Chaney v. Wadsworth et al

Filing 147

ORDER granting in part and denying in part 72 Motion in Limine. Signed by Magistrate Judge Jeremiah C. Lynch on 7/15/2015. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ANTHONY CHANEY, on behalf of
himself and a class of persons similarly
situated,

CV 14-177-M-DWM-JCL

ORDER

Plaintiffs,
vs.
DANIEL WADSWORTH, individually
and as RONAN POLICE CHIEF;
TREVOR WADSWORTH; KIM
AIPPERSPACH, individually and as
CITY OF RONAN MAYOR; CITY OF
RONAN; CITY OF RONAN POLICE
DEPARTMENT; and DOES 1-10,
Defendants.

Before the Court is Defendants Kim Aipperspach and City of Ronan’s
(collectively referred to as “City of Ronan”) motion in limine to exclude
testimony, opinions, and statements which Plaintiff Anthony Chaney intends to
introduce through his expert witness, Timothy Longo, Sr., as set forth in Mr.
Longo’s expert witness report. For the reasons discussed, the Court grants in part,
and denies in part, the City of Ronan’s motion.
I.

Background
On July 14, 2013, Plaintiff Anthony Chaney (“Chaney”) and his brother,
1

Donald Chaney (“Donald”), were at a bar in Ronan, Montana. According to
Chaney, Donald, who is a military combat veteran with post-traumatic stress
disorder (PTSD), experienced a PTSD anxiety attack or episode in the bar.
Chaney moved Donald to a nearby park and held him down on the ground in an
attempt to calm him.
Contemporaneously, the City of Ronan, Montana, Police Department
received a report of a physical altercation occurring between two men outside a
bar. Ronan Police Officers John Mitchell, Frank Swan, Matt Meyers, and
Defendant Trevor Wadsworth responded to the dispatch. Upon arriving at the
scene, the officers observed what appeared to be two individuals engaged in a
fight. The officers proceeded to use physical force to separate and detain the two
individuals. At some point Trevor Wadsworth physically restrained and
handcuffed Chaney.
Minutes later, Flathead Tribal Officers also arrived at the scene.1 Those
officers were also involved in detaining and restraining both Donald and Chaney.
The officers removed Wadsworth’s handcuffs from Chaney and placed their own
handcuffs on him for approximately 45 minutes. The officers then gave Chaney a

1

The City of Ronan is located within the exterior boundaries of the Flathead
Reservation.
2

ride to his girlfriend’s house.
Invoking federal question jurisdiction under 28 U.S.C. § 1331, Chaney
advances claims under 42 U.S.C. § 1983, including allegations that Defendants,
and in particular Trevor Wadsworth, arrested him without probable cause and with
excessive force in violation of the Fourth and Fourteenth Amendments to the
United States Constitution. Invoking the Court’s supplemental jurisdiction under
28 U.S.C. § 1367(a), Chaney also advances claims against the Defendants
predicated upon their alleged violations of his Montana Constitutional and
common law rights.
Central to Chaney’s claims is his allegation that the City of Ronan has
employed individuals to act as peace officers who are not properly trained and
certified in accordance with Montana statutory law. And he asserts that at least
one of the officers who effected his arrest – Trevor Wadsworth – was not properly
certified or trained to serve as a peace officer at the time.
II.

Discussion
The admissibility of expert opinion testimony is governed by Fed. R. Evid.

702 which provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:

3

(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
In assessing the admissibility of expert witness opinion testimony under
Rule 702 the district court must serve as a “gatekeeper” to ensure that the
testimony is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 589 (1993). Expert testimony is subject to exclusion if it falls
short of meeting either requirement. Stilwell v. Smith & Nephew, Inc., 482 F.3d
1187, 1192 (9th Cir. 2007). The proponent of the expert’s testimony bears the
burden of establishing that the testimony is admissible. Lust v. Merrell Dow
Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996). Rulings on the
admissibility of expert testimony under Rule 702 are within the sound discretion
of the trial court. General Electric Co. v. Joiner, 522 U.S. 136, 141-42 (1997).
That portion of Rule 702 requiring that expert testimony must assist the trier
of fact “goes primarily to relevance.” Daubert v. Merrell Dow Pharmaceuticals,
4

Inc., 509 U.S. 579, 591 (1993). The opinion must be sufficiently tied to the facts
of the case to aid the trier of fact in resolving a disputed fact. Id. (citation
omitted). The opinion must “fit” the facts of the case and serve a “helpful”
purpose to the jury (Daubert, 509 U.S. at 591), and there must exist “a link
between the expert’s testimony and the matter to be proved.” Stilwell v. Smith &
Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007) (quotation and citation omitted).
The reliability prong of the Rule 702 assessment requires that expert
testimony be based on sound principles and methodology. The reasoning and
methodology must be scientifically valid, and the court must assess whether it
reasonably can be applied to the facts of the case. United States v. W.R. Grace,
455 F. Supp. 2d 1148, 1152 (D. Mont. 2006).
Finally, to be admissible under Fed. R. Evid. 702, an expert’s opinion must
be based on scientific, technical, or specialized knowledge. Claar v. Burlington
Northern Railroad Co., 29 F.3d 499, 502 (9th Cir. 1994). The Court must be
satisfied that the expert arrived at particular “conclusions using scientific methods
and procedures, and that those conclusions were not mere subjective beliefs or
unsupported speculation.” Id. See also Millenkamp v. Davisco Foods
International, Inc., 562 F.3d 971, 979 (9th Cir. 2009).
The City of Ronan moves to exclude certain opinions of Mr. Longo, and
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specific statements he has made in support of his opinions, all as set forth in Mr.
Longo’s expert report. The specific opinions and statements are identified below.
A.

