United States District Court, N.D. California, San Jose Division
ORDER RE: PLAINTIFF'S MOTION IN LIMINE NO. 1 TO
EXCLUDE EXPERT TESTIMONY AND DOCUMENTS RE: DKT. NO.
94
Ronald
M. Whyte United States District Judge
In this
case involving allegations of excessive force by police
officers during a traffic stop, plaintiff Shiow-Huey Chang
moves to exclude certain opinions of defendants’ police
conduct expert Robert Fonzi. Dkt. No. 94. Defendants oppose.
Dkt. No. 101. Plaintiff’s motion is GRANTED IN PART and
DENIED IN PART as follows.
A.
Fonzi’s Opinions 1 and 2 Regarding Reasonable Suspicion
for the Traffic Stop and Probable Cause to
Arrest Plaintiff
Plaintiff
moves to exclude Fonzi’s opinions that defendants had
reasonable suspicion to pull over plaintiff’s vehicle
and probable cause to arrest her. Dkt. No. 94 at 3-4.
“Expert testimony is admissible pursuant to Rule 702 if
it is both relevant and reliable.” Mukhtar v.
California State University, 299 F.3d 1053, 1063 (9th
Cir. 2002), overruled on other grounds by Estate of
Barabin v. AstenJohnson, Inc., 740 F.3d 457, 467 (9th
Cir. 2014) (en banc). Plaintiff’s claims in the instant
case involve excessive use of force; plaintiff does not
assert that the traffic stop or arrest were themselves
unconstitutional. Thus, the court agrees with plaintiff that
Fonzi’s opinions on reasonable suspicion for the
traffic stop and probable cause to arrest plaintiff are
irrelevant. See Minter v. Galios, No.
12-cv-02905-JSC, 2014 U.S. Dist. LEXIS 36954, at *14 (N.D.
Cal. Mar. 17, 2014) (excluding opinion on probable cause for
traffic stop as irrelevant to excessive force claim).
Plaintiff’s motion to exclude these opinions is
granted.
B.
Fonzi’s Opinion 3 Regarding the Reasonableness of
Defendants’ Use of Force
Plaintiff
moves to exclude Fonzi’s opinion that Deputies Forest
and Strickland used reasonable force to arrest plaintiff.
Dkt. No. 94 at 4-5. Plaintiff argues that Fonzi is improperly
opining on the ultimate issue that the jury must decide. An
expert opinion “is not objectionable just because it
embraces an ultimate issue.” Fed.R.Evid. 704(a).
“However, an expert witness cannot give an opinion as
to her legal conclusion, i.e., an opinion on an
ultimate issue of law.” Mukhtar, 299 F.3d at
1065 n.10. Several district courts in the Ninth Circuit have
precluded police conduct experts from opining on whether
officers’ use of force was unreasonable or excessive.
See, e.g., Jaramillo v. City of San Mateo,
No.13-cv-00441-NC, 2015 U.S. Dist. LEXIS 8796, at *3 (N.D.
Cal. Jan. 26, 2015); Martinez v. Davis, No. CV
05-5684 ABC (JEMx), 2011 U.S. Dist. LEXIS 15406, at *8 (C.D.
Cal. Feb. 4, 2011); Jimenez v. Sambrano, No.
04cv1833-L(PCL), 2009 U.S. Dist. LEXIS 67060, *8-9 (S.D. Cal
July 31, 2009).
Defendants
assert that Fonzi does not intend to offer opinion testimony
“on the legality of the defendants’ use of force,
but should be able to offer testimony generally as to
policies, procedures and uses of force in light of those
policies and procedures.” Dkt. No. 101 at 3.
In
light of the authority cited above and defendants’
clarification, Fonzi’s opinions on whether
defendants’ use of force was unreasonable or excessive
are inadmissible. While it is not clear that specialized
knowledge is necessary or helpful to understand the police
policies and procedures that are at stake here, see
Fed. R. Evid. 702(a), the court will allow Fonzi to testify
regarding police policies on force in general.
C.
Fonzi’s Opinion 4 on Whether Defendants’ Conduct
Was Lawful and Whether Others Would Respond in the Same
Manner
Plaintiff
seeks to exclude Fonzi’s opinion that “Deputies
Forest and Strickland followed appropriate law, department
policies, and training as it relates to reasonable suspicion,
probable cause, arrest, and the use of force.” Dkt. No.
94-2 at 6. Defendants concede that testimony regarding the
legality of the deputies’ conduct is an improper legal
conclusion, but defendants argue that testimony on
Sheriff’s Department policies and training in general
would be within the proper scope of expert testimony. Dkt.
No. 101 at 3. As with the proffered testimony regarding
reasonable use of force, the court will not allow Mr. Fonzi
to testify regarding whether defendants’ actions were
lawful or appropriate. He can, however, testify generally as
to the factors an officer must take into consideration in the
use of force and whether the County’s policies
regarding the use of force are in accordance with sound
police practices.
Plaintiff
also seeks to exclude Fonzi’s opinion that “such
circumstances, if repeated, would predictably cause trained
law enforcement personnel to respond and act in the same
manner regardless of jurisdiction or agency.” Plaintiff
points out that another court in this district has found a
nearly identical opinion from Fonzi speculative. M.H. v.
County of Alameda, No. 11-cv-02868-JST, 2015 U.S. Dist.
LEXIS 445, at *8 (N.D. Cal. January 2, 2015) (granting motion
to preclude Fonzi from testifying that “[the]
circumstances [of decedent Harrison’s intake and
incarceration], if repeated, would predictably cause trained
law enforcement personnel to respond and act in the same
manner regardless of jurisdiction or agency”).
Defendants’ opposition does not address this aspect of
plaintiff’s motion. This court agrees that
Fonzi’s proffered testimony is speculative, and
plaintiff’s motion to exclude it is granted.
D.
Fonzi’s Opinion On the Deputies’ Propensities for
Violence and Racial Bias
Plaintiff
seeks to exclude Fonzi’s opinion that defendants have
no propensity for violence or racial bias on the grounds that
Fonzi is not an expert on these subjects. Dkt. No. 94 at 6-7.
Defendants’ opposition does not address this aspect of
plaintiff’s motion.
The
court initially notes that “propensity” evidence
is ordinarily inadmissible to prove that on a particular
occasion, a person acted in accordance with their propensity.
See Fed. R. Evid. 404(a). If, however, plaintiff
attempts to show that the County knew or should have known
that defendants have ...