This action arises out of the execution of search warrants on three properties owned by one or more of the Plaintiffs, John Andros and his wife, Julie Andros (together the “Androses”), Kings Parkway, LLC d/b/a 67 Motors (“67 Motors”), and Ideal Transport, LLC. The locations searched were the Androses’ home located at 172 Primrose Lane, Homerville, Georgia (“Residence”), the office and real estate on which 67 Motors is located at 67 West Plant Ave., Homerville, Georgia, and the office and real estate on which Ideal Transport is located at 174 Primrose Lane, Homerville, Georgia.
Although the three warrants were later quashed, an employee of National Insurance Crime Bureau (“NICB”), Special Agent Trent Van Lannen (“Van Lannen”), participated in the search at 67 Motors. Van Lannen was not physically present for the searches conducted at the Residence nor at Ideal Transport. Although Van Lannen used the title Special Agent he is not a law enforcement officer. NICB is a private company put together by large insurance companies to combat fraud. During the time he was present at 67 Motors, Van Lannen did not inform employees present at 67 Motors that he was not a law enforcement officer. Nor did any of the employees inquire whether he was a law enforcement officer.
NICB sought to exclude the testimony of Plaintiffs’ expert witness Gary Vowell.
Law Enforcement Expert Witness
Gary Vowell has been a certified police officer in Georgia since 1977. He retired as the head of the Georgia Department of Public Safety in 2020. He has taught numerous courses dealing with policing in classrooms across the State of Georgia.
NICB did not contest Vowell’s expertise. Nor did it contend that he is unqualified to opine on police procedures. Rather, NICB argued that Vowell’s testimony should be excluded because his opinions (1) on Van Lannen’s actions create duties where none exist in the law, (2) go to the ultimate issue in the case, and (3) are speculative to the extent he opines that had Van Lannen read the warrant, Van Lannen would have known he was not allowed to participate in the search. NICB also asserted that Vowell’s opinions are not helpful to the jury and are unnecessary because there are no aspects of Vowell’s opinions that cannot be adequately argued by counsel and understood by the jurors.
Plaintiffs argued that Vowell’s opinions provide information about law enforcement practices in a specialized professional context; i.e., law enforcement standards and the scope of permissible civilian participation.
While the full extent of Vowell’s testimony is unclear at this time, it appeared that it is intended to provide the jury with knowledge of law enforcement practices and procedures when a private citizen is involved in execution of search warrants as well as the responsibilities and reasonableness of actions taken by such private citizen. At this point, the Court found that it is not appropriate to preclude such testimony.
Held
The Court denied Defendant National Insurance Crime Bureau’s motion to exclude the testimony of Plaintiffs’ expert Gary Vowell. Of course, as permitted, the Court may reconsider upon the actual evidence presented at trial and each party continues to bear the responsibility to raise necessary or appropriate objections.
Key Takeaway
The standard to determine helpfulness is whether the expert testimony “concerns matters that are beyond the understanding of the average lay person.” Here, a lay juror would not know the practices and procedures regarding allowing private citizens to be present at, or to participate in, the execution of a search warrant, whether Van Lannen’s actions were consistent with those practices and procedures, or whether those actions were reasonable, considering Van Lannen’s own assertion of expertise in assisting law enforcement.
Plaintiff Angelo Black brought this civil rights and state tort damages action in October 2023 against former Gwinnett County Police Officer, Chase Weber. Black was seriously injured during the course of a police foot chase that occurred in October 2021. The foot chase ultimately ended with Officer Weber deploying a taser to immobilize Black, resulting in Black sustaining a serious head injury and lasting health issues.
Plaintiff presented expert testimony from Natasha Powers-Marakis, an expert in police practices and taser usage. Based on her experience and professional training, Powers proffered testimony concluding that Black was in an elevated position when Officer Weber tased him. Weber filed a motion to exclude the opinion of Powers.
Law Enforcement Expert Witness
Natasha Powers-Marakis retired from fourteen years as a law enforcement officer in 2011, when she began consulting on matters related to policing.
Since her retirement in 2011, she has received certifications in taser instruction, police practices, force science, management of chaotic events and prevention of arrest-related-in-custody deaths, and defensive tactics. Powers has trained police academy recruits and in-service police officers in defensive tactics, use of non-lethal force, and the use of deadly force. She has advised law enforcement agencies on the use of force and options relative to the use of force. She also has written policies on law enforcement’s use of force.
Weber challenged the admissibility of Powers’ opinion on several grounds, including that, in his view, Powers is unqualified to render her expert opinion, that the methodology she used to reach her conclusions is unreliable, and that her opinion would be unhelpful to a jury’s understanding of the issues in the case.
I. Powers’ Qualifications
Powers far surpassed the “minimally qualified” standard; her extensive experience certainly qualified her to render her opinions concerning police practices and the use of force and tasers in the instant case.
