Number: | 2:22cv3665 |
| Court: | United States District Court for the Central District of California |
| Order Date: | October 7, 2024 |
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