White v United States of America et al

Filing 84

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendants motions for summary judgment (#50, #52) are DENIED in part and GRANTED in part.IT IS FURTHER ORDERED that plaintiffs motion for sanctions (#78) is DENIED.IT IS FINALLY ORDERED that defendants motion to exclude plaintiffs expert testimony (#54) is GRANTED in part as described above. Signed by District Judge Stephen N. Limbaugh, Jr on 5/16/18. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HOPE ANGELIC WHITE, et al.

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Plaintiffs,
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v.
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THE UNITED STATES OF AMERICA, )
et al.,
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Defendants,
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No. 4:15CV1252 SNLJ

MEMORANDUM AND ORDER
Plaintiff Hope Angelic White brings this action individually and in her capacity as
personal representative for the Estate of her decedent, Myron Pollard, against defendants
the United States of America and Bernard Hansen, an agent with the United States
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). Currently pending
before the Court are defendants’ motions for summary judgment (#50, #52), the
plaintiff’s motion for sanctions (#83), and defendants’ motion to exclude plaintiff’s
expert testimony (#54).
I.

Factual Background
A.

Facts Related to Summary Judgment

On August 29, 2012, an undercover ATF agent met several men behind a
warehouse in St. Louis, Missouri. The men were thought to have committed robberies
and other crimes, including home invasions for the purpose of stealing money, drugs, or
contraband. The agent posed as disgruntled drug courier who wanted to arrange for the

robbery of his drug supplier. The plan was to arrest the men before they embarked on the
robbery.
Because the men were suspected to be armed and dangerous, the ATF Special
Response Team ("SRT") --- the ATF's version of a SWAT team --- was asked to assist
with the undercover operation. Defendant Hansen was a member of SRT 1, which was
assigned to assist with this particular operation. At the pre-operation briefing, Hansen
learned that the suspects told a confidential informant that they were going to rob and kill
the undercover agent after the robbery.
SRT 1 arrived at the parking lot before the suspects arrived. Several members of
SRT 1, including Hansen, were in the back of a U-Haul truck parked in the warehouse
parking lot ready to arrest the suspects once the undercover agent confirmed that the
suspects were armed and prepared to commit the fictitious robbery.
While in the back of the U-Haul, although the SRT team could not see the
suspects, Hansen learned that two suspects arrived on foot and more suspects arrived in a
car shortly thereafter. Hansen knew generally where the suspects would be based on a
map that he saw during the briefing.
After the signal to start the arrests, Hansen was first to exit the U-Haul. He was
assigned the responsibility of ascertaining the threat level being encountered by the entire
team. The suspects’ car was parked approximately two car lengths away from the UHaul truck: the U-Haul was parked next to a fence, a driveway was next to the U-Haul, a
white van was parked facing the wall of the warehouse next to the driveway, and the
suspect’s car was parked on the other side of that van, facing the wall of the warehouse.
When Hansen jumped out of the back of the U-Haul, he had to turn left and then left
again to face the suspects and the car. Hansen yelled “Police!” while running toward the

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suspects’ car with the other agents behind him. When Hansen was approximately seven
yards away from the suspects’ car, he saw the car’s reverse lights come on. Hansen and
the other agents were all behind the car, although it is unclear how close they were to the
car’s path. The car reversed in a semi-circle back in Hansen’s general direction and then
to Hansen’s right. The plan had been for the SRT members to form a line along the
driver’s side and rear of the suspects’ car in an “L-shape” to provide coverage from
multiple angles. Hansen, concerned that the car would hit himself or members of the
SRT, raised his rifle and aimed at where he believed the driver was sitting. Hansen
moved to his left to avoid the vehicle and fired three rounds toward the driver in an effort
to stop the car. Another ATF agent who had also been in the back of the U-Haul fired
baton round shots from his weapon at the driver of the suspects’ car. Meanwhile, a bucket
truck (similar to the sort of truck used by electric companies to work on power lines)
came from the other side of the parking lot and rammed into the car, disabling it. Fewer
than three seconds elapsed between the time the car went into reverse and when it came
to a complete stop.
Although Hansen did not know it, plaintiff’s decedent, Myron Pollard, was sitting
in the front passenger seat of the suspects’ car. It was later determined that one of
Hansen’s bullets struck Pollard, who died the next day at a hospital.
Notably, plaintiff denies that the car’s driver, Dametrius Creighton, was backing
up toward the SRT members. However, Creighton admitted he backed the car in their
direction at the hearing in which he pleaded guilty to conspiracy to commit a Hobbs Act
robbery.
Plaintiff brings this action as the personal representative for Pollard’s estate and
also as an individual. Her remaining counts are under the Federal Tort Claims Act

