Stranjac v. Jenkins et al

Filing 56

ORDER AND REASONS granting in part and denying in part 44 Motion for Summary Judgment; granting in part and denying in part 45 Motion in Limine. Signed by Judge Lance M. Africk on 9/5/12. (ALA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DINO STRANJAC

CIVIL ACTION

VERSUS

No. 10-829

RUSTY JENKINS, ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 for summary judgment, as well as a motion2 in limine to
exclude expert testimony, filed by defendants, Rusty Jenkins and the town of Walker, Louisiana.
Plaintiff, Dino Stranjac, has filed oppositions with respect to both motions.3 For the following
reasons, the motions are GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff, Dino Stranjac (“Stranjac”), alleges that on December 21, 2009, he was savagely
attacked by a K-9 police dog during a traffic stop for speeding.4 According to the complaint,
Stranjac and his girlfriend were driving westbound on Interstate 12 in Livingston Parish around
midnight when a police car signaled Stranjac to pull over for speeding.5 Stranjac claims that he
did not immediately pull over because he was concerned about the safety of stopping on the unlit

1

R. Doc. No. 44.

2

R. Doc. No. 45.

3

R. Doc. Nos. 48, 49.

4

R. Doc. No. 1.

5

Id. at ¶¶ 4-5.

shoulder.6 Stranjac instead drove to the Walker exit, where he pulled into a Waffle House
parking lot.7
Stanjac claims that several police officers approached and ordered him to walk toward
them with his hands in the air.8 He claims that he complied with their orders, but Officer Rusty
Jenkins (“Officer Jenkins”) of the Walker Police Department suddenly released his K-9 police
dog, Levi, which proceeded to attack him.9 He claims that Officer Jenkins, in order to conceal
his improper use of force, then falsely arrested him for resisting an officer and driving while
intoxicated (“DWI”).10
On December 10, 2010, Stranjac filed this lawsuit asserting claims against Officer
Jenkins pursuant to 42 U.S.C. § 1983, et seq. for violations of the U.S. Constitution. Stranjac
also seeks damages against Officer Jenkins and the town of Walker under state law pursuant to
Louisiana Civil Code articles 2315 and 2320.11 Stranjac alleges that Officer Jenkins’ actions
were reckless and callously indifferent to his federally protected rights, and that they resulted in
damages including medical bills, loss of income, pain and suffering, mental anguish, anxiety and
fear, and permanent scarring and disfigurement.12 Stranjac further claims that as the employer of

6

Id. at ¶ 5.

7

Id.

8

Id. at ¶¶ 6-7.

9

Id. at ¶¶ 7, 9.

10

Id. at ¶ 11.

11

R. Doc. No. 1.

12

Id. at ¶¶ 12-13.

2

Officer Jenkins, the town of Walker is vicariously liable for Jenkins’ reckless acts against him
under Louisiana law.13
Officer Jenkins and the town of Walker dispute Stranjac’s account of his arrest.14 They
contend that Officer Jenkins acted appropriately under the circumstances and that he did not
violate Stranjac’s constitutional rights.15

According to defendants, the facts giving rise to

Stranjac’s arrest came to pass when the Livingston Parish police department received a panicked
call from a motorist reporting Stranjac’s vehicle being driven at excessive speeds, endangering
other drivers, and running cars off the road.16

Officer Steve Bernard (“Officer Bernard”)

responded to the call and he eventually reached Stranjac’s vehicle.17 The video camera mounted
on Officer Bernard’s dashboard captured the pursuit, and defendants contend that it confirms that
Stranjac did not immediately stop his vehicle, but instead led officers to the Waffle House
parking lot.18
Officer Jenkins contends that he joined the pursuit and took the lead in accordance with
police protocol. He claims that he proceeded to conduct a felony traffic stop believing that
Stranjac had committed the criminal offense of aggravated flight from an officer.19 Officer

13

Id. at ¶ 16.

14

See R. Doc. No. 44-1.

15

See id.

16

Id.; R. Doc. No. 52.

R. Doc. No. 52.
17

See id.; R. Doc. No. 44-11.

18

R. Doc. Nos. 44-1, 44-11.

19

R. Doc. Nos. 44-1, 44-4.

3

Jenkins attests that after Stranjac finally stopped his truck in the Waffle House parking lot, the
arrest unfolded as follows:
[Officer Jenkins] issued a verbal command to plaintiff to exit his
vehicle, which he did, leaving his door open. [Officer Jenkins]
observed that plaintiff was wearing a below-the-waist, black
leather coat, and observed that there was an unidentified passenger
remaining in his vehicle. [Officer Jenkins] commanded plaintiff to
show his hands, which he did.
[Officer Jenkins] then commanded plaintiff to get on the ground,
which he refused to do. [Officer Jenkins] gave plaintiff the
command to get on the ground 2 additional times, and plaintiff
refused to comply with that lawful command. After the third time
the command was given, plaintiff then began to turn and took a
step back toward the open door of his vehicle.
At that point, [Officer Jenkins] called his police dog Levi to his
side and gave plaintiff his 4th command to get on the ground.
Following this 4th command, [Officer Jenkins] specifically warned
plaintiff that his failure to comply with the lawful command to get
on the ground would result in the dog being released on him.
Plaintiff still refused to comply, and took another step toward the
open door of his vehicle, further turning his body toward his open
driver’s side door. [Officer Jenkins] gave plaintiff his 5th and final
command to get on the ground, again warning plaintiff that the
failure to do so would result in the dog being released. Plaintiff
was, at that point, standing inside the doorway of this vehicle.
Fearing for the safety of the numerous persons at the Waffle
House, as well as the officers on the scene, [Officer Jenkins] was
forced to give the command for Levi to secure the plaintiff.
Plaintiff continued to resist arrest, fighting with Levi and
struggling to remain on his feet. During this time, plaintiff lifted
the patrol dog Levi with his arm and calmly asked [Officer
Jenkins] to call off his K-9. As soon as Levi was successful in
putting plaintiff on the ground, the dog was immediately called off,
and [Officer Jenkins] and PFC Bernard handcuffed and secured
plaintiff.20
20

R. Doc. No. 44-4. Officer Bernard signed an affidavit that mirrors Officer Jenkins’ account of the arrest. R. Doc.
No. 44-5.

