Joshua Briggs was arrested for Disorderly Conduct and Harassment because he called Anchorage Police Officer Orean Yi a pig. Briggs filed this lawsuit alleging that he was arrested without probable cause in retaliation for exercising his First Amendment rights.
Officer Yi asserted that he had probable cause to arrest Briggs because Briggs was making sufficient noise to violate Anchorage’s Disorderly Conduct Ordinance, AMC 08.30.120(A)(2).
Briggs filed a motion to exclude the report and testimony by Defendants’ expert, James Borden, maintaining that Borden is “not qualified to testify on any matter in this case and his opinions are neither relevant nor reliable under Federal Rule of Evidence 702 and the standards set forth in Daubert.”
Law Enforcement Expert Witness
James Borden has over 24 years of combined experience in law enforcement, force analysis, and video review and examination. James is court certified as an expert in the Following Topics: Controversial Use of Force, Police Performance Dynamics, Forensic Video Examination, Officer/subject movement dynamics, Controversial Officer-Involved Shootings, and Attentional Issues related to Officer-Involved Critical Incidents, Police Training and Police Policy, Procedure and Practice.
Discussion by the Court
a. Qualifications and Reliability
Briggs maintained that “none of Borden’s listed qualifications demonstrate expertise in determining what constitutes ‘legitimate law enforcement action,’ whether an arrest is ‘based on proper elements,’ whether a person has ‘committed the misdemeanor crime of Disorderly Conduct,’ whether the elements of harassment have been met, or whether Yi made ‘a mistake of the mind and not of the heart.’”
The parties have filed Borden’s curriculum vitae and expert report, as well as a list of cases in which Borden has participated as an expert. The Court held that a review of Borden’s curriculum vitae demonstrates that he is qualified to testify as an expert on the use of force and police practices based on his experience as a police officer and his training on use-of-force issues.
As to whether Borden’s opinions are derived from reliable principles and methods, Borden’s expert report explained that he reviewed relevant case documents, including any video evidence, to develop an understanding of the facts, and then analyzes the officer’s actions “to determine what the officers did, as well as their stated justification for what they did and why they did it.”
He then “compares what the officers did and their reasons for doing so with the objective standards derived from police training and accepted police practice.” In Borden’s case, “relevant reliability concerns . . . focus upon personal knowledge or experience.” The Court found that reviewing case material and relevant documents, and then providing an assessment of the events in light of Borden’s personal experience in law enforcement, is a sufficiently reliable methodology.
b. Relevance
To be admissible, expert testimony must be relevant to the case: it must “help the trier of fact to understand the evidence or determine a fact in issue.”
Borden’s Testimony
Borden’s report contains four opinions:
1. Opinion 1: Engagement. I believe Officer Yi had a legitimate law enforcement goal and objective in his arrest of Briggs for Disorderly Conduct, a violation of AMC 8.30.120(A)(2). Although detention was a component of the arrest, the detention was brief, and Briggs was released from the scene. The video evidence shows that Briggs appeared to be antagonistic during the detention.
2. Opinion 2: Legitimate Law Enforcement action. Taking all evidence as factual and accurate, Briggs committed the misdemeanor crime of Disorderly Conduct in the presence of Officer Yi. Briggs’ behavior affected other individuals and caused other patrons in the store at the time of the occurrence to leave the premises without completing their transactions. With the elements of the violations being cited in multiple case documents, and prosecutorial merit being established by the Municipal Attorney’s Office, the charges were approved.
3. Opinion 3: Use of Force. Officer Yi made the practical and appropriate decision to use handcuffs and detain Briggs as he was arrested. Force used was minimal to include controlling the movement of Briggs, the use of handcuffs and placing him in the back of the patrol car.
4. Opinion 4: Harassment Charge. The Harassment violation, Code 8.10.110(A)(l), was not a valid charge. However, the elements of this Harassment charge were in place, a sworn officer generally cannot be a victim of Harassment. I believe Officer Yi and others made this oversight. However, the Harassment charge was ancillary to the charge of disorderly conduct and not the only charge that Briggs was issued a summons for. Additionally, Briggs was not taken into custody and booked into jail for the charges.
Analysis
The primary issue in this case is whether Officer Yi had probable cause to arrest Briggs during the exchange in the gas station. A dispute of material fact remains as to the volume of Briggs’ speech and any effect on the other patrons of the gas station, facts which are relevant to whether Officer Yi had probable cause.
Opinion 1 essentially concludes that Officer Yi had probable cause to arrest Briggs for disorderly conduct, which is an impermissible legal conclusion. The Court held that Opinion 1 also does not aid the jury in determining the disputes of fact that remain, and Borden’s opinion as to Briggs’ detention is irrelevant, as the detention is not at issue in this case.
The Court held that Opinion 2 is inadmissible for the same reason as Opinion 1: it is an impermissible legal conclusion.
Opinion 3 has marginal relevance, as Briggs does not allege a use-of-force claim and Officer Yi’s use of handcuffs and his placement of Briggs in his patrol car is not disputed and its legality is not at issue. And yet as Briggs acknowledges, Officer Yi’s demeanor during the incident “may be relevant to his credibility.” Whether Officer Yi’s decision to use handcuffs and detain Briggs in the patrol car was “practical and appropriate” could similarly have relevance to Officer Yi’s credibility. The Court held that Borden may testify as to Opinion 3.
The Court held that Opinion 4 is inadmissible because it is irrelevant and would not help the trier of fact understand the evidence or determine a fact in issue. It is undisputed that the harassment charge was dismissed in state court for lack of probable cause. Further, Opinion 4 is an improper legal conclusion.
c. Rule 26
In their opposition, Defendants contended that Borden could testify about numerous other topics that are not mentioned in his report. These topics include “how officers are trained to understand the difference between a suspect simply engaging in first amendment speech and what constitutes pre-assaultive indicators like body movement and tone during such encounter”; and “whether Officer Yi’s actions and decision to search the contents of the wallet for identification and contraband is appropriate under these circumstances.” On the current record, the Court held that Borden cannot testify as to any of those topics because they were not disclosed in his expert report. In other words, Borden’s expert report fails to contain a statement of the opinions Defendants raise above.
Held
The Court granted in part Briggs’ motion to exclude the testimony of James Borden; Borden can only testify as to Opinion 3 in his report.
Key Takeaways:
- The Court found that reviewing case material and relevant documents, and then providing an assessment of the events in light of Borden’s personal experience in law enforcement, is a sufficiently reliable methodology.
- The Court held that Borden is qualified to testify as to police practices based on his personal knowledge and experience.
- The Court decided that Borden’s opinion about Officer Yi’s decision to use handcuffs and detain Briggs in the patrol car has marginal relevance.
Case Details:
| Case Caption: | Briggs V. Yi Et Al |
| Docket Number: | 3:22cv265 |
| Court: | United States District Court, Alaska |
| Order Date: | December 23, 2024 |
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