This case arises from officers’ alleged excessive use of force during an investigation of a 911 call regarding Plaintiff Henry Barnhill (“Barnhill”).
Defendants City of Hemet, Brett Maynard, Joshua Bishop, Pedro Aguila, Douglas Klinzing, Jamie Gonzalez, and Catherine Tipton (collectively, “Defendants”) filed two motions (1) to exclude certain opinion and testimony of expert Dr. Ryan O’Connor and (2) to exclude certain opinion and testimony of expert Roger Clark.
Emergency Medicine Expert Witness
Ryan Scarritt O’Connor is a 20-year attending ER physician who is board-certified and has completed several clinical rotations in neurology, ophthalmology, biomechanics, general surgery, and traumatic medicine, among others, and holds a Master of Science in criminalistics with education in crime scene reconstruction.
Roger Alma 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 sought to exclude the opinions of Barnhill’s medical expert, O’Connor, regarding his conclusions that the incident resulted in Barnhill sustaining certain injuries.
Defendants based their arguments on the fact that (1) O’Connor is an ER doctor, rather than a specialist in ophthalmology; (2) O’Connor relied more heavily on the officers’ statements as opposed to the video evidence; and (3) O’Connor failed to take into consideration all of Barnhill’s medical history. However, given O’Connor’s education, credentials, and experience, the Court held that Defendants’ concerns speak to the weight, rather than admissibility under FRE 702 and Daubert.
Roger Clark
To begin with, Defendants sought to exclude opinions by Barnhill’s police-practices expert, Roger Clark, regarding his “legal conclusions concerning the officers’ use of force, standards within the City of Hemet and the Hemet Police Department, the officers’ mental and emotional states and intentions, interpretations of the videos taken from officers’ body cameras, and all other conclusions and opinions based on Clark’s flawed methodology, which omits important information contained in the footage and is admittedly impermissibly intertwined with Plaintiff’s counsel’s opinions.”
To the extent that Clark offered legal conclusions, such as that the officers used unreasonable or excessive force during the incident, the Court granted the motion to exclude. Clark was also precluded from opining on the officers’ intent or emotional states and on the medical cause of Barnhill’s injuries.
However, to the extent that Clark’s testimony was limited to whether the officers’ conduct was consistent with California Peace Officer Standards and Training (“POST”) standards governing the use of force, the Court denied the motion. This basically included determinations based on Clark’s review of the video evidence demonstrating how Barnhill was responding during the incident, which were relevant to whether the officers’ conduct comported with POST standards in light of Barnhill’s actions.
Held
The Court denied Defendants’ motion to exclude the testimony of Ryan O’Connor.
The Court granted in part and denied in part the motion to exclude the testimony of Roger Clark.
Key Takeaway
In conclusion, a jury could rely on expert testimony as to whether police conduct comported with POST standards.
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.
This case arises out of excessive force and retaliation that Plaintiff allegedly suffered while incarcerated at Dixon Correctional Institute.
Plaintiff requested the Court to exclude the testimony of Kerry Najolia, Defendants’ expert on “police practice, procedure, training, officer survival/defensive tactics, officer use of force and police canines.”
Law Enforcement Expert Witness
Kerry J. Najolia has 42 years of law enforcement experience, including patrol work, investigations, SWAT, and law enforcement consulting. His academic instructional background spans the last 28 years, including roles as POST Academy Staff Instructor, Assistant Training Director, and Training Director for the Jefferson Parish Sheriffs Office Training Academy.
First, Plaintiff argued that Najolia has no expertise in penological practices and procedures because he has never worked in a prison setting.
The Court found Najolia to be unquestionably a qualified expert in the area of law enforcement, training and use-of-force. Although Najolia’s experience in prison settings, or lack thereof, is a topic that Plaintiff may explore on cross-examination, it did not form a basis for the wholesale exclusion of Najolia’s testimony.
B. Whether Najolia’s Testimony Will Assist the Trier of Fact
Second, Plaintiff argued that Najolia’s expert report did what the jury alone is allowed to do: weigh evidence and make credibility determinations. Plaintiff contended that there is no role for an expert such as Najolia in this case, which asks the jury to believe certain facts and disbelieve or ignore others.