Weber argued that Powers is unqualified to provide her opinion because she is not an “expert in forensic video analysis,” and therefore, her opinions that are based, in part, on a review of the body camera footage are inadmissible. Weber is correct that Powers is not an expert in forensic video analysis. But she does not have to be an expert in forensic video analysis in order to be qualified to opine on whether Weber’s use of force against Black was appropriate or excessive under the circumstances. Powers’ opinions about Weber’s use of force are not based solely on a forensic analysis of the body camera footage. Rather, her opinions are based on her “education, training, experience, and review of the information and materials related to this case,” including the body camera footage of the incident.
Powers additionally testified that she has been trained in forensic video analysis and regularly reviews body camera footage in civil cases to draw conclusions regarding police use of force.
II. Reliability of Powers’ Principles and Methods
The Court found that Powers’ overall scope of law enforcement experience, her review of this case’s evidentiary record and relevant law, and her knowledge and expertise in the field of police practices, standards, and taser use provide a reliable foundation upon which she based her findings and conclusions.
Weber argued that Powers’ reliance on the body camera footage “does not comport with the well-recognized standards for reviewing officers’ split-second decisions in hindsight,” and that her method “cannot be properly applied to the facts at issue.”
The Court here must consider in its excessive force analysis the severity of the crime at issue, whether Black posed an immediate threat to the safety of the officers or others, and the fact that Black was attempting to evade arrest by flight at the time of the use of the officer’s use of force. Weber is correct that Powers’ opinion addresses these factors through the lens of police training and policy.
It is true that courts must judge an officer’s reasonableness in a way that allows “for the fact that police officers are often forced to make split-second judgments,” rather than judging reasonableness “with the 20/20 vision of hindsight.” However, that omission in her analysis goes to the weight a jury would give to her opinion— not to admissibility.
Finally, Weber challenged the reliability of Powers’ methodology because he disagreed with the conclusion she drew. This is not an appropriate reason for the Court to deem Powers’ testimony inadmissible. The Court’s analysis as to reliability is limited to focusing “solely on principles and methodology, not on the conclusions that they generate.”
III. Helpfulness of Powers’ Opinions
Weber argued that Powers’ opinion that his use of force was “unreasonable and excessive” is unhelpful because it is an improper legal conclusion.
However, Powers’ use of terminology such as “excessive,” “unreasonable,” and “disproportionate” in her report did not necessarily render her opinion an impermissible legal conclusion. In using this language, she did not tell the jury what legal result to reach. Rather, she emphasized that her use of such terminology was “intended to and should be read as references to the professional and generally accepted standards in policing, not as references to or the application of legal standards within the scope and sole province of the factfinder or judge.”
The Court found that Powers’ opinion is certainly relevant to the issue of the degree of force used in this case. Moreover, her expert testimony is based on information that the average lay person is not aware of, such as the length and nature of a taser cycle, model policies and procedures regarding use of force, and national policing standards.
Held
The Court denied Defendant’s motion to exclude the opinions of Plaintiff’s expert Natasha Powers-Marakis.
Key Takeaway
Courts routinely admit expert testimony opining on whether a police officer’s use of force violated police practices and policies, as such opinions are not legal conclusions.
As Powers’ use of such terminology is limited to the context of police practices and policies, her opinion is not an improper legal conclusion and is admissible at trial.
Solangie Acosta was a Muskegon Heights Police Department(“MHPD”) law enforcement officer between 2017 and 2022 who brought nine claims against her former employer, alleging discrimination on the basis of sex, disability status, and an exercise of her worker’s compensation rights.
Defendants filed a motion to preclude testimony by Acosta’s expert Wendy Patrick, a former prosecutor and law enforcement trainer, who intended to testify regarding law enforcement practices and the difficulty that officers face in making complaints, including sexual harassment complaints, against other officers and their superiors.
Law Enforcement Expert Witness
Wendy L. Patrick, J.D., Ph.D. has been researching, training, presenting, and publishing within the field of gender discrimination and sexual harassment for over 20 years. She regularly teaches and trains on the insidious progression of gender-based discrimination and harassment within professional relationships, why victims remain employed in positions of power inequality when they are targeted, and the hallmarks of a discriminatory workplace culture.
Patrick is a certified Institute of Criminal Investigation (ICI) Certified Trainer for law enforcement and provides consulting services and training in trauma-informed sexual assault response and investigation on a national level.
Defendants moved to preclude Patrick’s testimony on “empirical documentation and testimony regarding workplace dynamics including discrimination, sexual harassment, and retaliation within a male-dominated workplace” and “the potential adverse effects likely to impact a female law enforcement officer targeted as described.”
Defendants argued that Patrick lacked sufficient qualifications and that Patrick’s expert report “at no point even attempts to discuss, reference, or even acknowledge the facts of this case” given that “the only [case-specific] documents reviewed and information considered was Plaintiff’s First Amended Complaint.”
