United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
C. LYNWOOD SMITH, Jr., District Judge.
The second amended complaint of plaintiff, Mickale Hopkins, asserts federal and supplemental state-law claims against two uniformed police officers for the City of Huntsville, Alabama: Charles Nix and Brian Shockley. Plaintiff alleges three federal claims for alleged violations of the Fourth Amendment under 42 U.S.C. § 1983 - i.e., unlawful search and seizure (Count I), false imprisonment (Count II), and excessive force (Count III) - a fourth federal claim for conspiracy to violate plaintiff's civil rights, asserted under 42 U.S.C. §§ 1985(3) and 1986 (Count IV), and a fifth claim against the City of Huntsville, Alabama, the employer of both of the individual defendants, for all of the constitutional violations alleged in his second amended complaint (Count V). In addition, plaintiff alleges two supplemental state-law claims against the individual defenants for assault and battery (Count VI), and false arrest and false imprisonment (Count VII).
The case presently is before the court on defendants' motion for summary judgment on all of plaintiff's claims,  and defendants' motion to strike portions of the written report and deposition testimony of Dr. William Gaut, submitted by plaintiff as evidence in opposition to the motion for summary judgment. Upon consideration of the motions, pleadings, briefs, evidentiary submissions, and oral arguments of counsel, the court concludes that the both motions should be granted in part and denied in part.
I. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").
II. DEFENDANTS' MOTION TO STRIKE
Plaintiff's proposed "expert witness, " Dr. William Gaut, is a former police officer for the City of Birmingham, Alabama. He held several positions during his twenty-four years with that department, including the Uniform Patrol Division, Police Academy Instructor, Detective Sergeant - Homicide Division, Lieutenant - Chief's Administrative Staff, Captain - Precinct Commander, and Captain of Detectives. He also served as the Administrator/Director of the Special Services Division of the Jefferson County Attorney's Office from 1992-1994. He taught Criminal Law, Homicide Investigation, Fundamentals of Criminal Investigation, and Fundamentals of Criminal Justice (Police Practices and Procedures) as an Adjunct Professor at Jefferson State Community College from 1997 to 1999.
Dr. Gaut holds an Associate's Degree in Law Enforcement from Jefferson State Community College, a Bachelor of Science Degree in Criminal Justice from the University of Alabama in Birmingham, a Masters Degree in Public and Private Management from Birmingham Southern College, and a Doctor of Philosophy in Criminal Justice from Northcentral University (a private, for-profit, but accredited university established in 1996 and offering degree coursework "online").
Dr. Gaut offered the following opinions in the expert report required by Federal Rule of Civil Procedure 26(a)(2)(B), each of which was stated to "a reasonable degree of professional certainty, " and based on Dr. Gaut's "experience, documents reviewed, and industry standards, " i.e. :
1. Defendants under color of office and without articulable reasonable suspicion or sufficient probable cause, improperly detained and subsequently arrested Mickale Hopkins.
2. Defendants improperly conducted a search and seizure of Mickale Hopkins' property.
3. Defendants, under color of office, used unreasonable and excessive force to detain Mickale Hopkins, which was a proximate cause of injury to Mickale Hopkins.
4. The City of Huntsville, Alabama, through the Huntsville Police Department[, ] failed to properly train and supervise the defendant Huntsville Police Officers.
5. The failure of supervisors to take corrective actions of officers [ sic ] violations of written policy, [ sic ] rises to the level of deliberate indifference for the constitutional rights of Mickale Hopkins.
Plaintiff relied upon Dr. Gaut's report, and his corroborating deposition testimony, to support the following proposed facts, stated in his opposition to defendants' motion for summary judgment:
96. The search of Plaintiff's vehicle by which officers found the BB gun and sweatshirt were performed without permission, without probable cause, and without a warrant....
112. Officer Nix lacked reasonable suspicion to perform a Terry stop of Plaintiff....
113. Officer Nix lacked reasonable suspicion to perform a Terry frisk of Plaintiff....
114. The hooded sweatshirt found in Plaintiff's vehicle was not in plain view....
122. The written policy of the Huntsville Police Department regarding racial bias and profiling is contradictory and vague, and does not give officers a clear directive as to acceptable or expected conduct.
123. Officers Nix and Shockley violated the policy of the Huntsville Police Department regarding racial bias and profiling.... Defendants assert that Dr. Gaut should not be permitted to offer his opinion
regarding the constitutionality of the conduct of Officers Nix and Shockley, or of the City of Huntsville's policies. This court agrees. Analysis of the issue must begin with Federal Rule of Evidence 702, which provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702 (emphasis supplied).
Here, Dr. Gaut's opinions as to the constitutionality of the individual defendants' actions and the City's policies will not assist the trier of fact, because it is the role of the judge, and not an expert witness, to instruct the jury on the applicable principles of law. As the Eleventh Circuit has stated: "Domestic law is properly considered and determined by the court whose function it is to instruct the jury on the law; domestic law is not to be presented through testimony and argued to the jury as a question of fact.'" United States v. House, 684 F.3d 1173, 1209 (11th Cir. 2012) (quoting United States v. Oliveros, 275 F.3d 1299, 1306-07 (11th Cir. 2001)). In other words, "[a]n expert may not... merely tell the jury what result to reach, " and "[a] witness also may not testify to the legal implications of conduct. " Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (citations omitted, alterations and emphasis supplied). Instead, "the court must be the jury's only source of law." Id. (citations omitted, emphasis supplied).
