Rogers v. Bonnett, et al

Filing 132

ORDER GRANTING IN PART AND DENYING IN PART 126 Motion to exclude testimony and opinions of Ben Lively. Signed by Judge Xavier Rodriguez. (rf)

In the United States District Court for the Western District of Texas
L E M O N T ROGERS A/K/A EAN SMITH, P l a i n t i f f, v. O F F I C E R LANCE BONNETT, BADGE #409 and CITY OF CASTLE HILLS D e fe n d ants. § § § § § § § § § § § §

C I V I L NO. SA-04-CA-0118-XR

ORDER B e fo r e the Court is Plaintiff's Motion to Exclude Testimony and Opinions o f Designated Expert Ben Lively (docket no. 126), Defendant's Response thereto, a n d Plaintiff's Reply. I . Facts and Procedural Background O n the night of October 12, 2002, Defendant Lance Bonnette, a patrol o ffic e r for the City of Castle Hills, Texas, was off-duty and at home at his a p a r t m e n t , which is located in San Antonio, Texas. A dispute had occurred n e a r b y , during which Plaintiff Lemont Rogers fired a gun into an unoccupied F o rd Explorer (hereinafter referred to as "vehicle one"). Upon hearing the g u n s h o t s , Defendant Bonnette exited his apartment to investigate. Bonnette o b s e r v e d Rogers running with something in his right hand, which Defendant

B o n n e tt e believed to be a handgun. (Docket No. 126 at Exh. B). The events that tr a n s p ir e d between Bonnette and Rogers are in dispute. Rogers alleges that he got into a second vehicle ("vehicle two"), and D e fe n d a n t Bonnette approached him while he sat in the driver's seat of the v e h ic le . Id. at Exh. B. According to Rogers, Defendant Bonnette fired a shot at h im , which struck the vehicle in which Rogers was sitting. Rogers then exited t h e vehicle, and Defendant Bonnette fired another shot, striking Rogers in the b a c k . Id. Plaintiff alleges that he was cooperating with Bonnette, and notes t h a t he was unarmed, and that no weapons were found in the vehicle. Rogers s u s t a in e d severe injuries from the gunshot wound and required emergency su rgery. Bonnette has attested that he saw Rogers throw an object he was holding in his right hand as he was running. Bonnette states that Rogers got into v e h ic le two and locked the door, so that Bonnette could not open the driver's side d o o r . Bonnette states that he ran to the front of the vehicle, pointing his gun at R o g e r s , and yelled, "Police, get out of the vehicle, get out and get on the ground." B o n n e t t e alleges that Rogers then started the car and revved the engine, so B o n n e t t e jumped out of the way toward the driver's side of the vehicle. Bonnette is unsure of the exact sequence of events that occurred next, but Rogers allegedly o p e n e d the door and hit Bonnette with it, knocking him back, and he fired a shot a t Rogers. After Bonnette was allegedly knocked back by the car door, Rogers fle d on foot, and Bonnette pursued him. Bonnette alleges that Rogers ignored

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h is commands to stop, then allegedly reached his right arm across the front of h is body as though he were reaching toward his waistband area. It looked to B o n n e t t e as though Rogers was "blading off" 1 to shoot him, and Rogers' left side w a s facing him. Bonnette alleges that he was in fear for his life and "knew that [R o g e r s ] was going for another weapon," and so he fired a single shot, which s tr u c k Rogers. P la in t iff's claims include a 42 U.S.C. § 1983 claim against Defendant B o n n e tt e for use of excessive force, and state-law battery and intentional in flic tio n of emotional distress claims. d is m is s e d on summary judgment. D e fe n d a n t s designated Ben Lively as an expert to testify about Defendant B o n n e t t e 's actions, Castle Hills' policies, and Caste Hills' training and s u p e r v is io n of the Defendant. Lively, trained as a law enforcement officer, r e v ie w e d the investigation by the San Antonio Police Department, including v id e o , drawings, and photographs of the scene, the 9-1-1 calls, the Texas Penal C o d e and Texas Code of Criminal Procedure, and Castle Hills' policies and p r o c e d u r e s . (Docket No. 126 at D). Lively prepared a report dated April 28, 2009 and was deposed by P la in tiff 's counsel on June 9, 2009. Id. at Exh. D; Id. at Exh. C. Lively's brief r e p o r t states his qualifications, the materials he reviewed, and then lists the fo llo w in g opinions: (1) that Bonnette became an on-duty police officer upon The claims against the City were

Lively stated that "Blading off generically means turning your body to go on the offense, not the defense."

