On February 28, 2022, Adam Bennett stole a ride on a BNSF railcar in Kootenai County. BNSF Special Agent Daniel Mattson intercepted him and was informed by police dispatch—erroneously—that he had a warrant for his arrest in Washington but not Idaho. Based on this information, and COVID procedures governing misdemeanor arrests, Agent Mattson released Bennett with a citation for trespass and stealing a ride.
Roughly two hours later, Bennett murdered Dennis Rogers after setting fire to his barn. Plaintiff John Hazell, who was driving by, saw the fire and rushed to provide aid. Bennett shot Hazell and seriously injured him. Bennett is now serving a life sentence.
Hazell and his minor daughter, C.H., brought this lawsuit against BNSF Railway Company based on the failure to initially arrest Bennett. They asserted claims for negligence, negligence per se, loss of consortium, and intentional infliction of emotional distress.
BNSF provided a a declaration and report from Jonathan Brandel, a former Kootenai County Sheriff Sergeant, about Agent Mattson’s legal duties and authority as a railway police officer. Plaintiffs filed a motion to strike that testimony, arguing that it constituted improper legal opinion and unfounded speculation.
Law Enforcement Expert Witness
Jonathan Brandel has 28 years of law enforcement experience, including marine law enforcement, patrol, narcotics, undercover investigations, as well as field training and supervision, and certified instructor in numerous law enforcement disciplines.
Sergeant Brandel’s Opinions on the Authority and Duties of Railway Police Officers in Idaho
Sergeant Brandel opined on the authority and duties of railway police officers in Idaho. This, as BNSF itself points out, is a question of law concerning the intersection between state and federal statutes. Interpreting those statutes is the province of the Court and clearly not a proper subject for an expert declaration.
BNSF suggested that it is “axiomatic that the most appropriate person to speak on the topics of law enforcement is a law enforcement officer.” This is a gross oversimplification of the rules on expert testimony. The Court could not allow a police officer to testify on the legal contours of the Fourth Amendment, even though the officer must know and implement those principles. Likewise, although the Court appreciates Sergeant Brandel’s experience, it is not appropriate for him to testify about the meaning of the statutes governing railway police officers.
Accordingly, the Court struck the portions of Sergeant Brandel’s declaration and report that involved legal conclusions about Agent Mattson’s duties and authority.
Sergeant Brandel’s Analysis of the Interaction between Agent Mattson and Bennett
The remaining sections primarily concern Sergeant Brandel’s analysis of the interaction between Agent Mattson and Bennett. Here, the expert testimony performs its designed function: elucidating and explaining facts. For example, paragraph E of the report explains the practical significance of a law enforcement note that Bennett had violent tendencies, and paragraph F discusses COVID-era arrest practices. These opinions are properly based on Sergeant Brandel’s professional experience and his study of the record of this case. Accordingly, the remaining portions of the report are admissible.
Finally, Plaintiffs argue that Sergeant Brandel’s declaration should be excluded as untimely. Though BNSF timely disclosed Sergeant Brandel’s identity and expert report, Plaintiffs say that the declaration contains testimony beyond the matters addressed in the report. To the extent that this argument might have had merit, the Court held that those concerns are addressed by striking the portions of the declaration and report described above.
Held
The Court granted in part and denied in part the Plaintiffs’ motion to strike and exclude the Defendants’ expert, Jonathan Brandel
Key Takeaway:
Sergeant Brandel was not allowed to testify about the meaning of the statutes governing railway police officers. The Court could not allow a police officer to testify on the legal contours of the Fourth Amendment, even though the officer must know and implement those principles.
On September 6, 2018, Rochester Police Department (“RPD”) officers Jeremy Nellist (“Nellist”) and Joshua P. Kelly (“Kelly”) traversed through the backyard of Plaintiff Erin Gursslin’s (“Plaintiff”) property on St. Paul Street, in the City of Rochester (the “City”), during the course of executing a search warrant at a location three properties north of Plaintiff’s home. On their return trip, Nellist and Kelly encountered Plaintiff’s foster dog, Nina, whom they shot and killed. Plaintiff thereafter sued the City, Nellist, Kelly, RPD Commander Fabian Rivera (“Rivera”), and RPD Lieutenant Aaron Springer (“Springer”) (collectively “Defendants”) pursuant to 42 U.S.C. § 1983 for having unreasonably searched the curtilage of Plaintiff’s property, for having unlawfully seized Nina, and for having unlawfully seized Plaintiff, all in violation of the Fourth Amendment.
Defendants filed a motion to preclude Plaintiff from using James Crosby (“Crosby”) as an expert in this matter.
In his expert report, Crosby offers 23 opinions, which Defendants have separated into five categories: (1) the Fourth Amendment (opinions 1, 3, and 7); (2) SWAT tactics and operations (opinions 2, 4, 5, 6, 8, and 9); (3) “dogs, dog behaviors, and law enforcement encounters with dogs” (opinions 10, 11, and 13); (4) firearms (opinion 12); and (5) training and municipal liability (opinions 14-23).
Law Enforcement Expert Witness
James Crosby holds a Ph.D. in Veterinary Medical Science from the College of Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics; [and] a Master of Science degree from the College of Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics. He is also a Certified Behavior Consultant—Canine-Knowledge Assessed. Crosby served as a police officer with the Jacksonville Sheriff’s Office from 1977 to 1999, “performing twenty-two years of active service.” During his career Crosby served as “a Patrolman, a Sergeant, and a Lieutenant.”
He is a Certified Animal Control Officer in the state of Florida and “served as the Animal Control Division Manager for Bay County, Florida, from February 2008 to September 2010.” He also served as “the acting Chief of Animal Care and Protective Services for the City of Jacksonville, Florida from March through December of 2016.” Crosby has “trained police departments in the proper and effective use of less- and non-lethal force; recognition of canine body language, behavior, and dog bite risk analysis; and methods for safe engagement with domestic dogs across the United States.”
Defendants argued that Crosby “should be precluded from testifying as an expert in all five of the proposed areas, mainly because he lacks expertise in the majority of them. His opinions also lack factual support, are not reliable, and seek to tell the jury what to conclude.” The Court considers these arguments below.