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(“FTCA”) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Defendants have each filed a motion for summary judgment.
B.

Facts Related to Sanctions Motion

ATF Agent Jason French set up four video cameras in advance of the sting
operation in order to record the events of that morning. The cameras did not record onto
storage devices local to the video cameras. Instead, the cameras wirelessly transmitted
the video to a server at a remote location. A copy of the videos from each camera was
burned onto DVDs and then given to an ATF agent. According to the defendants, the
DVDs were then put in a sealed envelope and put in an evidence room to be used in the
criminal prosecutions following the sting operation.
None of the four videos show the shooting clearly. According to plaintiff,
None of the four cameras showed the actual shooting by Special Agent
Hansen –two of them were obscured by other objects and two are missing
the video frames at the time of the shooting. Of the two videos that are
missing the video frames during the shooting, one has “frozen” or repeated
digital frames although the analogue audio is not erased. The other video (a
pole camera), does not have an audio file; but the video is missing between
the time the car backed up (that included the shooting) and the time a
ramming truck rammed into the back of the car. Over four seconds of video
are missing from the pole camera.
(#56-1 at 2.) ATF Agent French explained at his deposition that he believed the “frozen”
scenes in the video were caused by the wireless signal being disrupted by all the vehicles
getting in between the transmitter and receiver. Plaintiff sought access to the server onto
which the cameras recorded (and from which the DVDs were made).
ATF Agent Grothaus had possession of the server itself. He states in his
declaration that he believe he deleted the video files from the server in early 2013 as part
of routine maintenance of the server, but it is possible the files were no longer on the

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server at that time. Before deleting the files, Grothaus confirmed with the respective case
agents that the video files were no longer needed on the server.
An ATF Investigator recovered 75 deleted files from the server. However, the
deleted files did not include any data that would allow them to be identified by a date and
time recorded. They would have to be viewed one-by-one to determine whether they
were responsive, but the Investigator could not view them with her software. So she emailed one small file to a colleague in another location, who was able to view the file and
determine it was not responsive (it was video of an office interior and copy machine).
The investigator could not email the other files because they were too large.
Plaintiff moved for sanctions against defendants pursuant to Federal Rule of Civil
Procedure 37 and common law spoliation of evidence principles. Plaintiff sought an
order stating that defendants violated Rule 37(e) and common law principles of spoliation
of evidence by destroying the original videos on the server. Plaintiff seeks either a
judgment against defendants or an adverse jury instruction against defendants at trial
regarding the content of the deleted videos.
This Court treated plaintiff’s motion as a motion to compel and ordered defendants
to inspect the 75 deleted video files and produce any files that relate to this matter to the
plaintiff. (#74.) The Court stated it may entertain a renewed motion for sanctions at a
later date, if appropriate. The parties have filed supplementary memoranda. Defendants
were unable to locate any video files on the server that relate to this case. (#75.) Plaintiff
has renewed her motion for sanctions and seeks denial of defendants’ summary judgment
motions (#80).