Acosta responded that Patrick’s expert report and curriculum vitae establish that she has specialized knowledge as a certified law enforcement trainer and as a published author regarding law enforcement practices. Acosta submitted persuasive authority from federal trial courts indicating that such testimony may be admissible in sexual harassment cases involving police officers.
Defendants, however, have not presented any controlling Sixth Circuit authority indicating that general expert testimony on the subjects noted in Patrick’s report should be excluded on the facts presently before the Court.
The Court concluded that Defendants have failed to establish the wholesale inadmissibility of Patrick’s expert testimony.
That said, Defendants are free to object to specific opinions offered by Patrick if they, for example, violate Federal Rule of Evidence 403 or any other applicable rules. Defendants are also free to object if Patrick attempts to apply her general testimony to the specific facts of this case to the extent that Patrick failed to disclose such an opinion in her expert report.
Held
The Court denied Defendants’ motion in limine to exclude the testimony by expert Wendy Patrick without prejudice subject to the guidance provided above.
Key Takeaway
Expert testimony about the tendencies of victims of sexual harassment does not require specific knowledge about the parties. Experts routinely offer general testimony about their field of expertise without knowledge of the case at bar.
Eric Kelley contended that he was wrongfully incarcerated for a 1993 murder and robbery for 24 years until DNA testing provided a basis for the trial court to vacate his convictions, and the State declined to retry him, Kelley then sued several members of the Paterson Police Department (“PPD”) who allegedly violated his constitutional rights and the City of Paterson (“Paterson”).
To testify at trial, Paterson retained Ronald Hampton, a twenty-five-year veteran of the New Jersey State Police, as an expert witness on the policies and procedures of the PPD during the relevant time. Plaintiff, however, filed a motion to exclude the testimony of Defendant’s expert, Hampton.
Law Enforcement Expert Witness
Ronald Hampton, M.A., CFE served for twenty-five (25) years with the New Jersey State Police in various assignments and capacities before retiring on September 1, 2019.
He graduated from Fairleigh Dickinson University, Rutherford, New Jersey, with a Bachelor’s Degree in Political Science in 1992 and Rutgers University, Newark, New Jersey, with a Master’s Degree in Criminal Justice in 2003. Hampton also attended and graduated from American Military University with a Master’s Degree in Management in 2014. He is a graduate of the 241st session of the FBI National Academy (2010). He is also a Certified Fraud Examiner (CFE), having received certification in 2018.
The parties dispute Hampton’s social psychology qualifications, the reliability of Hampton’s methodology, and the fit between his proffered testimony and the issues in this case.
1. Rebuttal Report
The Court excluded Hampton’s entire proffered rebuttal testimony because his rebuttal report intrudes on the province of the jury by making credibility determinations, opining on legal issues, and regurgitating fact witness testimony.
First, Hampton inappropriately commented on witnesses’ knowledge or understanding. Second, Hampton improperly opined about legal requirements. Lastly, Hampton unacceptably weighed conflicting evidence and witnesses’ credibility.
Additionally, Hampton threatened to waste trial time by regurgitating deposition testimony with minimal to no analysis. Basically, Hampton’s summaries of witness testimony “are matters that would be within the common understanding of regular citizens and do not require—and are not benefited by—the opinions of a police practices expert.”
Finally, Hampton is not a social psychologist, yet he discusses psychological concepts such as tunnel vision, contamination, and psychological factors relating to Kelley’s confession.
In sum, the Court excluded Hampton’s rebuttal report for invading the jury’s province, and for offering new opinions improperly raised on rebuttal.
2. Opening Report
To begin with, Hampton’s opening report generally marched through the background of the PPD’s policies and procedures in effect in 1993, how those policies compared to those in place at other law enforcement agencies, and how they evolved over time.
Although Plaintiff conceded that such testimony could assist “in determining whether the [police] practices differed from standard law enforcement practices,” the Court nonetheless had to address Plaintiff’s objections to Hampton’s methodology.
Hampton’s “application of extensive experience to analyze” the PPD’s policies and procedures is a reliable methodology based on his 25 years with the New Jersey State Police.
Nevertheless, the Court excluded several lines of testimony within the opening report. First, Hampton may not testify about irrelevant matters, such as, inter alia, the rules governing officer appearance. Second, Hampton may not reference the testimony of fact witnesses in this case, as he does with Lieutenant Spagnola and Chief Munsey. Third, Hampton may not speculate. Finally, Hampton may not utilize materials prepared after 1993 to support opinions regarding policies or procedures in place in 1993.
Held
The Court granted in part and denied in part the Plaintiff Eric Kelley’s motion in limine to exclude the testimony Defendants’ expert Ronald Hampton.
Key Takeaway
Police experts regularly testify about non-scientific topics based on their own training and experience. Hampton made several assertions about the PPD’s policies and procedures, which he attempted to prove based on his own extensive training and experience.
Plaintiff Chanada Robinson (“Plaintiff Robinson”) is the mother of Anthony J. Thompson, Jr., who was involved in an incident at East Austin Magnet High School (“Austin East”) that ended his life on April 12, 2021.
