United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
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
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.
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 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).
Defendants' Motions to Exclude Expert Testimony of
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 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.
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.).
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
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.).
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).
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).
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).
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
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).
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).
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). 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.”).
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).
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
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).
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
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
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
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).
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.
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
these reasons, Mr. Leonesio's opinions and testimony will
be excluded in part and allowed in part as set forth above.
Gerling's claims against Waite in his individual
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.