Plaintiff Fernando Villanueva-Galvez claimed that Officer Eliseo Anaya’s use of a police canine to locate and arrest him constituted excessive force in violation of the Fourth Amendment.
Villanueva-Galvez proposed to present Ernest Burwell‘s testimony regarding police canine practices. Defendants did not challenge Burwell’s qualifications. Nor did the Defendants seek to preclude Burwell from testifying entirely. Rather, Defendants argued that Burwell should not be permitted to testify about legal conclusions regarding the severity and reasonableness about the use of force in this case, how disputed factual issues should be resolved by the jury, police canine practices for which he cites no reliable data or other support, and purported deficiencies in the City’s canine training and supervision practices for which he cites no relevant professional standards or reliable principles.
Law Enforcement Expert Witness
Ernest Burwell has decades of experience as a police officer, including twenty years of K9 handling and tactical training to K9 units. Burwell holds a POST Advanced Certification and even worked as a canine unit statistical data manager, keeping track of bite ratios, injuries, length of time the dog bit the suspect, and other information required by supervision, about the search, handler, dog, and suspect.
Discussion by the Court
A. Legal Conclusions Regarding Use of Force
Defendants sought to exclude Burwell’s opinions regarding the lawfulness and reasonableness of the force used, specifically that Anaya’s deployment of a police dog here constituted “deadly force,” that the “type, degree, and duration of the force were unreasonable and excessive,” and that Anaya’s release of the dog was “unwarranted” and “excessive.”
Whether Anaya’s actions were “objectively reasonable” in light of the facts and circumstances confronting him is a question for the jury.
The Court has carefully reviewed Burwell’s expert report, and while the report did recite standards and best practices, the challenged opinions are not tied to those standards and practices. Instead, Burwell proposed to testify, categorically, that Anaya used “deadly,” “excessive,” “unreasonable,” and “unwarranted” force, without explaining what a particular standard requires and how such standard applies to a specific assumed or hypothetical factual scenario.
B. Interpretation of Disputed Facts
Defendants sought to exclude Burwell’s opinions regarding his interpretation of Anaya’s body-worn camera (“BWC”) video and other evidence in the record, arguing that such testimony usurps the fact-finding role of the jury.
As explained above, while it is generally permissible for an expert to testify about whether a specific set of assumed or hypothetical facts does or does not meet relevant standards, the challenged opinions are not tied to any such standards or set of facts. While Burwell included excerpts of different standards in his expert report, he did not link his opinions with any such standards or explain why particular assumed or hypothetical facts did not meet those standards.
C. Police Canine Practices
Defendants sought to exclude Burwell’s opinions that “many agencies are not using the police dog as it was intended” and that the “average length of time” of a police canine bite is “10 seconds or less” as “unsupported by any reliable methodology and untethered to the facts of this case.” Villanueva-Galvez initially opposed Defendants’ motion and argued that Burwell’s opinions are based on “decades of law enforcement experience, advanced knowledge of POST standards, and specific work with K9 tactics.”
However, at the hearing, Villanueva-Galvez conceded that Burwell should not be permitted to testify that “many agencies are not using the police dog as it was intended” and that the “average length of time” of a police canine bite is “10 seconds or less.”
D. Severity of Force
Defendants sought to exclude Burwell’s opinion that the use of a police canine “is the most severe use of force of all the less lethal tools/options,” arguing that such testimony is not grounded in identifiable professional standards or reliable analysis.
The Court agreed. Burwell’s expertise on police-canine practices does not entitle him to tell the jury, as an expert, which non-lethal force is the greatest.
E. Training and Supervision
Defendants sought to exclude Burwell’s opinion criticizing the practice of using police canines generally and, in particular, his opinion that the City failed to properly train and supervise its canine handlers and ensure that handlers maintain control of their dogs.
The Court has carefully reviewed Burwell’s expert report. While the report excerpts certain standards from the SJPD Manual, the challenged opinion is not tied to those standards or explained. Instead, Burwell proposes to testify, categorically, that Ronin was not properly trained.
Held
The Court granted the Defendants’ motion to exclude the testimony offered by Ernest Burwell.
Key Takeaway
It is generally permissible for an expert to testify regarding best practices and standards and whether an officer’s conduct complies with those best practices and standards. Such testimony could include whether deployment and handling of the police canine here did or did not comply with such practices or standards. The problem here is that it is not clear to the Court whether such an opinion is actually disclosed or on what basis Burwell intended to provide such testimony.
Case Details:
| Case Caption: | Villanueva-Galvez V. City Of San Jose |
| Docket Number: | 5:24cv9055 |
| Court Name: | United States District Court, California Northern |
| Order Date: | June 04, 2026 |
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