Plaintiff Robinson alleged violations of the Fourth Amendment, deliberate indifference to Thompson’s medical needs, assault and battery, and intentional infliction of emotional distress.
Plaintiff filed the expert witness report of James A. Wilson, M.D. According to Wilson, “the purpose of [his] report is to assess the physical and psychological impact upon Thompson when he was denied medical care following being shot in the chest at close range by [Defendant] Clabough.”
Defendants filed a joint Daubert motion to exclude Wilson’s opinions pursuant to Rule 702 of the Federal Rules of Evidence.
Emergency Medicine Expert Witness
James Andrew Wilson, M.D. is a recent member of US Acute Care Solutions. From 2018-2023 he worked for Envision Physician Services, where he was an Assistant Medical Director of an Emergency Department and an EMS Medical Director for several local agencies.
Wilson received an MD and MBA in one of the first joint degree programs in the country. He completed a residency in emergency medicine at Christ Hospital and Medical Center (also in the Chicago area).
Defendants contended that Wilson cannot offer an opinion about any breach of standard of care because (1) it is a legal conclusion, (2) he is not qualified to offer an opinion about the conduct of law enforcement officers, and (3) his opinion is not reliable.
A. Qualifications
Defendants argued that Wilson cannot offer any opinion about the breach of standard of care because he is not qualified to provide an opinion about the conduct of law enforcement officers.
Wilson opined that the individual Defendants “failed to meet the standard of care for first responders interacting with a gunshot victim.”
Plaintiff outlined Wilson’s educational and experience, which includes experience with first responder triage and teaching about the standard of care for first responders. But Plaintiff has not provided any evidence that Wilson is qualified to testify about the standard of care as it relates to a law enforcement officer.
B. Legal Conclusion
Defendants asserted that Wilson cannot offer an opinion that they breached the standard of care because that is a legal conclusion.
Plaintiff did not respond to this argument. Given that, the Court found it unopposed and the proposition conceded.
C. Reliability
Defendants argued that Wilson’s opinion that they “breached the standard of care by not providing pain medication or by not ensuring that the paramedics (allegedly at the scene) gave pain medications to Thomspon” is unreliable.
Plaintiff, once again, did not respond to Defendants’ argument. Therefore, it too is unopposed and the proposition conceded.
But the Court would also exclude the opinion because it is unreliable. Wilson stated that a person must be conscious to feel pain and that Thompson was conscious between 3:15:28 and 3:19:22.
Defendants have submitted evidence showing that EMS personnel were not at the scene until about 3:20:30, after Thompson became unconscious, and that Officer Willson left with the assistance of KPD officers at 3:18:20.
Held
The Court granted Defendants’ joint Daubert motion as to Plaintiff’s expert Dr. James Wilson, M.D.
Key Takeaway
An expert’s opinion must be supported by ‘more than subjective belief and unsupported speculation’ and should be supported by ‘good grounds,’ based on what is known.
This case arises under the Trafficking Victims Protection Reauthorization Act (TVPRA), which provides victims of sex trafficking a civil remedy against the perpetrators and beneficiaries of their trafficking. Plaintiff C.L.F. filed this action to recover for alleged harm she experienced from being trafficked at a Motel 6 in Wichita, Kansas, that she claims was owned and operated by the Defendants.
On August 21, 2025, C.L.F. filed the motion sub judice, seeking to exclude as irrelevant the testimony of Defendants’ designated law-enforcement expert witness Bill Woolf.
Law Enforcement Expert Witness
William “Bill” Woolf has spent over 15 years of experience in law enforcement, specializing in the investigation of human trafficking, organized criminal enterprises, narcotics, and gang-related crime.
He has conducted extensive fieldwork in identifying, investigating, and dismantling human trafficking networks, with a focus on both sex trafficking and labor trafficking operations occurring in a variety of settings, including hospitality environments.
Woolf is the Principal and Founder of The Woolf Group, a national consulting firm providing expert guidance on human trafficking prevention, investigation, training, and public policy.
C.L.F. asked the Court to exclude all four opinions offered by Woolf. Namely, Woolf’s opinions that:
(1) “There is no evidence that trafficking involving CLF was identified or interdicted by law enforcement during the relevant period;”
(2) “Hotel staff are not trained, equipped, or authorized to investigate or intervene in suspected trafficking operations;”
(3) “In transient lodging environments, the investigative and intervention burden for human trafficking rests with law enforcement, not hotel personnel;” and
(4) “It is unreasonable to retroactively impose a higher duty of detection on hotel staff than the standard applied by law enforcement at the time.”
C.L.F. claimed that “all of Woolf’s opinions are red herrings that draw the jury’s attention to topics that have no bearing on the actual issues that must be decided in this case.”