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h e a r in g shots fired and commencing an investigation; (2) that once Bonnette o b s e r v e d what he perceived to be criminal conduct on the part of Rogers, B o n n e t t e "acted as a reasonable prudent officer would have acted under the s a m e or similar circumstances"; (3) that the criminal conduct on the part of R o g e r s in creating a disturbance and firing a weapon resulted in Bonnette a p p r o p r ia tely taking investigatory action to determine the extent of the criminal c o n d u c t which he perceived; (4) upon Bonnette confronting Rogers, "who is r u n n in g with a handgun," Bonnette acted appropriately in yelling police c o m m a n d s to Rogers; (5) upon Rogers' ignoring the commands, fleeing, and d i s c a r d in g what appeared to be a handgun, Bonnette had reasonable suspicion a n d probable cause to continue his investigation of Rogers; (6) Bonnette acted r e a s o n a b ly when he attempted to stop Rogers from fleeing in a vehicle; (7) B o n n e tt e acted reasonably in discharging his firearm as Plaintiff revved his e n g in e and attempted to run over Bonnette; (8) when Rogers jumped out of the v e h ic le and fled on foot, Bonnette acted reasonably in attempting to apprehend R o g e r s ; (9) Bonnette acted reasonably when Rogers made an overt gesture by r e a ch in g into his waistband area as if to retrieve another handgun, placing B o n n e t t e in fear of imminent death or serious bodily injury and forcing Bonnette t o discharge his firearm at Rogers; (10) deadly force was justified and was a p p r o p r ia t e under the totality of the circumstances; and (11) Bonnette acted as a reasonable prudent officer exercising his discretionary authority in good faith a t the time he discharged his weapon.

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I I . Issues P la in t i f f now moves to exclude Lively's testimony. Plaintiff offers three p r in c ip a l challenges to Lively's testimony: (1) his testimony is unreliable because it is based on an incorrect version of critical facts; (2) his testimony is unreliable b e ca u s e it is based on incomplete facts; and (3) his opinions are improper legal c o n c lu s io n s and invade the province of the jury. Plaintiff does not challenge L i v e ly 's qualifications or his methodology. P la in t iff argues that Lively's testimony must be excluded because he r e n d e r e d his opinions based on incorrect and incomplete information. S p e c ific a lly , Plaintiff contends that Lively's deposition revealed that he had an in c o r r e c t understanding of critical facts surrounding the shooting, and that his u n d e r s ta n d i n g of the facts did not comport with either party's version of events. B e c a u se a determination of the reasonableness of a use of deadly force in the F o u r t h Amendment context requires careful attention to the facts and c ir c u m s t a n ce s of the particular case, Plaintiff contends that Lively's testimony r e g a r d i n g reasonableness is unreliable because it is based on incorrect facts. P la in tiff points to Lively's deposition testimony, in which he stated that Plaintiff h a d a gun in his hand, which he released, just before Bonnette shot him. Plaintiff asserts that, after Lively rendered this incorrect testimony, d e fen se counsel asked for a recess. Even after the recess, however, Plaintiff a s s e r t s that Lively still had an incorrect understanding of the facts, insofar as h e testified that Rogers made a blading motion, with a gun in his hand, when B o n n e tt e first encountered him by vehicle one. Further, Plaintiff asserts that 5

L iv e ly incorrectly asserted that Rogers hit Bonnette with the door of vehicle two b e f o r e Bonnette fired the first shot, when Bonnette has stated that he is unsure o f the sequence of these events. Plaintiff further argues that Bonnette's

t e s t im o n y is based on incomplete information because he has not visited the s c e n e , was unable to sketch the scene, and admitted that he did not know e n o u g h to testify under oath about what the scene looked like and did not know t h e orientation of the vehicles at the time of the incident. Further, Lively stated t h a t he did not know whether Bonnette was ever in front of vehicle two, that B o n n e t t e approached vehicle two from the driver's side, and that Rogers revved t h e engine while Bonnette was standing by the driver's side door. B o n n e tt e responds that Lively often stated that he did not recall certain fa c t s , but on some occasions was not permitted to refresh his memory before a n sw e r in g questions, and that Lively explained that he was confused about the t im e frame with regard to his testimony before the recess. P la in t iff acknowledges that, after the recess, Lively testified that Rogers d i s c a r d e d the weapon, then tried to escape in vehicle two, then ran, and then " b l a d e d off" toward Bonnette, when Bonnette shot him, which is consistent with B o n n e tt e 's testimony. However, Lively still testified to an erroneous belief that B o n n e tt e saw Rogers with the gun by the first vehicle, and that Rogers was " b la d in g off" at that time, though Bonnette did not shoot, and still thought that B o n n e tte was hit by the car door before he fired a shot. In addition, Plaintiff n o t e s , Lively could not generate a rudimentary sketch of the scene even after lo o k in g through his entire file to "refresh" his recollection. 6