1. Fourth Amendment Opinions (Opinions 1, 3, and 7)
Defendants first argued that Crosby should be precluded from offering opinions 1, 3, and 7, regarding the Fourth Amendment and Nellist and Kelly’s entry into Plaintiff’s yard. The Court need not reach this argument, because opinions 1, 3, and 7 are all related to Plaintiff’s claim for an unreasonable search of her curtilage, on which the Court has already granted summary judgment to Defendants. This portion of Defendants’ motion is accordingly denied as moot.
2. SWAT-Related Opinions
Defendants next argued that Crosby has “no SWAT experience or training” and that his opinions on SWAT-related issues are not based on “sufficient facts on which to make a reliable opinion.” Plaintiff argued that this argument is a “red herring” because Crosby “is not offering an opinion on specialized SWAT tactics or procedures,” but instead is focusing on “the straightforward issue” of “why Officers Nellist and Kelly chose to trespass through Gursslin’s yard after the conclusion of the SWAT operation when they could have simply exited through the vacant lot.”
Opinion 2
Opinion 2 reads in relevant part: “Any reasonable officer in 2018 would have known that because exigent circumstances did not exist to justify entry into the yard, they were required to request permission prior to entering the yard, or at least provide a warning to the home’s occupants of their presence.”
“In deciding whether expert testimony will be helpful to the fact-finder, the Court must determine whether the testimony ‘usurps either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.’”
The Court held that Opinion 2 not only runs afoul of this prohibition but also offers a legal opinion on issues that this Court has already considered in ruling on the motion for the first summary judgment.
Opinion 4
Opinion 4 reads: “Even as overwatch sniper units, Nellist and Kelly should have been equipped with and prepared to use less-lethal tools should they have encountered any person or animals not posing a threat of death or serious injury during their passage to and from their position, especially considering that an uninvolved person or homeowner could reasonably be expected to have confronted them, not recognizing they were police officers.”
The Court agrees with Defendants that this opinion falls outside the scope of Crosby’s expertise. Crosby has never been a member of a SWAT team nor has he ever supervised a SWAT team.
Plaintiff has not demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
Opinion 5
Opinion 5 relates to Nellist and Kelly’s prior “scout” of Plaintiff’s back yard, and reads in relevant part: “In short, they did nothing in the planning phase to learn whether Nina or any other dog resided at the property, despite having the time and opportunity to do so. Nellist and Kelly’s failure to conduct a proper scout or do anything whatsoever to learn whether a dog resided at the property was unreasonable under the circumstances and constituted a violation of good and accepted police practices and professional standards of care.” The Court did not find that this opinion is specifically related to SWAT tactics or organization, as opposed to planning for the possible presence of a dog in connection with the execution of a search warrant, which is a topic in which Crosby does have expertise.
Further, while Defendants argue that it is “demonstrably false” that Nellist and Kelly took no steps to investigate whether a dog resided on the property, that argument is based solely on the fact that they conducted a scout, which Crosby acknowledges in his expert report. The Court held that it is a factual dispute, not a reason to exclude expert testimony.
Opinion 6
Opinion 6 reads:
“Nellist and Kelly demonstrated a lack of situational awareness when they reentered Gursslin’s back yard while exfiltrating from their Final Operating Position. Prior to entering Gursslin’s back yard, they should have recognized that there was an additional car parked in her driveway that was not there when they arrived; that there were lights on inside of the house that were not on when they arrived; and that the motion sensor light on the side of the house was on. At this point, good and accepted police practices and professional standards of care required that they radio to their supervisors to learn whether anyone was home and whether it was safe to enter the yard.
At the least, they should have recognized the heightened possibility that they might encounter a person or a dog in the yard, and paused and developed a plan for what to do if they encountered a person or a dog in the yard. Their failure to do so was unreasonable under the circumstances and contrary to the actions of any reasonably and properly trained police officer and constituted a violation of good and accepted police practices and professional standards of care.”
Like opinion 5, opinion 6 is not SWAT-specific, but relates generally to procedures after execution of a search warrant. Further, while Defendants attacked the factual basis for this opinion, their citations did not support their argument. The Court will not preclude opinion 6 on this basis.
Opinion 8
Opinion 8 relates to Springer and Rivera’s supervision of the execution of the HRSW. Specifically, opinion 8 concluded that Springer and Rivera did not properly supervise and oversee the SWAT operation because “the uniformed police officers stationed in front of Gursslin’s property—Herbert McClellan and Jonathan Kent—failed to appreciate that Nellist and Kelly were exfiltrating from their final operating position by walking through Gursslin’s back yard” and “[i]f Springer and Rivera had properly informed McClellan and Kent, then they could have warned Gursslin on her arrival at the home that police officers were using her backyard as part of the SWAT operation and prevented her from going into her back yard on the morning of the incident.”
The Court agreed with Plaintiff that this opinion is not specifically related to SWAT tactics, as opposed to general law enforcement practices when accessing citizens’ properties during the execution of a search warrant.
The Court further rejects Defendants’ contention that opinion 8 lacks a sufficient factual basis. Defendants argue that “neither Officer McClellan nor Officer Kent saw Plaintiff or anyone the morning prior to the dog being shot.” But Plaintiff testified that she and her boyfriend went up to a police officer in a car and asked him what was going on. And McClellan only testified that he did not remember anyone coming to his car and speaking to him. Again, this is a factual dispute, not a basis to preclude expert testimony. The Court will not exclude opinion 8.
Opinion 9
Finally, opinion 9 is that “Nellist and Kelly had no plan for the use of less-lethal or non-lethal force regarding encountering Nina, or indeed any dog, in this incident. . . . In 2018, no reasonable and well-trained officer would fail to make and implement such a plan—especially considering that they had at least one week prior to the incident to conduct such an investigation—and the lack of planning directly led to the needless shooting of Nina. Failure to recognize the availability of, or to attempt to use less- or non-lethal methods in their encounter with Nina constituted objectively unreasonable action by Nellist and Kelly.” This opinion has nothing to do with the specifics of SWAT-related operations, and is within the scope of Crosby’s expertise. The Court will not preclude opinion 9.