Defendants argued that the purpose of Najolia’s testimony is to provide the jury with guidelines of customary and proper procedures by which to judge the Defendants’ actions for reasonableness.
According to the Court, Najolia may testify generally about the appropriate use of force in the prison setting. Once the facts necessary for Najolia to render an opinion are in evidence, he may assume those facts as a hypothetical and give opinion testimony based on the assumption of those facts. Najolia may not, without more, offer the following opinions, which simply accept Defendants’ version of events and reject Plaintiffs version of events.
C. Whether Najolia May Offer Legal Conclusions
Third, Plaintiff argued that the question of whether Defendant was justified in his use of force “imposed legal questions that Najolia cannot testify to without invading the province of both the jury and the Court.”
In accord with other courts that have considered this issue, the Court found that Najolia may not opine on the ultimate issue of whether Montgomery’s actions were “reasonable” under the applicable legal standard.
D. Whether Najolia May Rely on Medical Summary
Finally, Plaintiff argued that Najolia improperly relied on a medical summary in forming his opinions, which constituted hearsay.
Najolia’s reliance on a medical summary did not support exclusion of Najolia’s opinion at this time. Instead, once the facts necessary for Najolia to render an opinion are in evidence, he may assume those facts as a hypothetical and give opinion testimony based on the assumption of those facts.
Held
The Court granted in part and denied in part Plaintiffs’ motion in limine to exclude the testimony of Kerry Najolia.
Key Takeaway
Whether the officers’ actions were reasonable or they used excessive force is an ultimate question for the jury to decide after they have heard the evidence and this Court has instructed them on the law at the conclusion of the case. Testimony that tells the jury what conclusion to reach or merely states a legal conclusion is not helpful to the jury.
This dispute stems from a February 08, 2017 incident in which MSG security guards and New York City Police Department officers forcibly removed Charles Oakley from a New York Knicks basketball game at Madison Square Garden.
Defendants MSG Networks, Inc., Madison Square Garden Sports Corp., and Sphere Entertainment Group, LLC (collectively, “MSG”) filed a motion to preclude Plaintiff Charles Oakley’s proffered expert witness, Larry B. Perkins.
Perkins primarily contended that MSG’s security personnel should have given Oakley the chance to cure his behavior before ejecting him and that they should have encouraged Oakley to leave by using verbal de-escalation techniques instead of force. He also asserted that MSG failed to adequately train its employees and that with more robust training “security personnel would have known how to handle situations like these.”
Perkins’ proffered testimony falls into two main categories: testimony regarding MSG employees’ use of force against Oakley and their training in that field; and (2) testimony regarding MSG’s failure to give Oakley a chance to correct his behavior before ejecting him. Neither category of testimony can survive scrutiny under Rule 702.
Event Management Expert Witness
Larry B. Perkins is a professional event planning consultant with expertise in event planning, crowd management, crowd control, crowd flow, and venue security.
He is a 46-year veteran with executive leadership in public assembly, sports, and entertainment management. Perkins served as the 80th President of the International Association of Venue Managers (IAVM) from 2006 to 2007. During his 35+ years as an associate and member, he served on numerous Boards and Committees.
A. Testimony Regarding the Use of Force and MSG Employees’ Training
1.Perkins’ Lack of Expertise
Perkins is not an expert on the use of force. In his deposition, Perkins admitted that he has never received “any formal training from law enforcement in the use of force,” “training on whether force can be used,” or “training on how to assess the level of force that is reasonable.”
He further explained that his purported area of expertise — the “public event management industry” — is “not really focused, necessarily, on the use of force,” but rather “on crowd management, subliminal messaging,” and “techniques” that help “create a positive fan experience,” not “on crowd law enforcement.”
Because any analysis or opinions unrelated to the use of force are irrelevant, the Court held that Perkins clearly is not “qualified as an expert in the reasonable use of force by knowledge, skill, experience, training, or education.”
2.Perkins’ Lack of a Reliable Methodology
Throughout his deposition, Perkins refused to commit to any particular methodology for assessing the use of force, emphasizing instead that everything “depends on what MSG security guards were doing with Oakley.” But that truism — that analyzing the reasonableness of the use of force depends on looking at the force used — is hardly the kind of precise expert methodology that would enable the Court “to determine whether Perkins had good grounds for his conclusions.”