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The Court has viewed the videos in question, which were submitted by defendants
in connection with the recent supplementary briefing. Three of the five video files show
action from the relevant time period.
The Pole Camera: One video --- taken from a camera mounted high on a pole --includes a timestamp that shows that the video includes one frame every two to four
seconds, with some longer gaps in between the frames. The speed at which the camera
streamed footage depended on the internet connection that wireless transmitted images
from the camera to the offsite server which recorded the footage. Unfortunately, the
video skips from 11:25:59 to 11:26:18 to 11:26:22. At 11:25:59, the back door of the UHaul is closed and the suspects appear to be talking to the undercover agent. At
11:26:18, the back door of the U-Haul is open, but none of the SRT members are
completely outside the U-Haul yet. By 11:26:22, the car has crashed into the bucket
truck, and the car is surrounded by SRT members.
The Side Camera: Two video cameras were mounted under a tractor-trailer that
was parked in front of the U-Haul. (Inexplicably, it appears that the Court was not
provided with complete video from one of the two cameras, so it is not clear what video
from the other camera shows.) The video footage provided to the Court shows the
camera was focused at the van parked up against the building. It is difficult to see what is
going on behind the van, but the suspects clearly retreat as the ATF agents approach and
then the car backs up quickly, turning to the right. There is gunfire and smoke, and the
bucket truck can be seen ramming into the back of the car. It is impossible to see what is
going on inside the suspects’ car either before or after it is hit by the bucket truck. The

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video has relatively low resolution, so although the suspects and SRT members’ general
movements are easy to make out, there is no fine detail. The video freezes briefly as the
SRT members approach the suspects’ car, but because of the angle of the camera and the
recording’s low-resolution format, it does not appear that any information of use was lost
as a result of the frozen frame. Notably, the video freezes briefly at least one other time
earlier in the recording.
The Rear Camera: Another video camera was mounted on the ATF surveillance
vehicle in an alley to the right of the warehouse parking lot. It is zoomed in on the
suspects’ car at the time of the incident. The suspects may clearly be seen retreating, but
then the bucket truck pulls in between the camera and the suspects’ car, obscuring any
useful view of the incident.
II.

Spoliation Motion
Because plaintiff seeks, inter alia, denial of defendants’ summary judgment

motion as a sanction for deletion of the original video files recorded on the server, the
Court first addresses plaintiff’s spoliation motion. (#78.) Rule 37(e), upon which
plaintiff’s motion is based in part, states as follows:
Failure to Preserve Electronically Stored Information. If electronically
stored information that should have been preserved in the anticipation or
conduct of litigation is lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through additional
discovery, the court:
(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another
party of the information’s use in the litigation may:

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(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was
unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e). Plaintiff bears the burden of showing the necessary intent and
prejudice required to prove her spoliation claim. Johnson v. Ready Mixed Concrete Co.,
424 F.3d 806, 811 (8th Cir. 2005).
Plaintiff asserts that defendants’ declarants demonstrate that multiple video files
recovered from the original server “were unable to be converted into a viewable format”
by resources available to the ATF. (#78 ¶¶ 6, 10.) Plaintiff states she is harmed because
“the erased video would tell a million words and substantiate plaintiffs’ claims according
to eyewitness Damitrius Creighton, plaintiffs’ expert, and the physical evidence at the
scene.” (Id. ¶ 12.)
ATF Agent French testified that he downloaded the video files in their entirety
from the server onto the DVDs and that no one could have altered the footage to exclude
several seconds of video recording. He further testified that he believed the “frozen”
frames were caused by the wireless signal being interrupted by the vehicles moving in
between the transmitter and receiver. Thus, defendants argue, the video recordings on the
server were identical to what was recorded onto and preserved on the DVDs. Plaintiff
has put forth no evidence to suggest that the videos on the server would have shown
anything different.

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Furthermore, the Advisory Committee Notes on the 2015 Amendment of Rule
37(e) state that the “rule does not apply when information is lost before a duty to preserve
arises.” Fed. R. Civ. P. 37 advisory comm. nn. 2015 Amend. Plaintiff did not file her
administrative claims with ATF until August 27, 2014, which was nearly a year after the
server files were deleted. The DVD copies of the footage still existed and were preserved
in the ATF field office’s evidence vault. Plaintiff has not shown culpable intent to
warrant the severe sanctions of a default judgment or denial of summary judgment. The
Court will also decline to give plaintiff’s adverse inference instruction to the jury, “that it
may or must presume the information was unfavorable to the [defendants],” because,
under the circumstances, the reference to a “presumption” is not supported. However,
plaintiff will be permitted to argue an inference --- as opposed to a presumption --- that
the missing parts of the video would have been detrimental to defendants.
III.

