United States District Court, D. Montana, Missoula Division
ANTHONY CHANEY, on behalf of himself and a class of persons similarly situated, Plaintiffs,
DANIEL WADSWORTH, individually and as RONAN POLICE CHIEF; TREVOR WADSWORTH; KIM AIPPERSPACH, individually and as CITY OF RONAN MAYOR; CITY OF RONAN; CITY OF RONAN POLICE DEPARTMENT; and DOES 1-10, Defendants.
JEREMIAH C. LYNCH, Magistrate Judge.
Before the Court is Defendants Kim Aipperspach and City of Ronan's (collectively referred to as "City of Ronan") motion in limine to exclude testimony, opinions, and statements which Plaintiff Anthony Chaney intends to introduce through his expert witness, Timothy Longo, Sr., as set forth in Mr. Longo's expert witness report. For the reasons discussed, the Court grants in part, and denies in part, the City of Ronan's motion.
On July 14, 2013, Plaintiff Anthony Chaney ("Chaney") and his brother, Donald Chaney ("Donald"), were at a bar in Ronan, Montana. According to Chaney, Donald, who is a military combat veteran with post-traumatic stress disorder (PTSD), experienced a PTSD anxiety attack or episode in the bar. Chaney moved Donald to a nearby park and held him down on the ground in an attempt to calm him.
Contemporaneously, the City of Ronan, Montana, Police Department received a report of a physical altercation occurring between two men outside a bar. Ronan Police Officers John Mitchell, Frank Swan, Matt Meyers, and Defendant Trevor Wadsworth responded to the dispatch. Upon arriving at the scene, the officers observed what appeared to be two individuals engaged in a fight. The officers proceeded to use physical force to separate and detain the two individuals. At some point Trevor Wadsworth physically restrained and handcuffed Chaney.
Minutes later, Flathead Tribal Officers also arrived at the scene. Those officers were also involved in detaining and restraining both Donald and Chaney. The officers removed Wadsworth's handcuffs from Chaney and placed their own handcuffs on him for approximately 45 minutes. The officers then gave Chaney a ride to his girlfriend's house.
Invoking federal question jurisdiction under 28 U.S.C. § 1331, Chaney advances claims under 42 U.S.C. § 1983, including allegations that Defendants, and in particular Trevor Wadsworth, arrested him without probable cause and with excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Invoking the Court's supplemental jurisdiction under 28 U.S.C. § 1367(a), Chaney also advances claims against the Defendants predicated upon their alleged violations of his Montana Constitutional and common law rights.
Central to Chaney's claims is his allegation that the City of Ronan has employed individuals to act as peace officers who are not properly trained and certified in accordance with Montana statutory law. And he asserts that at least one of the officers who effected his arrest - Trevor Wadsworth - was not properly certified or trained to serve as a peace officer at the time.
The admissibility of expert opinion testimony is governed by Fed.R.Evid. 702 which provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
In assessing the admissibility of expert witness opinion testimony under Rule 702 the district court must serve as a "gatekeeper" to ensure that the testimony is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Expert testimony is subject to exclusion if it falls short of meeting either requirement. Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007). The proponent of the expert's testimony bears the burden of establishing that the testimony is admissible. Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996). Rulings on the admissibility of expert testimony under Rule 702 are within the sound discretion of the trial court. General Electric Co. v. Joiner, 522 U.S. 136, 141-42 (1997).
That portion of Rule 702 requiring that expert testimony must assist the trier of fact "goes primarily to relevance." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993). The opinion must be sufficiently tied to the facts of the case to aid the trier of fact in resolving a disputed fact. Id. (citation omitted). The opinion must "fit" the facts of the case and serve a "helpful" purpose to the jury ( Daubert, 509 U.S. at 591), and there must exist "a link between the expert's testimony and the matter to be proved." Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007) (quotation and citation omitted).
The reliability prong of the Rule 702 assessment requires that expert testimony be based on sound principles and methodology. The reasoning and methodology must be scientifically valid, and the court must assess whether it reasonably can be applied to the facts of the case. United States v. W.R. Grace, 455 F.Supp.2d 1148, 1152 (D. Mont. 2006).