Oakley attempted to sidestep this problem by arguing that Perkins is merely “applying his experience of crowd-management practice in a simple way to the evidence in this case.”
But while a methodology may be simple, it must also be clear. Perkins’ it-all-depends methodology has only vaguely discernible contours, and it boils down to exactly the kind of “intuitive and subjective” approach based on “logic” and “commonsense” that failed Rule 702’s requirement of “objective and testable principles and methods.”
3.Perkins’s Unreliable Application of His Methodology
Finally, even if Perkins could clear the first two prongs for expert testimony — i.e., the reliability of his expertise and methodology — Rule 702 would still bar his testimony because he “failed to apply his own methodology reliably.”
Here, Oakley characterized Perkins’ purported methodology as an analysis of “all surrounding facts and circumstances.” But Perkins failed to acknowledge facts that would undercut Oakley’s arguments, such as the physical contact that Oakley made with MSG security personnel Thomas Redmond and Jayson Jacknow.
And Perkins seemed to invent another fact that appears nowhere in the record: that Kori Keaton “threw a right-hand closed fist punch” at Oakley. Indeed, Perkins himself admitted that the screenshot on which he principally relies “did not show the closed fist itself.”
B. Testimony Regarding MSG’s Failure to Give Oakley a Chance to Correct His Behavior Before Ejecting Him
In his report, Perkins also criticized MSG’s decision to eject Oakley, explaining that an ejection for a “minor offense” is “highly unusual” and “certainly falls outside the norms of industry best practices.”
According to Perkins (and Oakley), MSG (1) should have objected to Oakley’s behavior when he first entered the seating area, (2) “passed along encouraging words to bring about a peaceful solution,” and (3) given him a chance to “correct any misbehavior” before removing him from the area.
But the question of whether Oakley had the “chance to correct any misbehavior” so that he could stay in the Garden is not at issue in this case. MSG indisputably had the right to eject Oakley for any reason. Instead, the only remaining material disputes relate to “(1) the amount of force used to remove Oakley from the Garden and (2) whether that force was objectively reasonable under the circumstances.”
Perkins’s opinion on whether MSG complied with industry standards when it decided to eject Oakley has no bearing on those questions.
C. Rule 403
Even if Perkins’ testimony regarding the events before Oakley’s ejection were relevant, the Court would still exclude that testimony under Federal Rule of Evidence 403.
Perkins’ testimony here — even if it were relevant and based on a solid foundation — would risk unfairly prejudicing MSG, confusing the issues to be resolved at trial, and misleading the jury. In a case where the only remaining issues relate to the amount of force actually used to remove Oakley, and where that removal was recorded on several different cameras from several different angles, a third party’s vague evaluation of training policies and tangential events did not pass muster under Rule 403.
Held
The Court granted Defendants’ motion to preclude the testimony of Larry B. Perkins.
Key Takeaway
Even if it could be said that Perkins is an expert in crowd management, and that methods of crowd management are somehow tangentially relevant to the reasonableness of the force used against Oakley, his testimony on the subject would still be inadmissible because he did not employ a sound methodology — or even a clearly identifiable one. An expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.
Case Details:
Case Caption:
Oakley V. MSG Networks, Inc.
Docket Number:
1:17cv6903
Court Name:
United States District Court for the Southern District of New York
Plaintiff LaBlanca Sibley’s excessive force claim against Officer Nicholas S. Riggall, arising from her arrest and detention, was based on Riggall’s use of pepper spray while she was seated in the patrol car.
Sibley retained Mr. Jeronimo Rodriguez, an expert in law enforcement practices and use-of-force standards. Riggall moved to exclude Rodriguez’s opinions and testimony. Riggall challenged Rodriguez’s qualifications, methodology, and helpfulness to the trier of fact.
Law Enforcement Expert Witness
Jeronimo “Jerry” Rodriguez served as a police officer with the Los Angeles Police Department for over 25 years, including work in the Force Investigation Division.
Since retiring as an active law enforcement officer in 2021, Rodriguez has reviewed and consulted on police and law enforcement practices as a private police consultant and audited agencies across the country and continued to train many agencies throughout the United States on police-related investigations.
Riggall pointed out that Rodriguez has not “studied, personally conducted research, or authored any literature on the use of force at issue in this case.”