Summary Judgment Motions
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment

if all of the information before the court demonstrates that “there is no genuine issue as to
material fact and the moving party is entitled to judgment as a matter of law.” Poller v.
Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the
moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this
burden, the nonmoving party must do more than show that there is some doubt as to the
facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The Court is required to resolve all conflicts of evidence in
favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541
F.2d 207, 210 (8th Cir. 1976). However, the nonmoving party’s allegations must be
supported by sufficient probative evidence that would permit a finding in his favor on
more than mere speculation, conjecture, or fantasy. Mann v. Yarnell, 497 F.3d 822, 825
(8th Cir. 2007) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)).
With these principles in mind, the Court turns to the discussion.
A.

Defendant Hansen’s Motion for Summary Judgment

The Court first discusses Count II of plaintiff’s complaint, which brings a Bivens
action against defendant Hansen, alleging violations of Myron Pollard’s rights under the
Fourth and Fifth Amendments to the United States Constitution.
1.

Individual capacity claim

Plaintiff’s claims include a Bivens claim in her individual capacity. Plaintiff
insists this is proper because the Missouri wrongful death statute allows the parent to sue
for the death of a child, citing § 537.080.1 RSMo. The Supreme Court, however, has
held that a Bivens claim survives the decedent’s death regardless of state survivorship

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laws. Carlson v. Green, 446 U.S. 14, 25 (1980). Thus, the Bivens action must be
brought by plaintiff as representative of the decedent’s estate.
2.

Substantive due process claim

Plaintiff includes an excessive force claim as a substantive due process claim
brought under the Fifth Amendment. This claim must be dismissed because excessive
force “claims are properly analyzed under the Fourth Amendment’s “objective
reasonableness” standard, rather than under a substantive due process standard.” Graham
v. Connor, 490 U.S. 386, 388 (1989). Plaintiff attempts to skirt this requirement, citing to
a recent Supreme Court case in which the Court declined to determine whether Fifth
Amendment analysis could apply to a situation in which a border patrol agent shot and
killed a Mexican national standing across the border. See Hernandez v. Mesa, 137 S. Ct.
2003, 2007 (2017). But the law remains that
all claims that law enforcement officers have used excessive force—deadly
or not—in the course of an arrest, investigatory stop, or other “seizure” of a
free citizen should be analyzed under the Fourth Amendment and its
“reasonableness” standard, rather than under a “substantive due process”
approach. Because the Fourth Amendment provides an explicit textual
source of constitutional protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing these claims.
Graham, 490 U.S. at 395 (emphasis in original). The Court will grant summary
judgment to defendant on plaintiff’s substantive due process claim.

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3.

Qualified immunity

Defendant argues that he is entitled to summary judgment on plaintiff’s Fourth
Amendment claim because he is entitled to qualified immunity. Government officials
such as ATF agents are shielded from liability for their actions unless the official’s
conduct violates a clearly established constitutional or statutory right of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Sanders v. City of Minneapolis, Minnesota, 474 F.3d 523, 526 (8th Cir. 2007). To
determine whether an official is entitled to qualified immunity, the Court must determine
(1) whether the plaintiff’s constitutional or statutory rights were violated and (2) whether
those rights were clearly established at the time of the alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Defendant contends that the proper inquiry is
whether it was reasonable for Hansen to use deadly force (that is, to shoot into the car at
the driver) in order to stop the car. Defendant, of course, says his use of deadly force was
reasonable under the circumstances. Indeed, the Eighth Circuit has held that officers are
entitled to use deadly force when a suspect drives his car in a manner that poses a threat
of serious physical harm to others. Sanders, 474 F.3d at 526; Hernandez v. Jarman, 340
F.3d 617, 623 (8th Cir. 2003). In Sanders, for instance, the officer told the plaintiff to
show his hands, but instead plaintiff backed his car into the security guard’s car and then
accelerated down an alley toward other officers. 474 F.3d at 526. The Court held the
officer’s use of deadly force against the driver was reasonable. Id. Similarly, in
Hernandez, a suspect had already intentionally crashed his car into an officer’s car and
was driving toward another officer when that officer shot at him. 340 F.3d at 623. The

