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Gerling v. City of Hermann

United States District Court, E.D. Missouri, Eastern Division

December 20, 2019

WAYNE GERLING, Plaintiff,
v.
CITY OF HERMANN, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the following motions: Defendant Officer Matthew Waite (“Waite”)'s Motion to Exclude Expert Testimony of Michael Leonesio (Doc. No. 79); Waite's Motion for Summary Judgment (Doc. No. 80); Defendants City of Hermann, Missouri (“City”) and Police Chief Frank Tennant (“Tennant”)'s Motion to Disqualify and Exclude Expert Witness Testimony of Michael Leonesio (Doc. No. 85); Tennant's Motion for Summary Judgment (Doc. No. 87); and City's Motion for Summary Judgment (Doc. No. 89). The motions are fully briefed and ready for disposition.[1]

         I. Background[2]

         This civil rights action arises out of a citation issued to Plaintiff Wayne Gerling (“Gerling”) for illegally parking his tractor-trailer on the street in front of his home in Hermann, Missouri. Gerling alleges that despite having all of the information necessary to issue a parking ticket after running the vehicle's license plate information, Waite proceeded to Gerling's home to procure his driver's license. When Gerling refused to produce his license, Waite intruded into his home and grabbed him by the wrist. As Gerling retreated, Waite tased him, causing him to fall into a table and sustain injuries to his chest and shoulder. Gerling was taken into custody and issued two citations arising out of this incident - one for violating City Ordinance No. 215.210 for resisting arrest, and one for violating City Ordinance No. 340.250 related to parking the subject vehicle. Gerling pled guilty to illegal parking. Gerling alleges that Tennant pressured the City prosecutor to prosecute him for resisting arrest. Gerling was found guilty of resisting arrest in municipal court. Gerling appealed and was granted a trial de novo. The City dismissed the charge of resisting arrest with prejudice on the day of trial, after a jury was impaneled and opening statements made, when Waite did not appear to testify.

         Gerling asserts claims against Waite in his individual and official capacities for excessive force (Count I), arrest without probable cause (Count II), and prosecution without probable cause (Count III); claims against Tennant in his individual and official capacities[3] for prosecution without probable cause (Count IV), and deliberately indifferent policies, practices, customs, training and supervision (Count V); and a claim against the City for deliberately indifferent policies, practices, customs, training and supervision (Count VI).

         II. Defendants' Motions to Exclude Expert Testimony of Michael Leonesio

         Gerling retained Michael Leonesio, a police procedures expert, to opine on Waite's use of force against him, the Hermann Police Department practices and policies related to this incident, and the Missouri Revised Statutes and City of Hermann ordinances and regulations related to this incident. Defendants do not directly challenge Mr. Leonesio's expert qualifications[4] and after consideration, the Court is satisfied that Mr. Leonesio is qualified to testify on police policies and procedures based on his twenty plus years of work experience as a law enforcement officer and instructor in areas including critical incident response, use of force, defensive tactics and arrest control. (Michael Leonesio Curriculum Vitae, Doc. No. 96-6). He also has an extensive background in the use of electroshock weapons and currently manages the only electroshock weapon-exclusive independent testing laboratory in the United States. (Expert Report of Michael Leonesio, Doc. No. 96-1 at 3-4). Mr. Leonesio consults on a variety of topics, including law enforcement training/policy review, analysis, development, and implementation. He is a member of several professional associations, including the National Association of Civilian Oversight of Law Enforcement, and has received a number of professional awards relating to his police work.

         In his first opinion, Mr. Leonesio concluded that Waite's response and issuance of a summons to Gerling for illegal parking was “unlawful, excessive, unnecessary and unreasonable; and constituted a gross abuse of power.” (Id. at 7). In examining Waite's actions, Mr. Leonesio reviewed all published sections and schedules contained in the City's Traffic Code, Sections 300-385 and Schedules I-XVI) and found no restrictions or prohibitions related to the proper parking of a commercial vehicle on the street in front of Gerling's home. (Id. at 6). Mr. Leonesio also noted that while Waite and Tennant spoke of their extra-statutorial authority and practices regarding parking violations - especially with regard to commercial vehicles - both admitted that the applicable City ordinance addressing the ticketing of an unoccupied vehicle and its associated state statute “mandates” that the officer “shall leave a ticket on the vehicle.” (Id.).

