Reed v. Lieurance et al

Filing 165

ORDER denying 144 Motion in Limine; denying 150 Motion for Summary Judgment Signed by Judge Donald W. Molloy on 12/11/2017. (ELL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DIST4RICT OF MONTANA
BUTTE DIVISION

FILED
DEC 11 2017
Clerk, U.S District Court
District Of Montana
Missoula

CV 13-17-BU-DWM

ANTHONY PATRICK REED,
Plaintiff,

OPINION
and ORDER

vs.
DOUG LIEURANCE, in his individual
capacity; BRIAN GOOTKIN, in his
individual capacity; GALLA TIN
COUNTY SHERIFF'S OFFICE, a
department of Gallatin County; and
GALLATIN COUNTY,
Defendants.

In May 2012, Defendant Doug Lieurance ("Deputy Lieurance" ) cited
Plaintiff Anthony Reed ("Reed") for obstructing a bison' herding operation
outside of Yellowstone National Park ("the Park"). Reed is a volunteer with the

1

The Ency clopedia Britannica explains that buffalo "are indigenous to
South Asia (water buffalo) and Africa (Cape buffalo), while bison are found in
North America and parts of Europe." What 's the Difference Between Buffalo and
Bison? (https://www.britannica.com/ demystified/whats-the-difference-between
-bison-and-buffalo) (accessed 8 Dec. 2017). The Buffalo Field Campaign website
addresses this issue, concluding "common usage has made the term 'buffalo' an
acceptable synonym for the American bison." Buffalo Basics (http://www.
buffalofieldcampaign.org/about- buffalo/buffalo-basics) (accessed 8 Dec. 2018).
For the sake of consistency, the term "bison" is used throughout this opinion.
-1-

Buffalo Field Campaign ("Campaign"), a§ 50l(c)(3) non-profit conservation
organization that sends volunteers to observe and document the herding or
"hazing" of bison in or near the Park. Reed v. Lieurance, 863 F.3d 1196, 1201
(9th Cir. 201 7). Pursuant to an interagency agreement, government personnel
from a number of state and federal agencies carry out hazing operations as many
as four or five times per week between December and July. Id. The Campaign
provides video footage and information about the hazing to news outlets and
government agencies. Id.
Reed brought this action pursuant to 42 U.S.C. § 1983, alleging that Deputy
Lieurance's conduct violated Reed's First and Fourth Amendment rights and
related Montana constitutional rights, and that Gallatin County, the Gallatin
County Sheriffs Office, and Sheriff Brian Gootkin failed to train officers on
Montana's obstruction statute and the First and Fourth Amendments. (Doc. 1.)
FACTUAL BACKGROUND

The facts as outlined below are those the parties have agreed to, (see Addt'l
Stip. Facts, Doc. 147), and those viewed in the light most favorable to Reed, Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam).

I.

Bison Hazing Operations
At all times relevant to this case, Agent Rob Tierney, a Bison Program
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Specialist from the Montana Department of Livestock ("Livestock Department"),
was responsible for overseeing bison management operations outside of the Park.
((Doc. 147 at iii! 1, 2.) Operations within the Park were the responsibility of the
National Park Service ("Park Service"). (Id.) At that time, and in accordance with
the Operating Procedures agreed to as part of the Bison Management Plan, the
Livestock Department frequently requested law enforcement assistance from the
Gallatin County Sheriffs Office ("Sheriffs Office"). (Id. at if 3.) When the
Livestock Department planned a bison hazing operation, a briefing was held
between officers of the Department, the Sheriffs Office, and any other agencies
that had personnel involved in the operation. (Id. at if 4.) At the briefing, the
Livestock Department officer in charge of the operation, typically Agent Tierney,
explained the planned operation and the approximate location, (id.), and the
Sheriffs Office would coordinate haze-related law enforcement, (id. at if 5).
II.

The Incident

On May 23, 2012, there was a hazing operation which involved moving
bison from the area of the Madison Arm Resort eastward and then across U.S.
Highway 191, and back into the Park. (Id. at if 6.) Reed and Kasi CraddockCrocker were in a vehicle driving ahead of the operation as it headed east on
Madison Arm Road. (Id. at if 7.) Reed left the operation and drove to the junction
-3-

of Highway 191, Madison Arm Road, and Conservation Lane and parked near that
junction. (Id. at if 8.) While Reed was parked in that spot, Agent Tierney
approached Reed's vehicle and spoke with Reed. (Id. at if 9.) After speaking with
Agent Tierney, Reed drove north of the Madison River and parked on a gravel
road that runs parallel to Highway 191. (Id. at if 10.) Tierney then radioed Deputy
Lieurance. (Id. at if 11.) Lieurance in tum radioed to the riders with the operation
and told them to stop moving the bison, (id. at if 12), which they did, (id. at if 13).
Deputy Lieurance drove to Reed's location and after speaking with Reed, cited
him for misdemeanor obstruction, Mont. Code Ann.§ 45-7-302. (Id. at ilil 14, 15.)
On July 10, 2012, the county prosecutor moved to voluntarily dismiss the citation.
(Doc. 154-4 at 2.)