P la in t iff also asserts that Bonnette offers legal conclusions and invades t h e province of the jury insofar as he opines that Bonnette had probable cause, d id not act unconstitutionally, and acted reasonably. Plaintiff argues that this t e s t im o n y is not helpful to the jury. Plaintiff further implies that Lively's te s tim o n y was a foregone conclusion because Defendant stated that Lively would te s tify that Bonnette's actions were reasonable in an interrogatory response in 2 0 0 5 , but Lively admitted at his deposition that he did not review the facts n e c e s s a r y to reach his conclusions until 2009, when he prepared his report. F o r all these reasons, Plaintiff asserts that Lively's testimony should be e x c lu d e d . III. Analysis T h e Rules of Evidence require that the Court ensure that all expert t e s tim o n y is both relevant and reliable. Daubert v. Merrell Dow

P h a r m a c e u t ic a l s , Inc., 509 U.S. 579, 589 (1993). Rule 702 provides for the a d m is s ib ilit y of expert testimony if it will "assist the trier of fact to understand t h e evidence or to determine a fact in issue," and "if (1) the testimony is based u p o n sufficient facts or data, (2) the testimony is the product of reliable p r in c ip le s and methods, and (3) the witness has applied the principles and m e t h o d s reliably to the facts of the case." FED. R. EVID. 702. Expert testimony in the form of an opinion or inference otherwise a d m is sib le is not objectionable because it embraces an ultimate issue to be d e c id e d by the trier of fact. FED. R. EVID. 704(a). Wright and Miller notes that

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R u le 704(a) "does not declare any evidence admissible. Instead, it simply refers t o testimony that is `otherwise admissible.'" 29 FED. PRAC. & P. § 6284.

"A c c o r d in g ly , opinion testimony on ultimate issues still can be excluded if it is o b je c t io n a b le under any other provision in the Evidence Rules. Thus, opinions t h a t merely tell the trier of fact what result to reach or state a legal conclusion in a way that says nothing about the facts are still objectionable. This is because s u c h opinions are not `helpful' as required by Rule 701 and do not `assist' as r e q u ir e d by Rule 702." Id. (footnotes omitted). A s noted by Wright and Miller, "Some courts assert that ultimate issues u n d e r Rule 704(a) must be factual and may not state legal conclusions." 29 FED. P RAC. & P. § 6284. This is the approach the Fifth Circuit has taken. See, e.g., G o o d m a n v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009) ("an expert may n e v e r render conclusions of law"); C.P. Interests, Inc. v. California Pools, Inc., 2 3 8 F.3d 690, 697 (5th Cir. 2001). Wright and Miller questions this black-andw h it e approach, noting that "it is often impossible in this context to draw a s o u n d distinction between `fact' and `law' since many opinions mix aspects of b o th "a n d "[o]ne of the reasons underlying the abolition of the ultimate-issue rule w a s to avoid the `odd verbal circumlocutions' in which courts engaged when a t t e m p t in g to draw the distinction between legal conclusions and opinions as to `u lt im a te facts.'" 29 FED. PRAC. & P. § 6284. "Accordingly, in applying Rule 704(a) to opinions that may involve c o n c lu s io n s of law, focus should be on the provision's requirement that those

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o p in io n s must be `otherwise admissible.' " Id. "In cases involving expert opinion, a d m is s ib ilit y under Rule 702 depends on whether the opinion `will assist the t r ie r of fact to understand the evidence or to determine a fact in issue.' Thus, the a d m is s ib ility of opinion testimony that may involve legal conclusions ultimately r e s t s upon whether that testimony helps the jury resolve the fact issues in the c a s e . This requires both that the jury can understand what the witness has to s a y and relate it to the facts." Id.; see also Salas v. Carpenter, 980 F.3d 299, 305 (5 th Cir. 1992) ("In deciding whether an expert's opinion should be admitted, the c o u r t should focus on Fed.R.Evid. 702's standard of whether the opinion will a s s is t the trier of fact to understand the evidence or to determine a fact in issue. S t a te d more directly, the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.") (citations omitted). U n d e r its prohibition against experts offering opinions in the form of legal c o n c lu s io n s , the Fifth Circuit has held that it is error under Rule 704(a) to allow a n expert's testimony about the reasonableness of a police shooting because " [r ]e a s o n a b le n e s s under the Fourth Amendment or Due Process Clause is a legal c o n c lu s i o n ." United States v. Williams, 343 F.3d 423, 435 (5th Cir. 2003); see a l s o United States v. Teel, 299 Fed. Appx. 387 (5th Cir. 2008) ("We further c o n c lu d e that the district court properly barred Teel's expert from going beyond c o n s id e r a tio n of the conduct to offer legal conclusions regarding whether the a s s a u lt on Williams constituted excessive force."); Peterson v. City of Plymouth, 6 0 F.3d 469, 475 (8th Cir. 1995) (witness's testimony including only his views