Defendants also make a general argument that Crosby’s opinions regarding “good and accepted police practices” and “professional standards of care” are unreliable. The Court is unpersuaded by this argument, which cites no case law. Crosby’s opinions are based on his experience and training.
The Court is also unpersuaded by Defendants’ argument that opinions 5 and 9 contradict one another, such that Crosby is not a reliable witness. Defendants argue that it is inherently contradictory to acknowledge that Kelly and Nellist scouted Plaintiff’s property but to also opine that they took no steps to ascertain whether a dog resided at the property. But in reviewing Crosby’s expert report, it is clear that his view is that during the scout, Kelly and Nellist took no steps to ascertain whether a dog resided at the property. There is no inherent contradiction.
Opinions on Dog Behavior and Dog Encounters (Opinions 10, 11, and 13)
Defendants next sought to preclude Crosby’s opinions on dog behavior and dog encounters, arguing that: (1) expert testimony on this topic is not needed; (2) Crosby seeks to replace the jury and not to aid it; (3) Crosby has not adequately defined “good and accepted police practices”; and (4) Crosby has not reliably applied his principles to the facts of this case. The Court is unpersuaded by these arguments.
As to the first argument, while lay people may be generally familiar with dogs, the Court finds that the jury would benefit from expert opinion on police tactics for dealing with pet dogs.
Defendants’ second argument fails as a matter of law. Defendants argue that Crosby “should also be precluded, because he impermissibly decides a jury question.” But Federal Rule of Evidence 704(a) expressly provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue.” This is not a basis to preclude Crosby’s testimony.
The Court has already rejected Defendants’ third argument regarding “good and accepted police practices,” and that analysis applies with equal force here. Finally, Defendants’ fourth argument is nothing more than a disagreement with Crosby’s conclusions regarding Kelly’s placement of his rifle bag between himself and Nina. Specifically, Crosby has criticized Kelly for throwing the bag down in front of Nina instead of holding it between himself and the dog. Defendants contended that this is an improper conclusion by Crosby regarding the use of a barrier versus a shield, but this is merely their interpretation of Crosby’s testimony. Defendants are free to cross-examine Crosby on this topic at trial. The Court will not preclude Crosby from testifying regarding dog behavior and dog encounters.
Firearms Opinion (Opinion 12)
Defendants contended that Crosby’s opinion 12 relates to firearms and that he is not an expert in this topic. Defendants further argued that this opinion is unsupported by facts.
Opinion 12 states:
“Nellist and Kelly were, by their own admission, firing without regard for any potential collateral risk to person(s) that might have been behind Nina in the yard or in Gursslin’s home. Nellist and Kelly never checked for other occupants in the yard or in the home, nor did they contact Plaintiff to ascertain whether there were other animals or persons within the home lawfully. They fired their sidearms at Nina as Gursslin was in the backyard just several feet behind Nina.
They also fired while facing towards the back of Gursslin’s home, where Gursslin’s downstairs neighbors were present in their apartment, and her boyfriend was present in the upstairs apartment. Nellist and Kelly should have recognized that a distinct possibility existed that a human or other animal subject could have been within the yard and the home and thereby needlessly and recklessly exposed to injury or death from one or more of the bullets fired.”
The Court disagrees that this is an opinion about firearms, as opposed to an opinion about when it is appropriate for a police officer to use his firearm and what he should take into consideration before doing so. Crosby’s law enforcement experience and training qualifies him to opine on a police officer’s use of his firearm.
Defendants’ Factual Attacks on this Opinion lack Merit
Defendants claimed that it is “possible” that Nellist and Kelly were not facing Plaintiff’s house when they shot Nina, but it is equally possible that they were. They also claimed that it is “misleading to state that the officers Nellist and Kelly fired their sidearms at Nina as Ms. Gursslin was in the backyard just several feet behind Nina when neither Sgt. Kelly nor Officer Nellist saw Plaintiff prior to shooting the dog or knew anyone was in the yard.” But this argument actually reinforces Crosby’s conclusions. Kelly and Nellist did not ascertain whether there were human beings present in the yard before opening fire, causing them to shoot bullets only feet from Plaintiff, who was doing nothing more than standing in her own yard. The Court will not preclude opinion 12.
Training and Municipal Liability Opinions (Opinions 14-23)
Finally, the Court considered Defendants’ argument that Crosby should not be permitted to opine on issues related to municipal liability. Defendants contend that Crosby is not an expert on municipal liability and that he improperly attempts to take the role of the jury. The Court has carefully reviewed opinions 14 through 23 and finds that only opinion 14 can fairly be said to be about municipal liability as a legal concept, as opposed to the adequacy of the RPD’s training regarding use of force in dog encounters.
The Court does agree with Defendants that opinion 14, which states, “In my professional opinion, the City of Rochester exhibited deliberate indifference by failing to provide any of the free and effective trainings that were widely available and easily accessible regarding how to safely and lawfully interact with dogs,” goes beyond the scope of Crosby’s expertise. “Deliberate indifference” is—as discussed further below—a legal concept that has a specific meaning in this context, and Crosby has no particular expertise in whether or not that definition has been satisfied. The Court will preclude opinion 14 on this basis. But, according to the Court, opinions 15 through 23 do not suffer from similar infirmities.
Defendants have also made specific factual arguments about opinions 19 and 21. As to opinion 19, in which Crosby “states that the City should have taken notice of the demonstrably effective trainings on dog encounters and provided those effective trainings to RPD officers,” Defendants argue that Crosby “does not know how many dogs shootings occurred in each year or if the annual numbers decreased after the City gave” a training in 2014. But Defendants have not provided the Court with the portions of Crosby’s deposition transcript that they claim support this argument.