First, Riggall’s argument on qualifications, made conclusorily and without citations to any authority, is insufficiently developed for the Court to consider.
Regardless, Rodriguez is qualified to testify as a police practices expert generally and about the use of force specifically. Rodriguez has served as a law enforcement officer for decades. For some of those years, he conducted investigations into officers’ uses of force. Since his retirement from law enforcement, Rodriguez has worked as a police practices expert in other cases and has consulted and provided trainings on various police practices subjects.
Reliability
Riggall argued that Rodriguez’s opinions “are not based on sufficient or accurate data” because, among other things, Rodriguez supposedly “draws his opinion on the force being excessive largely upon his belief that Sibley was falsely arrested and had not been resisting or involved in any crime.”
The Court found Rodriguez’s methodology sufficiently reliable. Rodriguez described his methodology thusly: his “method for forming opinions relies on nearly forty years of experience as a police officer and trainer, collaboration with various instructors and police practices experts, and a comprehensive review of relevant evidence and materials, without making credibility judgments.”
To the extent Rodriguez allegedly relied on Sibley’s version of events, such reliance did not merit exclusion of Rodriguez’s opinions.
Assistance to the Trier of Fact
Riggall argued that Rodriguez’s opinions will not be helpful to the jury because “Rodriguez never explains, beyond his own characterization of Plaintiff’s behavior as ‘tapping merely to get an officer’s attention to plead her innocence,’ the basis for not permitting a reasonable officer to interpret Plaintiff’s behavior as violent or aggressive.” He also argued that “Rodriguez offered legal opinions in the guise of interpreting the [Lakeland Police Department’s] policy on use of force.”
However, the Court rejected this argument in part. Rodriguez’s opinions on the use of force and police practices will be helpful to the jury. Likewise, Rodriguez’s opinion on whether Riggall behaved in accordance with police procedures will be helpful to the jury.
Although most of Rodriguez’s opinions and report do not contain legal conclusions, he did characterize the use of pepper spray as “excessive.” Calling the use of force “excessive” is a legal conclusion, given the jury is tasked with deciding whether the use of force was “excessive” and, therefore, unconstitutional. As a result, the Court will not allow Rodriguez to opine that the use of force was “excessive.”
Held
The Court granted in part and denied in part the Defendant Nicholas S. Riggall’s motion to exclude the testimony of Plaintiff’s expert Jeronimo Rodriguez.
Key Takeaway
An expert is permitted to base his opinion on a particular version of disputed facts and the weight to be accorded to that opinion is for the jury.
The Defendants are Pennsylvania State Police Troopers accused of using excessive force when they served a 302 warrant on Plaintiff Carl Giuli based on his wife’s reports that Giuli was experiencing a mental health crisis. While serving the warrant, an altercation occurred in Giuli’s house involving Giuli and Pennsylvania State Police Troopers Joseph Montagna and Christopher Teetsel. Giuli sustained injuries in the course of the altercation which he alleges are due to the use of excessive force by Troopers Montagna and Teetsel.
The Defendants sought to preclude Thomas Shea, the Plaintiff’s proffered use of force expert, on several grounds. In their motion, Defendants stated that Shea’s expert report is not appropriately considered by the jury on several grounds: 1) he was a municipal officer rather than a state police trooper as are Defendants in this case; 2) he uses “amorphous methodologies with no reliability”; 3) he “invades the province of the jury by declaring that excessive force was used and the testimony of the troopers is not credible”; and 4) his opinions about trooper training are not supported.
Law Enforcement Expert Witness
Thomas A. Shea III, D.Sc., CPP is a nationally recognized Law Enforcement and Security expert in policing best practices, security standards, and emergency preparedness, specializing in police operations, use of force, premises liability, negligent security, and related civil litigation issues.
He started his career with the Long Branch Police Department in 1998 after serving honorably in the United States Marine Corps during Operation Desert Storm. During his career, Shea served as an agency police commander and on the Monmouth County Emergency Response Team (SWAT).
After completing his police career in February 2017, Shea entered academia. Shea recently served as the director and founder of the Law Enforcement Executive Leadership program at Seton Hall University.