Chaney’s Detention - Contrary to Law Enforcement Practices

Mr. Longo’s first opinion in his expert report states: “I am of the opinion to
a reasonable degree of professional certainty that the detention of Anthony Chaney
was contrary to generally accepted law enforcement practices at the time of this
incident.” (Doc. 73-1 at ¶ 28.) The substance of both this opinion and the
numerous paragraphs in Mr. Longo’s expert report supporting this specific
opinion assert that the law enforcement officers on the scene of Chaney’s arrest on
July 14, 2013, lacked probable cause to believe that Chaney had committed a
criminal offense and, therefore, lacked authority to effect Chaney’s arrest. Many
of Mr. Longo’s statements merely recite the law of probable cause under both the
United States Constitution and Montana law. Therefore, the City of Ronan objects
to the statements in paragraphs 36-42, 44, 46-48, and 67-72 of Mr. Longo’s report
as expressions of law which an expert witness is not permitted to make. The Court
agrees.
The specific paragraphs in Mr. Longo’s report which the City of Ronan
identifies, and to which it objects, are as follows:
36. A police officer’s authority to arrest or otherwise detain a free citizen has its origin in

6

the United States Constitution, and the cases that have interpreted its meaning.
37. It is generally accepted that for an arrest to be lawful, it must be supported by
probable cause.
38. Probable Cause is, as the term implies, a concept that deals with probabilities.
39. “These are not technical, they are factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians act.”
40. Probable cause largely consists of “facts and circumstances within the arresting
officer’s knowledge and of which they had reasonably trustworthy information and
sufficient in themselves to warrant a man of reasonable caution to believe an offense has
been committed.”
41. "Probable cause is a fluid concept — turning on the assessment of probabilities in
particular factual contexts — not readily, or even usefully, reduced to a neat set of legal
rules."
42. Ronan Police Department policy defines probable cause as “facts and circumstances”
within the officer’s personal knowledge or upon information imparted to him by a reliable
source, are sufficient to warrant a reasonable person to believe that the suspect has
committed an offense.
44. It is important to note that not all interactions between a police officer and a free
citizen trigger constitutional or even statutory protection. For example, casual and
voluntary encounters need not be supported by probable cause6 or the lesser standard of
reasonable suspicion which govern brief detentions that fail to rise to the level of a
custodial arrest.
[...]
46. Under Montana law, “A private person may arrest another when there is probable
cause to believe that the person is committing or has committed an offense and the
existing circumstances require the person’s immediate arrest. The private person may use
reasonable force to detain the arrested person.” The Ronan officers who detained
Anthony Chaney were on duty and acting as police officers for Ronan within the
jurisdiction of Ronan, not as private persons. Furthermore, the Retrocession Agreement
delineates when a non-tribal officer may arrest or detain or use force against a tribal
member. Only non-tribal officers who are certified peace officers may exercise this
authority within the exterior bounds of the Flathead Reservation.
47. Whether or not reasonable suspicion or probable cause existed to warrant the

7

detention of Anthony Chaney falls squarely within the purview of the fact finder.
48. Whether or not the defendant’s actions were contrary to generally accepted law
enforcement principles at the time requires an examination of the facts; some of those
facts remain in dispute, particularly as they relate to the actions of Donald and Anthony
Chaney, as well as the actions of the Ronan officers.
[...]
67. Laws pertaining to Obstruction of Justice and Disorderly Conduct have their origin in
the common law, and their implications on First Amendment rights are clear and have
been the subject of legal opinions since the 1940s.
68. These particular statutes frequently trigger First Amendment issues and result in an
analysis sought to determine how such issues, such as those as speech and assembly, are
balanced against the government’s need to carry out an important policing function.
69. The United States Supreme Court has required that for mere words to rise to the level
of disorderly conduct there must be some evidence that people in substantial numbers
would be provoked into some kind of physical action. The fact that an audience may take
offense to certain words, actions, or expression of ideas is not a sufficient basis to quell
First Amendment rights.
70. When those words, actions, or expression of ideas are directed towards a police
officer, one who is trained to deal with unruly and uncooperative members of the public,
the bar is set much higher. Typically, when such conduct has the likelihood of creating a
violent response from the public, or creates an immediate breach of the public peace the
provisions of a disorderly conduct statute will be satisfied. However, when the person
from whom the expression comes is directing his or her language towards a police officer,
courts will look closely to discern whether such language rises to the level of disorderly
conduct or is merely the free expression of opinion.
71. “The rights of individuals to verbally oppose or challenge police action without
thereby risking arrest is one of the principal characteristics by which we distinguish a free
nation from a police state.”
72. But when an arrest occurs in the aftermath of such an exchange, that which verbally
opposes or challenges police officers or the action they have undertaken, the question that
immediately arises is whether the conduct sufficiently satisfied all of the elements of the
relevant statute(s), or whether the arrest was a quick, spiteful, and oftentimes, poorly
thought out response to “contempt of cop.”

(Doc. 73-1 at ¶¶ 36-42, 44, 46-48, and 67-72.)
8

An expert witness may express an opinion with respect to an ultimate issue
to be decided by the trier of fact. Fed. R. Evid. 704(a). An expert may not,
however, “give an opinion as to her legal conclusion, i.e., an opinion on an
ultimate issue of law.” Hangarter v. Provident Life and Accident Ins. Co., 373
F.3d 998, 1016 (9th Cir. 2004) (citation and quotation omitted). See also United
States v. Moran, 493 F.3d 1002, 1008 (9th Cir. 2007). The resolution of “doubtful
questions of law is the distinct and exclusive province of the trial judge.”
Nationwide Transport Finance v. Cass Information Systems, Inc., 523 F.3d 1051,
1058 (9th Cir. 2008) (quotation omitted). An expert’s opinion is improper to the
extent it directs a jury as to the result it should reach in making a decision.
Elsayed Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1065
n.10 (9th Cir. 2002). Further, “instructing the jury as to the applicable law ‘is the
distinct and exclusive province’ of the court.” Hangarter, 373 F.3d at 1016
(quoting United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993)).
Therefore, to the extent Mr. Longo’s expert report recites principles of, and
instructs regarding, the law of probable cause and the legal procedure for
determining probable cause, as identified in the City of Ronan’s motion, his
statements overstep the bounds of an expert’s permissible testimony. The Court
will instruct the jury as to the law of probable cause, the nuances of that law as it
9

relates to an individual citizen’s freedom of speech and a citizen’s “contempt of
cop” conduct discussed by Mr. Longo (Doc. 73-1 at ¶¶ 73-86),2 and whether
specific matters relative to the issue of probable cause are questions of fact for the
jury to resolve or questions of law upon which the Court will rule. The City of
Ronan’s motion is GRANTED to the extent Mr. Longo’s expert report and
testimony – set forth in ¶¶ 36-42, 44, 46-48, 67-86, and 73-86 in his expert report
– purports to declare the scope of the law of probable cause for an arrest, and the
application of the law of probable cause to the notion of “contempt of cop” which
may influence a law enforcement officer to unlawfully arrest a citizen in the
absence of probable cause.
The City of Ronan also moves in limine to exclude Mr. Longo’s expert
opinion statements regarding the purpose and importance of comprehensive and
accurate police reports writing performed by law enforcement officers to
document certain events. (Doc. 73-1 at ¶¶ 87-92.) Mr. Longo also declares in his
report that he has not seen any police report documents which identify facts
indicating that Chaney obstructed officers, committed any crime, or which give
rise to probable cause to arrest Chaney. (Doc. 73-1 at ¶¶ 93-94, 99.) The City of
2