Crosby has significant experience in training law enforcement officers how to interact with dogs
Opinion 21 is about the training provided by the RPD to its officers, and includes the opinion that “best practices require at least a four-hour training.” Defendants argued that this opinion is outside Crosby’s expertise, because he “does not have advanced education or training in teaching, course development, pedagogy, etc.” However, the Court held that Crosby has significant experience in training law enforcement officers how to interact with dogs, and his lack of formal training in teaching and course development does not prevent him from being an expert in this field.
Held
The Court granted in part and denies in part Defendants’ motion to preclude Plaintiff’s expert witness James Crosby.
Key Takeaways:
The jury would benefit from Crosby’s opinion on police tactics for dealing with pet dogs. Most jurors have no law enforcement experience, and are unlikely to be familiar with the circumstances in which law enforcement are likely to encounter pet dogs, or what options they have available to them in such circumstances.
Crosby has significant experience in training law enforcement officers how to interact with dogs, and his lack of advanced education or training in teaching, course development and pedagogy does not prevent him from being an expert in this field.
However, Crosby has never been a member of a SWAT team nor has he ever supervised a SWAT team. Plaintiff has not demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
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.
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.
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.
Plaintiff Rebecca Leeper filed a Complaint for Damages against the Defendants, the City of Tacoma and Tel Thompson. The case arose from injuries she sustained in a sexual assault on July 17, 2018. In her Complaint, Leeper alleged that the City had prior knowledge of Thompson’s dangerous conduct, including a documented history of confrontational behavior and inappropriate sexualized conduct while working in his Tacoma Police Department uniform. Despite this knowledge, the City allegedly failed to implement reasonable protective or supervisory measures, leading to Leeper’s assault by Thompson. As a result, she claimed to suffer from emotional distress, including depression, anxiety, shame, fear, anger, sadness, embarrassment, and physical health problems such as hypervigilance and irritability.
Leeper moved to strike two rebuttal expert witnesses designated by the City of Tacoma, Ryan Spurling and Dr. Douglas Robinson. She argued that these witnesses were not offering rebuttal opinions and should have been disclosed earlier. Tacoma responds that no rule requires it to designate a primary expert to address the opponent’s expert expected opinions and evidence, but rather the defense is permitted to wait until after Plaintiff’s expert disclosures to disclose experts to rebut the same subjects.
Law Enforcement Expert Witness
Ryan Spurling‘s career in law enforcement has spanned more than 32 years. He has served in the law enforcement community with the Washington State Patrol (WSP), the Mason County Sheriff’s Office (MCSO), and as an expert witness for Use of Force (UOF) and Police practices.
Douglas Perry Robinson is a psychiatrist in Seattle, WA and has over 47 years of experience in the medical field. He graduated from University of Utah in 1976.
The Court found that both Spurling and Robinson met the requirements of Rule 26 as experts “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”
Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021. Any prejudice from the allegedly late disclosure could have been ameliorated if she had raised the issue much sooner.
Held
The Court denied the Plaintiffs’ motion to strike Tacoma’s expert witnesses, Ryan Spurling and Dr. Douglas Robinson.
Key Takeaways:
The party with the burden of proof on an issue should disclose its expert testimony before the other party is required to disclose an expert to rebut that opinion testimony. Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021.
Case Details:
Case Caption:
Leeper V. City Of Tacoma Et Al
Docket Number:
3:20cv5467
Court:
United States District Court for the Western District of Washington
As personal representative to the estate of Joshua Sarrett, Plaintiff Derek Stenson brings federal and state law claims against King County and Jacob Leenstra, a Sherriff’s Deputy, who shot and killed Sarrett on September 19, 2020, while responding to a request for help at Sarrett’s residence.
On September 19, 2020, Sarrett’s sisters, Chantal Capps and Amanda Haynes, went to Sarrett’s home in Auburn to check on his welfare after hearing reports that he had been depressed, drinking excessively, and physically abusing his girlfriend, Taylor Nystrom.
King County Sheriff’s Deputy Jacob Leenstra was flagged down and asked to intervene with Joshua Sarrett. Deputy Leenstra was told that Joshua Sarrett was intoxicated, violent, and armed with a gun which he had both fired and pointed at someone.
Based on what he had been told, Leenstra did not want to leave until he investigated the domestic violence allegations. Leenstra shot and struck Sarrett four times from roughly fifty feet away. After Leenstra shot Sarrett, he cuffed him and began to provide medical care until Auburn Police arrived. Sarrett died shortly after Leenstra shot him.
Defendants filed a motion to exclude two of Plaintiff’s experts: Russ Hicks and Roger Clark.
Hicks, who has substantial experience in law enforcement and officer training in Washington, opines as to whether Leenstra’s actions complied with “policy, police standards, and . . . basic police academy training [Leenstra] received at the [Washington State Criminal Justice Training Center] regarding criminal laws, reasonable suspicion, probable cause, use of force, patrol tactics, and de-escalation in the confrontation and the use of deadly force.”
Clark has extensive law enforcement experience and provides his opinion on whether Leenstra’s use of deadly force was reasonable and consistent with police training and a “reasonable professional standard of care” for police officers.
Law Enforcement Expert Witnesses
Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. Specifically, he was the Basic Law Enforcement Academy (BLEA) Assistant Commander and a police instructor (TAC Officer) at the Washington State Criminal Justice Training Commission (WSCJTC) in Burien, WA.
Roger Clark has been certified by Federal and State courts as expert in jail and police procedures in Federal and State Courts. He has been consulted in approximately 2400 cases thus far since his retirement from the Los Angeles County Sheriff’s Department.
First, Defendants argue that Hicks’ opinions should be excluded because he omitted data provided by Leenstra about Sarrett’s behavior. Defendants argue that Hicks did “not attempt to opine whether an officer could reasonably mistake a gun magazine in a pocket for a gun.” The Court held that this criticism does not identify a critical flaw in Hicks’ methodology or any basis to conclude that his opinion is based on insufficient data. At most, it identifies an issue that may be relevant to the fact-finder’s determination, but not one that is required to make the expert’s opinion admissible or reliable.