He has published numerous academic and professional articles and a police practice book, created a law enforcement and security leadership higher education curriculum, and presented nationwide at professional conferences on security and policing topics.
The Defendants first asserted that Shea’s report consisted of inaccuracies and factual errors that cast serious doubt on the reliability of his opinion.
The Defendants maintained that Shea’s reliability is doubtful because Shea did not use the New Jersey Law Enforcement Handbook in making his determinations despite his report saying that he did. Critically, Shea’s report stated that it was Defendant Montagna who pushed Plaintiff Giuli up against the refrigerator in the course of this incident; there is no allegation of this in the record, and Shea offered inconsistent explanations for why this factual averment appears in his report.
The Court found that the inconsistencies found in his report and other matters that relate to the reliability of his opinions are properly the subject of cross-examination to the extent he is allowed to testify on those matters at trial.
B. Credibility Determinations
The Defendants next argued that Shea’s opinions regarding credibility are inappropriate. The jury has the exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in evidence, and reaching ultimate conclusions of fact.
The Court agreed with the Defendants that “the case presented to the Court is one of credibility—ultimately the jury will have to determine if Defendants maliciously assaulted Plaintiff or if they used appropriate force after he attacked them.” Regarding the different versions of events offered by the Plaintiff and Defendants, Shea confirmed at the Daubert Hearing that the parties’ “stories differ in some aspects” and that he “intended to offer an opinion to the jury as to who they should believe or find credible.”
Shea also acknowledged that he made other credibility determinations in the course of his report, including those related to the cause of Plaintiff’s injuries, and he believed that was “a typical purview of a use of force expert.” As a result, Shea was precluded from offering any opinions on credibility at trial.
C. Specific Opinions
1. Compliance with Non-Relevant Standards
Defendants asserted that the Plaintiff sought to admit Shea’s opinion regarding Defendants’ compliance with non-relevant standards. The Court found that Plaintiff has not shown that “prevailing national standards in the use of force” are relevant in this case or that the specifically identified President’s Task Force on 21st Century Policing Final Report and Law Enforcement Best Practices: Lessons from the Field are relevant.
Therefore, Shea was precluded from relying on these publications and testifying about standards promulgated therein, i.e., the goal of “avoiding the use of force if at all possible, even when it is allowed by law and policy” identified in The President’s Task Force on 21st Century Policing and the “principles of de-escalation” identified in Law Enforcement Best Practices.
Similarly, the Court precluded Shea from testifying about Plaintiff’s generically identified intent to elicit an opinion on “prevailing national standards in the field of use of force.”
2. Pennsylvania Mental Health Procedures Act
Plaintiff has not shown the relevance of the Pennsylvania Mental Health Procedures Act to the charge against the Pennsylvania State Troopers executing the warrant and has not shown how testimony about provisions in the Act would assist the trier of fact as required under Daubert.
The Court held that Shea’s testimony about the Act at the Daubert Hearing made no direct connection between the Act and the facts of this case, opining generally that “what he took” from the Act is that “you have to take extra, extra precautions to communicate more thoroughly. You have to be more patient than you normally would during a call because lots of people going through these crisis events aren’t aware . . . of their actions and decisions.”
This is not a State Police policy, it is not presented as a policy statement found in the Act or one that is applicable to officers issuing a 302 warrant. Therefore, the Court found that reference to the Act is properly precluded based on relevance and fit grounds.
3. Compliance with Pennsylvania State Police Policy
Defendants next took issue with Plaintiff’s proposed opinion as to whether Defendants were compliant with Pennsylvania State Police policy.
Defendants specifically asserted that Shea “should be prevented from testifying as to whether or not Defendants complied with the PSP policy, as he has not established his opinion is any more reliable than a lay witness simply reading the Pennsylvania State Police policies and opining on whether or not they were followed in this case.”
The Court found that Shea has a breadth of knowledge and experience in police practices and use of force which render him qualified to testify as an expert as limited herein. Further, Pennsylvania State Police policies are relevant for purposes of this case and an expert’s review of pertinent policies will assist the trier of fact.
4. Compliance with De-escalation Policy
Defendants relatedly contended that it did not appear that Shea based his opinion regarding de-escalation on Pennsylvania State Police policy; “rather he based his opinion on ‘Law Enforcement Best Practices: Lessons from the Field . . . [and] only on Plaintiff’s version of events as he made a credibility determination regarding the Defendants’ narrative.”
