Martinez et al v. City of Fremont et al

Filing 160

MEMORANDUM AND ORDER - Defendants' Motion in Limine to Preclude Testimony of Plaintiffs' Expert Witness, Stephen W. Yale-Loehr, Esquire (Filing No. 131 in case 4:10-cv-03140 ) is granted in part as follows: Yale-Loehr may not testif y about immigration law or regulations, or offer any opinion about the legality of the Fremont Ordinance at issue in this case. Defendants' expert witness, Jan C. Ting, is similarly precluded, in limine, from testifying about immigration law or regulations, or offering any opinion about the legality of the Fremont Ordinance at issue in this case. Member Cases: 8:10-cv-00270-LSC-FG3, 4:10-cv-03140-LSC-FG3 Ordered by Chief Judge Laurie Smith Camp. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRED H. KELLER, JR.; YAMILETH
LEIVA; JUAN ARMENTA; JUAN DOE;
JUANA DOE; and JUANA DOE #2,
Plaintiffs,
v.
CITY OF FREMONT; DALE
SHOTKOWSKI, in his Official Capacity;
and TIMOTHY MULLEN, in his Official
Capacity,
Defendants.
MARIO MARTINEZ, JR.; PAULA
MERCADO; MARTIN MERCADO; JANE
DOE; MARIA ROE; STEVEN DAHL; ACLU
NEBRASKA FOUNDATION; UNITED
FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 22; and BLAKE HARPER,
Plaintiffs,
v.
CITY OF FREMONT; DALE SHOTKOSKI,
in his Official Capacity as Fremont City
Attorney; and TIMOTHY MULLEN, in his
Official Capacity as Fremont Chief of
Police,
Defendants.

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CASE NO. 8:10CV270

MEMORANDUM AND ORDER

CASE NO. 4:10CV3140

MEMORANDUM AND ORDER

This matter is before the Court on the Defendants’ Motion in Limine to Preclude
Testimony of Plaintiffs’ Expert Witness, Stephen W. Yale-Loehr, Esquire (Filing No. 131).1

1

All citations to CM/ECF filings refer to those found in Case No. 4:10cv3140.

The Court has reviewed the parties’ briefs (Filing Nos. 132 and 148) and Indexes of
Evidence (Filing Nos. 133 and 149) and concludes that the Motion should be granted.
Yale-Loehr’s biographical information (Filing No. 149-1, CM/ECF pp. 30-33)
demonstrates that he has considerable expertise in the field of immigration law. His expert
report (Filing Nos. 133-1 and 149-1 (hereinafter, the “Yale-Loehr Report”)) reveals that he
intends to offer his opinions about conflicts between federal immigration law and the
Fremont Ordinance at issue in this case. For example, he states that “it is my opinion as
an expert in the area of federal immigration law to a reasonable degree of certainty that
Fremont Ordinance 5165 cannot be applied in a manner that is consistent with federal
immigration law.” (Yale-Loehr Report, at ¶ 7.) He also concludes that “the Fremont Police
Department, and Nebraska state court judges in cases where . . . civil actions are filed
under the Ordinance . . . are likely to make mistakes concerning federal immigration law
in the process due to that subject’s complexity.” (Id. at ¶ 19.) He states that “[i]mmigration
law is very complex” and requires a lawyer to “‘thread the labyrinth.’” (Id. at ¶ 25, quoting
Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988).)
Federal Rule of Evidence 702 provides for admission of expert testimony when it
will assist the trier of fact in understanding the evidence or determining a disputed issue
of fact. The Defendants correctly note that it is not the province of an expert witness to
offer opinions on domestic law, or to proffer legal conclusions.2 The Plaintiffs do not