III.

The Recording
The parties dispute the specifics of Reed's conversations with Agent

Tierney and Deputy Lieurance, primarily the nature of the directions Agent
Tierney gave them when he initially told them to move their car as well as how
exactly they were obstructing the haze. There is a 22-minute recording of the
second portion of Deputy Lieurance's stop, recorded by Craddock-Crocker. (See
DVD, Ex. D, Doc. 151-4. ). The recording begins after the initial conversation
between Lieurance and Reed. Reed and Craddock-Crocker discuss the stop.
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Craddock-Crocker then has brief interaction with law enforcement, where law
enforcement insists she and Reed "failed to follow directions" and she insists the
directions were not clear. Reed and Craddock-Crocker repeatedly refer to the
"selective enforcement" of the law based on the other vehicles driving on the
highway and even note they could probably sue ifReed were to be arrested. The
video shows Reed's citation being issued. At that point, Deputy Lieurance
explains that Reed is being cited for obstruction, which, according to Deputy
Lieurance, is basically "doing something you were told not to do" or "stopping an
operation of some sort." (Id. at 15:40.) Lieurance further explains Reed's
obligation to contact the court. At one point, Lieurance asks Craddock-Crocker,
who is filming, to take a step back. Reed clarifies that he is receiving a ticket.
After the citation is issued, Craddock-Crocker again asks why they are being
"selectively enforced against," and Deputy Lieurance states that he is not going to
argue about it, and that they can either leave or he can take them to jail. (Id. at
18:10.) After a bit more back and forth, Reed and Craddock-Crocker drive away.
Neither parties' story is "blatantly contradicted" by the recording. See Scott
v. Harris, 550 U.S. 372, 380 (2007). While the video does not depict all of the

events at issue, it does show the relative distance from the haze area and numerous
other cars and trucks driving by on the highway during the stop.
-5-

PROCEDURAL BACKGROUND

In March 2013, Reed filed suit, asserting that Deputy Lieurance' s conduct
violated Reed's First and Fourth Amendment rights and related Montana
constitutional rights, and that Gallatin County, the Sheriffs Office, and Sheriff
Gootkin failed to train officers regarding Montana's obstruction statute and the
First and Fourth Amendments. (See Doc. 1.) The parties filed cross-motions for
summary judgment and motions in limine. On July 23, 2014, the Court granted
the defendants' motion for summary judgment on Reed's unreasonable seizure and
failure-to-train claims, denied summary judgment on the First Amendment claims,
and excluded Reed's police practices expert witness. On August 20, 2014, Reed
moved to amend his complaint; that motion was denied on October 6, 2014. A
jury trial was held in January 2015 on Reed's First Amendment claims. After
Reed presented his case, the defendants moved for judgment as a matter of law
under Fed. R. Civ. P. 50, which was granted as to all remaining claims.
Reed appealed. 2 On appeal, the Ninth Circuit held that: (1) the defendants
were not entitled to summary judgment as to Reed's unlawful seizure claim; (2) it

2

The trial judge also denied the defendants' motion for attorneys fees
pending resolution of an appeal. The defendants cross-appealed that ruling, and
the Ninth Circuit held that it lacked jurisdiction to consider fees in the absence of
a "final decision" from the district court as to that issue. Reed, 863 F.3d at 1212.
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was improper to sua sponte dismiss Reed's failure-to-train claim under Rule
l 2(b )( 6); (3) the wrong legal standard was applied in excluding Reed's expert
witness; and, ( 4) the defendants were not entitled to judgment as a matter of law as
to Reed's First Amendment claims. See Reed, 863 F.3d at 1204-12. The case was
remanded and reassigned. See id. at 1213 .
Following remand, Reed filed a First Amended Complaint, alleging six
causes of action, including: Count I (unreasonable seizure - Fourth Amendment),
Count II (unreasonable restriction - First Amendment), Count III (retaliation - First
Amendment), Count IV (failure to train - Monel/ 3 ), Count V (privacy - Mont.
Const. art. II, sections 10 and 11 ), and Count VI (unreasonable restriction - Mont.
Const. art. II, sections 6 and 7). (Doc. 146.) Two defense motions are currently
pending: (1) a motion for summary judgment as to Reed's failure-to-train claim,
(Doc. 150) and (2) a motion to exclude the expert testimony of Reed's police
practices expert, Timothy Longo, (Doc. 144). Having considered the parties'
briefing and oral argument, both motions are denied.
SUMMARY CONCLUSION

The defendants argue that summary judgment is appropriate as to Reed's
failure-to-train claim because the undisputed evidence shows that Deputy