Paragraphs 73-86 of Mr. Longo’s report are lengthy descriptions of the
“contempt of cop” phenomenon, and a case example of where the phenomenon
occurred. Due to their length, the Court will not quote those paragraphs herein.
10

Ronan urges that Mr. Longo’s opinions relative to standards applicable to police
report writing, and deficiencies in the police report documentation are irrelevant in
this case. For the reasons discussed, the Court agrees.
The referenced paragraphs in Mr. Longo’s expert report relative to issues
regarding police report writing are as follows:
87. Law enforcement officers are trained to prepare reports that clearly, accurately, and
completely describe the situations that they encounter during the course of their official
duties and responsibilities.
88. I have personally instructed law enforcement officers in this regard in areas
surrounding detention, arrest, and use of force.
89. “Reports generated by the police agency serve as a factual base for the entire criminal
justice system.”
90. Moreover, written reports serve as the police agency’s historical record of an event.
As such, those reports, which document witness’ accounts, are critical for prosecutors and
criminal defendants who rely on them in the criminal proceedings to ensure the
proceedings are fair and just.
91. Not only do such reports memorialize an incident for posterity, those reports serve to
recollect the memory of those fact witnesses that may be later called to testify in a
criminal proceeding.
92. In fact, “a police report can be considered evidence if it is clear, concise, accurate, and
representative.”
93. I have reviewed no documents that, in my opinion, set out any facts or circumstances
that support that Anthony Chaney obstructed those officers on the scene from truly
performing their official duties.
94. I have reviewed no documents that, in my opinion, set out any facts or circumstances
that support that Anthony Chaney was committing or had committed any crime when he
was detained by the Ronan officers.
[...]

11

99. I have reviewed no documentation whatsoever that discloses any facts or
circumstances that would cause a reasonable person to come to the conclusion that
Anthony Chaney committed an offense that required his immediate arrest.

(Doc. 73-1 at ¶¶ 87-94, and 99.)
Rule 702 requires that an expert’s testimony “must help the trier of fact to
understand the evidence or to determine a fact in issue[.]” Fed. R. Evid. 702(a).
This is a threshold issue the court must assess in determining whether the expert’s
opinion is admissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 592 (1993).
The relevant facts at issue in this case are those that describe the City of
Ronan law enforcement officers’ conduct towards Chaney on July 14, 2013, which
have probative value relative to Chaney’s theories of liability. Thus, the law
enforcement officers’ alleged inability to properly prepare police reports
subsequent to their encounter with Chaney is irrelevant to the facts of this case,
and an expert opinion on that matter will not assist the jury in determining any fact
at issue in this case.
Also, to the extent the police reports are deficient in that they do not identify
facts which may have supported a finding of probable cause to arrest Chaney,
Chaney is obviously free to question the law enforcement officers about the
alleged absence of sufficient facts articulated in their reports. But testimony in the

12

form of an expert opinion is not necessary for the purpose of identifying facts that
are missing from the police reports. The City of Ronan’s motion is GRANTED in
this respect.
The City of Ronan next moves to exclude Mr. Longo’s statements in his
expert report which address conduct committed by City of Ronan police officers
towards Chaney’s brother, Donald. (Doc. 73-1 at ¶¶ 95-98.) The City of Ronan
argues the information in the referenced paragraphs would be relevant only to any
legal claims Donald may have, but are irrelevant to Chaney’s claims. The Court
agrees in part.
The paragraphs of Mr. Longo’s report to which the City of Ronan objects as
relevant only to Donald are as follows:
95. Anthony Chaney testified that as he began to stand after being pulled from his
brother, he observed 4-6 officers holding Donald on the ground as Trevor Wadsworth
was delivering strikes with what appeared to be a flash light.
96. Anthony Chaney testified that at the time of his observations he continued to tell the
officers that his brother had PTSD and that they (the officers) shouldn’t be aggressive
with Donald.
97. At some point, according to Anthony Chaney, he was approached by Trevor
Wadsworth and threatened with arrest on the charge of obstruction, to which Mr. Chaney
responded “I am telling you that he (Donald) has PTSD”.
98. Anthony Chaney reports being told that he was under arrest and instructed to turn and
place his hands behind his back. It was at that point that he was placed in handcuffs.

(Doc. 73-1 at ¶¶ 95-98.)

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The City of Ronan’s motion is GRANTED in part to the extent Mr. Longo’s
report at paragraph 95 recites facts describing the police officers’ conduct towards
Donald. Those facts, of course, are facts in this case on which Mr. Longo may
rely in forming his opinion, but the facts need not be presented through the
opinion testimony of Mr. Longo.
But, contrary to the City of Ronan’s assertions, the Court finds that Mr.
Longo’s statements in paragraphs 96-98 do not describe the officers’ conduct
committed towards Donald, and the City of Ronan’s motion is DENIED in this
respect. The Court will defer final ruling on the relevance and admissibility of the
matters in paragraphs 96-98 until trial so that questions of foundation, relevancy
and potential prejudice may be resolved in proper context.
The City of Ronan moves to exclude Mr. Longo’s statements in his expert
report which are merely his comments on the evidence in this case. It identifies
paragraphs 54, 59-61, and 65 as those which contain inappropriate comments.
Those paragraphs read as follows:
54. At this point the defendants’ version of events began to vary more significantly.
[...]
59. Nowhere in Officer Meyers’ report does he indicate that Anthony Chaney was ever
told to get up off of Donald.
60. Nor does his report articulate or otherwise describe that Anthony Chaney refused to

14

comply with any directive given to him by Meyers or anyone else on the scene.
61. What Officer Swan describes in his report narrative is noticeably different than that of
Officer Meyers.
[...]
65. Nowhere in Officer Swan’s report does he indicate what, if anything, Anthony
Chaney did to obstruct his or other law enforcement officer’s ability to perform a
legitimate governmental function.