It should be noted that an opinion based on Law Enforcement Best Practices is precluded and an opinion based on a credibility determination is also precluded.
5. Use of Excessive Force Language
Finally, Defendants objected to the Plaintiff’s intention to elicit Shea’s opinion on whether the force used was “reasonable and necessary, with no mention of the word, excessive, no mention of the case law, no mention of factors.”
The Court concluded that Shea is appropriately precluded from use of the words “reasonable” or “unreasonable” in rendering his opinion regarding excessive force. Testimony by Shea regarding reasonableness “would usurp the District Courts’ pivotal role in explaining the law to the jury.”
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of the Plaintiff’s use of force expert, Thomas Shea.
Key Takeaway
The Court acknowledged that Shea’s report is problematic for multiple reasons, including those cited. However, focusing on Shea’s knowledge and experience summarized at the Daubert Hearing and set out in his Curriculum Vitae, the Court found that Shea has a breadth of knowledge and experience in police practices and use of force which render him qualified to testify as an expert.
Case Details:
Case Caption:
Giuli V. Montagna
Docket Number:
3:23cv1785
Court Name:
United States District Court for the Middle District of Pennsylvania
Plaintiff Shelby Ross asserted a Fourth Amendment unreasonable search and seizure claim against Defendant Jeremy Finney. In addition, Plaintiff asserted state law claims of assault and battery against Finney. Against Tipton County, Plaintiff averred “negligent failure to protect”/“negligent failure to prevent” claims under Tennessee law.
Ross hired Roy G. Taylor as an expert witness in areas such as police use-of-force policies, de-escalation techniques, and traffic stops.
Defendants argued that Taylor should be excluded as an expert because (1) his methods are not reliable under Daubert and (2) his report includes inadmissible legal conclusions about whether Finney had probable cause and reasonable suspicion to support his actions.
Law Enforcement Expert Witness
Roy Garvin Taylor is a former law enforcement officer and current adjunct professor with over forty years of experience “in various federal, state, local, and private Police Chief positions.” His areas of expertise include nationwide police procedures around traffic stops, use of force, and de-escalation techniques.
Defendants first argued that, under Daubert, Taylor “does not reliably employ principles and methods to base his conclusions.” Daubert’s factors ask “whether a method is testable, whether it has been subjected to peer review, the rate of error associated with the methodology, and whether the method is generally accepted within the scientific community.” Taylor’s opinions did not satisfy these factors, according to Defendants, because Taylor “generally relies upon his experience, education, and training in law enforcement.”
However, it is unclear what additional methodology Defendants would ask a police procedure expert to possess. After all, the methods of an expert in police procedure are not the kinds of methods that are regularly tested, peer reviewed, or accepted by the scientific community. As Ross pointed out, “Daubert is only of limited help in assessing technical or experiential expertise.”
Taylor’s qualifications include forty years of law enforcement and police training experience. Although his opinions fall outside the realm of science, the Court held that his personal knowledge and experience are appropriate substitutes to support a finding of reliability. Defendants will have a chance to challenge Taylor’s opinion through cross-examination and presentation of contrary evidence at trial, but exclusion is not the right path.
II. Inadmissible Legal Conclusions
Defendants next asserted that Taylor opined in his Initial Report about whether Finney had probable cause or reasonable suspicion to engage in certain actions on May 11, 2023. For her part, Ross conceded that some of the opinions in Taylor’s report “cross the line into ultimate questions of fact.”
Ross acknowledged that, to the extent Taylor used “phrases like ‘objectively unreasonable’ as a shorthand for something like ‘consistent with national standards,’ he should be required to use more precise language at trial.”
The Court concluded that Taylor cannot offer legal conclusions on questions including, but not limited to, reasonable suspicion, probable cause, whether conduct was lawful or unlawful, whether exigent circumstances existed, or whether a use of force constituted assault and battery. However, he may offer his opinions that do not include these terms and conclusions.
III. Supplemental Report
After Taylor submitted his initial report, and after he received the report of Defendants’ expert along with a copy of Tipton County’s police policies, Taylor submitted the supplemental report.