Monell v. Dep 't of Soc. Servs. of N. Y, 436 U.S. 658 ( 1978).
-7-

Lieurance was trained and Reed fails to identify a "specific inadequacy" in the
training deputies receive. However, there exists a genuine dispute of material fact
as to: (1) whether the training received by deputies on Montana's obstruction
statute, the First Amendment, and the Fourth Amendment was adequate; (2)
whether there was an obvious or recurring need for more or better training; and (3)
whether there is a causal link between a deficiency in training and the alleged
constitutional harm. Drawing all reasonable inferences in favor of Reed, Tolan,
134 S. Ct. at 1866, a jury could find that the defendants' failure to train amounts to
a "deliberate indifference to the rights of persons with whom [its] employees come
into contact," Connick v. Thompson, 563 U.S. 51, 61 (2011) (internal quotation
marks and alteration omitted). Additionally, because the testimony of Reed's
police practices expert, Timothy Longo, is reliable and relevant to that failure-totrain claim, Fed. R. Evid. 702, it is not excluded.
ANALYSIS

I.

Motion for Summary Judgment

A.

Legal Standard

A party is entitled to summary judgment if it can demonstrate that "there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where
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the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 251 (1986). Only disputes over

facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248.
B.

Failure to Train

The defendants seek summary judgment as to Reed's Monell claim, which
alleges failure to train as to the First and Fourth Amendments and Montana's
obstruction statute. (Doc. 150.) They previously moved for summary judgment
on this claim, (see Doc. 13), but Reed's claim was dismissed sua sponte under
Rule l 2(b )( 6). The Ninth Circuit reversed, holding that it was error not to provide
proper notice and not give Reed an opportunity to amend. Reed, 863 F.3d at 120708. The Ninth Circuit further declined to consider Plaintiffs failure-to-train claim
under Rule 56, "affording the district court a chance to consider this question." Id.
at 1208 n.5.
Reed alleges that the defendants "do not provide adequate training for
sheriffs deputies on the elements, meaning, and lawful application of Montana's
obstruction statute, or on the constitutional rights of members of the public,
namely the Fourth Amendment right to be free from unreasonable seizure and First
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Amendment rights under the U.S. Constitution." (Doc. 146 at if 147.) He further
alleges that the defendants "have an unconstitutional policy that allows sheriff's
deputies to use the Montana obstruction statute to arrest individuals who are
engaged in constitutionally protected conduct." (Id. at if 148.)
"[T]he inadequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact." Flores v. Cnty. of
L.A., 758 F.3d 1154, 1158 (9th Cir. 2014) (quoting City of Canton v. Harris, 489
U.S. 378, 388 (1989)). Because "a municipality can be liable under§ 1983 only
where its policies are the moving force behind the constitutional violation," City of
Canton, 489 U.S. at 388 (quotation marks and alteration omitted), Reed "must
demonstrate a conscious or deliberate choice on the part of' the defendants,
Flores, 758 F.3d at 1158 (quotation marks omitted). He must allege facts showing
the defendants "disregarded the known or obvious consequence that a particular
omission in their training program would cause [county] employees to violate
citizens' constitutional rights." Id. at 1159 (quoting Connick, 563 U.S. at 62).
Although "a pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference," id., the
Supreme Court has "not foreclose[ d] the possibility that evidence of a single
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violation of federal rights, accompanied by a showing that a municipality has
failed to train its employees to handle recurring situations presenting an obvious
potential for such a violation, could trigger municipal liability," Bd. of Cnty.
Com 'rs of Bryan Cnty., Oki. v. Brown (Brown), 520 U.S. 397, 409 (1997). As
further explained:
in a narrow range of circumstances, a violation of federal rights may be
a highly predictable consequence of a failure to equip law enforcement
officers with specific tools to handle recurring situations. The
likelihood that the situation will recur and the predictability that an
officer lacking specific tools to handle that situation will violate
citizens' rights could justify a finding that policymakers' decision not to
train the officer reflected 'deliberate indifference ' to the obvious
consequence of the policymakers' choice-namely, a violation of a
specific constitutional or statutory right.
The high degree of
predictability may also support an inference of causation-that the
municipality's indifference led directly to the very consequence that was
so predictable.
Id. at 409-10. Construing the evidence in Reed's favor, a jury could find that the
defendants' failure to train amounts to deliberate indifference to the rights of
persons with whom deputies come into contact. City of Canton, 489 U.S. at 388.
1.

A Constitutional Violation

As a threshold matter, the defendants argue that because Reed cannot
establish a constitutional violation by Deputy Lieurance, he cannot maintain a
Monell claim. See Jackson v. City ofBremerton, 268 F .3d 646, 653-54 (9th Cir.

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2001) ("Neither a municipality nor a supervisor ... can be held liable under
§ 1983 where no injury or constitutional violation has occurred."). The Ninth

Circuit, however, held that a reasonable jury could conclude that Deputy
Lieurance's seizure of Reed was unreasonable, see Reed, 863 F.3d at 1205-07, or
that Deputy Lieurance violated Reed's First Amendment rights, see id. at 1211-12.
2.