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Court held that the officer’s use of deadly force was objectively reasonable under the
circumstances. Id. Here, defendant says that he knew from the pre-operation briefing
that the suspects were armed and that they planned to kill the undercover agent after the
robbery; when defendant yelled at the suspects to “let me see your hands,” he instead saw
the car’s reverse lights come on and the car started to reverse in his general direction. He
says he was standing directly behind the car when he fired the first shot at the driver and
then he fired two more shots at the driver while running to his left. He further says he did
not know the car would turn to the right to the degree that it did. Rather, he believed that
he and the ATF agents blindly exiting the U-Haul behind him were likely to be hit by the
car.
Although it is a close case, the Court finds that there is a question of fact as to
whether defendant’s actions were reasonable under the circumstances. Even though
defendant had heard the suspects planned to kill the undercover agent after the robbery,
this case is distinguishable from cases like Sanders and Hernandez because in those cases
the suspect intentionally crashed into another vehicle first, and, in Sanders, the car was
speeding down an alley with officers directly in its path. Here, even viewing the video
footage, it is not clear that the defendant reasonably believed he and his fellow ATF
agents were in imminent danger in light of the angle at which the car ultimately pulled
out of its parking spot. Defendant and the other agents were not in a narrow alley, and
there is evidence --- including testimony from the driver Damitrius Creighton1 --- that the

1

Damitrius Creighton was later charged, pleaded guilty, and sentenced to prison for his role in
the events of that day. As part of his plea, he signed a stipulation of facts that included the

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driver was not reversing toward the agents and that shots were fired after the vehicle had
been disabled by the ramming bucket truck. Indeed, Creighton testified that shots were
fired before he put the car into reverse and after the car was stopped by the bucket truck.
(E.g., #61-3 at 46, 94.) And then, of course, there is the issue of the missing video
frames.
Further, the Court disagrees with defendant’s assessment that Myron Pollard’s
constitutional rights were not clearly established.

The question is whether “the law at

the time of an incident provided fair warning to the defendants that their alleged conduct
was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation
and alteration omitted). The defendant relies on a Supreme Court case noting that it has
“never found the use of deadly force in connection with a dangerous car chase to violate
the Fourth Amendment, let alone to be a basis for denying qualified immunity.” Mullenix
v. Luna, 136 S. Ct. 305, 310 (2015). This, however, was not a dangerous car chase per
se, but was a situation in which the defendant officer may or may not have reasonably
determined that the reversing car posed a serious threat to himself or others. There exists
a genuine dispute of material fact, and the Court must deny summary judgment to
defendant.
statement that he “backed the Grand Prix in the direction of SRT agents at a high rate of speed.
Fearing for their lives, the SRT fired on the Grand Prix, killing M.P. and wounding Jones.” (See
#72 at 6.) He also testified under oath that those facts were true. Defendants contend that
Creighton cannot now create a genuine issue of fact by changing his sworn testimony, citing to
Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 391 (8th Cir. 2010). But that case stands
for the proposition that a party cannot change its testimony in order to create an issue of fact. Id.
Creighton is not a party. Although defendants suggest that allowing Creighton to testify that he
lied during his plea will encourage other criminal defendants to do so, it is a criminal act to
commit perjury, and the threat of a perjury charge should be adequate to dissuade criminal
defendants (or anyone) from lying under oath. Creighton may testify at his own risk.

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B.