Opinion 1
Woolf may not tell the jury there was “no evidence that trafficking involving C.L.F. was identified or interdicted by law enforcement during the relevant period.” This is irrelevant to understanding whether hotel staff knew or should have known of sex trafficking at the Wichita Motel 6. It is also misleading. Hearing that police officers had “frequent engagement with the subject properties” and that they made no reports or arrests for sex-trafficking related crimes would lead a juror to conclude that such conduct was absent. That distracts the jury from the pertinent inquiry. Numerous arrests for sex trafficking might put hotel employees on notice, but that logic does not follow from a total absence of arrests. Law enforcement may not have arrested anyone for trafficking at the Wichita Motel 6, but that in no way precludes hotel management and staff from being aware of ongoing sex-trafficking-related activity.
As such, the Court struck Woolf’s opinion as irrelevant and misleading.
Opinion 2
The Court struck Woolf’s second opinion as misleading. Investigating and/or intervening in human trafficking is not an element of the TVPRA and to suggest that Defendants’ employees were not trained or able to investigate, identify, or interdict trafficking injects elements into C.L.F.’s burden of proof that simply are not there. All that is required for C.L.F. to show is that Defendants’ employees were negligently aware of sex-trafficking-related activity on the property.
Opinion 3
The jury cannot hear Woolf’s third opinion. It would tell the jury that, since hotel staff lack the “access to confidential intelligence, interagency data, investigative tools, and legal mechanisms such as warrants and subpoenas” that police officers have, hotel staff are unable to “reliably assess” potential trafficking red flags.
This would seriously undercut the jury’s factfinding role. As said, hotel staff cannot escape imputing knowledge from their own observations of sex-trafficking-related activity just because they lack military-grade investigative tools. A janitor’s inability to petition a judge for an arrest warrant has no bearing on his awareness of sex trafficking if there were observable signs of trafficking in the hotel hallways. The jury, who “is solely responsible for determining the weight and credibility of the evidence,” should assess how Defendants’ staff interpreted those signs without assessing how a police officer would react.
Further, pointing out hotel staff’s lack of crime-prevention tools might mislead the jury to think that the TVPRA excuses liability where a defendant is unable to prevent sex trafficking. As the parties know, making that suggestion to the jury would be wholly inappropriate because “the TVPRA does not impose an affirmative duty to police and prevent sex trafficking” (nor excuse sex-trafficking liability because no duty to prevent exists). The relevant inquiry is whether hotel staff knew of trafficking, not if they prevented, or attempted to prevent, it.
Opinion 4
Woolf’s fourth opinion is simply a summary of his already discussed testimony. His claim that it is “unreasonable to retroactively impose a higher duty of detection” on hotel staff than law enforcement highlights the irrelevance of his other opinions. Discussion of law enforcement’s knowledge or lack thereof regarding trafficking at the Wichita Motel 6 has no effect on that of hotel management and staff. Referring to it would only mislead the jury. Woolf’s testimony appears designed to imply that Defendants were unaware of sex trafficking because law enforcement, with all its law-enforcement techniques, was also unaware. While sensible to think that a layperson would not detect an ongoing crime if a police officer in the same situation could not, that analogy is “non-helpful” here.
The standard is whether hotel staff knew of sex trafficking at their hotel. As explained, hotel staff are in a much different position than police officers to observe the day-to-day happenings at a hotel. The ways in which law enforcement and hotel staff acquire knowledge of sex trafficking at a hotel are completely different and to conclusively suggest to the jury that what was not observable to law enforcement was not observable to hotel staff is both untrue and unhelpful.
Rebuttal Opinions
Defendants pointed out that Woolf also offered rebuttal testimony to C.L.F.’s experts, and that C.L.F.’s motion did not request those rebuttal points to be excluded. C.L.F. responded that, if the Court excludes Woolf’s opinions, then it should also exclude his rebuttal opinions.
All four opinions asserted that it would be unreasonable to find that hotel staff were aware of sex trafficking at the Wichita Motel 6 because law enforcement, with its greater resources, tools, and training, was not. As explained, such testimony would only confuse the jury.
Rebuttal Opinion 2 responded to C.L.F.’s expert witnesses’ claims that hotel training was inadequate by pointing out that no industry standards about sex-trafficking awareness, such as the DHS Blue Campaign Hospitality Toolkit, existed until after this case’s relevant trafficking period.
The opinion also pointed out how “assertions by [C.L.F.’s law-enforcement expert] Christi Decouflé that G6 policies actively discouraged reporting to law enforcement are not substantiated by the record.” But this is straightforward impeachment. It did not help the jury to have Woolf provide such testimony. Impeaching a witness by highlighting inconsistencies between their testimony about documents and facts contained in and relating to those documents does not require specialized knowledge, nor even a live witness; instead, that is the role of counsel.
This Ruling Remains Good for Both the Goose and the Gander
Woolf’s testimony could only muddle things, as he would not testify about red flags observable or known to hotel employees. Instead, he wants to advise the jury on what law enforcement would or would not have known. This would not help the jury.