Deputy Lieurance's Training

The defendants further insist that Deputy Lieurance was more than
adequately trained on the parameters of Montana's obstruction statute and the First
and Fourth Amendments. They note Deputy Lieurance received BASIC police
training and was certified through the Arizona Law Enforcement Academy, and
then attended an equivalency program through the Montana Law Enforcement
Academy. (Doc. 151, at iii! 1-2.) However, Daniel Springer, the designated
representative of the Sheriffs Office for training issues, merely states that the
Montana Law Enforcement Academy and in the equivalency program spend time
on training in these areas, (see Springer Depo., Doc. 151-2 at 4), but does not
identify what it entails. See Bordanaro v. McLeod, 871 F .2d 1151, 1159-60 (1st
Cir. 1989) (noting that reasonable inferences could be drawn in plaintiffs favor if
there was little to no formal training at initial academy courses and then no
updated training afterward). Moreover, Deputy Lieurance admits that he did not
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receive any training specifically related to the First Amendment or the crosssection between the First Amendment, Fourth Amendment, and Montana's
obstruction statute. (Doc. 151-1at5-6.) That lack of training is reflected in his
training records. (See Doc. 154-7.) Yet the defendants insist that CraddockCrocker's video depicting the issuance of the citation definitively establishes
Deputy Lieurance was adequately trained. Such an interpretation of the video
ignores the Ninth Circuit's conclusion to the contrary. See Reed 863 F.3d at 121112 (discussing the myriad of ways a jury could find a First Amendment violation).
The defendants then insist that it is not enough to show that Deputy
Lieurance alone did not receive adequate training. While Deputy Lieurance's
training alone is not dispositive, Blankenhorn v. City of Orange, 485 F.3d 463,
484-85 (9th Cir. 2007) (holding that showing individual officer was not
adequately trained is not sufficient to show deliberate indifference), it is evidence
of the alleged overarching inadequacy. Moreover, additional evidence indicates
that deputies generally receive little to no training on First Amendment issues and
that the Sheriffs Office believes no such training is necessary.
3.

First Amendment Claim

"In resolving the issue of a [county J's liability, the focus must be on the
adequacy of the training program in relation to the tasks the particular officers
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must perform." See City of Canton, 489 U.S. 389. The defendants insist that
Reed's claim must fail because he does not identify a "specific inadequacy" in the
training program. However, Reed raises a genuine factual dispute as to what First
Amendment training the deputies receive, if any, and whether that training is
adequate given the deputies' regular contact with Campaign volunteers.
Sheriff Gootkin testified in his deposition that the First Amendment may be
part of the Field Training Program, but that he was not aware of the specific
training his deputies receive. (Doc. 154-6 at 6-9.) Springer, contradicting
Gootkin, stated that the Field Training Manual does not include anything specific
to the First Amendment, (Doc. 151-2 at 4), and that during the time period of
Deputy Lieurance's employment, "[t]here [wa]s nothing- there is no documented
training on freedom of speech training that I am aware of," (Doc. 154-8 at 8). (See
also Daugherty Depo., Doc. 154-9 at 6 (stating he also did not receive any First
Amendment training).) A review of the table of contents of the Field Training
Manual also shows no specific First Amendment entry. (See Doc. 154-3 at 3.)
There is an entry related to obstruction citations, (id.), but no further detail.
Springer also implied such training is not necessary:
[The] First Amendment is very simple - we - we instruct our guys that
you are - you cannot impede someone's ability to freedom [sic] of
speech, you cannot impede their ability to film you unless there's a
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particular-you know, reasonable time, place and manner for that. It's
not a very difficult thing to train on. It's something that is discussed, but
it's a very - it's fairly basic.
(Doc. 151-2 at 4.) He further stated, "there is a standard that is set at the basic
level and it' s not one that changes. Freedom of speech has been that way for a
very long time, so it' s a very simple concept." (Doc. 154-8 at 8.)
Based on the testimony of Sheriff Gootkin and Springer, there is a genuine
issue of material fact as to whether the Sheriffs Office believes First Amendment
training is necessary and what training, if any, deputies receive. Reed's police
practices expert, Mr. Longo, opines that First Amendment issues are more
complicated than Springer indicated and training on those issues is vital. (See,
e.g., Expert Report iii! 118-19, 237-39.) Moreover, Longo's report presents

evidence as to what type of training should be administered and why. (See id., iii!
191-94 (referencing guidance from the Rutherford Institute); id. at. iJ 106
(referencing technical assistance letters produced by the Department of Justice).)
The necessity and adequacy of such training is only made more acute considering
the regular contact between the Sheriffs Office and volunteers of the Campaign.
(See Springer Depo., Doc. 154-8 at 11 (stating that the Sheriffs Office supports

