Montoya v. Ramos et al
MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 77 Opposed MOTION in Limine to exclude Plaintiffs expert witness from testifying as to the ultimate issues in this case. Mr. Montgomery shall be prohibited from offering expert testimony that the seizure and arrest of Plaintiff was unlawful. (kg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CITY OF ALBUQUERQUE,
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION IN LIMINE NO. I: TO EXCLUDE PLAINTIFF’S EXPERT
WITNESS FROM TESTIFYING AS TO THE ULTIMATE ISSUES IN THIS CASE
THIS MATTER is before the Court on Defendants Kacy Ramos, Michael Rico, and City
of Albuquerque’s Motion in Limine No. I: To Exclude Plaintiff’s Expert Witness from Testifying
as to the Ultimate Issues In This Case, filed on June 30, 2017 (Doc. 77). Having reviewed the
relevant pleadings and the applicable law, the Court finds the Motion is well-taken, and is
This lawsuit centers on an encounter between Plaintiff Max Montoya and Albuquerque
Police Department (“APD”) Officers Kacy Ramos and Michael Rico. On August 27, 2011,
shortly after 10:00 p.m., Officers Ramos and Rico were dispatched to 510 Dartmouth Dr. SE in
reference to an anonymous 911 call regarding a disturbance on Dartmouth Dr. SE. Officers
Ramos and Rico were advised that there were two males in an argument and one of the males
mentioned a gun. Officers Ramos and Rico made contact with an unidentified female, who
indicated that the argument had come from Plaintiff’s residence, 511 Dartmouth Dr. SE. As
Officers Ramos and Rico were walking towards 511 Dartmouth, Officer Rico put his flashlight
on the house and shone it on Plaintiff, who ducked down and moved towards his front door. The
officers approached Plaintiff, who was at the front door of his residence with a beer in his hand.
The parties dispute what happened next. Defendants state they were concerned Plaintiff
might have been armed with a gun. Plaintiff was intoxicated and stumbling, and officers feared
for their safety when Plaintiff stumbled toward them. Officer Ramos asked Plaintiff to step
toward him, and Plaintiff became aggressive. Plaintiff then moved toward Officer Rico and was
Officers could smell alcohol on his breath.
Plaintiff became louder and more
aggressive. He stepped closer to Officer Rico with his fists balled up. Officers Ramos and Rico
took Plaintiff into custody. Defendants maintain that the officers had reasonable suspicion to
support an investigative detention of Plaintiff and his aggressive actions toward the officers gave
them probable cause for Plaintiff’s arrest based on their perception that Plaintiff battered and/or
In contrast, Plaintiff argues Officers Ramos and Rico lacked reasonable suspicion to
detain him and they did not have probable cause to arrest him. Plaintiff states that the officers
dragged him off of his front porch, attacked him, and injured him as they attempted to place him
in handcuffs, and despite Plaintiff telling officers he had recently been injured.
Following the altercation, Plaintiff was charged with “Assault Upon Peace Officer” in
violation of NMSA 1978, § 30-22-21 and “Resisting, Obstructing, Refusing” in violation of City
of Albuquerque Ordinance 12-2-18.
After an evidentiary hearing, Bernalillo County
Metropolitan Court Judge Christina Argyres dismissed the charges without prejudice for lack of
probable cause and lack of reasonable suspicion.
In this lawsuit, Plaintiff has sued the Defendants for civil rights violations under 42
U.S.C. § 1983 and the New Mexico Tort Claims Act. See Doc. 41. Plaintiff filed his First
Amended Motion for Partial Summary Judgment on May 26, 2017. See Doc. 71. In the Motion,
Plaintiff argues the Court should grant summary judgment in his favor on his claims that the
arrest on August 27, 2011 was executed without probable cause and that officers did not have
reasonable suspicion to detain him. Id. For summary judgment purposes, Plaintiff asks the
Court to consider evidence from his liability expert, Retired Chief of Police Dan Montgomery.
Mr. Montgomery reviewed the tape of the arrest and opines that Officers Ramos and Rico did
not act in accordance with proper police standards.
In his Motion for Partial Summary
Judgment, Plaintiff states that Mr. Montgomery believes there was no probable cause or
reasonable suspicion to justify detaining and arresting Plaintiff on August 27, 2011. See Doc. 71
at 6–7, 9. Defendants filed the instant Motion in Limine (Doc. 77) to exclude Mr. Montgomery’s
testimony to this effect, alleging it would be improper for Mr. Montgomery to opine as to
ultimate issues in this case: whether Plaintiff’s detention and arrest were effectuated without
probable cause and reasonable suspicion, depriving Plaintiff of his Fourth Amendment right to
be free from unlawful arrest and excessive force.
Under Fed. R. Evid. 702, “[a] district court may allow expert testimony ‘[i]f [the
expert’s] scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.’” United States v. Adams, 271 F.3d 1236,
1245 (10th Cir. 2001). Rule 702 assigns to the district judge a gatekeeping role to ensure that
scientific testimony is both reliable and relevant. See Dodge v. Cotter Corp., 328 F.3d 1212,
1221 (10th Cir. 2003). Under Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), a
reliability finding is a prerequisite for all expert testimony in areas beyond the knowledge and
experience of lay jurors, not just technical or scientific evidence.