4

Faustin Wascom, an independent witness, signed a witness statement that generally
corroborated Officer Jenkins’ account of the arrest.21 Mr. Wascom described what he saw as
follows:
I saw a lot of police cars pulling into Waffle House. Their sirens
and lights were on. When I went outside I saw a man standing
outside a pickup. Officers repeatedly warned the man he had to
get down on the ground. After almost a minute passed of
warnings, the man did not comply. The K-9 was then released and
brought the man down. The officers immediately removed the K-9
and advised the man of his rights then cuffed him.22
Unfortunately, the video camera mounted on Officer Jenkins’ unit was not functioning at
the time of the arrest, and it did not record the events on the driver’s side of Stranjac’s truck.
However, the video camera in Officer Bernard’s unit was able to capture the events that took
place on the passenger side of the vehicle.23 A review of the video shows Officer Bernard’s unit
pulling up beside Stranjac’s truck in the Waffle House parking lot.24 After the unit stops, an
officer can be seen circling across the back of Stranjac’s truck, gun drawn, to cover and secure
the passenger side of the vehicle.25 Less than ten seconds later, Levi can be seen running across
the passenger side of the truck to the front of the vehicle.26

21

R. Doc. No. 44-11.

22

Id.

23

Id.

24

Id. at 2:55-3:08.

25

Id. at 3:17.

26

Id. at 3:26.

5

The majority of these facts are not genuinely in dispute. However, Stranjac contends that
he does not remember being told to get on the ground after he stepped out of his truck.27 He
attests that he stood with his hands above his head while three police officers pointed their
weapons at him.28 He claims that he never reached into his vehicle, never made any threatening
moves, and never attempted to flee the area.29 In his deposition, Stranjac explained,
They asked me to get out of the vehicle, which I did. Step away
from the vehicle. I did so. Put my hands in the air, which I did.
And from what I remember, next thing, I’m fighting with a canine
officer. He’s biting me, jumping on me . . .
Q. How long do you think transpired between the time that you
stepped away from the vehicle with your hands up and the time
that the dog made contact with your body?
A. I would say matter of seconds, as well.
Q. Where was your focus during those seconds? What were you
looking at?
A. Guns and my life flashing before my eyes.
Q. Were you afraid of the guns?
A. Yes, ma’am.
Q. Were you afraid of the dog?
A. Of course.
Q. Do you recall seeing the dog coming to the side of one of the
officers?
A. All I remember, seeing jaws in my face. That’s when I figured
out it’s a dog.

27

R. Doc. No. 49-5.

28

Id.

29

Id.

6

Q. You at no point prior to him actually coming towards you, you
did not see the dog standing by an officer?
A. No, ma’am.30
On December 6, 2011, retired U.S. Bureau of Alcohol, Tobacco, and Firearms (“ATF”)
Special Agent and Criminal Justice Associate Professor, W. Lloyd Grafton (“Grafton”), released
an expert report prepared in support of Stranjac’s excessive force claims in which he concludes,
“I am of the opinion that Officer Rusty Jenkins used excessive force in arresting Mr. Dino
Stranjac.”31 Grafton based his opinion on the arrest report, depositions of the arresting officers,
the policies and procedures of the Walker police department pertaining to K-9 use, and the arrest
and booking detail page of Stranjac’s arrest.32 Grafton reached his conclusion by applying what
he understood as the undisputed facts to the tenets of Pressure Point Control Tactics (“PPCT”)
and the Walker police policy manual regarding the use of K-9 units.33 Grafton concluded that
Officer Jenkins should have approached Stranjac using soft empty hand techniques to place him
in handcuffs while the other officers covered him.34

He further opined that utilizing an

intermediate weapon such as a police dog was unnecessary while Stranjac stood beside his car
with his hands in the air.35
Defendants contend that Grafton’s opinion should be excluded on the grounds that he is
not qualified to testify as an expert in the use of canines as law enforcement tools, his opinion is
30

R. Doc. No. 44-8, pp. 42-45.

31

R. Doc. No. 46-2, p. 6.

32

Id. at 1.

33

Id. at 3-6.

34

Id. at 4-5.

35

Id. at 5-6.

7

not based on recognized principles of professional conduct, and his opinion is based on
erroneous factual assumptions and legal conclusions.36 Defendants also contend that even when
taking the facts in a light most favorable to the plaintiff, they are entitled to summary judgment
and that all of Stranjac’s claims should be dismissed with prejudice on the grounds that: (1) no
reasonable jury could find that Jenkins lacked probable cause to arrest plaintiff for resisting
arrest and DWI; (2) Jenkins’ actions do not amount to a constitutional violation; (3) Jenkins is
entitled to qualified immunity for plaintiff’s claim for excessive force under 42 U.S.C § 1983;
(4) Jenkins is entitled to discretionary immunity from Stranjac’s state law tort claims pursuant to
La. R.S. 9:2798.1; and (5) barring discretionary immunity, Stranjac’s state law tort claims must
be dismissed for lack of sufficient evidence.37
STANDARD OF LAW
Summary judgment is proper when, after reviewing “the pleadings, the discovery and
disclosure materials on file, and any affidavits,” the court determines there is no genuine issue of
material fact. Fed. R. Civ. P. 56(c). The party seeking summary judgment always bears the
initial responsibility of informing the court of the basis for its motion and identifying those
portions of the record that it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need
not produce evidence negating the existence of material fact, but need only point out the absence
of evidence supporting the other party’s case. Celotex, 477 U.S. at 323; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).