Second, Defendants argued that Hicks’ opinion is unreliable because he did not base his opinion on statements made a month after the shooting. But Hicks’ decision as to what evidence he found more persuasive does not mean his opinion is subject to exclusion. At trial, the Court held that Defendants will be free to attack his decision to put greater weight on certain evidence and discount other evidence. But that is not a basis for exclusion.
Third, Defendants argued that Hicks’ opinion was excluded in another case. But this argument failed to identify any reason why Hicks’ opinions in this case should be excluded. The Court rejected this incomplete argument.
Lastly, Defendants point out that Hicks may have overlooked certain evidence. The Court held that the fact that he may have based his conclusion on an incomplete record is not grounds for the exclusion of his report. At trial, Defendants can point out the gaps in Hicks’ opinion to the finder of fact, who will be well-positioned to weigh the value of Hicks’ testimony and opinions. Any omissions will go to the persuasiveness of his opinions.
Roger Clark
First, Defendants argued that Clark lacks sufficient “experience on modern police standards” to provide his opinion on the standard of care for use of force. Defendants pointed out that Clark has never been a police officer in Washington and he failed to cite Washington law in rendering his opinion. But the Court found that he had extensive law enforcement experience identified in his report that supports his views on the standards of police use of force. This is relevant to Plaintiff’s federal claims, which do not require any particular expertise in Washington State.
Second, Defendants argued that Clark failed to identify the Graham factors in his analysis and that he invoked the wrong standard. The Court found no merit in this criticism. Clark opines generally on the use of force and whether it was objectively reasonable, given his experience and training. While his report could be clearer about the legal framework, that alone does not merit exclusion of his opinion.
Third, Defendants argued that Clark improperly opined on ultimate issues of liability that the jury should consider without experts intruding on the jury’s province. Defendants specifically fault Clark for stating that “Deputy Leenstra’s use of lethal force in this case was based on a subjective belief/fear and was never justified.” But as the Court understands Clark’s report, he is not opining an ultimate jury issue. Rather, he provides his assessment of whether Leenstra’s use of force was reasonable and justifiable.
Fourth, Defendants argued that Clark cannot testify about the effect of alcohol on Sarrett and his ability to comply with Leenstra’s demands. While Clark’s opinion are potentially subject to effective cross examination, he does have sufficient experience to discuss intoxication’s impact on the ability to communicate in the context of the facts of this case.
Held
The Court therefore denied the motion to exclude both Russ Hicks’ and Roger Clark’s expert opinions.
Key Takeaway:
Just because Russ Hicks’ opinions was excluded in another case does not mean his opinions in this case should be excluded.
When Defendants identified gaps in Hicks’ opinion, the Court held that the finder of fact will be well-positioned to weigh the value of Hicks’ testimony and opinions.
As for Clark, the Court understands Clark’s report because he is not opining an ultimate jury issue. Rather, he provides his assessment of whether Leenstra’s use of force was reasonable and justifiable.
The present lawsuitrevolves around Plaintiff Van Aelsytn’s claims of civil rights violations and malicious prosecution against Defendants Coleman Sparks and Scott Carnes. Both Defendants were officers with the Versailles Police Department and were involved in an investigation that led to domestic violence charges against Van Aelsytn. However, the Plaintiff possessed evidence suggesting his innocence. The parties disagreed over whether the Defendants received and reviewed this evidence properly. Van Aelsytn was arrested, and the case went before a grand jury, which ultimately decided not to indict him.
The Defendants intended to call Assistant Chief Robert Young of the Versailles Police Department as a rebuttal law enforcement expert witness. Young was expected to testify that the Defendants’ actions during the investigation aligned with Kentucky law and the U.S. Constitution.
Law Enforcement Expert Witness
Robert Young currently serves as the Assistant Chief at the Versailles Police Department. He is a retired special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Van Aelstyn argued that allowing Robert Young to testify about the Defendants’ actions being legal or “consistent with Kentucky law and the United States Constitution” would have been an improper “legal conclusion.” He believed this testimony would have been flagrant and inappropriate.
In response, the Defendants clarified that Young would not offer legal conclusions in his testimony. They emphasized that Young would not testify whether Officers Carnes or Sparks violated the Constitution. However, they argued that Young could provide an opinion on whether the officers followed Versailles Police Department policies.
The Plaintiff replied that it was unclear if the Defendants agreed Young could not provide this testimony. However, the Plaintiff did not seek to exclude testimony about the police department’s policies.
The Court found that the parties agreed that Young’s initial proposed testimony, claiming the Defendants acted consistently with Kentucky law and the U.S. Constitution, would have been a legal conclusion. They also agreed that such a clear-cut legal conclusion would be impermissible. Accepting this assertion as true would have essentially instructed the jury that the Defendants did not violate the law.
Held
The Court granted the Plaintiff’s motion to exclude certain parts of Defendants’ law enforcement expert witness, Robert Young’s testimony. The Court held that Young could not testify about whether the Defendants’ actions were consistent with Kentucky law or the United States Constitution.
Key Takeaways:
The Court found that Young’s testimony about whether the Defendants’ actions were consistent with Kentucky law or the U.S. Constitution would constitute an impermissible legal conclusion, as it would effectively instruct the jury that the Defendants did not violate the law. This decision emphasized the need for expert testimony to avoid overstepping into legal determinations, ensuring the jury maintains its role in assessing the law’s application.
Case Details:
Case caption:
Aelstyn v. Sparks
Docket Number:
5:23cv136
Court:
United States District Court for the Eastern District of Kentucky, Central Division
On February 26, 2024, the Defendant David Boruchowitz, a Deputy Sheriff with the Nye County Sheriff’s Office (NCSO), collaborated with Ken Johnson, a former Valley Electric Association (VEA) employee to arrest Angela Evans, the then-CEO of the Valley Electric Association (“VEA”), the entity responsible for providing power to residents of Nye County. Ken Johnson was a former employee of VEA who had competed for, and lost, the CEO position that Evans occupied. Because Boruchowitz had not yet secured a warrant, he made a probable cause arrest – as law enforcement officers are permitted to do – because Evans had received work at her personal residence, by VEA, for which she had not paid.