(Doc. 73-1 at ¶¶ 54, 59-61, and 65.)
The Court agrees and finds that the referenced paragraphs contain
inappropriate expert witness “comments on the evidence or absence [of evidence]”
as to particular matters and, therefore, are subject to exclusion under Rule 702
because they do not assist the trier of fact. United States v. W.R. Grace, 455 F.
Supp. 2d 1148, 1159 (D. Mont. 2006). Chaney, of course, may present arguments
as to what the evidence suggests, or what the absence of evidence suggests, as
described in paragraphs 54, 59-61, and 65 of Mr. Longo’s expert report, but he
may not do so through Mr. Longo’s expert witness testimony. The City of
Ronan’s motion is GRANTED in this respect.
The City of Ronan moves to exclude Mr. Longo’s expert witness testimony
set forth in his expert report as follows: “It is undisputed that at the time Anthony
Chaney was detained by the Ronan officers, the Ronan officers were not certified,
or trained, as law enforcement officers in the State of Montana.” (Doc. 73-1 at ¶

15

45.) It objects to this testimony on the basis that the extent of training and
certification required under Montana law for, and the actual training and
certification received by, the law enforcement officers who detained Chaney are
matters that are in fact disputed. Chaney concedes that there exists disputes with
respect to the officer’s training. Therefore, the City of Ronan’s motion is
GRANTED to the extent Mr. Longo’s statement declares the matters
“undisputed.”
B.

Use of Force Against Chaney - Contrary to Law Enforcement
Practices

Mr. Longo’s second formal opinion states as follows: “I am of the opinion
to a reasonable degree of professional certainty that the use of force against
Anthony Chaney was contrary to generally accepted law enforcement practices at
the time of this incident.” (Doc. 73-1 at ¶ 29.) The City of Ronan objects to
certain statements in Mr. Longo’s expert report which he presents in support of the
quoted opinion. Mr. Longo’s report refers to crisis intervention training available
to law enforcement officers who deal with emotionally or mentally disturbed
individuals, the lack of sufficient treatment options available in communities for
those individuals, and the resulting increased number of encounters between law
enforcement officers and mentally or emotionally disturbed individuals. (Doc. 73-

16

1 at ¶¶ 104-109.) The City of Ronan argues the statements are subject to exclusion
as irrelevant because they do not “fit” the issues to be determined in Chaney’s
claims.
The six referenced paragraphs in Mr. Longo’s report to which the City of
Ronan objects read as follows:
104. Crisis Intervention Training (CIT) is another relevant area which has provided much
guidance to law enforcement officers when dealing with emotionally disturbed persons
and persons, such as Donald Chaney, who are experiencing mental health issues such as
post-traumatic stress disorder.
105. Public beds for the mentally ill have continuously been decreasing since the
Kennedy administration.
106. The absence of residential treatment options for the mentally ill has created an
increased likelihood that a law enforcement officer will encounter someone in crisis
during their tour of duty on any given day.
107. In fact, research suggests that seven to ten percent of police encounters will involve
emotionally disturbed/mentally ill persons.
108. A 2006 report published by the Center for Problem Oriented Policing revealed that
approximately 5 percent of persons in the United States suffer from a severe mental
illness.
109. The need to ensure that law enforcement officers are properly trained to deal with
emotionally disturbed persons exceeds the obvious.

(Doc. 73-1 at ¶¶ 104-109.)
Although the City of Ronan contends the statements in these paragraphs are
irrelevant to Chaney’ claims, his claims include allegations that the City of Ronan
was negligent with respect to the training, or lack thereof, that it provided to its

17

law enforcement officers. Thus, standards of law enforcement training practices
may be relevant to some portions of Chaney’s claims. “To exclude evidence on a
motion in limine ‘the evidence must be inadmissible on all potential grounds.’”
Wood v. Montana Dept. of Revenue, 2011 WL 4348301, at *2 (D. Mont. Sept. 16,
2011) (quoting BNSF Ry. v. Quad City Testing Laboratory, Inc., 2010 WL
4337827 (D. Mont. Oct. 26, 2010). “Unless evidence meets this high standard,
evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.” Id.
Therefore, the City of Ronan’s motion is DENIED as to the specific matters in
paragraphs 104-109 of Mr. Longo’s expert report. The Court will reserve final
ruling on the relevance and admissibility of the statements in the context of the
evidence presented at trial.
The City of Ronan further disagrees with, and objects to, the conclusion Mr.
Longo intends to present in his second formal opinion, quoted above, concluding
that Trevor Wadsworth improperly used force against Chaney. For the reasons
discussed, the Court agrees that the substance of Mr. Longo’s opinion is
inadmissible with respect to Chaney’s claim that Wadsworth used excessive force
against him in violation of his rights under the Fourth Amendment to the United
States Constitution.
18