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c o n c e r n in g the reasonableness of the officers' conduct in light of "Fourth A m e n d m e n t standards" was not a fact-based opinion, but a statement of legal c o n c lu s io n , and should not have been admitted). Similarly, other courts have h e ld that whether an officer has probable cause is ultimately a legal question for w h ic h expert testimony is inappropriate. Estes v. Moore, 993 F.2d 161, 163 (8th C ir . 1993). Lively's proposed opinions are provided, supra. The opinions implicated b y the rule against legal conclusions are opinions five through eleven: (5) upon R o g e r s ' ignoring the commands, fleeing, and discarding what appeared to be a h a n d g u n , Bonnette had reasonable suspicion and probable cause to continue his in vestigatio n of Rogers; (6) Bonnette acted reasonably when he attempted to stop R o g e r s from fleeing in a vehicle; (7) Bonnette acted reasonably in discharging his fir e a rm as Plaintiff revved his engine and attempted to run over Bonnette; (8) w h e n Rogers jumped out of the vehicle and fled on foot, Bonnette acted r e a s o n a b ly in attempting to apprehend Rogers; (9) Bonnette acted reasonably w h e n Rogers made an overt gesture by reaching into his waistband area as if to r e t r ie v e another handgun, placing Bonnette in fear of imminent death or serious b o d ily injury and forcing Bonnette to discharge his firearm at Rogers; (10) deadly fo r c e was justified and was appropriate under the totality of the circumstances; a n d (11) Bonnette acted as a reasonable prudent officer exercising his d is c r e tio n a r y authority in good faith at the time he discharged his weapon. The ultimate legal issue to be decided by the jury in this case is whether

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B o n n e t t e 's use of deadly force was unreasonable (and therefore in violation of the F o u r t h Amendment). Proposed opinions 7, 9, 10, and 11 are naked legal

c o n c lu s io n s relating to the reasonableness of Bonnette's use of deadly force and B o n n e tt e 's qualified immunity defense, and are not permitted. Reasonableness is a highly fact-specific inquiry, and expert testimony may h e lp the jury to understand certain evidence or determine certain underlying fa c t s , such as whether a suspect poses a threat to the officer or someone else, or w h e th e r the officer could objectively perceive such a threat. For example, Lively t e s tifie d in his deposition that it is dangerous to be by the driver's side door of a vehicle because, either way the vehicle turns, it can hit you. This testimony c o u ld help the jury in determining whether the use of force was reasonable b e ca u s e it helps the jury determine whether Rogers/the vehicle posed a threat t o Bonnette. However, Lively has stated that he did not test any of his opinions o r drive the vehicle, and Lively has not indicated that he was aware of exactly w h e r e Bonnette was standing, which would be relevant to whether he was in the p a th of the vehicle. Moreover, Lively's testimony in this regard is tainted by his u s e of incorrect facts, such as his belief that Rogers revved the engine while B o n n e t t e was at the driver's side, when Bonnette stated that Rogers revved the e n g in e while Bonnette was in front of the vehicle. Accordingly, Bonnette has fa ile d to show that any of Lively's proposed opinions related to the r e a s o n a b l e n e s s of the use of deadly force or qualified immunity is reliable or h e lp fu l to the jury. L iv e ly 's proposed opinions 5, 6, and 8 are also problematic. Proposed 11

o p in io n 5, that Bonnette had reasonable suspicion and probable cause to c o n tin u e his investigation of Rogers after their initial encounter, uses legal te r m s and asserts legal conclusions. "Reasonable suspicion" and "probable

