Puente et al v. Phoenix, City of et al

Filing 326

ORDER: IT IS THEREFORE ORDERED granting in part and denying in part Defendants' Motion to Exclude Opinions of Roger Clark Under Rule 702 and Daubert (Doc. 236 ), as reflected in this Order. (See Order for details.) Signed by Judge John J Tuchi on 3/31/21. (SST)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Puente, et al., 10 No. CV-18-02778-PHX-JJT Plaintiffs, 11 v. 12 ORDER City of Phoenix, et al., 13 Defendants. 14 15 At issue is the admissibility of expert testimony provided by Mr. Roger Clark on 16 behalf of Plaintiffs. The Court considers Defendants’ Motion to Exclude Opinions of Roger 17 Clark Under Rule 702 and Daubert (Doc. 236, Mot.), Plaintiffs’ Opposition (Doc. 287, 18 Opp’n), and Defendants’ Reply (Doc. 303, Reply). The Court finds this matter appropriate 19 for decision without oral argument. See LRCiv 7.2(f). The Court will grant in part and deny 20 in part Defendants’ Motion for the reasons set forth below. 21 I. LEGAL STANDARD 22 Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that 23 any expert testimony provided is relevant and reliable. Daubert v. Merrell Dow Pharm., 24 Inc. (Daubert), 509 U.S. 579, 589 (1999). “Evidence is relevant if it has any tendency to 25 make a fact more or less probable than it would be without the evidence and the fact is of 26 consequence in determining the action.” Fed. R. Evid. 401. The trial court must first assess 27 whether the testimony is valid and whether the reasoning or methodology can properly be 28 applied to the facts in issue. Daubert, 509 U.S. at 592–93. Factors to consider in this 1 assessment include: whether the methodology can be tested; whether the methodology has 2 been subjected to peer review; whether the methodology has a known or potential rate of 3 error; and whether the methodology has been generally accepted within the relevant 4 professional community. Id. at 593–94. “The inquiry envisioned by Rule 702” is “a flexible 5 one.” Id. at 594. “The focus . . . must be solely on principles and methodology, not on the 6 conclusions that they generate.” Id. 7 The Daubert analysis is applicable to testimony concerning scientific and non- 8 scientific areas of specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 9 137, 141 (1999). However, the Daubert factors may not apply to testimony that depends 10 on knowledge and experience of the expert, rather than a particular methodology. U.S. v. 11 Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000) (citation omitted) (finding that Daubert 12 factors do not apply to police officer’s testimony based on 21 years of experience working 13 undercover with gangs). An expert qualified by experience may testify in the form of 14 opinion if his or her experiential knowledge will help the trier of fact to understand 15 evidence or determine a fact in issue, as long as the testimony is based on sufficient data, 16 is the product of reliable principles, and the expert has reliably applied the principles to the 17 facts of the case. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579. 18 The advisory committee notes on the 2000 amendments to Rule 702 explain that 19 Rule 702 (as amended in response to Daubert) “is not intended to provide an excuse for an 20 automatic challenge to the testimony of every expert.” See Kumho Tire Co., 526 U.S. 21 at 152. “Vigorous cross-examination, presentation of contrary evidence, and careful 22 instruction on the burden of proof are the traditional and appropriate means of attacking 23 shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted). 24 II. ANALYSIS 25 In their Motion to Exclude, Defendants offer two arguments in support of excluding 26 Mr. Clark’s testimony: (1) Mr. Clark does not have sufficient relevant expertise to render 27 his opinions, and (2) Mr. Clark’s testimony is unhelpful and unreliable because it 28 -2- 1 improperly characterizes facts and includes legal and conclusory opinions. The Court will 2 examine each of these arguments in turn. 3 A. 4 Mr. Clark is Plaintiffs’ police practices expert. Defendants argue that Mr. Clark is 5 unqualified to testify as an expert under Rule 702, which requires a witness to be qualified 6 “by knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The witness 7 must be an expert “in the relevant field.” Kumho Tire Co., 526 U.S. at 152. Relevant Expertise 8 Plaintiffs have satisfactorily demonstrated that Mr. Clark has experience in the 9 relevant field. One of the central issues in this matter is the appropriate use of police force 10 to control an assembly and the related police policies and