hazing operations "a number of times a year," estimating " 10 to 12")); Reed, 863
F.3d at 1201 (9th Cir. 2017) (estimating government personnel carry out hazing
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operations as many as four or five times per week between December and July).
The defendants further argue that Reed fails to show the requisite causal
connection between the perceived inadequacy and his alleged harm. However, the
recurrent contact between the Sheriffs Office and Campaign volunteers "and the
predictability that an officer lacking specific tools to handle that situation will
violate citizens' rights could justify a finding that policymakers' decision not to
train the officer reflect[s] 'deliberate indifference' to the obvious consequence of
the policymakers' choice-namely the violation of [the] specific constitutional or
statute rights" Reed identifies. Brown. , 520 U.S. at 409. That predictability "also
support[ s] an inference of causation-that the [defendants'] indifference led
directly to the very consequence that was so predictable." Id. at 410.
Reed also presents evidence that the prosecutor's office has dismissed
obstruction citations under similar circumstances on more than one occasion.
(See Doc. 154-5 at 2, 4, and 6 (identical motions to dismiss in cases against Reed,

Noah Richards, and Andrea Rightsell).) Although such evidence may not
independently show "a pattern of similar constitutional violations by untrained
employees," Flores, 758 F .3d at 1159, it supports Reed's contention that the
interaction between deputies and Campaign members is a recurrent issue and that
a resulting constitutional violation was predictable. The defendants present an
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affidavit from the prosecuting attorney insisting that Reed's dismissal was not
because the citation was infirm, but rather due to a "shortage of prosecutors," and
"speedy trial concerns." (Aff. Murphy, Doc. 151-5 at 3.) The motions to dismiss
themselves, however, state the grounds for dismissal as "best interests of justice."
(See Doc. 154-5.) Drawing all reasonable inferences in favor of Reed, a jury could
find that the citations were dismissed as improperly issued. A reasonable jury
could therefore find that the Sheriffs Office "disregarded the known or obvious
consequence" of its failure to train and that its failure caused the alleged
constitutional violation. Flores, 758 F.3d at 1158-59. Even ifReed cannot show
that Sheriff Gootkin knew of such dismissals or the reason for them, (Doc. 154-6
at 16), the admission that the Sheriffs Office did not even consider tracking
dismissed citations may also be evidence of deliberate indifference, (id. at 18).

See Larez v. City of L.A., 946 F.2d 630, 645 (9th Cir. 1991) (explaining that policy
or custom can be inferred from a subsequent acceptance of a subordinate' s actions
or a lack of discipline or reprimand in the face of such action).
4.

Fourth Amendment Claim

Reed comes precariously close to waiving his failure-to-train claim as it
relates to the Fourth Amendment and probable cause under Montana's obstruction
statute. That claim, while premised on much of the same argument and evidence
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as his First Amendment claim, is more narrow. Essentially, Reed alleges that the
deputies are inadequately trained on the limits Montana jurisprudence places on
the obstruction statute. See City ofKalispell v. Cameron, 46 P.3d 46, 47 (2002).
The Ninth Circuit held that a jury could find either that Deputy Lieurance lacked
probable cause to believe Reed was obstructing the haze or, alternatively, lacked
probable cause to believe Reed had the necessary specific intent to impede the
haze. Reed, 863 F .3d at 1205-06. It also held that a jury could find that Deputy
Lieurance "issued the citation for one or more reasons that do not satisfy the
Fourth Amendment." Id. at 1206. Based on the evidence discussed above and the
previous rulings of the Ninth Circuit, genuine factual disputes prevent summary
disposition of this claim. That said, depending on the evidence presented at trial,
this claim-like all others-may be subject to a Rule 50 motion.
C.

Sheriff's Office

The defendants argue in a footnote that the Sheriff's Office should be
dismissed from the case as an improper defendant. Reed correctly argues that the
request is improperly made, City ofEmeryville v. Robinson, 621 F .3d 1251, 1262
n. l 0 (9th Cir. 2010) ("By failing to address the issue in its opening brief except in
a footnote, Sherwin-Williams waived [its] claim .... "), and is without support in
the law, Streit v. Cnty .ofL.A., 236 F.3d 552, 555-56 (9th Cir. 2001) (concluding
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that the Los Angeles Sheriff's Department "is separately suable in federal court").
Accordingly, the defendants' motion for summary judgment is denied.
II.

Motion to Exclude
The defendants also seek to exclude the opinions and testimony of Reed's

expert, Timothy Longo, Sr., the Chief of Police of Charlottesville, Virginia. (Doc.
144.) The Court previously excluded Mr. Longo from offering expert testimony
on various grounds. 4 (See Doc. 45 at if 4.) On appeal, the Ninth Circuit
determined that an improper legal standard was applied. See Reed, 863 F.3d at
1208-09. It further clarified that Mr. Longo's testimony may be relevant to the
revived failure-to-train claim, but that this Court may consider on remand whether
Mr. Longo's testimony may be stricken "under the proper legal standard." Id.
At issue here, the defendants seek to exclude Mr. Longo's testimony as
irrelevant. Rule 702, Fed. R. Evid., provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in