The Fourth Amendment prohibits law enforcement officers from using
“excessive force in the course of making an arrest,” and the issue of whether the
force was excessive is properly analyzed under an objective reasonableness
standard. Graham v. Connor, 490 U.S. 386, 388 (1989). Mr. Longo’s expert
opinion concluding Wadsworth’s use of force was contrary to law enforcement
practices is equivalent to an opinion that the force was excessive or unreasonable.
Generally, an expert witness may not express an opinion as to the
reasonableness or excessiveness of a law enforcement officer’s use of force.
Expert opinion testimony concluding the officer’s conduct was “not justified,”
“not warranted,” and “totally improper” expresses legal conclusions and
“conclusory condemnations” of the officer’s conduct, and merely instructs the jury
as to the result it should reach. Hygh v. Jacobs, 961 F.2d 359, 364 (2nd Cir. 1992).
Furthermore, expert testimony concluding that an officer’s use of force was
“excessive” addresses a factual determination that is properly within the province
of the jury and will not assist the jury in resolving that issue. Robinson v.
Delgado, 2010 WL 1838866, *6-7 (N.D. Cal. 2010). Accordingly, Mr. Longo’s
opinion that Wadsworth’s use of force was improper is an impermissible legal
conclusion, and it will not assist the jury. The City of Ronan’s motion is
GRANTED in this respect as it pertains to Chaney’s claim of excessive use of
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force under the Fourth Amendment.
But, Chaney also advances a claim of negligence against Wadsworth for his
use of force. Therefore, to the extent that any of Mr. Longo’s statements offered
in support of his ultimate opinion identify standards of law enforcement practices
that are relevant to the use of force by a law enforcement officer and Chaney’s
negligence claim, then Mr. Longo’s statements may be relevant and admissible.
Therefore, the City of Ronan’s motion is DENIED in this respect. The Court will
reserve final ruling on the relevance and admissibility of specific statements in the
context of the evidence presented at trial.
C.

Failure to Train and Certify - Contrary to Law Enforcement
Practices and Causation for Chaney’s Claims

Mr. Longo’s third formal opinion is as follows:
I am of the opinion to a reasonable degree of professional certainty that the
practice of failing to ensure the proper law enforcement training and
certification of its police officers was contrary to generally accepted law
enforcement practices at the time of this incident, and that this failure to
train and certify caused the officers to escalate, rather than de-escalate the
situation, detain and arrest Anthony Chaney, and use force against Anthony
Chaney.
(Doc. 73-1 at ¶ 30.)
The City of Ronan moves to exclude certain statements in Mr. Longo’s
expert report which he made in support of his third opinion quoted above. In

20

particular, the City of Ronan objects to Mr. Longo’s statements in paragraphs 125,
132, 134 and 135 of his expert report on the ground that the statements
impermissibly express conclusions of law. Those paragraphs state as follows:
125. An agency that fails to train officers for recurring tasks that law enforcement officers
face may be liable for failing to train the officers, where the lack of training or poor
training foreseeably leads to a constitutional violation.
[...]
132. The State of Montana is no different. It requires that those hired as law enforcement
officers meet certain standards to ensure their fitness for duty and the ability to carry out
those duties properly.
[...]
134. It is further undisputed that the City, with the knowledge of both the Mayor and the
Chief of Police, deployed those officers to perform the function of a law enforcement
officer in the City of Ronan absent any basic law enforcement training as mandated by
Montana Law and as provided by the Montana Law Enforcement Academy.
135. While it may be argued that Trevor Wadsworth attended basic law enforcement
training before it was discovered that he didn’t comply with the minimum compulsory
requirement of being an employee of the city, he failed to complete the academy and thus
failed to receive the proper law enforcement officer’s certification.

(Doc. 73-1 at ¶¶ 125, 132 and 134-135.)
The Court agrees that Mr. Longo’s statement in paragraph 125 recites
principles of law which impose liability upon a governmental law enforcement
agency for failing to train its officers where the failure caused a violation of a
citizen’s constitutional rights. Additionally, Mr. Longo’s statement in paragraph
132 recites Montana law which requires law enforcement officers to meet certain

21

standards. An expert witness may not testify as to conclusions of law, instruct the
jury as to any statement of law to be applied in the case, or provide an
interpretation of what a particular statute requires – tasks that are exclusively
reserved for the court. Hangarter v. Provident Life and Accident Ins. Co., 373
F.3d 998, 1016 (9th Cir. 2004) and United States v. Stephens, 237 F.3d 1031, 1033
(9th Cir. 2001). The City of Ronan’s motion is GRANTED with respect to
paragraps 125 and 132.
The Court disagrees, however, that the statements in paragraphs 134 and
135 express conclusions or statements of law. Therefore, the City of Ronan’s
motion is DENIED in this respect. The Court reserves the final ruling as to the
relevance and admissibility of the statements in these paragraphs depending on the
context of the evidence presented at trial.
The City of Ronan further objects to the statements in paragraphs 134 and
135 on the ground that they are irrelevant. It argues the statements ignore the
possibility that the law enforcement officers deployed by the City of Ronan,
including Trevor Wadsworth, may qualify as “reserve officers” as defined under
Montana law and, therefore, may not be subject to the training and certification
compliance requirements referenced in the two paragraphs. Therefore, the City of
Ronan argues the statements are incorrect and irrelevant to the facts of this case.
22

The Court finds that the issue of whether the law enforcement officers
employed by the City of Ronan qualify as “reserve officers” involve factual and
legal issues which remain to be resolved in this case. Therefore, the issue of
whether Mr. Longo’s statements in paragraphs 134-135 are relevant and
admissible in this case is reserved for final ruling in the context of the evidentiary
and legal rulings issued at the time of trial. The City of Ronan’s motion is
DENIED in this respect.
The City of Ronan further objects to Mr. Longo’s statements in paragraphs
136 and 137 of his report on the ground it believes they are improper comments on
the evidence. In paragraph 136 Mr. Longo states the following: “In his Findings
of Fact and Conclusions of Law memorandum, the POST Hearing Officer
properly stated the following: [...]” (Doc. 73-1 at ¶ 136 (emphasis added).) The
statement then proceeds to quote the POST Hearing Officer’s opinion as to the
consequences of deploying untrained, uncertified, and unqualified law
enforcement officers.
The Court agrees that Mr. Longo’s statement in paragraph 136 “merely
comments on the evidence[,]” and “is excludable under Rule 702 because it does
not assist the trier of fact[.]” United States v. W.R. Grace, 455 F. Supp. 2d 1148,
1159 (D. Mont. 2006). The jury in this case can decide for itself whether the
23

POST Hearing Officer properly identified the consequences of the use of
untrained law enforcement officers. The City of Ronan’s motion is GRANTED in
this respect.
In paragraph 137 of his expert report, Mr. Longo states as follows: “[T]he
City of Ronan and its Chief of Police subjected the citizens of Ronan to a
foreseeable risk of constitutional harm by permitting untrained, uncertified, and
unqualified persons to carry out the duties of a sworn law enforcement officer.”
(Doc. 73-1 at ¶ 137.) The City of Ronan moves to exclude this statement asserting
it is an impermissible comment on the evidence.
The Court finds the statement in paragraph 137 is a comment. Mr. Longo
may be qualified to express an opinion as to the consequences of the use of
untrained law enforcement officers as a general proposition. But by specifically
opining that the City of Ronan and Chief Wadsworth did in fact subject citizens to
a forseeable risk of constitutional harm, Mr. Longo is commenting directly on the
disputed issue of fact of whether the officers were adequately trained. Thus, Mr.
Longo’s opinion as framed is inadmissible and the City of Ronan’s motion is
appropriately GRANTED.