         In his second opinion, Mr. Leonesio concluded that Waite's use of the taser on Gerling was “clearly excessive, unnecessary, and unreasonable, ” citing to, among other things, the Supreme Court's decision in Graham v. Conner, 490 U.S. 386 (1989), the Fourth Amendment, and the objectively reasonable officer standard. In evaluating Waite's actions, Mr. Leonesio “[took] into account ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.'” (Id. at 8) (quoting Graham, 490 U.S. at 396).

         With regard to the severity of the crime at issue, Mr. Leonesio noted that both of the offenses for which Gerling was charged were classified as misdemeanors, which cuts against a finding that the force used to effect an arrest was reasonable. (Id. at 9). He further stated that neither of the offenses could be considered especially dangerous or violent, and would not provide “a substantial government interest sufficient to justify the use of significant force such as a taser.” (Id.).

         In considering whether Gerling posed an immediate threat to the safety of officers or others, Mr. Leonesio stated that Gerling, “while certainly displaying noncompliant behavior during this incident, never verbally or physically threatened Waite's safety or that of anyone else on scene, and was obviously unarmed.” (Id.). Mr. Leonesio noted that police officers are trained to employ tactical de-escalation techniques, deliver clear verbal commands, and exert competent physical control over subjects without, or before, resorting to significant force options, such as the taser, unless there are facts demonstrating an immediate threat warranting such force. Here, however, he concludes that Waite attempted none of these less invasive tactics, and failed to present facts demonstrating an immediate threat to officers or others justifying the use of significant force. Mr. Leonesio also referenced the Hermann Police Department's taser policy which states that the taser not be used unless “necessary to control or subdue violent or potentially violent individuals.” (See Doc. No. 84).

         As for whether Gerling actively resisted arrest or attempted to evade arrest by flight, Mr. Leonesio assumed Gerling displayed a level of active resistance (by pulling away from Waite's grasp) and that his refusal to raise his hands when told to do so constituted passive resistance. Regardless, Mr. Leonesio concluded that given the totality of the circumstances, he “[saw] no evidence to justify the deployment of a significant force option like the taser.” (Doc. No. 96-1 at 10-11; see also Deposition of Michael Leonesio (“Leonesio Depo.”), Doc. No. 96-2 at 95:8-13). He also considered that industry best practice requires providing a warning that significant force would be used if one does not comply, and Waite did not provide such a warning to Gerling. (Id. at 11).

         For his third and final opinion, Mr. Leonesio concluded that the Hermann Police Department knew, or should have known, that Waite required annual taser training as required by Department policy, industry standards, and manufacturer's recommendations and failed to provide that training. (Id. at 13). However, he acknowledged that he had received no training material to review in this case. (Id. at 11).

         Legal standard

         The Court acts as a gatekeeper for all expert testimony, ensuring that it is “not only relevant but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Under Federal Rule of Evidence 702, expert testimony is admissible where (1) the testimony is “based on scientific, technical, or other specialized knowledge, ” and is “useful to the finder of fact in deciding the ultimate issue of fact., ” i.e., it is relevant; (2) the expert is “qualified to assist the finder of fact;” and (3) “the proposed evidence [is] reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.” Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014) (citation omitted).

         While an expert may offer opinions that embrace the ultimate issue in the case, Fed.R.Evid. 704(a), he cannot testify as to matters of law, and legal conclusions are not a proper subject of expert testimony, Lombardo v. Saint Louis, No. 4:16-CV-01637-NCC, 2019 WL 414773, at *8 (E.D. Mo. Feb. 1, 2019). See also S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995). Similarly, “[o]pinions that ‘merely tell the jury what result to reach' are not admissible.” Lee v. Andersen, 616 F.3d 803, 809 (8th Cir. 2010) (quoting Fed.R.Evid. 704 advisory committee's note). “Courts must guard against invading the province of the jury on a question which the jury is capable of answering without the benefit of expert opinion. Robertson v. Norton Co., 148 F.3d 905, 908 (8th Cir. 1998).