36

R. Doc. No. 45-1.

37

R. Doc. No. 44-1.

8

Once the party seeking summary judgment carries its burden pursuant to Rule 56(c), the
other party must come forward with specific facts showing that there is a genuine issue of
material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt
as to the material facts,’ by ‘conclusory allegations,’ ‘unsubstantiated assertions,’ or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The
nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be
drawn in [the nonmoving party’s] favor.” Id. at 255; see Hunt v. Cromartie, 526 U.S. 541, 552
(1999) (internal quotation and citation omitted) (alteration in original).
In a nonjury case, the Fifth Circuit has suggested, but not explicitly adopted, a “more
lenient standard for summary judgment.” U.S. Fid. & Guar. Co. v. Plantars Bank & Trust Co.,
77 F.3d 863, 865 (5th Cir. 1996). The Fifth Circuit has stated that “where the judge is the trier of
fact . . . he may be in a position to draw inferences without resort to the expense of trial, unless
there is an issue of witness credibility.” Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 273 n. 15
(5th Cir. 1987) (quoting Ala. Farm Bureau Mut. Cas. Co. v. Am. Fid. Life Ins. Co., 606 F.2d 602,
609-10 (5th Cir. 1979)).
DISCUSSION
I. Motion for Summary Judgment
A. Qualified Immunity
9

Officer Jenkins filed this motion for summary judgment asserting the defense of qualified
immunity with respect to Stranjac’s § 1983 claims. In Harlow v. Fitzgerald, the United States
Supreme Court established the principle that “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). “When a
defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the
inapplicability of the defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)
(citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)).
A claim of qualified immunity requires the Court to engage in the well-established twostep analysis developed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808, 172 L. Ed. 2d 565 (2009). See Lytle v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir.
2009). As stated by the Fifth Circuit:
First, we determine whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant
violated the plaintiff’s constitutional rights. See, e.g., Tarver v.
City of Edna, 410 F.3d 745, 750 (5th Cir. 2005); McClendon v.
City of Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002) (en banc);
Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). If not,
our analysis ends. If so, we next consider whether the defendant’s
actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question. See, e.g.,
Tarver, 410 F.3d at 750; Glenn, 242 F.3d at 312. To make this
determination, the court applies an objective standard based on the
viewpoint of a reasonable official in light of the information then
available to the defendant and the law that was clearly established
at the time of the defendant’s actions. See Glenn, 242 F.3d at 312;
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000); see also Tarver, 410 F.3d at 750 (“If officers of reasonable
10

competence could disagree as to whether the plaintiff’s rights were
violated, the officer’s qualified immunity remains intact.”).
Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007).
B. False Arrest
Officer Jenkins contends that he is entitled to summary judgment with respect to
Stranjac’s claim that he was falsely arrested for resisting arrest and DWI. Stranjac’s false arrest
claims stem from his allegation that Officer Jenkins attempted to cover up an improper use of
force by arresting him for resisting an officer and DWI. Defendants contend that the false arrest
claims must be dismissed on the ground that Officer Jenkins had probable cause to arrest
Stranjac based on at least one of the six violations for which he was arrested. Defendants
contend that the charges are supported by credible testimony regarding Officer Jenkins’
knowledge and observations at the time of the arrest.
The Fourth Amendment protects individuals from unreasonable searches and seizures of
their “persons, houses, papers, and effects.” U.S. Const. amend. IV. Individuals have “a clearly
established constitutional right to be free from arrest absent an arrest warrant or probable cause.”
Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007) (citing Flores v. City of Palacios, 381 F.3d
391, 402 (5th Cir. 2004); Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001)). “A
warrantless arrest must be based on ‘probable cause.’ Probable cause exists when the totality of
the facts and circumstances within a police officer’s knowledge at the moment of arrest are
sufficient for a reasonable person to conclude that the suspect had committed or was committing
an offense.” Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000).
“An officer may conduct a warrantless arrest based on probable cause that an individual
has committed even a minor offense, including misdemeanors.” Deville v. Marcantel, 567 F.3d
11

156, 165 (5th Cir. 2009); (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct.
1536, 1557, 149 L. Ed. 2d 549 (2001)). “If there was probable cause for any of the charges made
. . . then the arrest was supported by probable cause, and the claim for false arrest fails.”
Deville, 67 F.3d at 165 (quoting Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995)) (emphasis in
original). The Court must apply “an objective standard, which means that we will find that
probable cause existed if the officer was aware of facts justifying a reasonable belief that an
offense was being committed, whether or not the officer charged the arrestee with that specific
offense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (citing Devenpeck v.
Alford, 543 U.S. 146, 153–54, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)).
“Even if an officer erred in concluding that probable cause existed for an arrest, he is
entitled to qualified immunity if his decision was reasonable, albeit mistaken.” Besson v. Webre,
738 F. Supp. 2d 657, 661 (E.D. La. 2010) (Vance, J.) (citing Lampkin v. City of Nacogdoches, 7
F.3d 430, 435 (5th Cir. 1993)). Officer Jenkins is entitled to qualified immunity as long as “a
reasonable officer could have believed” that the arrest was lawfully based on probable cause,
even if he violated Stranjac’s Fourth Amendment rights.