Even though an “arresting officer’s state of mind (except for the facts he knows) is irrelevant to the existence of probable cause,” the government contended that Boruchowitz’ involvement in a grass-roots movement called “Members for Change,” which sought to make VEA a more responsive organization to its customers, created a conflict of interest so severe that it deprived the Evans arrest of probable cause.
When Boruchowitz sought to introduce testimony from law enforcement expert Jeronimo Rodriguez, the Government argued that Rodriguez’s proffered testimony is irrelevant, misleading, and makes an impermissible legal conclusion. Boruchowitz responded that Rodriguez’s opinions are relevant to whether Boruchowitz’s arrest of Evans was unlawful and whether he acted willfully. The Government moved in limine to exclude testimony from Rodriguez.
Law Enforcement Expert Witness
Jeronimo Rodriguez began his policing career in the summer of 1986. He was an active police officer for 35 years and recently retired from active duty. Since retiring as a law enforcement officer in 2021, he has reviewed and consulted on police and law enforcement practices as a private police consultant. Since 2018, he has provided law enforcement training and management insight for various agencies throughout the United States.
Rodriguez’s report indicates that he “was asked to review the Nye County Sheriff’s Office’s belief that Evans had committed a crime and opine whether it aligned with generally accepted practices.” Although Rodriguez does not always use the legal phrase “probable cause,” his report applies the facts of the case to conclude that there were sufficient grounds to arrest Evans. Boruchowitz argues that Rodriguez should be allowed to state this opinion because probable cause is an objective standard comparable to professional malpractice and does not go to an ultimate issue because it is only one element of the crime charged.
However, expert opinion is required in medical or legal malpractice cases only when the negligence is not “within the ordinary knowledge and experience of a layman.” Whether a given set of facts constitutes probable cause to arrest or charge for a crime is within a jury’s ordinary knowledge and experience, as reflected in the constitutional requirement of indictment by grand jury. Regardless of whether it goes to an element or an ultimate issue, the existence of probable cause is a legal conclusion that must be left to the jury. The Court therefore granted the Government’s motion to prohibit Rodriguez from testifying as to whether Boruchowitz had probable cause to arrest Evans.
B. Credibility of Sources
The Government also argues that Rodriguez’s report improperly opines on the credibility of other witnesses. Boruchowitz does not respond to this argument in his opposition. Rodriguez states that Boruchowitz received invoices from “a credible source working for Valley Electric.” The jury is entitled to determine whether the Valley Electric employee’s information was credible based on the facts presented at trial. Therefore, the Court granted the Government’s motion to prohibit Rodriguez from testifying about whether informants or witnesses were credible.
Because the Court granted the Government’s motion to exclude Rodriguez’s opinion on whether there was probable cause to arrest Evans, the Court need not address its request to preclude Rodriguez from relying on post-arrest information to support probable cause. Rodriguez may discuss post-arrest information or actions to the extent they are relevant to rebutting willfulness as described in this order.
C. Willfulness
Boruchowitz argued that Rodriguez’s report and testimony will demonstrate that Boruchowitz complied with Nye County Sheriff’s Office (NCSO) policies during the investigation leading up to Evans’ arrest, making it less likely that he willfully violated her rights. In support, he offers Rodriguez’s supplemental report, which opines that Boruchowitz complied with NCSO policies on street sources, informants, searches, and search warrants.
The Court declared that Rodriguez’s testimony on NCSO policies and procedures would be helpful to the jury in understanding the difference between street sources and informants and how to treat information from such sources. Those concepts are peculiar to law enforcement and not within the average person’s knowledge, as is applying for and executing a search warrant. Rodriguez may thus testify about whether NCSO’s policies on these investigative methods conform to the national standard and whether Boruchowitz’s conduct conformed to the policies.
Further, Rodriguez may not, however, testify in a way that offers a legal conclusion such as whether Boruchowitz sufficiently corroborated his source’s information, formed a reasonable belief that Evans committed a crime, or conformed to his training “to execute a probable cause arrest.” Rodriguez also may not instruct the jury on the legal standards for probable cause or proof beyond a reasonable doubt, which he describes in his original report.
Held
The Plaintiff’s motion to exclude the testimony of Law Expert Witness, Jeronimo Rodriguez is granted in part by the Court.
Key Takeaways
Whether a given set of facts constitutes probable cause to arrest or charge for a crime is within a jury’s ordinary knowledge and experience, as reflected in the constitutional requirement of indictment by grand jury. Regardless of whether it goes to an element or an ultimate issue, the existence of probable cause is a legal conclusion that must be left to the jury.
Rodriguez’s testimony on NCSO policies and procedures would be helpful to the jury in understanding the difference between street sources and informants and how to treat information from such sources. Those concepts are peculiar to law enforcement and not within the average person’s knowledge, as is applying for and executing a search warrant.
Case Details:
Case Caption:
United States v. Boruchowitz
Docket Number:
2:23cr149
Court:
United States District Court for the District of Nevada
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 Defendant 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.
Defendant filed a motion to preclude Plaintiffs’ Law enforcement expert, Roger Clark‘s report and opinions on the grounds that such evidence is irrelevant, is improper and misstates the law, is speculative, and would unduly prejudice Defendants. Plaintiff opposed Defendants’ motion.
Law Enforcement Expert Witness
Roger Clark is a retired law enforcement professional with 27 years of experience in the Los Angeles County Sheriff’s Department (LASD). He was hired on December 1, 1965, and served until his retirement on March 31, 1993. Throughout his distinguished career, he held several key positions, including six years as a Deputy Sheriff, six years as a Sergeant, and 15 years as a Lieutenant. Roger retired with a California Peace Officer Standards and Training (POST) Advanced Certificate and is a graduate of the POST Command College, class #5, 1988.
Defendants argued that Clark’s first opinion should be excluded because it contains improper legal conclusions. The Court agreed. Clark’s first opinion stated that the LAPD was obligated to protect the protestors’ First Amendment rights and that per the video recordings, protestors had exercised these rights peacefully and lawfully. An expert cannot testify to a matter of law amounting to a legal conclusion. Clark’s opinion that the LAPD was obligated to protect protestors’ First Amendment rights and that protestors were peaceful and lawful constitute impermissible legal conclusions that invaded the province of the jury. Accordingly, the Court granted Defendants’ motion as to the exclusion of Opinion 1.