The Government’s Motion for Summary Judgment

Plaintiff’s Count I brings a claim against the United States pursuant to the Federal
Tort Claims Act (“FTCA”) alleging that defendant Hansen used excessive force when he
shot and killed plaintiff’s son, Myron Pollard, and that such conduct was negligent,
wrongful, and/or tortious. The FTCA provides a limited waiver of sovereign immunity
for “negligent or wrongful acts by federal employees committed while acting within the
scope of their employment.” Washington v. Drug Enf’t Admin., 183 F.3d 868, 873 (8th
Cir. 1999). “The United States is liable to the same extent that a private person under
like circumstances would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” Id. Missouri law permits a law enforcement officer
to use deadly force if he
reasonably believes that such use of deadly force is immediately necessary
to effect the arrest and also reasonably believes that the person to be
arrested... may … endanger life or inflict serious physical injury unless
arrested without delay.
563.046.3(2) RSMo; Fitzgerald v. Patrick, 927 F.2d 1037, 1038 (8th Cir. 1991).
The Missouri Supreme Court held that “‘[r]easonably believe’ means ‘a belief
based on reasonable grounds, that is, grounds that could lead a reasonable person in the
same situation to the same belief. This depends upon how the facts reasonably appeared.
It does not depend upon whether the belief turned out to be true or false.’” State v. Smith,
456 S.W.3d 849, 852 (Mo. banc 2015) (quoting MAI-CR 3d 306.06A[6]). “A person
who uses force as described in sections 563.031... [and] 563.046... is justified in using

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such force and such fact shall be an absolute defense to ... civil liability.” §563.074.1
RSMo.
The government says it is entitled to summary judgment because Hansen’s use of
deadly force was necessary to prevent serious physical injury to himself and his fellow
ATF officers. However, as discussed above, the Court finds that a disputed issue of fact
exists regarding Hansen’s reasonable belief that serious injury or death was imminent.
Summary judgment must be denied.
IV.

Motion to Exclude Expert Witnesses (#54)
Plaintiff identified two experts, Stephen Gardner and Mark Ezra, and disclosed

two expert reports written by Gardner and “peer-reviewed” by Ezra. Both Gardner and
Ezra are mechanical engineers who perform accident reconstruction for cases involving
car accidents or claims of product malfunctions. Plaintiff seeks to introduce their
testimony offering opinions about Hansen’s location relative to the suspects’ vehicle and
whether he was in danger. Specifically, plaintiff’s experts purport to opine, within a
“reasonabl[e] degree of engineering certainty” that:
1) At no time was the movement of the subject vehicle a physical threat to
law enforcement personnel;
2) The suspect vehicle did not achieve a high speed during its reversing
maneuver; and
3) The extent of the damage to the rear of the suspect vehicle was the result
of the velocity of the subject vehicle at impact with the police man-lift
equipped truck added to the velocity at impact of the man-lift equipped
truck itself. The impact energy causing the damage to the subject vehicle
resulted from the kinetic energy of both vehicles at the instant of impact.

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Defendants argue that the testimony should be excluded because Gardner and Ezra
are not qualified to offer their opinions, and, further, their opinions are not reliable or
relevant.
A.

Legal Standard

This Court must act as a “gatekeeper” to “insure that proffered expert testimony is
both relevant and reliable.” Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006)
(quoting Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir. 2003)); see also
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Federal Rule
of Evidence 702 governs the standard for this Court’s admission of expert testimony. It
provides:
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.
B.

Discussion

Defendants argue that the following matters should be excluded from evidence.
Conclusion 1: At no time was the movement of the subject vehicle a
physical threat to law enforcement personnel.
Defendants contend that Conclusion 1 is not “an opinion within a reasonable
degree of engineering certainty,” but rather it presents a legal conclusion and thus does
not assist the trier-of-fact. “It is well-settled that experts may not offer legal conclusions