Defendants argued that, “at a minimum,” this supplemental report should be excluded because Taylor failed to include in his initial report “a complete statement of all opinions the witness will express and the basis and reasons for them.”
Instead, according to Defendants, Taylor later issued a supplemental report merely “as an attempt to bolster former opinions, provide totally new opinions, or combat the opinions of Defendants’ expert.”
Defendants further argued that Taylor’s analysis of the Tipton County police policies is irrelevant to this case, since there is no constitutional claim based on those policies nor any excessive force claim.
Because Taylor did not receive the police policies until after the Initial Report was written, Ross contended that he had a valid reason to supplement his earlier opinions. Ross further argued that the Tipton County use-of-force policies are still relevant to this case.
The Court deemed Taylor’s use-of-force analysis, drawn from the Tipton County police policies, relevant to this case, even though no Fourth Amendment excessive force claim is at issue, because the analysis of the state law assault and battery claim mirrors that of an excessive force claim.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of Plaintiff’s expert Roy Taylor.
Key Takeaway:
For nonscientific expertise such as Taylor’s, the relevant reliability concerns may focus on personal knowledge or experience. It helps that Taylor’s qualifications include forty years of law enforcement and police training experience.
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.
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.
On May 26, 2020, South Bend police officers began clearing a homeless encampment on city property after prior notice and concerns about crime and COVID-19. Tracy Leliaert, a person with a home who protested the clearing, refused to leave even when warned repeatedly. Officer Joshua Morgan and Officer Ryan Williams eventually arrested her and two others for trespassing. She pursued excessive force claims under the Fourth Amendment and a First Amendment right-to-assembly claim, though only one claim remains today.
Leliaert retained Chet Epperson to review the evidence and opine on police practices and standards. Chet Epperson opined that the City of South Bend, Indiana, Officers Joshua Morgan, Ryan Williams, and Police Chief Scott Ruszkowski deviated from Nationally Accepted Principles of First Amendment Right to Assembly, Use of Force in Their Interactions with Leliaert, Internal Affairs Investigations and Early Identification Systems in the Complaint of Tracy Leliaert.
Defendants argued that Epperson did not have the necessary facts or knowledge to reach his conclusions, that some of his opinions did not fit the case, and that he at times supplanted the jury’s role.
Law Enforcement Expert Witness
Chet Epperson earned a bachelor’s degree in sociology and anthropology, and then a master’s degree in public administration from Rockford University. He has published and taught seminars on police standards. He has served as a police practices consultant and appointed court monitor for police practices since 2015.
The Court held that the opinions neither fit nor serve the legitimate purpose of educating the jury, much less without substantial and overweighing confusion.
Epperson also proposed to opine about the First Amendment claim (first opinion), but this claim too cannot survive summary judgment as a matter of law. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on the First Amendment claim (or Eighth Amendment claim); and that proves truer still when no such claim survives at summary judgment.
Epperson also acknowledged that whether the land was a public forum would make a difference to a First Amendment claim, but he admitted that he has no information to determine whether it was. He admitted he hasn’t done any investigation and doesn’t have any facts that would make the tent city a public forum.
When Epperson opined that Officer Morgan deviated from nationally accepted principles of use of force, the Court held that the jury is well positioned to decide whether Officer Morgan acted reasonably.
Epperson intended to opine that Officer Morgan deviated from a nationally-accepted practice on less lethal encounters in using a knee over Leliaert’s neck. The Court held that the Fourth Amendment standard for excessive force is an objective standard, and his testimony about standards of police practice are immaterial to determining what is objectively reasonable under the Fourth Amendment.
Held
The Court granted the motion to exclude the testimony of Chet Epperson.
Key Takeaway:
Epperson’s opinion has a glaring factual gap at the start that renders it unreliable—it assumes Leliaert was homeless when she was not. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on a First Amendment claim (or Eighth Amendment claim) for someone who was not homeless.
Epperson just assumes Leliaert had a right to be there because, simply stated in his words, she was there and it was property owned by the City. His factual gaps thus reveal gaps in his methodology, and reveal his opinion to be barely more than his say-so.
Case Details:
Case Caption:
Leliaert V. City Of South Bend Et Al
Docket Number:
3:22cv359
Court:
United States District Court for the Northern District of Indiana, South Bend Division