The Court reads Defendants’ request as a narrow one: Mr. Montgomery should be
precluded from testimony that unequivocally states Defendants did not have reasonable
suspicion to detain or probable cause to arrest Plaintiff. The Court agrees with Defendants that
Mr. Montgomery should be barred from testifying as to the ultimate issues in this case. This
finding does not mean, however, that Mr. Montgomery would be prohibited from testifying as to
his expert opinions on whether the seizure and arrest of Plaintiff by Defendants was inconsistent
with modern and well-established police standards assuming Mr. Montgomery was properly
qualified as an expert under the requirements set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) and assuming his testimony would aid the jury
under according to Rule 702. Indeed, Defendants point out that “Mr. Montgomery did not
specifically set forth the opinions as characterized by Plaintiff in his Motion for Partial Summary
Doc. 77 at 5.
Thus, to the extent Plaintiff’s counsel intends to have Mr.
Montgomery testify that Defendants did not possess reasonable suspicion or probable cause,
such testimony will be excluded.
Defendants appropriately point out that although an expert opinion may permissibly
embrace the ultimate issue in a given case, the expert cannot state a legal conclusion by applying
the law to the facts. See Fed. R. Evid. 704(a); Okland Oil Co. v. Conoco, Inc., 144 F.3d 1308,
1328 (10th Cir. 1998).
Plaintiff responds that he does not intend to have Mr. Montgomery encroach on the
Court’s duty to instruct the jury regarding the law. Plaintiff states Mr. Montgomery’s opinions
on whether Defendants acted in accordance with proper policing standards will help the jury
perform its functions. Without Mr. Montgomery’s testimony, the jury will have no way to
evaluate whether the officers’ conduct was reasonable. Plaintiff points out that Mr. Montgomery
did not opine that the seizure and arrest of Plaintiff was unlawful. Rather, he opined that the
seizure and arrest was not done in a manner “consistent with modern and well established police
standards.” Doc. 80 at 3.
The Court concludes that to the extent Mr. Montgomery unequivocally states legal
conclusions as to the ultimate issues in this case, such testimony is improper and will be
The relevant legal questions at issue in this case are whether Defendants had
reasonable suspicion to detain Plaintiff, and whether Defendants had probable cause to arrest
Plaintiff. “[A]n expert may not state legal conclusions drawn by applying the law to the facts.”
A.E. by and through Evans v. Independent School Dist. No. 25, of Adair County, Okla., 36 F.2d
472, 476 (10th Cir. 1991). Expert testimony that invades the province of the jury or renders
opinions on issues of law is improper. See Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988)
(explaining that testimony on ultimate issues of law an expert “is inadmissible because it is
detrimental to the trial process”).
Any statements that usurp the province of the jury are
inadmissible. Testimony from Mr. Montgomery that Defendants did not have probable cause or
reasonable suspicion to justify their detention and arrest of Plaintiff would constitute legal
conclusions on ultimate issues of law, and the Court agrees with Defendants that this type of
testimony is improper. See United States v. Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005)
(“However, an expert may not simply tell the jury what result it should reach without proving
any explanation of the criteria on which that opinion is based or any means by which the jury can
exercise independent judgment.”).
The Tenth Circuit’s reasoning in United States v. Simpson, 7 F.3d 186 (10th Cir. 1993), is
particularly instructive. There, during trial, the defendant offered the testimony of an expert in
banking practices and sought to ask the expert if certain transactions constituted misapplication
or concealment of funds. Simpson, 7 F.3d at 188. The government objected, and “the trial court
ruled that defense counsel could not ask the question.” Id. “The trial court, however, gave
defense counsel considerable latitude in asking whether the transactions conformed with
standard banking procedures.” Id. On appeal, the Tenth Circuit held the trial court did not abuse
its discretion in refusing to admit the expert’s testimony, especially in light of the trial court
giving defense counsel alternate means to elicit testimony regarding the propriety of the
transactions. See id. at 188–89. Likewise here, the Court has broad discretion to exclude any
testimony that “amounts to a legal conclusion, devoid of helpfulness to the trier of fact.” Id. at
189. Plaintiff will hardly be prejudiced by the Court’s ruling given the fact that, if qualified as
an expert under Daubert, Mr. Montgomery would theoretically be permitted to testify on the
propriety of Defendants’ actions in light of modern policing standards. See Dazey, 403 F.3d at
1172 (“Even if [the expert’s] testimony arguably embraced the ultimate issue, such testimony is
permissible as long as the expert’s testimony assists, rather than supplants, the jury’s
It is vital to the jury’s role to act as factfinder, and it is the Court’s exclusive duty to
instruct the jury on the law.
Therefore, any expert testimony that unequivocally states
Defendants did not have reasonable suspicion or probable cause to detain and arrest Plaintiff
usurps these roles and serves no helpful purpose. Clearly, Mr. Montgomery may not tell the jury
what result it should reach.
In closing, the Court observes that neither party has raised a Daubert challenge as to Mr.
Montgomery’s qualifications to render expert testimony in this matter.
However, for the
purposes of this Motion only and without passing any judgment on whether Mr. Montgomery
would ultimately be qualified as an expert or whether his testimony would help the trier of fact,
the Court assumes that Mr. Montgomery could provide expert opinions on whether the seizure
and arrest of Plaintiff was in accordance with modern police standards.
THEREFORE, IT IS ORDERED that Defendants’ Motion in Limine No. 1 (Doc. 77) is
GRANTED. Mr. Montgomery shall be prohibited from offering expert testimony that the
seizure and arrest of Plaintiff was unlawful.
UNITED STATES DISTRICT JUDGE
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