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D.

Failure to Investigate and Discipline Chief Wadsworth Regarding
Falsified Record - Contrary to Law Enforcement Practices

The City of Ronan moves to exclude Mr. Longo’s fourth opinion which
states as follows:
I am of the opinion to a reasonable degree of professional certainty that the
City of Ronan’s failure to investigate and take preliminary personnel action
upon learning of the allegations that Chief Wadsworth had willfully
falsified a record was contrary to generally accepted law enforcement
practices at the time of this incident.
(Doc. 73-1 at ¶ 30.) It objects to this opinion on the ground it is not relevant to
Chaney’s constitutional claims under 42 U.S.C. § 1983 alleging his arrest was
effected without probable cause and with excessive force.
It is true that the quoted opinion may not be relevant to Chaney’s
constitutional claims arising from the circumstances specific of his arrest on July
14, 2013. But Chaney contends the opinion will be relevant to his claims of
negligence, and the Court agrees. In view of the negligence claims, the Court
cannot conclude that the opinion is inadmissible for all purposes and on all
potential grounds. Wood v. Montana Dept. of Revenue, 2011 WL 4348301, at *2
(D. Mont. Sept. 16, 2011) (quoting BNSF Ry. v. Quad City Testing Laboratory,
Inc., 2010 WL 4337827 (D. Mont. Oct. 26, 2010). A final ruling on the
admissibility of the quoted opinion is deferred until trial so that questions of

25

foundation, relevancy and potential prejudice may be resolved in proper context.
Therefore, the City of Ronan’s motion is DENIED with respect to Mr. Longo’s
fourth opinion.
E.

Chief Wadsworth and Mayor Aipperspach’s Failure to Comply
with Montana Law Requiring Employment and Compensation of
Persons Attending Basic Law Enforcement Training - Contrary
to Law Enforcement Practices

Mr. Longo’s fifth opinion set forth in his expert report reads as follows:
I am of the opinion to a reasonable degree of professional certainty that
Chief Wadsworth and Mayor Aipperspach’s failure to comply with the
provisions of Montana Law requiring both employment and compensation
of persons attending basic law enforcement training was contrary to
generally accepted law enforcement practices at the time of this incident.
(Doc. 73-1 at ¶ 32.) The City of Ronan moves to preclude Mr. Longo from
expressing this opinion at trial on the ground it is not relevant to Chaney’s claims
alleging his arrest was effected without probable cause and with excessive force.
Specifically, it argues the opinion is not relevant to Chaney’s claims advanced
under 42 U.S.C. § 1983.
In terms of the opinion’s relevance to Chaney’s section 1983 claims, the
Court agrees. The opinion has no probative value as to the issues of whether
probable cause existed warranting Chaney’s arrest, or whether the law
enforcement officers used excessive force in making his arrest.

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Furthermore, the Court finds it is doubtful that the opinion has any
relevance to Chaney’s negligence claims or his other section 1983 claims.
Whether an officer was employed and compensated by the law enforcement
agency that sponsored the officer’s attendance at the basic law enforcement officer
training program would likely have no probative value with respect to the issue of
whether any Defendant’s specific conduct directed to, or affecting, Chaney caused
him any harm or violated his constitutional rights. But, the Court will reserve
ruling on the issue of the opinion’s relevance for the presiding Judge in the
context of the evidence and issues presented at trial. Therefore, the City of
Ronan’s motion is DENIED in this respect.
The City of Ronan also moves to exclude at least a portion of Mr. Longo’s
fifth opinion in that it offers speculation as to a person’s state of mind.
Specifically, the City of Ronan objects to Mr. Longo’s statement opining that
“[b]oth Chief Wadsworth and Mayor Aipperspach were either ignorant of the
law or simply chose to ignore it. It is not for me to conclude which is the more
accurate.” (Doc. 73-1 at ¶ 173.)
One of the threshold requirements for the admissibility of expert opinion
testimony under Rule 702 is that the “expert’s scientific, technical, or other
specialized knowledge” must constitute something “more than subjective belief or
27

unsupported speculation.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 590 (1993). Thus, where an expert fails to demonstrate that a particular
opinion is more than a mere subjective belief, unsupported speculation, or a bald
conclusion, the opinion is subject to exclusion under Rule 702. Claar v.
Burlington Northern Railroad Company, 29 F.3d 499, 502 (9th Cir. 1994);
Flagstone Development, LLC v. Joyner, 2011 WL 5040663, *2 (D. Mont. 2011).
Here, Mr. Longo’s opinion that Chief Wadsworth and Mayor Aipperspach
were either ignorant of, or consciously chose to ignore, the law requiring
employment of, and compensation to, law enforcement officers sent for training is
merely his subjective belief, or speculation. Therefore, Mr. Longo’s opinion
statements in paragraph 173 of his expert report are subject to exclusion, and the
City of Ronan’s motion is GRANTED in this respect.
F.