Finally, to be admissible under Fed.R.Evid. 702, an expert's opinion must be based on scientific, technical, or specialized knowledge. Claar v. Burlington Northern Railroad Co., 29 F.3d 499, 502 (9th Cir. 1994). The Court must be satisfied that the expert arrived at particular "conclusions using scientific methods and procedures, and that those conclusions were not mere subjective beliefs or unsupported speculation." Id . See also Millenkamp v. Davisco Foods International, Inc., 562 F.3d 971, 979 (9th Cir. 2009).
The City of Ronan moves to exclude certain opinions of Mr. Longo, and specific statements he has made in support of his opinions, all as set forth in Mr. Longo's expert report. The specific opinions and statements are identified below.
A. Chaney's Detention - Contrary to Law Enforcement Practices
Mr. Longo's first opinion in his expert report states: "I am of the opinion to a reasonable degree of professional certainty that the detention of Anthony Chaney was contrary to generally accepted law enforcement practices at the time of this incident." (Doc. 73-1 at ¶ 28.) The substance of both this opinion and the numerous paragraphs in Mr. Longo's expert report supporting this specific opinion assert that the law enforcement officers on the scene of Chaney's arrest on July 14, 2013, lacked probable cause to believe that Chaney had committed a criminal offense and, therefore, lacked authority to effect Chaney's arrest. Many of Mr. Longo's statements merely recite the law of probable cause under both the United States Constitution and Montana law. Therefore, the City of Ronan objects to the statements in paragraphs 36-42, 44, 46-48, and 67-72 of Mr. Longo's report as expressions of law which an expert witness is not permitted to make. The Court agrees.
The specific paragraphs in Mr. Longo's report which the City of Ronan identifies, and to which it objects, are as follows:
36. A police officer's authority to arrest or otherwise detain a free citizen has its origin in the United States Constitution, and the cases that have interpreted its meaning.
37. It is generally accepted that for an arrest to be lawful, it must be supported by probable cause.
38. Probable Cause is, as the term implies, a concept that deals with probabilities.
39. "These are not technical, they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act."
40. Probable cause largely consists of "facts and circumstances within the arresting officer's knowledge and of which they had reasonably trustworthy information and sufficient in themselves to warrant a man of reasonable caution to believe an offense has been committed."
41. "Probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules."
42. Ronan Police Department policy defines probable cause as "facts and circumstances" within the officer's personal knowledge or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.
44. It is important to note that not all interactions between a police officer and a free citizen trigger constitutional or even statutory protection. For example, casual and voluntary encounters need not be supported by probable cause6 or the lesser standard of reasonable suspicion which govern brief detentions that fail to rise to the level of a custodial arrest.
46. Under Montana law, "A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. The private person may use reasonable force to detain the arrested person." The Ronan officers who detained Anthony Chaney were on duty and acting as police officers for Ronan within the jurisdiction of Ronan, not as private persons. Furthermore, the Retrocession Agreement delineates when a non-tribal officer may arrest or detain or use force against a tribal member. Only non-tribal officers who are certified peace officers may exercise this authority within the exterior bounds of the Flathead Reservation.
47. Whether or not reasonable suspicion or probable cause existed to warrant the detention of Anthony Chaney falls squarely within the purview of the fact finder.
48. Whether or not the defendant's actions were contrary to generally accepted law enforcement principles at the time requires an examination of the facts; some of those facts remain in dispute, particularly as they relate to the actions of Donald and Anthony Chaney, as well as the actions of the Ronan officers.
67. Laws pertaining to Obstruction of Justice and Disorderly Conduct have their origin in the common law, and their implications on First Amendment rights are clear and have been the subject of legal opinions since the 1940s.
68. These particular statutes frequently trigger First Amendment issues and result in an analysis sought to determine how such issues, such as those as speech and assembly, are balanced against the government's need to carry out an important policing function.
69. The United States Supreme Court has required that for mere words to rise to the level of disorderly conduct there must be some evidence that people in substantial numbers would be provoked into some kind of physical action. The fact that an audience may take offense to certain words, actions, or expression of ideas is not a sufficient basis to quell First Amendment rights.