procedures. Plaintiffs show that 11 Mr. Clark was a police officer in the Los Angeles Sheriff’s Department for 27 years; holds 12 an advanced certificate from the California Peace Officer Standards and Training 13 (“POST”) program and graduated from POST Command College; trained other officers in 14 police tactics; commanded the North Regional Surveillance and Apprehension Team for 15 six years; developed procedures within the Emergency Operations Bureau for appropriate 16 police response during natural disasters and civil disorders; and was a line officer during 17 the East LA riots, a platoon leader during the Rodney King riots, a commanding officer 18 during multiple Rose Parades, and the intelligence officer for the 1984 Olympic Games. 19 Mr. Clark’s experience and training are certainly relevant to issues in this case. To 20 the extent Defendants argue that Mr. Clark’s experience is outdated, they will have the 21 opportunity to cross-examine him. But in this instance, the age of Mr. Clark’s experience 22 and training does not make them irrelevant. 23 Defendants also complain that Mr. Clark has not used the precise munitions the 24 Phoenix Police Department (“PPD”) used at the August 22, 2017 rally at issue in this case. 25 To begin with, Plaintiffs do demonstrate that, during the Rodney King riots, Mr. Clark 26 commanded a platoon using tear gas and 40-millimeter canister launchers, which the PPD 27 used on the crowd at the rally. Moreover, it is not required that Mr. Clark used the same 28 -3- 1 munitions in order for him to be qualified to testify on police policies and procedures in 2 controlling a mass gathering. 3 The Court also disagrees with Defendants’ contention that Mr. Clark is nothing 4 more than a “hired gun” in this case. While a professional expert hired to testify on a wide 5 range of topics with great frequency may indeed not pass muster as an expert in a specific 6 field, see Rascon v. Brookins, No. CV-14-00749-PHX-JJT, 2018 WL 739696, at *3 7 (D. Ariz. Feb. 7, 2018), Mr. Clark’s experience and training are relevant to the issues in 8 this particular matter. His frequent work as a consultant and expert witness is not 9 disqualifying in and of itself. Again, if anything, Defendants’ concerns at this point amount 10 to subject matter for cross examination, but they are not sufficient for the Court to deem 11 Mr. Clark unqualified to testify in this matter in light of his substantial relevant experience 12 and training. 13 B. 14 Defendants also contend that certain testimony of Mr. Clark should be excluded 15 because it consists of legal conclusions, fact characterizations, and/or conclusory 16 statements. 17 Helpfulness and Reliability of Testimony 1. Legal Conclusions 18 Defendants’ first contention, that Mr. Clark offers impermissible legal conclusions, 19 raises the question of the extent to which an expert may offer opinions on matters that 20 should lie with the jury. Federal Rule of Evidence 704 allows an expert to express an 21 opinion on an ultimate issue to be decided by the jury, but the Ninth Circuit has made clear 22 that the propriety of an expert opinion on ultimate issues does not extend so far as to permit 23 an expert to offer legal conclusions. Muhktar v. Cal. State Univ., Hayward, 299 F.3d 1053, 24 1065 n.10 (9th Cir. 2002) (“However, an expert witness cannot give an opinion as to her 25 legal conclusion, i.e., an opinion on an ultimate issue of law.”). 26 As the Court has found in a previous case involving Mr. Clark’s testimony, to the 27 extent that Defendants seek to preclude Mr. Clark from testifying as to what use of force 28 is justified, or offering an opinion that a particular amount of force was not justified under -4- 1 the facts of this case, Defendants’ request is denied. In addition, in light of Mr. Clark's 2 experience and training in police practices and standards and the use of force generally, 3 Mr. Clark may opine about whether the use of munitions were justified under the 4 circumstances. Defendants have not established that such testimony must be excluded or 5 that this testimony constitutes a legal conclusion. Indeed, many of the examples from Mr. 6 Clark’s expert report that Defendants cite in their Motion as improper legal conclusions are 7 not. For example, when Mr. Clark testifies that the use of force on an assembly by police 8 officers should not be indiscriminate and should take into account the assembly’s right to 9 protest, or that police officers are trained to use force pursuant to their legal authority, or 10 that tools such as unlawful assembly announcements are available to police officers to 11 control a protest, Mr. Clark is not offering improper legal conclusions. 