4

First, the trial judge concluded that an expert may only rely upon evidence
that is in the record or is "of the sort that any expert would rely on." Reed, 863
F.3d at 1208. Second, he found Mr. Longo's testimony commented on the ability
of others to do their job. Id. at 1208-09. Third, he found the report made
disparaging comments about the prosecution. Id. at 1209.
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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.
Expert testimony on police practices has generally been found to be admissible in
cases involving allegations of police misconduct. See, e.g., Larez, 946 F .2d at 63 5
(discussing trial testimony of police practices expert); Smith v. City ofHemet, 394
F .3d 689, 703 (9th Cir. 2005) (en bane) (offering expert testimony as to police dog
use and training); Davis v. Mason Cnty., 927 F.2d 1473, 1484-85 (9th Cir. 1991)
(allowing expert testimony as to failure-to-train claim). However, under Rule 702,
the district court has an independent duty to ensure that such testimony is both
relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999);
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); see also Stilwell
v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007). The question of
reliability asks "whether an expert's testimony has 'a reliable basis in the
knowledge and experience of the relevant discipline."' Estate ofBarabin v.
AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (quoting Kumho Tire, 526
U.S. at 149). But even reliable expert testimony must still be helpful to the jury's
determination of the material factual questions at hand. See Stilwell, 482 F.3d at
1192 (requiring "a link between the expert's testimony and the matter to be
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proved"). The opinion must be sufficiently tied to the facts of the case to aid the
trier of fact in resolving a disputed fact, "fit" the facts of the case, and serve a
"helpful" purpose to the jury. Daubert, 509 U.S. at 591.
Here, Mr. Longo's report describes his background and experience,
12), and outlines a factual summary of the case,

(iii! 13-30).

(iii! 1-

The report then

outlines two questions presented:
31.

Whether the actions taken by Deputy Doug Lieurance on the
morning of May 23, 2012, were consistent with generally
accepted law enforcement practices at the time of the incident.

32.

Whether the policies, training, and supervision of the Gallatin
County Sheriff's Office were consistent with generally acceptable
law enforcement practices at the time of this incident.

(Report, Doc. 145-1.) The report first addresses Deputy Lieurance' s actions,
33-82), and then addresses municipal liability in the context of "Policy,"
119), "Practices,"
Investigation,"

(iii!

(iii! 94-

(iii! 120-65), "Training," (iii! 166-200), and "Supervision and

(iii! 201-36).

Finally, the report states Mr. Longo's conclusions as

to both issues, (iii! 23 7-79).
Although the defendants primarily challenge the relevancy-not the
reliability-of Mr. Longo's testimony, both elements of Rule 702 are discussed
below. See Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1018 (9th
Cir. 2004) (requiring district courts to make a reliability determination).
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A.

Reliability

Mr. Longo's testimony is reliable. He has an extensive history as a law
enforcement officer with the Baltimore Police Department and additional
experience training and teaching other law enforcement officers. (See Report, iii!
1-9.) As of the date of his report, he was the Chief of Police in Charlottesville,
Virginia, and was consistently involved with police training and procedure
programs throughout the nation. (Id.) His methods are also those used by other
experts in this field and applied in a predictable, reasonable manner. Mr. Longo
reviewed relevant documents in the case, including video and audio recordings, as
well as the Gallatin County training manuals. (Id. at iii! 10, 166.) He then reached
an opinion as to the facts he reviewed "based upon [his] education, specialized
experience, training, and knowledge of police practices as well as [his] continued
research and work with law enforcement nationally." (Id. at ii 11.) His report
specifically states that his opinions are not based on credibility determinations, (id.
at ii 12), and that he did not make any findings as to probable cause, (id. at ii 33),
or whether Deputy Lieurance's actions amounted to a constitutional violation, (id.
at ii 34). As his report makes clear, Mr. Longo lays out the facts that form the
basis of his opinions and explains how he reached his conclusions.

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B.

Relevance
Mr. Longo's testimony is relevant. Specifically, Mr. Longo ' s testimony will

help the jury assess Reed's failure-to-train claim. 5 The crux of the defendants'
argument is that Mr. Longo's opinions should be excluded because they relate to
questions of negligence, as opposed to constitutional deficiency. See Dougherty v.

City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) ("Mere negligence in training ..
. does not give rise to a Monell claim."). The defendants ' distinction is one
without difference in this context. See Fed. R. Evid. 40l(a). Following the
defendants' argument to its logical conclusion, a police practices expert cannot
testify to mere adequacy of training because to do so would be irrelevant, but that
expert also cannot testify as to the constitutionality of police conduct because that
would be an impermissible legal conclusion. The defendants' argument would
effectively foreclose any expert testimony under these circumstances. That
position is not tenable. As discussed above, for the failure to train to serve as a
basis for§ 1983 liability, it must "amount[] to deliberate indifference to the rights
of persons with whom the police come into contact." Flores, 758 F.3d at 1158
(quoting City of Canton, 489 U.S. at 388). Mr. Longo's proffered opinions