         Expert testimony on police policies and practices is generally admissible in a § 1983 case; however, expert testimony on matters of law is not. Zorich v. St. Louis Cty., No. 4:17-CV-1522 PLC, 2018 WL 3995689, at *2 (E.D. Mo. Aug. 21, 2018) (citing S. Pine Helicopters, 320 F.3d at 841 (expert testimony on “industry practice or standards may often be relevant...and expert or fact testimony on what these are is often admissible.”). Additionally, “[l]egal conclusions do not qualify as expert opinions, ” and a “determination that a defendant's conduct constitutes a constitutional violation is a legal conclusion.” Id. (quotation and citations omitted). Importantly, whether a police officer's conduct was “reasonable” or “excessive” under the Fourth Amendment are questions of law. See Brossart v. Janke, 859 F.3d 616, 624 (8th Cir. 2017); McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011).

         Discussion

         Defendants seek to exclude Mr. Leonesio's first opinion regarding the improper issuance of summons for illegal parking. They argue that this opinion amounts to a challenge to the legality of Gerling's underlying conviction and is thus barred under Heck v. Humphrey, 512 U.S. 477 (1994)[5]. The Court need not address the Heck argument because this opinion is not relevant to any claim in the case. Gerling is not advancing a claim for the improper issuance of the parking ticket and in fact pled guilty to the offense. For this reason, the Court will not allow Mr. Leonesio, either through his report, deposition, or other testimony, to offer an opinion on the validity of the summons generally (Opinion 1) or as it relates to the use of force (Opinion 2). See Sorensen By and Through Dunbar v. Shaklee Corp., 31 F.3d 638, 647 (8th Cir. 1994) (citation omitted) (“Expert testimony which does not relate to any issue in the case is not relevant and, ergo, nonhelpful.”).

         Defendants further argue that Mr. Leonesio's testimony and opinions regarding governmental interests and the reasonableness of Waite's actions amount to impermissible legal conclusions. Gerling responds that the federal rules explicitly permit experts to testify about the ultimate issues in a case, and the fact that Mr. Leonesio's opinions “necessarily entwine[ ] legal concepts due to the nature of the topic” does not make them legal conclusions. Indeed, Mr. Leonesio states in his report: “I am not a lawyer. I do not offer legal opinions.” (Leonesio Report at 2).

         Notably, just because an expert states he is not giving a legal opinion does not make it so. Morris v. Hockemeier, No. 05-0362-CV-W-FJG, 2007 WL 1747136, at *4 (W.D. Mo. June 18, 2007). An ultimate issue of fact is not the same as a legal conclusion, and legal conclusions remain objectionable in expert reports. See Peterson, 60 F.3d at 475 (finding the district court abused its discretion by allowing police practices expert to opine on the reasonableness of officers' actions and that the officers did not violate the Fourth Amendment); Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357, 1360 (8th Cir. 1990) (citing Hogan v. AT & T, 812 F.2d 409, 411 (8th Cir. 1987) (finding that although testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact, “a trial court may, however, exclude opinion testimony if it is so couched in legal conclusions that it supplies the fact finder with no information other than what the witness believes the verdict should be”)).

         A court in this District recently excluded Mr. Leonesio's expert testimony in a § 1983 case where he opined that an officer's use of force was “excessive” and “unnecessary”, and that the officer's conduct was “unreasonable” or not “objectively reasonable, ” finding his testimony went beyond merely embracing the ultimate issues. Lombardo, 2019 WL 414773, at *8-10. The court was persuaded by Peterson, 60 F.3d 469, and its progeny, including a number of recent cases within this District addressing the admissibility of police policies and practices expert testimony. Id. at *9 (collecting cases).

         In Peterson, the Eighth Circuit held that a trial court's admission of a police practices and procedures expert's testimony regarding “his views concerning the reasonableness of the officers' conduct in light of ‘Fourth Amendment standards' ... was not a fact-based opinion, but a statement of legal conclusion, ” and that admission of such testimony constituted reversible error. Peterson, 60 F.3d at 475. Courts in this District have repeatedly followed Peterson. See, e.g., Zorich, 2018 WL 3995689, at *3 (excluding police policies and practices expert's testimony regarding the reasonableness of the defendant officers' actions as legal conclusions that invade the province of the jury); Swink v. Mayberry, No. 4:17-CV-00791-PLC, 2018 WL 2762549, at *3 (E.D. Mo. June 8, 2018) (excluding police pursuit practices expert's opinion regarding whether the officers' actions were reasonable under the totality of the circumstances and in light of Fourth Amendment standards, and further holding expert's report and deposition could not be admitted at trial because they were “inextricably linked with topics upon which he may not opine”); Sloan v. Long, No. 4:16-CV-00086-JMB, 2018 WL 1243664, at *3 (E.D. Mo. Mar. 9, 2018) (excluding police policy and practices expert's opinion that an officer's use of force was unnecessary, unreasonable, or punitive and served no objectively unreasonable purpose as impermissible legal conclusion).