As defendants point out, Dr. Gaut's testimony has been limited in previous cases for similar reasons. In United States v. Wilk, 572 F.3d 1229 (11th Cir. 2009), the Eleventh Circuit upheld the district court's decision to exclude testimony from Dr. Gaut "about whether the officers followed proper police procedure during entry into Wilk's residence." Id. at 1235. Specifically, Dr. Gaut had proposed to testify "that the entry team was improperly dressed in civilian clothing, had inadequate police markings, appeared to be armed invaders, and violated established procedure in raiding the residence, " all of which would have would have supported Wilk's self-defense, justification, and imperfect self-defense claims. Id.
In like manner, the district court in McIntyre v. Tallahassee Police Dept., No. 4:07cv282-RH/WCS, 2008 WL 2766057 (N.D. Fla. March 28, 2008), limited Dr. Gaut's testimony as follows:
Mr. Gaut may testify within the parameters set forth on the record of the pretrial conference, including (to the extent within his expertise and supported by the record) on the risks confronted by the officers at the time at issue, the manner in which a reasonable officer would deal with those risks, and the location of the decedent and the officers when the decedent was shot. Mr. Gaut must not testify that any witness is or is not telling the truth as the witness understands it. Mr. Gaut must not testify that any conduct at issue violated the law or Constitution. Mr. Gaut must not testify on an officer's motivation or on the adequacy of an officer's training.
Id. at *2 (emphasis supplied).
Finally, in Feliu v. Rundle, No. 05-20169-CIV, 2007 WL 4730885 (S.D. Fla. April 2, 2007), the district court denied a defendant's motion to strike the testimony of Dr. Gaut, who had been offered by the plaintiff as a "police practices expert, " but did so only after the plaintiff had agreed that Gaut "would not be permitted to testify as a matter of law as to the presence or absence of probable cause...." Id. at *1.
In like manner, Dr. Gaut will not be permitted in the present action to offer his opinion as to the ultimate issues of whether there was either probable cause or reasonable suspicion to justify the searches and arrest of plaintiff, whether either of the individual defendants used excessive force, or whether the City of Huntsville should be held liable for the officers' conduct.
That ruling does not mean, however, that Dr. Gaut would not be permitted to testify if the case proceeds to trial before a jury. The Seventh Circuit recently discussed when expert testimony related to a legal issue should be permitted in a persuasive opinion reported as Jimenez v. City of Chicago, 732 F.3d 710 (7th Cir. 2013). That case involved the testimony of Gregg McCrary, a police practices expert, who testified "about reasonable practices for police investigations and how the investigation of the murder of Eric Morro departed from those practices...." Id. at 719. The Court acknowledged the general rule that "an expert may not offer legal opinions, " because "[i]t is the role of the judge, not an expert witness, to instruct the jury on the applicable principles of law, and it is the role of the jury to apply those principles of law to the facts in evidence." Id. at 721 (alteration supplied). As a result, McCrary was not permitted to testify as to the absence of probable cause. Instead, he testified "only about reasonable investigative procedures and ways in which evidence from other witnesses did or did not indicate departures from those reasonable procedures." Id. More specifically,
McCrary testified about the steps a reasonable police investigator would have taken to solve the Morro murder, as well as the information that a reasonable police investigator would have taken into account as the investigation progressed. He did not try to resolve conflicts in the testimony of different witnesses. He also did not offer an opinion regarding whether the police had probable cause to arrest Jimenez. He did point out ways in which evidence from other witnesses indicated that Bogucki and his police colleagues departed from reasonable investigation methods.
Id. at 722. That testimony was determined to be permissible, even though "McCrary's opinions had direct implications for applying legal standards such as probable cause...." Id. at 721. That was because the effect "of [McCrary's] testimony depended on how the jury resolved conflicts among the testimony of other witnesses, " and the testimony "would have helped the jury conclude that the departures from reasonable police practices were so important, severe, and numerous that they supported an inference that Bogucki acted deliberately to violate Jimenez's rights." Jimenez, 732 F.3d at 722 (alteration supplied).
Based on all of the above, defendants' motion to strike will be granted in part and denied in part. Dr. Gaut will not be permitted to testify regarding the ultimate issues of: whether there was probable cause or reasonable suspicion to justify the searches and arrest of plaintiff; whether either of the individual defendants used excessive force; or whether the City of Huntsville should be held liable for the officers' conduct. Consequently, and in like manner, this court will not consider such opinions in conjunction with its ruling on defendants' motion for summary judgment. The expert opinion of Dr. Gaut on the issue of whether defendants' actions and policies were consistent with reasonable, typical police practices and procedures is admissible, however, and will be considered by this court.