2

See Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th
Cir. 2008) ("Resolving doubtful questions of law is the distinct and exclusive province of the
trial judge.”) (quoting United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993)
(holding that expert testimony explaining the legal effect of an environmental permit was
an improper delegation of the district judge’s duties); Berckeley Inv. Group, Ltd. v. Colkitt,
455 F.3d 195 (3d Cir. 2006) (holding that a district court "must ensure that an expert does
not testify as to the governing law of the case."); Peterson v. City of Plymouth, 60 F.3d 469,
2

disagree, but argue that Yale-Loehr intends to offer fact testimony about the “the intricacies
of the federal immigration system and the facts in the case pertaining to the interaction
between Fremont Ordinance 5165 and the federal immigration system.” (Plaintiffs’ Brief,
Filing No. 148, at 2.)
Because this case concerns the legality of the Fremont Ordinance, and because
Yale-Loehr’s expert report indicates that he intends to offer opinions on domestic law, i.e.,
federal immigration law and regulations, and conclusions about the legality of the Fremont
Ordinance, Defendants’ Motion will be granted. Defendants concede that their designated
expert, Professor Jan C. Ting, has included in his expert report (Filing No. 133-2) certain
legal analysis in response to Yale-Loehr’s proffered legal opinions. Defendants offer to
withdraw Ting’s proposed testimony as reflected in paragraphs 3 and 4 of his report.

475 (8th Cir. 1995) (finding that the trial court erred in allowing testimony that police
officers’ conduct satisfied Fourth Amendment requirements, stating that the “testimony was
not a fact-based opinion, but a statement of legal conclusion. The legal conclusions were
for the court to make. It was an abuse of discretion to allow the testimony.”); Aguilar v. Int’l
Longshoremen’s Union Local # 10, 966 F.2d 443 (9th Cir. 1992) (holding that legal expert
testimony about what the law is and how it should be applied must be excluded);
Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (finding that
the court abused its discretion by allowing a witness to testify that the defendant had a duty
to hire tax counselors, stating that a witness “may not testify to the legal implications of
conduct”); Specht v. Jensen, 853 F.2d 805, 807-810 (10th Cir. 1988) (noting that federal
courts typically prohibit lawyers and other experts from advising the fact-finder how the law
should apply to the facts of a particular case); United States v. Zipkin, 729 F.2d 384, 387
(6th Cir. 1984) (reversing trial court’s decision to allow a bankruptcy judge to testify
regarding his interpretation of the Bankruptcy Act, stating that “[i]t is the function of the trial
judge to determine the law of the case”); Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505,
508-11 (2d Cir. 1977) (holding that the trial court erred in permitting a lawyer to offer an
opinion concerning securities law and the application of the law to the contract in dispute);
4 JACK B. W EINSTEIN & MARGARET A. BENDER , W EINSTEIN 'S FEDERAL EVIDENCE § 702.03[3]
(2d ed. 1997) (“Expert testimony is not admissible to inform the finder of fact as to the law
that [will be applied] to the facts in deciding the case. . . . Expert witnesses are also
prohibited from drawing legal conclusions . . . . This proscription precludes an expert from
testifying in the language of statutes, regulations, or other legal standards that are at the
heart of the case.”).
3

Accordingly, Ting’s proposed expert testimony as reflected in those paragraphs is deemed
withdrawn, and Ting will be precluded, in limine, from testifying about immigration law or
regulations, or offering any opinion about the legality of the Fremont Ordinance.
Provided that proper foundation is laid, and the testimony is relevant to the issues
before the Court, both Yale-Loehr and Ting may testify about custom and practice in the
field of federal immigration enforcement. Accordingly,
IT IS ORDERED:
1.

Defendants’ Motion in Limine to Preclude Testimony of Plaintiffs’ Expert
Witness, Stephen W. Yale-Loehr, Esquire (Filing No. 131) is granted in part
as follows:
Yale-Loehr may not testify about immigration law or regulations, or
offer any opinion about the legality of the Fremont Ordinance at issue
in this case;

2.

Defendants’ expert witness, Jan C. Ting, is similarly precluded, in limine,
from testifying about immigration law or regulations, or offering any opinion
about the legality of the Fremont Ordinance at issue in this case.

DATED this 4th day of January, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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