While Woolf’s testimony goes to Defendants’ actual or constructive knowledge about the trafficking, it is inappropriate as compared to other experts.
Decouflé’s testimony here is based on Defendants’ own policies, guests’ online reviews, and what potential sex-trafficking-related facts the hotel workers, not police, saw during the relevant time. She would testify to hotel-staff knowledge based on hotel-staff observations while Woolf would compare hotel-staff knowledge and training to police-officer knowledge and training. For a jury deciding what the hotel staff knew or should have known, the former is helpful; the latter is not. Woolf’s testimony is irrelevant.
Held
The Court granted Plaintiff’s motion to strike or exclude the testimony of Bill Woolf.
Key Takeaway:
The perspective of a trained law enforcement officer experienced in identifying, investigating, and intervening in cases of human trafficking—even within hospitality settings—would not help the jury understand or determine whether G6’s management or staff knew, or should have known, that sex trafficking was occurring at the Wichita Motel 6.
While Woolf indicated that he considered “the observable signs and behaviors that might have been available to hotel staff,” his opinions address only what law enforcement would understand and/or do in response to those observations.
Please refer to the blog previously published about this case:
Defendant, Goran Gogic, was charged in a multi-count indictment with crimes related to international narcotics trafficking, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”).
Subsequently, the parties filed several motions in limine concerning evidence of electronic communications that were purportedly seized and decrypted by European law enforcement.
As explained in the parties’ briefs, the communications in question were seized and decrypted by law enforcement authorities in Europe as part of a joint investigation that involved French, Belgian, and Dutch officials. Furthermore, the Government obtained electronic records of certain such communications from a French official through a Mutual Legal Assistance Treaty (“MLAT”) between the United States and France.
In order to obtain these records, a Department of Justice (“DOJ”) officer sent a written MLAT request for content associated with specific Sky user accounts, each denominated by a five-character “Sky PIN,” believed to belong to Defendant. The MLAT request specifically identified, among others, Sky PINs 28A508 and 5UIP0T as belonging to Defendant. Thereafter, French officials complied with the MLAT request and transmitted electronically a large set of spreadsheets and media files (the “Sky Evidence”).
Finally, the Defendant notified the Government of his intention to call three expert witnesses: Yehudi Moszkowicz, Andreas Milch, and Lee Koch. The Government moved to preclude any testimony and argument regarding the legality or propriety of the European law enforcement operation through which the Sky Evidence was obtained, and to preclude Defendant’s proposed experts from testifying.
Law and Legal Expert Witnesses
Yehudi Moszkowicz is a Dutch criminal defense attorney with a degree in “audio- engineering” who has experience representing clients in Europe in cases that involve encrypted phone evidence.
Moszkowicz’s two proffered reports concerned the structure and internal communications of the European governments that participated in the joint investigation, with emphasis on the purported involvement of the United States.
His analysis is based on his review of government documents and media reports that describe, inter alia, the role of Europol and the use of Dutch software to analyze communications captured from the Sky network.
The Court held that Moszkowicz’s report did not reflect any specialized knowledge and merely summarized documents that—if they had been admissible—could have been understood by a lay person. Additionally, while such information might have borne on issues raised in Defendant’s prior suppression motion, it was of minimal relevance to any issue at trial. The diplomatic details of the underlying investigation simply did not bear on the reliability of the resulting intelligence. Insofar as the defense intended to elicit Moszkowicz’s opinion about the reliability of the Sky Evidence at issue in the case, such testimony would have been speculative because, inter alia, he had not even personally reviewed the discovery.
Lee Koch
Koch’s expected testimony consisted of a single page “report” indicating that he had reviewed Sky Evidence and “agreed on all points” with the report of Milch and stated that the Sky Evidence “should be suppressed” because it was “incomplete, open to manipulation, unverifiable to an original dataset . . . contained multiple errors, contained multiple omissions, was collected and processed by unknown and unverified tools, and lacked timestamps or GPS data.”
Consequently, the Court held that the primary opinion set forth in the letter was a legal conclusion—namely, that the Sky Evidence “should be suppressed”—which would not constitute relevant or permissible testimony at trial.
Andreas Milch
Milch reviewed the Sky Evidence and drafted two lengthy reports evaluating the reliability of the data and highlighting various “anomalies” in the Chat Spreadsheets.
Those reports addressed a wide range of topics related to the Sky Evidence, including, inter alia, the functionality and format of the encryption used on the Sky network, the European “hack” operation, and various features of the Chat Spreadsheets and Media Folders. Milch’s conclusion was that the “integrity” of the Sky Evidence could not be verified due to the format in which it had been transmitted. The Court held that the integrity of the Sky Evidence is relevant to issues at trial, as it bears on the reliability of the Government’s evidence of the conspiracy.