5

Reed' s response is limited to Mr. Longo's testimony about failure-to-train,
and he agrees that Mr. Longo will not testify as to whether individual
constitutional violations occurred. (Doc. 149 at 28.)
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regarding the adequacy of the training received are relevant to that question. See
Ninth Cir. Model Civ. Jury Instr. No. 9.8 (2017) (outlining the elements of a
failure-to-train claim, including the requirement the plaintiff prove the defendant's
training policies "were not adequate").
In arguing that Mr. Longo's testimony should be excluded, the defendants
rely heavily on Smith v. State of New Jersey, 2013 WL 3658786 (D.N.J. 2013), a
case also involving Mr. Longo's expert opinion. There, the plaintiffs alleged
claims pursuant to 42 U.S.C. § 1983 on the grounds of unlawful arrest, excessive
force in making an arrest, and unlawful warrantless entry. Smith, at* 1. In
excluding Mr. Longo's proffered testimony, the court ultimately concluded that
"Rule 702 ... does not permit the testimony of a police practices expert who is
rendering opinions about whether particular conduct violated the relevant
constitutional provisions." Id. at *5. However, the Smith plaintiffs did not raise a
failure-to-train claim. See id. at *4 (noting the plaintiffs "do not claim that the
State failed to properly train [the officer]" or that officer training was an issue).

Smith therefore provides limited guidance here.
The defendants also rely on Judge Lynch's decision regarding Mr. Longo's
testimony in Chaney v. Wadsworth, 2015 WL 4388420 (D. Mont. 2015). In

Chaney, Mr. Longo was asked to opine as to the use of force and detention arising
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out of a physical altercation between law enforcement and two brothers outside of
a bar. In his opinion, Judge Lynch excluded certain portions of Mr. Longo's
report and testimony based on specific objections by the defendants. However, the
determination in Chaney that Mr. Longo's testimony may be relevant to a claim
for negligent failure to train, id. at *8, does not foreclose its potential relevance to
a § 1983 claim for failure to train as well, see id. at * 15 (holding that the "ultimate
determination as to the relevance of th[ at] opinion is deferred until trial to be made
in the proper context of the evidence presented at trial"). As discussed above,
adequate training for identifying and addressing the intersection between the First
Amendment, Fourth Amendment, and Montana's obstruction statute is disputed.
Because Mr. Longo has specialized experience with police practices, his testimony
may help the jury interpret and understand the evidence, see Muktar v. Cal. St.

Univ. Hosp., 299 F.3d 1053, 1063 n.7 (9th Cir. 2002) ("Encompassed in the
determination of whether expert testimony is relevant is whether it is helpful to the
jury, which is the 'central concern' of Rule 702."), and determine whether the
deputies receive adequate training, Davis, 927 F.2d at 1483 ("The issue is not
whether the officers had received any training-most of the deputies involved had
some training, even if it was minimal at best-rather the issue is the adequacy of
that training.").
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That said, as was the case in Chaney, Mr. Longo's testimony is limited in
certain respects by the Federal Rules of Evidence and related case law. First, his
testimony is limited insofar as portions of his report state the facts of the case, (see

iii! 13-30, 66, 54-81, 176-78, 186-88), comment on the evidence (see iii! 68, 69, 72,
73, 75, 76, 78, 79, 124, 183-85, 189), or outline the applicable law, (see iii! 36-52,
65, 67, 70, 83-93, 137-44, 179). While those facts and legal principles are those
upon which Mr. Longo may rely in forming his opinion, they need not be
presented through his testimony, Chaney, at *7, and the Court will instruct the jury
on the law, United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993).
Additionally, Mr. Longo "cannot give an opinion as to h[is] legal
conclusion, i.e., an opinion on an ultimate issue of law." See Muktar, 299 F.3d at

1065 n. l 0 (emphasis in original); see also Nationwide Transp. Fin. v. Cass Info.
Sys., Inc., 523 F.3d 1051, 1058-60 (9th Cir. 2008). Rule 704(a) explicitly allows

expert witnesses such as Mr. Longo to express an opinion that "embraces an
ultimate issue." And, as stated in the previous appeal in this matter, "a police
practices expert may provide helpful testimony regarding whether there was a
failure to train without veering into improper legal opinions." Reed, 863 F .3d at
1209 (citing Johnson v. Hawe, 388 F.3d 676, 686 (9th Cir. 2004)); Hangarter, 373
F .3d at 1016. Nevertheless, the Ninth Circuit recently emphasized the fine line
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drawn by Rule 704(a):
Although the value of expert testimony lies in the specialized knowledge
that an expert brings to bear on an issue in dispute, Fed. R. Evid. 702(a),
it is sometimes impossible for an expert to render his or her opinion on
a subject without resorting to language that recurs in the applicable legal
standard. We hold that if the terms used by an expert witness do not
have a specialized meaning in law and do not represent an attempt to
instruct the jury on the law, or how to apply the law to the facts of the
case, the testimony is not an impermissible legal conclusion. See Fed. R.
Evid. 702(a), 704(a).
United States v. Diaz, _