Opinion 2
Defendants argued that Clark’s second opinion, specifically that the LAPD deliberately inflicted significant indiscriminate force on the many persons in the crowd, including Zuniga, who was lawfully and innocently present, also improperly asserts a legal conclusion. They further argued that this opinion improperly opines on the mental state of the LAPD officers when Clark states that officers deliberately inflicted indiscriminate force on the crowd. Defendants offer no argument as to why the remaining statements in the second opinion should be excluded. The Court found that this portion of Clark’s second opinion both improperly states a legal conclusion that the LAPD used indiscriminate force and that Zuniga was lawfully present and improperly opined on the mental state and intent of the LAPD officers that officers deliberately inflicted indiscriminate force. Accordingly, the Court granted Defendants’ motion as to the exclusion of this portion of Opinion 2.
Opinion 3
Defendants argued that Clark’s third opinion that the LAPD’s use of impact weapons against the crowd was improper and in violation of well-known law enforcement tactics is irrelevant because any use of force against others besides Plaintiff is wholly irrelevant to this action. Defendants are incorrect. Plaintiff brings three Monell claims alleging that the LAPD maintains an unconstitutional policy, custom, or practice, including of using excessive force in crowd control situations including but not limited to engaging with peacefully protesting individuals. Clark’s opinion regarding the circumstances under which Defendants’ actions were taken and the LAPD’s use of weapons in a crowd control situation are relevant to Plaintiff’s claims. Accordingly, the Court denies Defendants’ motion as to Opinion 3 on this ground.
Opinion 4
Defendants argued that Clark’s fourth opinion should be precluded because there was no arrest in this case, and whether or not the other protestors were in violation of the law such that arrest of protestors was lawful is irrelevant to Plaintiff’s claims. As stated above, Defendants’ conduct towards the crowd of protestors is relevant to Plaintiff’s Monell claims. The LAPD’s policies, customs, and practices related to when persons are subject to use of police force and whether crowds are given the opportunity to disperse voluntarily before any arrests take place is relevant to these claims. Defendants further argue that this testimony is irrelevant, immaterial, and not helpful to the jury for the same reasons they contend Opinion 3 is similarly irrelevant. For the same reasons, the Court found that testimony regarding the LAPD’s procedures and policies are relevant and admissible. Accordingly, the Court denied Defendants’ motion as to Opinion 4.
Opinion 6
Defendants argued that Clark’s sixth opinion should be excluded because the opinion does not explain how the LAPD’s policy is insufficient or how the LAPD lacks an adequate policy regarding dispersal orders. Contrary to Defendants’ contentions, Clark did substantiate his opinion by explaining what the LAPD failed to communicate and what police training and policies equip officers to sufficiently announce crowd dispersal orders. Clark also stated that in reviewing documents indicating LAPD made a public announcement via Twitter, in his opinion this was inadequate notice because it was not announced verbally and assumed that persons present had access to electronic announcements. Clark is qualified to testify about police training standards and policies given his experience in this area. Accordingly, the Court denied Defendants’ motion as to Opinion 6.
Opinion 7
Defendants argued that Clark’s seventh opinion that LAPD engaged in a number of tactical errors that would or should have eliminated the need for the use of force and thus were a causative factor in the police’s use of force is speculative and unsubstantiated. Defendants argued that the opinion does not explain how the LAPD’s policy is insufficient, and that his conclusions as to what actions LAPD failed to take lack foundation and are misleading and conclusory therefore not helpful to the jury. Opinion 7 did not mention LAPD policies, rather, it states that LAPD made tactical errors and identifies the errors LAPD made during the events at issue. However, Clark failed to explain how he deduced that LAPD committed these errors or what materials inform his opinion. Therefore, the Court agreed that this opinion lacks foundation. Accordingly, the Court granted Defendants’ motion as to Opinion 7.
Opinion 8
Defendants argued that Clark’s eighth opinion that LAPD failed to use well-known law enforcement methods that they were, or should have been, trained on for addressing the small group of unlawful individuals within the much larger group of lawful protestors—is not sufficiently helpful to the jury to be admissible. Defendants argue that Clark does not explain how the LAPD’s policy is insufficient. Clark’s opinion identified methods of control that LAPD should have used and states that he reviewed the video recordings at the time of Zuniga injuries, that the methods LAPD used instead dispersed specific persons with intent to change the peaceful demonstration to a violent encounter into the larger crowd of lawful protestors. Thus, Clark identified the bases for his opinion. Accordingly, the Court denied Defendants’ motion as to Opinion 8.
Testimony regarding LAPD’s policies and procedures
Defendants further argue that Opinions 3, 4, 5, 6, 7, 8, and 9 are irrelevant, immaterial, not helpful to the jury because an alleged violation of Sheriff’s Department policy does not equate to a violation of the United States Constitution. Clark’s opinion regarding whether Defendants’ conduct comported with applicable procedures and policies on the day of the incident does not constitute a legal opinion or conclusion. Further, the testimony is relevant to the subject of Defendants’ conduct, including the use of force and crowd dispersal methods, during the events giving rise to this action. Accordingly, the Court denies Defendants’ motion to exclude these opinions on this ground.
Testimony regarding the mechanism of Plaintiff’s alleged injury and the alleged medical issues
Defendants argued that Clark’s testimony about issues such as the mechanism of injury and the source of injury should be excluded because Clark is not qualified as a medical doctor. Defendants argued that Clark was retained as a police expert and as such, his testimony should be limited only to areas involving police tactics. Plaintiff has not offered Clark as a ballistics expert or medical expert, and nothing in Clark’s report indicates that he is qualified to testify about what caused Plaintiff’s injury. Accordingly, the Court granted Defendants’ motion to exclude testimony from Clark regarding the mechanism or source of Plaintiff’s injury.