The Court found that some (but not all) of Milch’s analysis was based on sufficient facts and sound methods—namely the close review of the Chat Spreadsheets and associated Media Folders. His speculation about the tools and methods of European law enforcement, by contrast, did not rest on a sufficient foundation. Finally, the Court held that Milch’s explication and analysis of certain topics would be helpful to the jury, who are likely to be unfamiliar with topics such as encryption, metadata and digital forensic standards that bear on the reliability of the Sky Evidence.
The Court permitted Milch to testify as an expert about the functionality and format of Microsoft Excel as well as the format and content of the Chat Spreadsheets, including metadata, in addition to general digital forensic standards and methods.
However, Milch was barred from testifying about the method by which European law enforcement captured, stored, analyzed, or decrypted communications from the Sky network and the use if artificial intelligence.
Held
The Court granted the Government’s motion in limine to preclude expert testimony as to Yehudi Moszkowicz and Lee Koch but denied it as to Andreas Milch.
Key Takeaway:
Milch is qualified to opine on the format and reliability of the Sky Evidence based on his certification as an IT forensics specialist and experience litigating multiple cases involving similar evidence. Federal Rule 702 does not require that an expert attend a specific type or number of trainings for a specific length of time, and the Second Circuit has advised that ‘the words qualified as an expert by knowledge, skill, experience, training, or education’ must be read in light of the liberalizing purpose of Rule 702.
Andrew Swainson filed a § 1983 claim against the City of Philadelphia. He challenged his 1989 conviction for Stanley Opher’s murder. He spent more than 30 years in prison. Swainson argued police officers fabricated and concealed key evidence. He said they created a false narrative of his flight to Jamaica. They also used a coerced eyewitness and ignored other suspects.
He claimed the City enabled this misconduct. According to Swainson, officials failed to train, supervise, or discipline detectives. That failure, he said, allowed unconstitutional practices to continue.
Swainson retained Michael K. Lynch as an expert in police practices. Lynch worked in law enforcement for over 30 years. In April 2024, he submitted a report. He reviewed police records, lawsuits, and prior wrongful convictions. Lynch found a pattern of misconduct inside the homicide division dating back to the 1970s.
The City and two detectives filed a motion to exclude Lynch’s report and testimony. They called it irrelevant and unreliable.
Law Enforcement Expert Witness
Michael K. Lynch has 32 years of experience in law enforcement. Since 2013, Lynch has been employed by the Camden County Police Department as assistant chief of police (2013-2014), senior policy advisor (2015-2023), and chief of staff (since 2023). As chief of staff, Lynch assists the chief of police in connection with accounting, human resources, procurement, administrative support services, and police records.
The court found that Michael K. Lynch was qualified to testify as an expert on police practices. Lynch worked in law enforcement for 32 years. He served in leadership roles in the Camden City and Camden County Police Departments. He also completed training at Northwestern University’s School of Staff and Command and the West Point Command and Leadership Program. Lynch investigated violent crimes and supervised misconduct cases. He also developed police policies on investigations, supervision, and training. The court ruled his experience met the expert qualification standard.
Reliability of Methods
The court next considered whether Lynch’s opinions were reliable. Because Lynch is not a scientist, the court looked at his experience and methods. Lynch reviewed police files, lawsuits, public records, and media investigations. He relied on his knowledge of minimally accepted police practices, such as avoiding coercion, fabrication, or suppression of evidence. The court rejected the defense’s claim that Lynch relied only on pleadings. It also allowed his use of reports by other experts and the City’s own oversight agencies. The court concluded his opinions rested on a reliable foundation.
Relevance and Fit
The court also ruled on whether Lynch’s testimony would help the jury. The defense argued his report restated Swainson’s version of events. But the court found that Lynch’s summary aligned with the factual record. Lynch outlined how PPD failed to meet basic standards of supervision and discipline. He also addressed misconduct by Detective Santiago and its possible impact on Swainson’s case. The court noted that Lynch’s opinions did not cross into impermissible legal conclusions. Instead, they reflected professional standards in law enforcement. The court found his opinions would assist the jury.
Held
The Court denied the City’s motion to exclude the testimony of Michael K. Lynch.
Key Takeaway:
The court upheld Michael K. Lynch’s qualifications, methods, and relevance as a police practices expert. It ruled that his experience, review of misconduct patterns, and analysis of departmental failures provided reliable, admissible testimony that could assist the jury in evaluating Andrew Swainson’s § 1983 municipal liability claim.
Case Details:
Case Caption:
Swainson v. City of Philadelphia
Docket Number:
2:22cv2163
Court Name:
United States District Court for the Eastern District of Pennsylvania
Rev. Darryl Gray is suing the City of St. Louis and two St. Louis Metropolitan Police Department (SLMPD) detectives—Ronald Vaughan and Larry Wentzel—for violating his First and Fourth Amendment rights, as well as a variety of state law torts.
To support his constitutional claims, Rev. Gray hired Greg Meyer to give his expert opinion on some of the issues in the case.
Meyer’s expert report sets out his extensive experience in law enforcement, and Defendants do not challenge his qualifications. Instead, Defendants filed a motion to exclude five opinions in Meyer’s report as unreliable and not helpful to the jury.