III. SUMMARY OF FACTS
The Huntsville-Madison County 911 Call Center received a report at approximately 10:05 p.m. on Wednesday, March 7, 2012, that the "Captain D's restaurant" located at 402 Governors Drive in Huntsville, Alabama, had been robbed. Shortly after receiving the call, the dispatch operator informed uniformed patrol officers by radio transmissions that the robbery suspects had been described as two black males carrying weapons. Less than a minute later, the dispatcher repeated that the offenders were black males, and added that their faces had been covered by black and white bandanas, one had worn jeans and a black hoodie, the other wore a gray hoodie, they had fled the scene on foot, and both had run in the direction of the nearby "McDonald's restaurant" located less than a block east of Captain D's. Approximately two or three minutes later, an investigator radioed that both black male suspects were approximately 5'10" to 5'11" in height, and both had worn jeans. That same investigator added that one of the suspects was "chubby, " carried a silver handgun, and wore a black hoodie and black and white bandana to cover his face, and that the other suspect was "skinny" and wore a gray hoodie. Neither suspect had been seen after running toward the McDonald's restaurant east of the scene of the robbery. Approximately four minutes later, the radio dispatcher repeated to all police units a summary of the foregoing information: i.e., the suspects were two armed black males, both about 5'10" to 5'11" in height and wearing jeans; one was chubby with a black hoodie and black and white bandana; and the other was of slim build and wearing a gray hoodie.
Defendant Brian Shockley, a uniformed patrol officer who was on duty that night, responded to the dispatch by driving to the area. He established a perimeter and looked for potential offenders. He saw another uniformed patrol officer, defendant Charles Nix, parked in his patrol car near the intersection of Pelham Avenue with St. Clair Avenue, approximately one block north of the Captain D's restaurant, and pulled in beside him. As the two officers talked, Officer Nix saw a black male who, he thought, matched the general physical description of one of the robbery suspects walking across the parking lot of the First Baptist Church. The church is located approximately one block west of the scene of the robbery, and less than one block south of where the officers were located. The time was approximately 10:30 p.m. Officer Nix did not see the man (who turned out to be plaintiff, Mickale Hopkins) walk out of the church building, and he did not know from whence the man had come. Instead, Nix only saw the man walking across the church parking lot to an automobile.
It is undisputed that plaintiff is a black male, that he was 37 years of age on that date, that he is approximately six feet tall and weighed between 160 and 185 pounds, and that he was wearing jeans and a shirt with the name of the church and his first name on it. Plaintiff was not wearing a hoodie, but Officer Nix testified that he could not recall, when he first observed plaintiff walking across the parking lot, whether he could see what clothes he was wearing.
Plaintiff saw the officers parked nearby while walking to his automobile. When he reached the car, he opened the driver's door, sat down, cranked the engine, and remained sitting for about a minute while he endorsed his paycheck and placed it in the glovebox. In the meantime, Officer Nix pulled his police cruiser behind plaintiff's automobile, parked, exited his vehicle, approached plaintiff's car, and opened the driver's side door, which was unlocked. Officer Nix asked plaintiff if he worked at the church, and plaintiff responded that he did, saying that he was the night janitor. Officer Nix asked plaintiff to step out of his automobile. Plaintiff did not immediately comply, but instead asked what he had done wrong. Officer Nix responded that he would explain once plaintiff exited the vehicle.
Plaintiff stepped out of his automobile and, while he was doing so, Officer Nix observed a "gray hoodie" sweatshirt in plain view, bunched up on the front passenger seat. Officer Nix directed plaintiff to place his hands on the automobile, patted him down, and asked if he had any weapons. Plaintiff responded "no, " and Officer Nix did not detect any on plaintiff's person during the pat-down search. Nix then explained that the nearby Captain D's restaurant had been robbed, and that plaintiff fit the physical description of one of the suspects as a black man with a hooded sweatshirt. Plaintiff denied any involvement in the robbery, and said that he had just locked up the church for the evening.
Officer Nix then walked around plaintiff's automobile and illuminated the interior by shining his flashlight through the windows, in order to determine whether he could see any articles "that would be related to a robbery." As he approached the passenger door, he "saw the gray hoodie, and... the handle of a handgun sticking out from [under] the front [passenger] seat."
Plaintiff testified that Officer Trista Kinsey also arrived at the scene shortly after he had stepped out of his automobile and asked for permission to search the vehicle. Plaintiff testified that he refused permission, but Officer Kinsey proceeded to search anyway. She opened the front passenger door and looked inside. She retrieved a black BB gun from underneath the front passenger seat, which plaintiff acknowledged he kept in the car for "protection."
Plaintiff asked Officer Nix if he was being arrested, and Nix responded that he was, but did not then state the offense for which he was being arrested. Nix handcuffed plaintiff's hands behind his back, performed another weapons search, removed plaintiff's wallet from his pocket, and walked him to Officer Shockley's patrol car, where he placed plaintiff in the back seat. Nix then returned to his own vehicle, where he ...