See Besson, 738 F. Supp. 2d at

661 (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)).
As a result, to overcome Officer Jenkins’ claim of qualified immunity, Stranjac must show that
Officer Jenkins “lacked arguable (that is, reasonable but mistaken) probable cause for the
arrest[].” See Club Retro, 568 F.3d at 207.
Officer Jenkins contends that he had probable cause to arrest Stranjac for at least one of
the six offenses for which he was ultimately arrested and charged: reckless operation of a

12

vehicle,38 speeding,39 driving on a roadway laned for traffic,40 resisting an officer,41 flight from
an officer,42 and DWI.43 In his affidavit, Officer Jenkins recalls the events leading up to the
arrest as follows:
In the early hours of December 21, 2009, he heard a 911 dispatcher
issue a call for all law enforcement personnel in the area of
Satsuma to be on the lookout for plaintiff’s vehicle based on a
witness’ statement that said vehicle was driving erratically,
dangerously and at excessive speeds. [He] subsequently heard
over his radio that PFC Steve Bernard had commenced pursuing
plaintiff’s vehicle and was attempting to initiate a traffic stop on I12. [He] further heard over his radio that the vehicle was refusing
to stop, and that the vehicle had increased its speed in response to
PFC Bernard’s pursuit. [He] positioned his K-9 unit at the
interstate exit for Walker, Louisiana, to intercept the pursuit.
38

See La. Rev. Stat. Ann. § 14:99 (“Reckless operation of a vehicle is the operation of any motor vehicle, aircraft,
vessel, or other means of conveyance in a criminally negligent or reckless manner.”).

39

See La. Rev. Stat. Ann. § 32:69(A) (“No person shall drive a vehicle on the highway within this state at a speed
greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard
for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a
speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant
thereto.”).

40

See La. Rev. Stat. Ann. § 32:679(1) (“A vehicle shall be driven as nearly as practicable entirely within a single
lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made
with safety.”).

41

See La. Rev. Stat. Ann. § 14:108 (“Resisting an officer is the intentional interference with, opposition or
resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful
arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows
or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his
official capacity . . . . The phrase “obstruction of” as used herein shall, in addition to its common meaning,
signification, and connotation mean the following: (a) Flight by one sought to be arrested before the arresting officer
can restrain him and after notice is given that he is under arrest . . . .”).
42

See La. Rev. Stat. Ann. § 14:108.1(A) (“No driver of a motor vehicle or operator of a watercraft shall intentionally
refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by
a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The
signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police
watercraft . . .”).

43

See La. Rev. Stat. Ann. § 14:98(A)(1) (“The crime of operating a vehicle while intoxicated is the operating of any
motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when: (a) The operator is under the
influence of alcoholic beverages; or (b) The operator's blood alcohol concentration is 0.08 percent or more by
weight based on grams of alcohol per one hundred cubic centimeters of blood . . . .”).

13

When plaintiff’s vehicle exited the interstate at Walker, [he] was
able to fully observe plaintiff’s vehicle, as well as PFC Bernard’s
unit. As plaintiff was proceeding down the exit ramp, he began to
hit his brakes in a fashion that indicated to [him] that plaintiff was
attempting to create a collision with PFC Bernard’s vehicle. In
accordance with Walker Police Department protocol, [he] assumed
lead pursuit . . . . Once plaintiff was surrounded by police units, he
pulled into the parking lot of the Waffle House, and [he]
commenced to conduct the felony traffic stop, believing that
plaintiff had committed the criminal offense of Aggravated Flight
from an Officer.44
It is undisputed that the Livingston Parish police department received a 9-1-1 call from a
concerned motorist reporting a blue ford truck being driven at excessive speeds and endangering
other drivers.45 The 9-1-1 transcript shows that the dispatcher informed all units to be on the
lookout for a “reckless op” in the description of Stranjac’s truck travelling at a “[v]ery high rate
of speed, almost hit another car from behind, also running people off the road.” The video
camera on Officer Bernard’s unit shows that he approached a vehicle matching the description of
the truck (which was discovered directly ahead of a white sedan matching the description the
motorist reporting the call), and he signaled for the truck to pull over. The video shows that
Stranjac did not immediately comply.
The 911 transcript shows that Officer Jenkins then advised Officer Bernard that he would
be “waiting on the overpass. In case he don’t get off at the pass.” Officer Bernard replied,
“Standby, Livingston. I have him, but he may not stop.” Approximately 45 seconds later, Officer
Bernard can be heard reporting, “Coming up on Walker.

Speed sixty.

Swerving.”

The

dispatcher informed officers to watch “for a car not stopping on I-12 for Walker 38.” When
44

R. Doc. No. 44-4.

45

The motorist, who was identified as an operator for the Baton Rouge police department, reported that the plaintiff
was travelling at a speed in excess of 100 miles per hour, driving as if drunk, and driving in a reckless manner. The
motorist was afraid that plaintiff was going to “hit someone.”

14

Stranjac exited the interstate at Walker, Officer Bernard once again reported that he was “still not
stopping.” After exiting the highway, the video on Officer Bernard’s unit shows that Officer
Jenkins joined the pursuit, took the lead, and followed Stranjac into the Waffle House parking lot
where the pursuit ended.
It is clear from the undisputed evidence that Officer Jenkins received credible
information through the radio that Officer Bernard positively identified the vehicle reported by
the 9-1-1 caller. It is also clear that Officer Bernard advised Officer Jenkins that the vehicle was
swerving and not stopping upon request. Although Stranjac may have ultimately been acquitted
of the underlying traffic violations in his criminal proceedings, the Fifth Circuit has recognized
that “[W]here a police officer makes an arrest on the basis of oral statements by fellow officers,
an officer will be entitled to qualified immunity from liability in a civil rights suit for unlawful
arrest provided it was objectively reasonable for him to believe, on the basis of the statements,
that probable cause for the arrest existed.” Deville, 567 F.3d at 166.
Officer Jenkins was, therefore, entitled to rely on information conveyed by the dispatcher
and the personal observations of Officer Bernard when determining whether Stranjac had
committed or was committing the offenses for which he was arrested. The information Officer
Jenkins received included credible information provided by an identified motorist that was
corroborated by a fellow officer. See, e.g., Jacobson v. City of N. Richland Hills, No. 04-421,
2006 WL 1317014, at *4 (N.D. Tex. May 15, 2006) (Means, J.) (holding that an officer had
probable cause to arrest a suspect for DWI based on information provided by a 9-1-1 caller
which was confirmed through his own observations); United States v. Valdes, 403 Fed. App’x
885, 890, 2010 WL 5029811, at *4 (5th Cir. 2010) (holding that officers had probable cause to
arrest a robbery suspect found in a truck matching a 9-1-1 dispatcher’s description and the driver
15