12 However, to the extent that Mr. Clark actually does offer legal conclusions, his 13 testimony is not permitted. While Mr. Clark may freely opine that the officers should not 14 have acted in the manner that they did, or that they should have done something else, he 15 must not volunteer an opinion that the officers acted unconstitutionally or exercised 16 excessive force. For example, where Mr. Clark opines that use of force on the crowd was 17 “a violation of constitutional rights” (Doc. 237-2, Mot. Ex. 1 at 16, Opinion 6), the opinion 18 is an improper legal conclusion,1 and the Court will exclude all legal conclusions from Mr. 19 Clark’s testimony. 20 2. Fact Characterizations 21 Defendants next argue that Mr. Clark improperly characterizes facts that a jury can 22 interpret without the aid of an expert witness. As the Court stated above, Rule 702 provides 23 that an expert qualified by experience may testify in the form of opinion if his or her 24 experiential knowledge will help the trier of fact to understand evidence or determine a fact 25 in issue. See Daubert, 509 U.S. at 579. 26 The examples of Mr. Clark’s fact characterization that Defendants provide are 27 simply disagreements between Plaintiffs and Defendants about what the facts show. For 28 1 Plaintiffs concede as much in their Response. (Opp’n at 12 n.4.) -5- 1 example, in challenging Mr. Clark’s opinion that PPD used indiscriminate force on the 2 entire crowd, Defendants state that the record shows that “[o]fficers’ uses of force were 3 measured, largely targeted, and proportional to escalating criminal behavior.” (Mot. at 14.) 4 This fact is clearly and genuinely disputed between the parties. The Court will not exclude 5 an opinion of Plaintiffs’ expert simply because it does not align with Defendants’ opinion. 6 The issue here is whether the expert’s opinion, based on sufficient data, is helpful to the 7 jury in understanding the evidence. Defendants have not demonstrated that Mr. Clark’s 8 testimony is not based on sufficient data or is unhelpful in this regard; indeed, the Court 9 will allow Defendants’ experts to offer their opinions similarly. See, e.g., Fed. R. Evid. 702 10 Advisory Comm. Notes (2000) (stating “experts sometimes reach different conclusions 11 based on competing versions of the facts,” which is not a basis for exclusion in and of 12 itself). Moreover, as the Court has already stated, Defendants will have the opportunity to 13 cross-examine Mr. Clark to challenge the weight of his opinions. 14 3. Conclusory Statements 15 Finally, Defendants contend that many of Mr. Clark’s statements are conclusory. 16 Under Daubert and its progeny, the Court must ensure that expert testimony is based on 17 sufficient data, is the product of reliable principles, and the expert has reliably applied the 18 principles to the facts of the case. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579. 19 Defendants again point largely to disagreements they have with Mr. Clark’s 20 opinions rather than identifying missing sources or bases for his opinions. For example, 21 Defendants take issue with Mr. Clark’s opinions that it was improper for police officers to 22 use tear gas before they declared an unlawful assembly and that PPD’s policies regarding 23 the use of tear gas are insufficient. (Mot. at 18.) Defendants argue that no “accepted body 24 of knowledge require PPD to have more policies than it does.” (Mot. at 18.) Ironically, 25 Defendants’ argument is conclusory. Mr. Clark states that his opinions are based on his 26 training and experience, which are identified with specificity in his reports, as well as 27 publications including the Police Executive Research Forum (“PERF”) guidelines titled 28 “Handling Large, Preplanned Events, Recommendations and Preparations for the 2016 -6- 1 National Political Conventions.” (Doc. 237-2, Mot. Ex. 1 at 11–13.) Defendants have thus 2 not demonstrated that Mr. Clark’s opinions should be excluded as conclusory, and 3 Defendants can challenge the opinions through cross-examination. 4 5 Accordingly, the Court will grant Defendants’ Motion to the limited extent reflected above, but the Motion is otherwise denied. 6 IT IS THEREFORE ORDERED granting in part and denying in part Defendants’ 7 Motion to Exclude Opinions of Roger Clark Under Rule 702 and Daubert (Doc. 236), as 8 reflected in this Order. 9 Dated this 31st day of March, 2021. 10 11 Honorable John J. Tuchi United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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