Held
The Court granted Defendant’s motion to exclude Clark’s first opinion that the LAPD was obligated to protect the protestors’ First Amendment rights and that the protestors were peaceful and lawful.
The Court granted Defendant’s motion to exclude Clark’s second opinion that the LAPD deliberately inflicted indiscriminate force on the crowd and that Mr. Zuniga was lawfully present.
The Court denied Defendant’s motion to exclude Clark’s third opinion regarding the LAPD’s improper use of impact weapons and violation of law enforcement tactics.
The Court denied Defendant’s motion to exclude Clark’s fourth opinion regarding the LAPD’s failure to provide an opportunity for protestors to disperse voluntarily.
The Court denied Defendant’s motion to exclude Clark’s sixth opinion regarding the inadequacy of the LAPD’s dispersal order policy.
The Court granted Defendant’s motion to exclude Clark’s seventh opinion that the LAPD’s tactical errors were a causative factor in the use of force.
The Court denied Defendant’s motion to exclude Clark’s eighth opinion regarding the LAPD’s failure to use appropriate law enforcement methods to address unlawful individuals within the crowd.
The Court denied Defendant’s motion to exclude Clark’s opinions regarding LAPD’s policies and procedures, finding that they were relevant to the conduct of the officers and the claims made by Plaintiff.
The Court denied Defendant’s motion to exclude testimony regarding the mechanism of Plaintiff’s alleged injury and the alleged medical issues.
Key Takeaways:
Defendant challenged Clark’s methodology and opinions in several areas. The Court excluded Clark’s opinion on the LAPD’s obligation to protect protestors’ First Amendment rights and its conduct during the protest because it constituted a legal conclusion. The Court also struck Clark’s opinion on the LAPD’s use of indiscriminate force because it improperly opined on the mental state and intent of the LAPD officers.
The Court also denied the motion to exclude Clark’s opinions on LAPD’s policies and procedures, as well as testimony regarding the mechanism of Plaintiff’s injury, finding them relevant to the case.
Clark’s opinion on LAPD’s tactical errors was excluded due to lack of foundation.
Please refer to the blog previously published about this case:
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.
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
This case deals with the indictment of Derik Carothers. He is charged with three offenses. At Count One, the grand jury charged him with conspiracy to distribute and possess with intent to distribute a quantity of cocaine base, in the form commonly known as crack, a Schedule II controlled substance. At Count Two, the grand jury charged him with possession of a firearm in furtherance of a drug trafficking crime. And at Count Four, the grand jury charged him with possession of a firearm and ammunition by a convicted felon.
On October 11, 2024, by email communication, Carothers, through counsel, informed the Government that he intended to call the Chief Technical Officer of PATC Tech (a forensic investigation company), Glenn K. Bard (“Mr. Bard”), as an expert witness with experience in computer and cell phone forensics.
As of 2:36 PM on October 15, 2024, the Government had yet to receive Carothers’s expert disclosure of Bard, and thus the Government filed a Motion to Compel.
In Carothers’s response to the motion to compel, filed on October 16, 2024, he stated that “PATC informed counsel yesterday that … Bard is now unavailable to testify next week. In lieu of Bard’s testimony, Carothers expects to call Lucas… With respect to Lucas, Carothers provided the government with all of the expert disclosures required by Rule 16 today, October 16, 2024.”
The Government filed a motion to have Defendant Derik Carothers’s proposed expert, Donald Scott Lucas, excluded pursuant to Federal Rule of Criminal Procedure 16 because Carothers’s notice of expert testimony is (i) untimely and (ii) inadequate.
Law Enforcement Expert Witness
Donald Scott Lucas is a Forensic Examiner & Instructor with PATCtech and a retired Pennsylvania State Trooper. He has a background in law enforcement, specifically in regard to digital forensics and computer crimes. He has testified in federal, state and military courts regarding computer investigations and digital forensics on numerous occasions.
Regarding disclosure’s statement of opinions that the Defendant will elicit from Lucas, which Rule 16 requires the disclosure of, Carothers only provided the following:
“Lucas will describe how he analyzed the forensic extractions of the cellular telephones seized in this case and will also describe data that can be recovered from the phones as well as data recovered from the seized phones. Specifically, he will testify about his analysis of the data contained on the phones and the methods he used to obtain any such data. He is expected to testify about the results of his review of the extraction of the phones for relevant images taken by the phones and relevant text messages sent and received by the phones (i.e., texts containing code names for controlled substances as identified by Agent Springmeyer and Josh Martin).”
Court’s Decision
The Court found that Carothers’s notice of a new expert and the disclosure of that expert, given three business days before the start of trial, was not provided “sufficiently before trial to provide a fair opportunity for the government to meet the Defendant’s evidence.”
Further, the Court found that the disclosure lacks “a complete statement of all opinions that the Defendant will elicit form the witness” and “the bases and reasons for them.”
The Court determined that the appropriate remedy is to grant the Government’s continuance request and order Carothers to re-file a revised disclosure regarding Lucas’ proposed testimony.
The Court recognized that Bard’s unavailability was not inherently Carothers’s fault. Carothers had not acted intentionally or in bad faith. Moreover, the Court did not find that the Government will be prejudiced by the Court granting its alternative request for a continuance. Indeed, this remedy will permit the Government the time necessary to prepare for Lucas’ testimony, while also avoiding the exclusion of one of Carothers’s two proposed expert witnesses.
Held
The Court granted in part and denied in part the Government’s motion to exclude Defendant’s testimony or, in the alternative, for a continuance.
Key Takeaway:
The Court found that the disclosure lacks “a complete statement of all opinions that the Defendant will elicit form the witness” and “the bases and reasons for them.” However, the Court did not find that the Government will be prejudiced by the Court granting the alternative request for a continuance because Carothers has not acted intentionally or in bad faith. Indeed, this remedy will permit the Government the time necessary to prepare for Lucas’ testimony, while also avoiding the exclusion of one of Carothers’s two proposed expert witnesses.
Case Details:
Case Caption:
United States V. Carothers
Docket Number:
3:20cr31
Court:
United States District Court, Pennsylvania Western