attempted to flee in an admittedly reckless manner). Stranjac has not demonstrated that Officer
Jenkins lacked probable cause to believe that Stranjac had committed or was committing at least
one of the traffic offenses for which he was arrested. See Deville, 567 F.3d at 165-66 (holding
that an arrest was not objectively unreasonable when the officer could have reasonably believed
that the plaintiff had committed a crime based on information provided by a seemingly reliable
witnessing officer). Accordingly, the Court finds that Officer Jenkins is entitled to qualified
immunity and summary judgment with respect to the false arrest claims asserted under federal
law.
C. Excessive Force
Officer Jenkins also contends that he is entitled to summary judgment with respect to
Stranjac’s excessive force claim. Stranjac’s excessive force claim centers on his allegation that
Officer Jenkins allowed Levi to savagely attack him while he stood beside his truck with his
hands in the air. Officer Jenkins contends that Stranjac cannot overcome his qualified immunity
with respect to these claims. Officer Jenkins contends that his decision to use Levi to take down
a noncompliant suspect who would not get on the ground was not objectively unreasonable in
light of the undisputed facts and clearly established law.
The Court must “make two ‘overlapping objective reasonableness inquiries’” when
conducting the qualified immunity analysis in excessive force cases. Sanchez v. Fraley, No. 0950821, 2010 WL 1752123, at *2, (5th Cir. Apr. 30, 2010) (unpublished) (quoting Lytle, 560 F.3d
at 410). As stated by the Fifth Circuit,
Allegations that an officer used excessive force in conducting a
seizure complicates the Saucier inquiry. This complexity stems
from having to make two “overlapping objective reasonableness
inquir[ies].” Id. at 210, 121 S. Ct. 2151 (Ginsburg, J., concurring in
the judgment). We must first answer the constitutional violation
16

question by determining whether the officer’s conduct met the
Fourth Amendment’s reasonableness requirement, as discussed
below. If we find that the officer’s conduct was not reasonable
under the Fourth Amendment, we must then answer the qualified
immunity question by determining whether the law was
sufficiently clear that a reasonable officer would have known that
his conduct violated the constitution. In other words, at this second
step, we must ask the somewhat convoluted question of whether
the law lacked such clarity that it would be reasonable for an
officer to erroneously believe that his conduct was reasonable.
Despite any seeming similarity between these two questions, they
are distinct inquiries under Saucier, and we must conduct them
both.
Lytle, 560 F.3d at 410.
To overcome Officer Jenkins’ claim of qualified immunity on his claim of excessive force,
Stranjac must show “(1) an injury, (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Poole v.
City of Shreveport, --- F.3d ---, 2012 WL 3517357, at *4 (5th Cir. 2012) (quoting Ontiveros v.
City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009)). “Assessing the reasonableness of a police
officer’s use of force involves ‘a careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.’” Lytle, 560 F.3d at 411 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865,
1871, 104 L. Ed. 2d 443 (1989)) (internal quotation omitted). Some of the factors the Court
considers are “the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting
Graham, 490 U.S. at 396). “[T]he Court must balance the amount of force used against the need
for that force.” Ballard v. Hedwig Village Police Dept., No. 08-567, 2009 WL 2900737, at *6
(S.D. Tex. Sept. 2, 2009) (Harmon, J.) (citing Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir.1996)).
17

The Supreme Court has made clear that an officer’s actions are judged under an objective
standard that does not take into account an officer’s subjective intent. Graham, 490 U.S. at 397.
Government officers are also entitled to deference:
The “reasonableness” of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight . . . . The calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving-about
the amount of force that is necessary in a particular situation.
Id. at 397. However, the Court must make this determination when viewing the summary
judgment evidence in a light most favorable to the plaintiff. See Freeman, 483 F.3d at 410-11.
The summary judgment evidence submitted in connection with this motion does not
establish an absence of genuine issues of material fact with respect to the reasonableness of
Officer Jenkins’ conduct. Stranjac attests that he complied with all commands to exit his vehicle
and put his hands in the air.46 He attests that he stood beside his truck with his hands raised
while three police officers pointed guns at him.47 He further states that he made no attempt to
reach into his vehicle or to flee.48 He also testified that he did not hear any orders to get on the
ground or any warnings that a police dog would be released in what he describes as just a “matter
of second[s]” after he stepped out of the vehicle and before he was taken down by Levi.49
Officer Jenkins, on the other hand, contends that Stranjac was given five warnings to get
on the ground and was making moves toward the open door of his vehicle before Levi was
46

R. Doc. No. 49-5, ¶ 4.

47

Id. at ¶ 6.