         “While expert opinions can embrace the ultimate issue of fact ... including whether standards or practices are applicable to a given situation and whether those standards or practices were met in the situation [under Federal Rule of Evidence 704, ] ... an expert cannot testify that following or failing to follow certain standards met or failed to meet the applicable legal standard, such as the reasonableness of [the defendant officer's] actions.” Lombardo, 2019 WL 414773, at *9 (quoting Sloan, 2018 WL 1243664, at *4) (internal quotation marks omitted) (emphasis in original).

         This Court likewise finds that Mr. Leonesio's testimony goes beyond just embracing the ultimate issues. It is not useful to the jury but, rather, imposes his legal conclusions on the jury. Therefore, the Court will not allow Mr. Leonesio to offer legal conclusions that touch upon the ultimate legal issues in this case, i.e., whether Waite's actions were excessive, unnecessary, or otherwise unreasonable under the totality of the circumstances and in light of Fourth Amendment standards.

         Nevertheless, as noted by the court in Lombardo, “a police procedure expert's testimony may be proper on issues other than the reasonableness of an officer's conduct under Fourth Amendment standards … [T]he role of such an expert is to contextualize the evidence the jury will hear about the use of force by the defendant against the plaintiff, in light of the standards practiced by officers throughout the country.” 2019 WL 414773, at *10 (internal quotation marks and citations omitted). Thus, to the extent Gerling proffers Mr. Leonesio's testimony as to the general prevailing standards and policies in the field of law enforcement for using force under the circumstances of this case, the Court will allow it. Id. (citing Swink, 2018 WL 2762549, at *3 (allowing police practices expert's testimony on general prevailing standards and policies in the field of law enforcement with respect to the use of force in vehicular pursuits); Sloan, 2018 WL 1243664, at *4 (allowing police policy and practices expert to testify about national standards and offer opinions as to how those standards should manifest in hypothetical situations, including that mirroring the version of events giving rise to the action, and to testify “generally” on the proper methods for securing a suspect).

         Lastly, the City and Tennant specifically argue that Mr. Leonesio's third opinion regarding the Hermann Police Department's failure to provide annual taser training as required by Department policy, industry standards, and manufacturer's recommendations is unsupported and must be excluded because he admitted he never reviewed any training material for this case. In Lombardo, the court excluded Mr. Leonesio's opinions on the defendant city's use of force training for lack of foundation given his testimony that he was not provided with access to relevant training materials and reviewed nothing. 2019 WL 414773, at *11. Similarly, the Court finds that Mr. Leonesio has failed to articulate a proper basis for his opinion that the Hermann Policy Department knew or should have known that Waite required annual taser training and failed to provide it. (Opinion 3). “In other words, it is improper for him to conclude that the City failed to do something when he did not actually review what they did.” Id.

         To the extent Gerling proffers Mr. Leonesio's testimony to discuss the general prevailing industry standards and manufacturer's recommendations for taser training as it relates to the facts of this case, the Court will allow it. See Swink, 2018 WL 2762549, at *3 (allowing police practices expert's testimony on general prevailing standards and policies in the field of law enforcement with respect to the use of force); Sloan, 2018 WL 1243664, at *4 (allowing police policy and practices expert to testify about national standards and offer opinions as to how those standards should manifest in hypothetical situations).

         For these reasons, Mr. Leonesio's opinions and testimony will be excluded in part and allowed in part as set forth above.

         III. Gerling's claims against Waite in his individual capacity

         Gerling brings three claims against Waite: excessive force (Count I); false arrest (Count II); and malicious prosecution (Count III). Waite argues he is entitled to qualified immunity on all three claims.

         Qualified ...


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