Trevor Wadsorth was Performing Duties of Sworn Law
Enforcement Officer Without Training and Qualifications Contrary to Law Enforcement Practices

In his sixth opinion, Mr. Longo states as follows:
I am of the opinion to a reasonable degree of professional certainty that
Trevor Wadsworth was not performing the duties of a reserve officer but
was performing the duties of a sworn law enforcement officer absent the
requisite training and qualifications, and therefore acting contrary to
generally accepted law enforcement practices.
(Doc. 73-1 at ¶ 33.)
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The City of Ronan asserts the opinion quoted above is inadmissible because
it presents a conclusion of law suggesting that Trevor Wadsworth was not a
“reserve officer” as defined under the provisions of Mont. Code Ann. § 7-32201(6) and, therefore, was required to meet certain training and qualification
requirements.
The Court agrees that to the extent that Mr. Longo’s opinion constitutes an
interpretation and application of the legal definition of a “reserve officer” under
Montana law, the opinion is inadmissible. “The proper interpretation of a statute
is a question of law[]” for the Court to resolve. United States v. Stephens, 237
F.3d 1031, 1033 (9th Cir. 2001). And, a statement as to whether an individual
violated a specific statutory provision is an opinion on a legal conclusion which an
expert witness is not permitted to give. Nationwide Transport Finance v. Cass
Information Systems, Inc., 523 F.3d 1051, 1059-60 (9th Cir. 2008). Thus, the City
of Ronan’s motion is GRANTED in this respect.
The City of Ronan next objects to Mr. Longo’s statements in paragraphs
200, 206 and 210 of his expert report on the ground they are speculative. Those
three paragraphs read as follows:
200. Although the Police Officer Standards and Training Council had previously
deemed Trevor Wadsworth ineligible to serve as a peace officer in the State of Montana,
the City of Ronan permitted him to continue to enjoy the same powers, rights, privileges,
obligations, and duties of any other Montana law enforcement officer. They did so

29

without ensuring that Trevor Wadsworth was properly trained to perform his duties.
[...]
206. Montana Law clearly set out the standards applicable to the hiring and training of
peace officers in the State of Montana. I am of the opinion based on the materials that I
have reviewed that both Chief Wadsworth and the City of Ronan were aware of the
applicable law and chose to ignore it.
[...]
210. By the Chief’s own admission, not only did Trevor never undergo the state
mandated training for basic law enforcement, he was never under the supervision of a
field training officer when deployed in the City of Ronan.

(Doc. 73-1 at ¶¶ 200, 206 and 210.) The City of Ronan, however, does not
identify any specific statement within these three paragraphs which it asserts is
speculative.
Nonetheless, the Court agrees that Mr. Longo’s statement asserting that
Chief Wadsworth and the City of Ronan “chose to ignore” the Montana laws
applicable to the hiring and training of peace officers is, without more, speculative
and inadmissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
590 (1993). The City of Ronan’s motion is GRANTED in this respect. But
because the City of Ronan does not identify specifically what is speculative about
the balance of the three above-quoted paragraphs, the Court does not find they are,
in fact, speculative. Thus, the City of Ronan’s motion on the ground of
speculation is otherwise DENIED subject to a final ruling as to admissibility in the

30

context of the evidence presented at trial.
The City of Ronan opposes Mr. Longo’s statements in paragraphs 207 and
208 as improper comments on the evidence. In paragraph 207, Mr. Longo opines
that Chief Wadsworth and the City of Ronan’s conduct in employing peace
officers without complying with hiring and training requirements thereby “placed
the citizens of Ronan at a foreseeable risk of Constitutional harm by allowing
persons to perform the duties and responsibility of a peace officer without the
proper and state mandated training.” (Doc. 73-1 at ¶ 207.) As previously
discussed in regard to paragraph 137 of Mr. Longo’s expert report, the Court finds
the statement is a comment on the evidence. The City of Ronan’s motion is
GRANTED in this respect.
In paragraph 208, Mr. Longo opines that “Chief Wadsworth’s utter
disregard for the importance of training, and specifically as that training pertained
to Trevor, is evidenced by his deposition testimony.” (Doc. 73-1 at ¶ 208.) The
Court agrees that this statement is a comment on the evidence and the content of
Chief Wadsworth’s deposition testimony. Therefore, the statement is
inadmissible, and the City of Ronan’s motion is GRANTED in this regard.
Finally, the City of Ronan argues that Mr. Longo’s sixth opinion quoted
above is not relevant to Chaney’s claims under 42 U.S.C. § 1983 and, therefore, is
31

inadmissible. Although the Court agrees the opinion may be irrelevant to the
section 1983 claims alleging the officers arrested Chaney without probable cause
and with the use of excessive force, the Court cannot agree it is not relevant to
Chaney’s claims of negligence, or other section 1983 claims. The ultimate
determination as to the relevance of the opinion is deferred until trial to be made in
the proper context of the evidence presented at trial. Therefore, the City of
Ronan’s motion is DENIED in this respect.
G.

Chief Wadsworth’s Failure to Supervise - Contrary to Law
Enforcement Practices

In his seventh opinion Mr. Longo states the following: “I am of the opinion
to a reasonable degree of professional certainty that Chief Wadsworth’s Failure to
Supervise officers under his direction was contrary to generally accepted policing
practices at the time of this incident.” (Doc. 73-1 at ¶ 34.)
The City of Ronan moves to exclude specific statements made by Mr.
Longo in paragraphs 212-218 of his expert report presented in support of his
seventh opinion. The City of Ronan asserts the statements present legal opinions
or conclusions. Those paragraphs are as follows:
212. The means by which a department could become aware of practices which depart
from policy, training, and law rests with supervisors within the organization; perhaps this
is the most practical and immediate of management tools.
213. In my 34 years of policing, I have found supervision to be a highly effective

32

mechanism of mitigating risks of exposure within a law enforcement organization. With
regard to the first line supervisor, and even the watch command level, both are extremely
instrumental in the daily oversight and management of line personnel and the services
they provide to our citizens.
214. In a department the size of the Ronan Police Department, the first line supervisor on
the street is oftentimes the Chief of Police.
215. The City of Ronan and Chief Wadsworth have taken the position that Meyers, Swan,
and Wadsworth were “reserve officers’ employed by the Ronan Police Department.
216. If that is determined to be the case, I am of the opinion that the manner in which
those officers were supervised on the morning of July 13, 2013, was contrary to 7-32-216,
MCA, which requires that a reserve officer be supervised by a full-time law enforcement
officer whose span of control would be considered within reasonable limits.
217. Chief Wadsworth would interpret that span of control to mean that a reserve officer
is supervised properly if a full-time law enforcement officer is anywhere within the City
of Ronan.
218. Law enforcement officers make split second decisions oftentimes under
circumstances that are tense, uncertain, and rapidly evolving. The very fact that these
particular officers lacked the formal training mandated to carry out the duties of a
Montana law enforcement officer required that they be more closely supervised in order
to effectively monitor the performance of their duties.