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about a case.” Morley v. Square, Inc., 4:10CV2243 SNLJ, 2016 WL 1728367, at *2 (E.D.
Mo. Apr. 29, 2016) (citing In re Acceptance Ins. Companies Sec. Litig., 423 F.3d 899,
905 (8th Cir. 2005)). Defendants argue that the conclusion that the vehicle did not pose a
physical threat to anyone implicitly addresses the reasonableness of Hansen’s use of
deadly force because it answers the ultimate question of whether the vehicle posed a
threat of serious injury. Notably, plaintiff did not address this argument in her response
in opposition to defendants’ motion. This Court agrees with defendants and will exclude
testimony regarding Conclusion 1.
Conclusion 1 is also excluded for another reason. Defendants and plaintiff devote
most of their briefing to Gardner’s qualifications with respect to ballistics and bullet
trajectory analysis. In the “Analysis” section of Gardner’s report, he describes and
provides illustrations of the “probable field of fire positioning” in an effort to show where
Defendant Hansen was standing when he fired his weapon into the car. Gardner’s
conclusion that Hansen was not in danger at the time he shot into the car is ultimately
based upon that analysis. Defendants object because they say Gardner and Ezra are not
qualified to offer the analysis due to the fact that they are admittedly not ballistics
experts.
First, Gardner testified that he is not a ballistics expert or an expert in bullet
trajectory analysis. He has no experience, training, or education in bullet trajectory
analysis. Almost all of Gardner’s work as an expert witness has been within the realm of
accident reconstruction where the injury at issue was caused by the accident itself. Here,
in contrast, Gardner has tried to determine where defendant Hansen was located when he

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shot into the suspects’ vehicle based upon bullet trajectories and estimated speed and
location of the car. Defendants hired their own expert, Alexander Jason, a boardcertified shooting reconstructionist, to review Gardner and Ezra’s report. The focus of
Jason’s work has been on crime scene analysis, shooting incident reconstruction, and
would ballistics research. Jason opined that the combination of Gardner’s unfamiliarity
with the science of wound ballistics and bullet performance makes Gardner’s conclusions
unscientific and unreliable.
Plaintiff responds that Gardner’s lack of ballistics expertise is irrelevant because
“no one is trying to match a bullet to a gun and to a shooter.” (#63 at 2.) Plaintiff insists
that her expert needs only to be an expert in physics, engineering, and accident
construction in order to show whether Hansen was in the path of the suspects’ vehicle.
She further states that her experts used ballistic trajectory equations commonly known to
all engineers.
Defendants’ expert Jason disagrees. As a shooting reconstructionist/crime scene
analyst, Jason is required to make determinations as to the sequence of events, shooting
location, trajectory analysis, and bullet penetration into clothing, walls, cars, and other
objects. Further, although plaintiff states her experts are not trying to “match a gun to a
shooter,” that is in essence what Gardner attempts to do --- there were two guns, two
types of bullets, and two shooters on this scene, and Gardner attempts to show where one
of those shooters was located. Gardner admits that he is not an expert in ballistics.
Plaintiffs cite to no cases in which Gardner or Ezra have been accepted as experts on the
issues of ballistics, bullet trajectory analysis, or shooting reconstruction. Although

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Gardner and Ezra may be accomplished accident reconstructionists, and they appear to be
qualified to opine as to the trajectory of the suspects’ vehicle when it collided with the
bucket truck, the question of where a shooter was standing requires a different kind of
expertise. The Court agrees that plaintiff’s proffered experts do not possess the type of
expertise required to satisfy the standards of Federal Rule of Evidence 702. They will not
be permitted to testify as to the matter of Hansen’s location or make conclusions
regarding whether he was in harm’s way when he fired his weapon.
Conclusion 2: The suspect vehicle did not achieve a high speed during
its reversing maneuver.
Defendants object to this testimony because it tells the factfinder what result to
reach and also does not assist the trier of fact. Gardner testified that a “high rate of speed”
depends on the circumstances --- e.g., whether the vehicle is in a parking lot or on the
highway, and that his opinion is based on his practical experience. It is “kind of a
common sense thing,” Gardner testified at his deposition, further stating that “I don’t
even think you would need to reference an engineer. I mean, people that are experienced
driving cars would probably assign similar speeds as being reasonable or not reasonable
in a parking lot.” (#54-1 at 190.) Gardner also stated that he is not aware of any
professional publications defining what constitutes a high speed for a car travelling
within a parking lot. Thus, defendants argue, Gardner’s conclusion that the car did not
reach a high rate of speed is his personal opinion and not based on industry practice or
standard. The Court and jury are just as capable of reaching this conclusion without his
testimony. The Court agrees with defendants and will prohibit this testimony.