Law Enforcement Expert Witness
Greg Meyer has 47 years of law enforcement experience, including 33 years as a police tactics and procedures consultant.
He has been an expert witness in numerous high-profile cases including Rodney King, Oscar Grant (the Oakland BART murder case), and George Floyd. He has been engaged in more than 400 civil and criminal cases as well as conducting outside independent reviews of use of force cases for a federal prosecutor and several district attorneys and police chiefs.
Opinions 2 and 3 are excluded because the City was granted summary judgment
Opinions 2 and 3 in Meyer’s report relate to Rev. Gray’s Monellclaims against the City of St. Louis.
After the motion to exclude was filed, the Court granted summary judgment to the City on Rev. Gray’s Monell claim. Opinions 2 and 3 in the report are therefore excluded because they will not “help the trier of fact to understand the evidence or to determine a fact in issue.”
Meyer’s Opinions
Meyer’s first opinion is:
“If the “Defendants’ actions violated Plaintiff’s First Amendment rights to freedom of speech and freedom of assembly by interfering with Plaintiff’s ability to associate freely in public and express Plaintiff’s views as part of a peaceful demonstration” as described in Para. 89 of the Second Amended Complaint, then the Defendants’ actions did not conform with proper contemporary law enforcement procedures.”
Meyer’s fourth opinion is:
“If Plaintiff did not push or otherwise assault or engage in preassault indicators against Defendant Vaughan’s allegedly pushing Plaintiff and using pepper spray on Plaintiff, and Officer Wentzel’s allegedly tackling Plaintiff to the street, did not conform with SLMPD policy or contemporary law enforcement training or procedures, and the resulting arrest and prosecution of the Plaintiff was false and malicious.”
Meyer’s fifth opinion is:
“If Plaintiff Gray did not assault Detective Vaughan, then both Detective Vaughan and Officer Wentzel appear to have violated SLMPD use of force policy and generally accepted police procedures when Detective Vaughan pepper sprayed Plaintiff Gray at extreme close range (inches); and Officer Wentzel used unnecessary and unreasonable force on Plaintiff Gray when he took him to the ground.”
Opinion 1 is Excluded Because it is not Helpful to a Jury
Defendants argued that his opinion will not be helpful to the jury because it is not based on “any specialized, scientific, or technical knowledge.” They claimed that the opinion says nothing more than “if the officers did it wrong, then they did it wrong.” The Court agrees with the Defendants.
Meyer’s opinion as formulated in his report tells the jury only that if Defendants’ conduct violated Rev. Gray’s First Amendment rights, then it did not conform with contemporary law enforcement procedures.
The Court ruled that Meyer’s first opinion does not provide any additional insight into police practices that might be helpful to the jury. His rationale for Opinion 1 makes that clear. The police procedures and practices he cites are a restatement of First Amendment law. Meyer does not even opine that he thinks Defendants’ conduct violated the First Amendment under the circumstances. He admits that the facts are disputed, and he cannot determine who is correct.
Opinions 4 and 5 are Excluded to the Extent that they State Legal Conclusions
In Opinion 4, Meyer’s analysis of law enforcement training is just a description of the Fourth Amendment and Supreme Court precedent. The Court determined that Meyer relied on the Constitution and Supreme Court precedent to form opinions on questions of law that will not “help the trier of fact to understand the evidence or to determine a fact in issue.”
In his rationale for Opinion 5, Meyer goes into more detail about SLMPD policy and accepted police procedure on the use of pepper spray but provides no analysis for his opinion that “Officer Wentzel used unnecessary and unreasonable force on Plaintiff Gray when he took him to the ground.”
Plaintiff argued that Meyer’s opinions are not legal conclusions because they provide “the jury with a framework for placing the jury’s own findings in the context of national police standards and SLMPD policies.”
In his rationale for Opinion 5, Meyer discussed the SLMPD’s and the International Association of Chiefs of Police’s (IACP) standards for pepper spray and opines that Detective Vaughan’s use of pepper spray did not comply with those standards. SLMPD and IACP standards are not common knowledge for jurors, and Meyer’s testimony will help contextualize the evidence the jury will hear about Detective Vaughan’s use of pepper spray.
Although Meyer’s report also states that Detective Wentzel’s “alleged tackling [of] Plaintiff to the street[] did not conform with SLMPD policy or contemporary law enforcement training or procedures,” the Court held that Meyer does not provide similar insight into accepted police procedure for that kind of force.
Held
The Court granted in part the Defendants’ motion to exclude Plaintiff’s expert, Greg Meyer.
Key Takeaway:
If Meyer had relied on SLMPD or IACP standards for uses of force like Wentzel’s, or explained why, based on his own extensive law enforcement experience, he believes Wentzel could have used less force to control Rev. Gray, the opinion might be admissible. But without that information, the Court cannot properly assess whether the opinion satisfies Rule 702‘s requirements.
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.