(Doc. 73-1 at ¶¶ 213-218.)
The Court finds that the only opinion improperly expressing a conclusion of
law or legal opinion is in paragraph 216 where Mr. Longo asserts the supervision
of the officers was conducted contrary to Mont. Code Ann. § 7-32-216. This
statement contends the City of Ronan and its supervising police officers violated a
specific statutory provision and, thus, constitutes an opinion on a legal conclusion
which an expert witness is not permitted to give. Nationwide Transport Finance
v. Cass Information Systems, Inc., 523 F.3d 1051, 1059-60 (9th Cir. 2008). Thus,
33

the City of Ronan’s motion is GRANTED as to that portion of paragraph 216. But
the City of Ronan’s motion challenging legal conclusions asserted in paragraphs
213-218 is otherwise DENIED since they do not contain legal conclusions.
The City of Ronan further objects to paragraphs 215-220 of Mr. Longo’s
expert report on the basis that the statements are not relevant to Chaney’s claims
alleging his arrest was effected without probable cause and with excessive force.
Following paragraphs 215-218 above, paragraphs 219 and 220 state as follows:
219. In this particular case, I have reviewed no documentation with regard to what, if any,
training these officers received to prepare them for their work and particularly as it related
to dealing with people like Donald Chaney who was in crisis at the time he encountered
these officers.
220. Even if one were to agree with Chief Wadsworth’s interpretation as to the reasonable
limits of the span of control over his officers, I have reviewed nothing that evidences that
he carried out his affirmative duty to properly train his officers in those areas where the
need to train is obvious; detention, arrest, use of force, and dealing with people are
emotionally disturbed or in crisis.

(Doc. 73-1 at ¶¶ 219-220.)
The Court finds that although the statements in paragraphs 215-220 may not
be relevant to Chaney’s claims that the officers lacked probable cause to arrest
him, and used excessive force during the arrest, the statements in these paragraphs
may be relevant to Chaney’s claims of negligence, or other section 1983 claims,
and the Court cannot conclude the statements are inadmissible for all purposes and
on all grounds. The City of Ronan’s motion is DENIED in this respect. The Court

34

will defer a final ruling on the relevance and admissibility of the statements in the
context of the evidence as presented at trial.
The City of Ronan next moves to exclude Mr. Longo’s statements in
paragraphs 221-224 on the ground they do not fit, or are irrelevant to, Chaney’s
claims under 42 U.S.C. § 1983. Paragraphs 221-224 read as follows:
221. It is wholly consistent with generally accepted policing practices for officers who
have received basic law enforcement training to enter into a Field Training Program
under the direct supervision of a Field Training Officer. Typically these programs last
twelve (12) weeks which amounts to some 480 hours of additional training.
222. During the entire duration of this program, the new trained officer is never alone.
Every single task the officer performs is supervised by his or her Field Training Officer.
223. Those tasks are documented, reviewed, and remediated if necessary.
224. It is only after successfully completing this additional 12 weeks of practical training
that the officer is permitted to police on his own.

(Doc. 73-1 at ¶¶ 221-224.)
The Court finds that Chaney’s claims include claims of negligence to which
Mr. Longo’s statements in paragraphs 221-224 may be relevant, even if they are
not relevant to some of the section 1983 claims. Therefore, the referenced
statements are not inadmissible for all purposes and on all grounds, and the City of
Ronan’s motion is DENIED in this respect. The Court will defer a final ruling on
the relevance and admissibility of the statements in the context of the evidence as
presented at trial.

35

Finally, the City of Ronan moves to exclude Mr. Longo’s statement in
paragraph 225 as follows:
225. In effect, what the City of Ronan and Chief Wadsworth has done in this case is
unleash on their citizens people who lack the training and certification as a law
enforcement officers and supervise the untrained officers’ daily tasks from a distance that
would preclude them from promptly intervening in the event one or more of those
officers acted contrary to policy, law, or generally accepted policing practices.

(Doc. 73-1 at ¶ 225.) The City of Ronan asserts the statement is inadmissible
because it constitutes “gratuitous speculation and subjective belief.” (Doc. 73 at
12.)
The Court agrees that Mr. Longo’s statement in paragraph 225 constitutes
speculation or subjective belief, and would be a direct and impermissible comment
on the evidence. Therefore, the City of Ronan’s motion is GRANTED in this
respect.
H.

Hiring Practices - Contrary to Law Enforcement Practices

The City of Ronan moves to exclude Mr. Longo’s eighth opinion, and the
numerous supporting statement paragraphs set forth in his expert report. Mr.
Longo’s eight opinion is as follows: “I am of the opinion to a reasonable degree
of professional certainty that the hiring practices of the City of Ronan Police
Department was contrary to generally accepted policing practices at the time of
this incident.” (Doc. 73-1 at ¶ 35.) The City of Ronan argues the opinion and

36

supporting statement are not relevant to the demanding standard for liability under
42 U.S.C. § 1983 and Monell v. Dept. of Social Services, 436 U.S. 658 (1978) that
can be imposed against a local governmental entity where the plaintiff alleges the
entity was deliberately indifferent to a plainly obvious consequence of failing to
properly screen prospective law enforcement employees.
While the Court agrees that the eighth opinion and supporting statements
may not be sufficient to impose liability against the City of Ronan under section
1983 based on its alleged negligent decision to hire Trevor Wadsworth, the City of
Ronan again ignores Chaney’s claims of negligence plead in this action. Mr.
Longo’s opinion may be relevant to Chaney’s claim that the City of Ronan was
negligent in the course of its conduct in hiring and employing Trevor Wadsworth.
Therefore, the Court cannot agree Mr. Longo’s eighth opinion is inadmissible for
all purposes and on all grounds, and the City of Ronan’s motion is DENIED in this
respect. The Court will defer final ruling on the admissibility of Mr. Longo’s
eighth opinion and supporting statements in the context of the evidence as
presented at trial.
IT IS SO ORDERED.
DATED this 15th day of July, 2015.

Jeremiah C. Lynch
United States Magistrate Judge
37