48

R. Doc. No. 49-5, ¶¶ 6-9.

49

R. Doc. No. 44-8, p. 45.

18

released. The parties also disagree with respect to whether the situation warranted the use of
felony arrest procedures.50
When viewing the evidence in the light most favorable to plaintiff, it was objectively
unreasonable for Officer Jenkins to release Levi without sufficient warning when Stranjac was
standing beside his truck with his arms raised, surrounded by officers with guns drawn, and
making no attempt to flee or to actively resist arrest. See Calton v. City of Garland, No. 022215, 2004 WL 2965005, at *3 (N.D. Tex. Dec. 10, 2004) (Godbey, J.) (concluding under
analogous circumstances that an “officer’s release of a police dog on a suspect of a misdemeanor
traffic offense who is making no threatening actions and is not actively resisting at the time of
the release was objectively unreasonable.”); see also McGovern v. Village of Oak Lawn, No. 013772, 2003 WL 139506, at *7 (N.D. Ill. Jan 17, 2003); Campbell v. City of Springboro, Ohio,
788 F. Supp. 2d 637, 675 (S.D. Ohio 2011). Moreover, Stranjac’s version of the facts is neither
“absurd” nor “plainly contradicted by the videotape” such that it must be disregarded for
purposes of summary judgment. See Poole, 2012 WL 3517357, at *7-*8 (citing Scott v. Harris,
550 U.S. 372, 381, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)).
50

First, the arrest and detail booking page shows that Stranjac was charged with “flight from an officer, agg flight
from.” R. Doc. No. 44-7. Although the level column shows the charge listed as a misdemeanor, aggravated flight
from an officer is a felony. It is, therefore, ambiguous whether Stranjac was charged with misdemeanor flight from
an officer or felony aggravated flight from an officer.

Second, defendants contend that Officer Jenkins reasonably believed that Stranjac had committed the felony of
aggravated flight from an officer when he proceeded to conduct the felony arrest. See R. Doc. No. 47. “Aggravated
flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a
watercraft to a stop, under circumstances wherein human life is endangered . . . .” Human life is endangered in
circumstances where “the operator of the fleeing vehicle . . . commits at least two of the following acts: (1) Leaves
the roadway or forces another vehicle to leave the roadway. (2) Collides with another vehicle or watercraft. (3)
Exceeds the posted speed limit by at least twenty-five miles per hour. (4) Travels against the flow of traffic or in the
case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner
in violation of R.S. 14:99. (5) Fails to obey a stop sign or a yield sign. (6) Fails to obey a traffic control signal
device. Stranjac denies fleeing from an officer, speeding, leaving the roadway, forcing other vehicles to leave the
roadway, or driving recklessly and genuine issues of material fact exist with respect to whether Officer Jenkins
believed that Stanjac committed aggravated flight from an officer.

19

The Court must next consider whether a reasonable officer would have known that the
alleged conduct was unlawful in light of clearly established law. “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533
U.S. at 202. “[T]he central concept is that of fair warning: The law can be clearly established
despite notable factual distinctions between the precedents relied on and the cases then before the
Court, so long as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Lytle, 560 F.3d at 417 (quoting Kinney v. Weaver, 367 F.3d 337,
350 (5th Cir. 2004) (en banc) (internal quotations omitted)). “Thus, while the right to be free
from excessive force is clearly established in a general sense, the right to be free from the degree
of force employed in a particular situation may not have been clear to a reasonable officer at the
scene.” Lytle, 560 F.3d at 417 (quoting Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)).
Stranjac has come forward with competent summary judgment evidence in support of his
allegation that he complied with Officer Jenkins’ instructions to step out of his vehicle and to put
his hands in the air. Stranjac’s deposition testimony and affidavit support his assertion that he
made no threatening moves and that he did not hear a verbal warning before Officer Jenkins
released a police dog to seize him.51 Even in the absence of Fifth Circuit caselaw specifically
addressing excessive force allegations in a dog bite case,52 no reasonable police officer could

51

Defendants contend that plaintiff’s testimony that he did not hear a warning is insufficient to defeat summary
judgment. As the U.S. Court of Appeals for the Fourth Circuit has explained, however, defendants’ position is
“incompatible with the summary judgment principle that we must view the facts in the light most favorable to the
nonmoving party . . . . If a warning is not given, then a witness will not hear one. A juror could reasonably
conclude that if certain witnesses did not hear a warning, then no warning was given, even if other witnesses testify
to a warning.” See Vathekan v. Prince George’s Cnty, 154 F.3d 173, 180 (4th Cir. 1998).

52

As other courts have noted, “there is not an abundance of case law addressing the use of police dogs to effectuate
seizures.” Campbell v. City of Springboro, Ohio, 788 F. Supp. 2d 637, 675 (S.D. Ohio 2011). That does not mean,

20

conclude that the use of a police dog is permissible when employed, without warning, against a
secured non-threatening suspect. See Calton, 2004 WL 2965005, at *4 (holding that no
reasonable officer could conclude that releasing a police dog without warning on a compliant
suspect would be constitutionally permissible). Accordingly, genuine issues of material fact
exist with respect to whether Officer Jenkins’ conduct violated clearly established law and he is
not entitled to summary judgment with respect to Stranjac’s excessive force claims.
D. State Law Claims
Defendants also filed their motion for summary judgment asserting the defense of
discretionary immunity against Stranjac’s state law claims. Louisiana Revised Statute Annotated
§ 9:2798.1 provides in part, “Liability shall not be imposed on public entities or their officers or
employees based upon the exercise or performance or the failure to exercise or perform their
policymaking or discretionary acts when such acts are within the course and scope of their lawful
powers and duties.” La. Rev. Stat. Ann. § 9:2798.1(B).53 However, the discretionary immunity

however, that there is no clearly established law that would indicate to Officer Jenkins that the deployment of a
police dog under the circumstances and in the manner as occurred in this case was unreasonable. See id.; Mendoza
v. Block, 27 F.3d 1357, 1360-62 (9th Cir. 1994). “[T]here is a continuum of permissible versus impermissible use
when it comes to police dogs.” Campbell, 788 F. Supp. 2d at 675.
On the permissible end of that spectrum are cases wherein officers deploy properly trained police
dogs to locate individuals who were believed to be involved in nefarious criminal activity, who
may have been armed and dangerous, and who failed to surrender or respond in any manner after
officers gave several warnings. See Robinette v. Barnes, 854 F.2d 909, 909 (6th Cir. 1988);
Matthews v. Jones, 35 F.3d 1046, 1052 (6th Cir. 1994). On the other end of that spectrum lies a
case in which a canine officer allowed a little-trained police dog to get close enough to a subject of
a track to bite the subject despite the fact that the subject had already been subdued and placed in
handcuffs. See White v. Harmon, No. 94-1456, 1995 WL 518865, at *1, *3 (6th Cir. Aug. 31,
1995).
Id.
53