F.3d _ , 2017 WL 6030724, at *4 (9th Cir. Dec. 6,

201 7) (holding that expert testimony that prescriptions were not given for
"legitimate medical purpose" did not contain impermissible legal conclusion)
(footnotes omitted). The primary term of art that raises concern here is
"constitutional." Mr. Longo's report indicates that he may offer an opinion as to
whether the training provided by the Sheriffs Office was constitutionally adequate
or whether there is a causal connection between the failure to train and the
constitutional harm alleged. During oral argument, Reed's counsel indicated Mr.
Longo does not plan to open this particular pandora's box. We shall see. Such
testimony may be properly subject to objection and further discussion in the
context of trial.
Finally, the defendants raise specific relevancy objections in only four areas.
The ultimate determination as to the relevance of Mr. Longo's testimony in these
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four areas is more appropriately "made in the proper context of the evidence
presented at trial." Chaney, at* 15. However, these topics are discussed below as
to establish threshold relevancy to meet the requirements of Rule 702. See Kumho

Tire Co., 526 U.S. at 147. First, the defendants object to statements and testimony
related to a lawsuit against the City of Baltimore alleging First and Fourth
Amendment violations. (See Report, i!il 100-117.) These paragraphs describe the
circumstances upon which the Department of Justice issued a technical assistance
letter to the Baltimore Police Department regarding First Amendment training.

(See, e.g., i! 106.) This portion of Mr. Longo' s report is relevant to the nature and
necessity of First Amendment training and the bases for his opinion. While Mr.
Longo may not restate legal standards or principles of law, his testimony will not
be prematurely excluded.
Second, the defendants challenge the portions of Mr. Longo's report that
opine on "contempt of cop." (See Report, i!il 146-157.) Judge Lynch excluded
such testimony in Chaney, explaining that it speaks to the legal application of
probable cause to arrest as it "may influence a law enforcement officer to
unlawfully arrest a citizen in the absence of probable cause." Chaney, at *5. Such
testimony is more relevant here than it was in Chaney as Reed is likely to argue
that Deputy Lieurance issued the citation based on Reed's perceived failure to
-28-

follow law enforcement's directions, not based on obstructing the hazing
operation. While Mr. Longo cannot instruct the jury on the applicable law or
opine as to whether Deputy Lieurance had probable cause, the Court will not
prematurely exclude such testimony.
Third, the defendants seek to exclude Mr. Longo's report and testimony as it
relates to the Rutherford Institute, (see Report,

~~

190-97), a civil liberties

organization that is used by law enforcement to aid in the development of policy
and training for officers, (id. at ~~ 190-91 ). Because this Institute and its work are
generally relevant to both the necessity and nature of First Amendment training, as
well as the bases for Mr. Longo's opinions, it is not excluded. Once again,
however, Mr. Longo's testimony is limited as outlined above.
Finally, the defendants seek to exclude testimony as to supervisory issues
and the failure to track dismissed citations. The actions taken by law enforcement
in response to an officer's conduct (such as reporting, discipline, reprimand) may
be relevant to a "deliberate indifference" inquiry. See Larez, 946 F.2d at 645. It
would be premature to exclude any of this testimony until Reed presents evidence
under his theory of Monell liability at trial.
Because Mr. Longo's testimony meets Rule 702's threshold requirements,
the defendants' motion to exclude Mr. Longo' s testimony on those grounds is
-29-

denied, subject to the limits outlined above. The defendants are also permitted to
renew the specific objections discussed above in the context Mr. Longo's trial
testimony. See Fed. R. Evid. 103(b).

C.

Rule 403

Rule 403 states, "[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence." In their
briefing, the defendants do not identify a Rule 403 concern. At oral argument,
however, defense counsel intimated that allowing Mr. Longo to testify to an
industry standard of care, i.e., a negligence standard, would confuse the jury and
could cause the jury to find liability despite the heightened requirements of
municipal liability under § 1983. Not only is that concern not borne out by the
Mr. Longo's report or the opinions proffered therein, but the jury instructions
issued prior to deliberation will prevent prejudice as they specifically outline the
standard for "deliberate indifference." See Ninth Cir. Model Civ. Instr. No. 9.8.
Rule 403 does not compel the exclusion of Mr. Longo's testimony.
CONCLUSION

Based on the foregoing, IT IS ORDERED that the defendant's motion for
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- --

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·-·-

summary judgment (Doc. 150) is DENIED. The defendants' motion to exclude
Mr. Longo's expert testimony (Doc. 144) is also DENIED, but that testimony is
subject to the limitations outlined above. The defendants may renew their specific
relevancy objections in the context of trial. See Bechtold v. Billings Police Dep 't,
2010 WL 11534416, at *1 (D. Mont. 2010).
DATED this

a/-L-( day of December, 2017.

D nald W. Molloy, District Judge
United States istrict Court

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