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Conclusion 3: The extent of the damage to the rear of the suspect
vehicle was the result of the velocity of the subject vehicle at impact
with the police man-lift equipped truck added to the velocity at impact
of the man-lift equipped truck itself. The impact energy causing the
damage to the subject vehicle resulted from the kinetic energy of both
vehicles at the instant of impact.
Defendants object to this conclusion because it is not relevant to any issue in the
case. Gardner’s report includes the calculation that the suspects’ vehicle was moving
around 17.7 miles per hour at the time of the collision. Gardner explained in his
deposition that he included this conclusion in his report because, if an “accident
reconstructionist” looked at the suspects’ damaged car and did not look at the other
vehicle, he would think the car was going much faster than 17.6 miles per hour. Gardner
said that the damage was extensive because the car crashed into the bucket truck which
was itself moving toward the car at 10 to 12 miles per hour. Defendants argue that
because they did not retain an accident reconstructionist to counter Gardner’s opinion
about the velocity of the suspects’ car, this conclusion does not serve its purpose.
Defendants do not appear to challenge Gardner’s statement in his report that the car was
moving around 17.6 mph at the time it hit the bucket truck. In any event, the Court finds
that the “conclusion” regarding the cause of the vehicle’s rear end damage is relevant to
explaining why the car was damaged extensively despite Gardener’s conclusion that it
was traveling only around 17.6 mph. That testimony may help the trier of fact, though it
seems that a 17.6 mph speed in reverse may aid the government’s case more than
plaintiff’s case.

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Testimony about the Video Footage
Defendants further object to Gardner’s opinion regarding the video footage.
Gardner testified at his deposition about what he believes the video footage depicts. For
example, he testified that he believed a particular individual seen in the footage is Special
Agent David Hall, who was carrying an SL-6 (or baton gun). However, when pressed
about how he made that determination, Gardner admitted he did not know what a baton
gun looks like and that he could not say with certainty that the person was Hall. Gardner
also testified that we cannot tell if all the agents are captured in the video footage, but
later testified that there were not any ATF agents behind the suspects’ car when shots
were fired.
The Court agrees that Gardner’s statements about what the video shows are
undermine by conflicting statements in his own deposition. The jury will be able to view
the video footage and make those determinations for themselves.
Testimony about the Video Quality and Methods
Gardener commented in his report and in his deposition about the quality of the
video footage and about how the ATF’s methods for recording were “extraordinarily
odd” and that there were better, easier ways to record such events. He also commented
that he could not think of a reason why the repeated frames occurred in the video
recordings. Defendants object because they state that Gardner insinuates, and will
suggest to the jury, that there is something suspicious about the video footage.
This Court already granted defendants’ motion to strike Gardner’s testimony
regarding the video footage irregularities (#49). The Court will exclude any such
testimony from trial as well.

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V. Conclusion
The plaintiff’s motion to reconsider motion for sanctions (#78) is denied, but
plaintiffs may argue an inference that the missing parts of the videos would be
detrimental to the defendants at trial. Defendant Hansen’s motion for summary judgment
is granted with respect to plaintiff’s individual capacity Bivens claim and plaintiff’s
substantive due process claim. Defendant Hansen’s motion for summary judgment on
the excessive force claim is denied, and the government’s motion for summary judgment
is denied. Defendants’ motion to exclude plaintiff’s expert witnesses is granted in part as
provided above.

Accordingly,
IT IS HEREBY ORDERED that defendants’ motions for summary judgment
(#50, #52) are DENIED in part and GRANTED in part.
IT IS FURTHER ORDERED that plaintiff’s motion for sanctions (#78) is
DENIED.
IT IS FINALLY ORDERED that defendants’ motion to exclude plaintiff’s
expert testimony (#54) is GRANTED in part as described above.
Dated this 16th day of May, 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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