The parties agreed at the pretrial conference that defendants are either “public entities or their officers or
employees” as defined by the statute. However, the Court does not decide that issue because, as explained below,
defendants have not shown that they are otherwise entitled to discretionary immunity.

21

provided in § 9:2798.1 does not apply “[t]o acts or omissions which constitute criminal,
fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” La. Rev.
Stat. Ann. § 9:2798.1(C)(2). Defendants are not entitled to immunity against Stranjac’s state law
claims as there are genuine issues of material fact with respect to whether the officers acted in a
reckless manner when viewed in a light most favorable to plaintiff. See Besson v. Webre, 738 F.
Supp. 2d 657, 668 (E.D. La. 2010) (Vance, J.).
To prevail on his claim under Louisiana Civil Code Article 2315, Stranjac must prove
that defendants breached their duty of “reasonableness under the totality of the circumstances.”54
Hudspeth v. City of Shreveport, 270 Fed. App’x 332, 338, 2008 WL 749547, at *6 (5th Cir. Mar.
19, 2008) (quoting Stroik v. Ponseti, 699 So. 2d 1072, 1077 (La. 1997). The Fifth Circuit has
recognized that “[u]nder Louisiana law, we apply the same ‘reasonableness’ standard to . . . state
law claims of false arrest and excessive force that we apply when analyzing whether qualified
immunity shields [an officer against] federal constitutional claims.” Winston v. City of
Shreveport, 390 Fed. App’x 379, 385-86, 2010 WL 3190709, at *6 (5th Cir. Aug. 12, 2010)
(citing Reneau v. City of New Orleans, No. 03-1410, 2004 WL 1497711, at *3-*4 (E.D. La. July
2, 2004) (Fallon, J.); Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La. 1977)). As
explained above, genuine issues of material fact exist with respect to whether Officer Jenkins
breached his duty to Stranjac by using an excessive degree of force to effect his arrest.
Accordingly, defendants are not entitled to summary judgment with respect to Stranjac’s state
law claims.
II. Motion to Exclude Expert Testimony
54

Counsel for plaintiff advised the Court during the pretrial conference that the state law claims sound only in
negligence and do not involve allegations of intentional torts. See R. Doc. No. 55.

22

A. Standard of Law
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness
testimony. Fed. R. Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113
S. Ct. 2786, 2794, 125 L. Ed. 2d 469, 480 (1993); United States v. Hitt, 473 F.3d 146, 148 (5th
Cir. 2006). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
The United States Supreme Court’s decision in Daubert “provides the analytical
framework for determining whether expert testimony is admissible under Rule 702.” Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). Both scientific and nonscientific expert
testimony is subject to the Daubert framework, which requires trial courts to make a preliminary
assessment to “determine whether the expert testimony is both reliable and relevant.” Burleson
v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004); see Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238, 249-50 (1999).
A number of nonexclusive factors may be relevant to the reliability inquiry, including: (1)
whether the technique has been tested, (2) whether the technique has been subjected to peer
review and publication, (3) the potential error rate, (4) the existence and maintenance of
standards controlling the technique’s operation, and (5) whether the technique is generally
accepted in the relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry
must remain flexible, however, as “not every Daubert factor will be applicable in every situation;
23

and a court has discretion to consider other factors it deems relevant.” Guy v. Crown Equip.
Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex. Children’s Hosp. Select Plan, 167
Fed. App’x 377, 381 (5th Cir. 2006) (“[A] trial judge has ‘considerable leeway’ in determining
‘how to test an expert’s reliability.’” (citing Kumho Tire, 526 U.S. at 152, 119 S. Ct. at 1176, 143
L. Ed. 2d at 253)). “Both the determination of reliability itself and the factors taken into account
are left to the discretion of the district court consistent with its gatekeeping function under [Rule]
702.” Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000).
With respect to determining the relevancy of an expert’s testimony pursuant to Rule 702
and Daubert, the proposed testimony must be relevant “not simply in the way all testimony must
be relevant [pursuant to Rule 402], but also in the sense that the expert’s proposed opinion would
assist the trier of fact to understand or determine a fact in issue.” Bocanegra v. Vicmar Servs.,
Inc., 320 F.3d 581, 584 (5th Cir. 2003). “‘There is no more certain test for determining when
experts may be used than the common sense inquiry whether the untrained layman would be
qualified to determine intelligently and to the best degree the particular issue without
enlightenment from those having a specialized understanding of the subject involved in the
dispute.’” Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid.
702 advisory committee’s note).
When expert testimony is challenged under Daubert, the burden of proof rests with the
party seeking to present the testimony. Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.
1998). To meet this burden, a party cannot simply rely on its expert’s assurances that he has
utilized generally accepted scientific methodology.