70. When those words, actions, or expression of ideas are directed towards a police officer, one who is trained to deal with unruly and uncooperative members of the public, the bar is set much higher. Typically, when such conduct has the likelihood of creating a violent response from the public, or creates an immediate breach of the public peace the provisions of a disorderly conduct statute will be satisfied. However, when the person from whom the expression comes is directing his or her language towards a police officer, courts will look closely to discern whether such language rises to the level of disorderly conduct or is merely the free expression of opinion.
71. "The rights of individuals to verbally oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."
72. But when an arrest occurs in the aftermath of such an exchange, that which verbally opposes or challenges police officers or the action they have undertaken, the question that immediately arises is whether the conduct sufficiently satisfied all of the elements of the relevant statute(s), or whether the arrest was a quick, spiteful, and oftentimes, poorly thought out response to "contempt of cop."
(Doc. 73-1 at ¶¶ 36-42, 44, 46-48, and 67-72.)
An expert witness may express an opinion with respect to an ultimate issue to be decided by the trier of fact. Fed.R.Evid. 704(a). An expert may not, however, "give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law." Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citation and quotation omitted). See also United States v. Moran, 493 F.3d 1002, 1008 (9th Cir. 2007). The resolution of "doubtful questions of law is the distinct and exclusive province of the trial judge." Nationwide Transport Finance v. Cass Information Systems, Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (quotation omitted). An expert's opinion is improper to the extent it directs a jury as to the result it should reach in making a decision. Elsayed Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002). Further, "instructing the jury as to the applicable law is the distinct and exclusive province' of the court." Hangarter, 373 F.3d at 1016 (quoting United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993)).
Therefore, to the extent Mr. Longo's expert report recites principles of, and instructs regarding, the law of probable cause and the legal procedure for determining probable cause, as identified in the City of Ronan's motion, his statements overstep the bounds of an expert's permissible testimony. The Court will instruct the jury as to the law of probable cause, the nuances of that law as it relates to an individual citizen's freedom of speech and a citizen's "contempt of cop" conduct discussed by Mr. Longo (Doc. 73-1 at ¶¶ 73-86),  and whether specific matters relative to the issue of probable cause are questions of fact for the jury to resolve or questions of law upon which the Court will rule. The City of Ronan's motion is GRANTED to the extent Mr. Longo's expert report and testimony - set forth in ¶¶ 36-42, 44, 46-48, 67-86, and 73-86 in his expert report - purports to declare the scope of the law of probable cause for an arrest, and the application of the law of probable cause to the notion of "contempt of cop" which may influence a law enforcement officer to unlawfully arrest a citizen in the absence of probable cause.
The City of Ronan also moves in limine to exclude Mr. Longo's expert opinion statements regarding the purpose and importance of comprehensive and accurate police reports writing performed by law enforcement officers to document certain events. (Doc. 73-1 at ¶¶ 87-92.) Mr. Longo also declares in his report that he has not seen any police report documents which identify facts indicating that Chaney obstructed officers, committed any crime, or which give rise to probable cause to arrest Chaney. (Doc. 73-1 at ¶¶ 93-94, 99.) The City of Ronan urges that Mr. Longo's opinions relative to standards applicable to police report writing, and deficiencies in the police report documentation are irrelevant in this case. For the reasons discussed, the Court agrees.
The referenced paragraphs in Mr. Longo's expert report relative to issues regarding police report writing are as follows:
87. Law enforcement officers are trained to prepare reports that clearly, accurately, and completely describe the situations that they encounter during the course of their official duties and responsibilities.
88. I have personally instructed law enforcement officers in this regard in areas surrounding detention, arrest, and use of force.
89. "Reports generated by the police agency serve as a factual base for the entire criminal justice system."
90. Moreover, written reports serve as the police agency's historical record of an event. As such, those reports, which document witness' accounts, are critical for prosecutors and criminal defendants who rely on them in the criminal proceedings to ensure the proceedings are fair and just.
91. Not only do such reports memorialize an incident for posterity, those reports serve to recollect the memory of those fact witnesses that may be later ...