c a u s e " are legal terms with specific legal criteria, and "[o]pinions phrased in t e r m s of inadequately explored legal criteria [are] inadmissible." Brazos River A u th . v. GE Ionics, Inc., 469 F.3d 416, 435 (5th Cir. 2006). Reasonable suspicion a n d probable cause are determined based on a fact-intensive, totality-of-the c ir c u m s t a n c e s inquiry, where expert testimony might be helpful in some r e s p e c ts . But proposed opinion 5 is an inappropriate legal conclusion and not h e lp fu l to the jury. And again, Lively demonstrated some confusion regarding th e facts that form the basis of his opinion, since he apparently incorrectly b e l ie v e d that Rogers had "bladed off" to Bonnette while holding a gun near v e h ic le one before fleeing and discarding the gun. Thus, this opinion is both an im p r o p e r legal conclusion and unreliable. Similarly, Lively's proposed opinions 6 and 8, which are that Bonnette acted reasonably when he attempted to stop R o g e r s from fleeing in a vehicle and in attempting to apprehend Rogers when he ju m p e d out of the vehicle and fled on foot, are nothing more than conclusions c o n c e r n in g reasonableness. Bonnette has not demonstrated how this testimony w o u ld assist the jury in evaluating the evidence or determining a fact in issue. A n d again, Lively's conclusions regarding Bonnette's actions are tainted by his r e lia n ce on incorrect factual information. P r o p o s e d opinion 2 is wholly conclusory and lacking facts. Lively opines

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t h a t "once officer Bonnette observed what he perceived to be criminal conduct o n the part of Lemont Rogers, Officer Bonnette acted as a reasonable prudent o ffic e r would have acted under the same or similar circumstances." This opinion is not tied to any particular behavior on Bonnette's part, nor does it specify what c r im in a l conduct Bonnette perceived. To decide whether Bonnette's use of

d e a d l y force was reasonable, the jury must decide if "the arresting officer e x ce e d e d that degree of force which a reasonable and prudent law enforcement o ffic e r would have applied in making the arrest under the same circumstances." F u r th e r , to decide whether Bonnette is entitled to qualified immunity, the jury w ill have to decide whether Bonnette's conduct was objectively unreasonable in lig h t of clearly established law. Testimony about what a reasonable officer w o u ld have done under the same circumstances could be helpful to a jury d e t e r m in a t io n on these issues, but Lively's conclusory opinion that Bonnette a c t e d as a reasonable prudent officer would have acted under the same c ir c u m s ta n c e s does nothing more than tell the jury how to decide the case. In general, Lively's proposed opinion testimony, which is primarily legal c o n c lu s io n s premised on an incorrect and incomplete understanding of the facts, d o e s not aid the jury in reaching its ultimate conclusion, and instead appears to o ffe r nothing more than the lawyers can argue in closing argument. Rather than h e lp in g the jury evaluate the evidence or determine facts in issue, Lively's p r o p o s e d opinion testimony simply instructs the jury how to rule. This is the t y p e of testimony that is not permitted. The only exceptions are proposed o p i n io n 1 ­ that Bonnette became an on-duty officer upon hearing shots fired 13

a n d commencing an investigation, opinion 3 ­ that Bonnette appropriately in v e s t ig a te d the disturbance and gunshots to determine the extent of criminal a c t iv i t y , and opinion 4 ­ that Bonnette appropriately yelled police commands to R o g e r s upon seeing him running with a handgun. Accordingly, except for

o p in io n s 1, 3, and 4, Lively's proposed opinion testimony is excluded for the r e a s o n s stated above. In his Response, Bonnette asserts that officers are taught in their use-offo r c e training that "action beats reaction" and to focus on the suspect's hands a n d react before the suspect points a weapon at them. Bonnette states that, o n c e a weapon is pointed at an officer, the officer cannot react in a timely way, a n d that this testimony "is the foundation for Officer Bonnette's qualified im m u n it y defense." Though this testimony would assist the jury, the problem w it h this argument is that this is not a proposed opinion or other testimony set fo r th in Lively's report. All that is set forth in Lively's report concerning the use o f deadly force are the ultimate legal conclusions that Bonnette's use of force was r e a s o n a b le and justified. Nor has Bonnette submitted any deposition testimony t o such effect. Thus, there is no indication at this time other than Bonnette's c o u n s e l's argument that this would be Lively's proposed testimony, nor is there a n y indication that Plaintiff's counsel was put on notice of this proposed t e s t im o n y or had a chance to cross-examine Lively on this testimony. Thus, at th is time, the Court will grant Plaintiff's motion to exclude Lively's testimony in t h is regard. c o n f e re n c e . 14 However, Defendant may revisit this issue at the pre-trial

I I I . Conclusion F o r the foregoing reasons, it is ORDERED that Defendant's Motion to E x c lu d e Testimony and Opinions of Ben Lively (docket no. 126) is GRANTED IN P A R T and DENIED IN PART. I t is so ORDERED. S I G N E D this 11th day of August, 2009.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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