Rather, some objective, independent

validation of the expert’s methodology is required. Id. Nonetheless, as Judge Vance stated in

24

Scordill v. Louisville Ladder Group, L.L.C., 2003 WL 22427981 at *3 (E.D. La. October 24,
2003):
The Court notes that its role as a gatekeeper does not replace the
traditional adversary system and the place of the jury within the
system. See Daubert, 509 U.S. at 596. As the Daubert Court noted,
“[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.” Id. (citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct.
2704, 97 L.Ed.2d 37 (1987)). The Fifth Circuit has added that, in
determining the admissibility of expert testimony, a district court
must defer to “‘the jury’s role as the proper arbiter of disputes
between conflicting opinions. As a general rule, questions relating
to the bases and sources of an expert’s opinion affect the weight to
be assigned that opinion rather than its admissibility and should be
left for the jury’s consideration.’” United States v. 14.38 Acres of
Land, More or Less Sit. in Leflore County, Miss., 80 F.3d 1074,
1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826
F.2d 420, 422 (5th Cir. 1987).
B. Analysis
Stranjac seeks to introduce the expert opinion of retired U.S. Bureau of Alcohol,
Tobacco, and Firearms (“ATF”) Special Agent and Criminal Justice Associate Professor, W.
Lloyd Grafton (“Grafton”), in support of his excessive force claims. Grafton reviewed what he
understood as the undisputed facts of the arrest, and he analyzed Officer Jenkins’ conduct in light
of the tenets of Pressure Point Control Tactics (“PPCT”) and the town of Walker police policy
manual regarding the use of K-9 units. Defendants seek to exclude Grafton’s testimony on three
grounds. Defendants contend that (1) Grafton is not qualified to testify as an expert in the use of
canines as law enforcement tools; (2) his opinion is not based on recognized principles of
professional conduct; and (3) his opinion is based on erroneous factual assumptions and legal
conclusions.

25

With respect to Grafton’s qualifications, defendants argue that Grafton is not qualified to
testify as an expert on the use of canines as law enforcement tools. Defendants contend that
Grafton has never had training in the use of canines in law enforcement, and is not a member of
the U.S. Police Canine Association. In addition, defendants argues that Grafton is not qualified
to evaluate law enforcement procedure during traffic stops because he has never attended a
police academy in Louisiana, never attended P.O.S.T. (Police Officer Standard of Training)
training in Louisiana, never attended training for the Louisiana Law Enforcement Handbook, and
has never conducted routine traffic stops.
Stranjac acknowledges that Grafton is not an expert specifically in the use of canines.
However, he contends that Grafton is well qualified to render an expert opinion on the use of
force continuum and PPCT through his years of education and experience. Grafton’s resume
shows that that he has been a professor of criminal justice since 2004 with duties consisting of
teaching various law enforcement courses including those on policing, use of force, search and
seizure, and ethics.55 He has also been a police consultant and expert witness since 1998,
advising law enforcement departments and trial lawyers on matters concerning use of force,
police pursuits, firearms, and other issues.56 Grafton has approximately twenty (20) years of
experience working as a special agent for the ATF enforcing federal laws, training police
officers, instructing at the federal law enforcement training center, participating in drug raids,
and performing other law enforcement duties.57 The Court agrees with Stranjac that Grafton is
qualified based on his knowledge, experience, and training to render an expert opinion with
55

R. Doc. No. 46-1.

56

Id.

57

Id.

26

respect to Officer Jenkins’ use of force in this case. Cf. Brown v. Strain, No. 09-2813, 2010 WL
3523026, at *1 (E.D. La. Aug. 31, 2010) (Berrigan, J.).
With respect to the relevance and reliability of Grafton’s report, defendants contend that
the report relies on a statement of facts that lacks evidentiary support and is “clearly wrong.”
Defendants contend that Grafton testified in his deposition that the timeline of the events in his
report is merely an estimate. Defendants also contend that Grafton failed to characterize the
arrest as one for felony aggravated flight from an officer, and that he did not consider the totality
of the circumstances as set forth in the arrest report or as explained by the arresting officers.
Finally, defendants contend that Grafton’s report includes inadmissible legal conclusions,
namely his statement that, “I am of the opinion that Officer Rusty Jenkins used excessive force
in arresting Mr. Dino Stranjac. . . . It was not necessary or [sic] was it objectively reasonable
under the circumstances.”
As Stranjac suggests, defendants’ arguments are concerned primarily with the weight
Grafton’s testimony should be assigned rather than its admissibility. Moreover, this case will be
presented as a non-jury trial and the gatekeeping purpose of Daubert is not implicated. N.W.B.
Imports and Exports Inc. v. Eiras, 2005 WL 5960920, at *1 (M.D. Fla. Mar. 22, 2005) (citing
Albarado v. Chouest Offshore, LLC, No. 02-3504, 2003 WL 22204538, at *1 (E.D. La. Sept.5,
2003) (Barbier, J.)). This Court will, therefore, receive Grafton’s testimony at trial, make a final
admissibility decision and, if admissible, accord it the weight, if any, it deserves. See id. The
Court notes, however, that Grafton will not be permitted to testify to conclusions of law as that
will not assist the trier of fact. See Toomer v. Florida Parishes Juvenile Justice Comm’n, No.
03-0734, 2005 WL 5974570, at *1 (E.D. La. Mar. 3, 2005) (Lemelle, J.); Brown v. Strain, No.
09-2813, 2010 WL 3523026, at *1 (E.D. La. Aug. 31, 2010) (Berrigan, J.).
27

CONCLUSION
For the foregoing reasons,
IT IS ORDERED that motion for summary judgment is GRANTED with respect to
plaintiff’s false arrest claims asserted under federal law. The motion is DENIED in all other
respects.
IT IS FURTHER ORDERED that the motion to exclude Grafton’s expert testimony is
GRANTED to the extent that Grafton seeks to testify with respect to legal conclusions. The
motion is DENIED in all other respects.

New Orleans, Louisiana, September 5, 2012.
__________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

28