McGough v. Penzone

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Shane McGough, No. CV-18-01302-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Paul Penzone, et al.,

13 Defendants. 14 15 Before the Court is Defendants’ Motion to Exclude the testimony of Plaintiff’s use- 16 of-force expert, W. Ken Katsaris (“Mr. Katsaris”) (Doc. 155). Plaintiff has filed a 17 Response (Doc. 164).1 The parties have not requested oral argument or a Daubert2 hearing 18 on the Motion to Exclude, and the Court finds resolution of the issues therein are 19 appropriate without one. See Fed. R. Civ. P. 78(b) (court may decide motions without oral 20 hearings); LRCiv. 7.2(f) (same). 21 I. Background Facts 22 The Court has discussed the background facts of this case at length and need not 23 repeat them here. (See Doc. 136). As is relevant to Defendants’ Motion to Exclude, 24 Plaintiff has brought claims pursuant to 42 U.S.C. § 1983 against Maricopa County 25 1 In its Order denying Defendants’ Motion for Summary Judgment (Doc. 136), the Court 26 also denied, without prejudice to refile, Defendants’ first Motion to Exclude Mr. Katsaris (Doc. 95). Given the page restrictions the Court imposed on the parties’ motions in limine 27 in its Final Pretrial Order, the Court has reviewed the briefing on Defendants’ prior Daubert motion (Docs. 95, 101, 110) in reaching its conclusion. 28 2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1999). 1 Sheriff’s Deputy and canine (“K-9”) handler, Shaun Eversole (“Deputy Eversole”) and 2 Sheriff Paul Penzone for his vicarious liability. Under section 1983, liability is established 3 where the defendant has violated the Plaintiff’s civil rights under the Fourth Amendment 4 of the United States Constitution by using excessive force against him. See Graham v. 5 Connor, 490 U.S. 386 (1989); Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). To 6 succeed on this claim, Plaintiff must show that the force used against him—here, a three- 7 minute K-9 bite to his upper thigh—was objectively unreasonable. Plaintiff retained Mr. 8 Katsaris to provide expert testimony regarding the reasonableness of the force used. 9 II. Legal Standards on Admissibility of Expert Witnesses 10 Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that 11 any expert testimony provided is relevant and reliable. Daubert, 509 U.S. at 589. Under 12 Rule 702, an expert may be qualified to testify based on his or her “knowledge, skill, 13 experience, training, or education” if his or her experiential knowledge will help the trier 14 of fact to understand evidence or determine a fact in issue, as long as the testimony is based 15 on sufficient data, is the product of reliable principles, and the expert has reliably applied 16 the principles to the facts of the case. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579. 17 III. Mr. Katsaris’ Report 18 Mr. Katsaris’ Report organizes his opinions in twelve separate paragraphs. 19 (Doc. 155-1 at 6-13). Defendants helpfully summarized these opinions in their first Motion 20 to Exclude (Doc. 95 at 3-5), and the Court references those summaries with some 21 modification here. Mr. Katsaris opines: 22 ¶ 1: Statements by law enforcement preceding Plaintiff’s transport to the 23 holding cell do not justify the force used against Plaintiff in the holding cell 24 under “any of the standards for any type of use of force as is trained to law 25 enforcement officers under the standards of either U.S. Supreme Court 26 rulings of Graham v. Connor or Kinglsey [sic] v. Hendrickson.” 27 ¶ 2: Deputy Jackson’s deposition testimony and report about Plaintiff’s 28 behavior in the holding cell is incorrect; Deputy Jackson moved Plaintiff to 1 the holding cell floor in retaliation for Plaintiff’s verbal insult to Officer 2 Fleming. 3 ¶ 3: The use of force against Plaintiff was unnecessary under the totality of 4 the circumstances, given that Deputy Jackson was removing Plaintiff’s 5 handcuffs and there were multiple officers in the holding cell. 6 ¶ 4: That Plaintiff was able to maneuver the cuffs to the front during 7 transportation is “inconsequential” considering the number of officers that 8 were present, that Plaintiff “was in a cell,” and that the “three body-cam 9 videos of the incident” show that Plaintiff is not resistant. 10 ¶ 5: Deputy Eversole’s testimony shows that the deployment of the canine 11 was not in response to a perceived threat, and a canine deployment under the 12 circumstances has no legitimate place in the scheme of law enforcement 13 procedure. As a result, the deployment of a bite and hold was “purely an 14 intentional infliction of a high level of pain.” 15 ¶ 6: Deputy Eversole’s perception of Plaintiff’s actions was not reasonable 16 because the body-cam footage shows Plaintiff was not belligerent and 17 aggressive, he was acting reflexively, he attempted to comply with officers’ 18 verbal instructions, he “begged” to halt the canine attack, and was 19 “screaming in agony” during the bite and hold. 20 ¶ 7: His review of the body-cam videos shows that deployment of the canine 21 “was obviously inflicting great pain and injury” to Plaintiff, was 22 “unreasonable, unnecessary, and far outside and below the recognized 23 accepted and trained canine deployment policy and procedures,” and the 24 duration of the bite was “egregiously unjustified by any law enforcement 25 measure.” This opinion stands regardless of any type of police tool used. 26 ¶ 8: Deployment of the canine and “continuation” of deployment, “with 27 multiple officers present, for over three minutes,” was contrary to MCSO 28 policies, and Sheriff Paul Penzone’s public statement regarding use of force. 1 ¶ 9: All three law enforcement officers submitted misleading “if not outright 2 false” reports about the incident, and when compared to the body-cam 3 footage; their statements regarding Plaintiff’s “supposed physical resistance 4 is [sic] untrue at worst, and greatly exaggerated at best.” 5 ¶ 10: Deployment of a canine was not justified by Deputy Eversole’s 6 perception of Plaintiff’s actions when coming off the bench because the 7 bodycam footage is “obvious[ly]” contrary to Deputy Eversole’s perception, 8 and he was “totally unaware” of alleged character traits or past incidents 9 involving Plaintiff. 10 ¶ 11: Deputy Eversole’s justification for a canine deployment based upon the 11 parking lot altercation is a “flawed thought process” because he was not 12 present when the incident occurred and had been told “minimal information” 13 about the incident. 14 ¶ 12: In sum, (1) the totality of the circumstances in the holding cell were 15 below recognized and accepted procedures; (2) Plaintiff did not resist in the 16 holding cell; (3) the standards in Graham and Kingsley were violated; (4) the 17 use of force was unreasonable, “unnecessary,” and “not proportionate”; and 18 (5) the deputies ignored “their training, their policies, and the law and 19 constitution for retribution against [Plaintiff].” 20 IV. Analysis 21 Defendants seek to exclude Mr. Katsaris from testifying on the grounds that (1) he 22 is not qualified to opine about the use of a police canine; and (2) that his opinions will not 23 assist the jury. (Doc. 155 at 1-2). 24 1. Qualifications 25 Defendants first seek to exclude Mr. Katsaris as an expert witness because he “does 26 not have sufficient experience, training, or education to render opinions on the use of force 27 involving a canine.” (Doc. 155 at 1). They argue that he “is not a certified canine handler 28 or officer, has published no materials on canine deployment, and has no experience as a 1 canine officer.” (Id.) Plaintiff argues that Mr. Katsaris is “eminently” qualified, and points 2 to his more than 50 years of law enforcement experience. (Doc. 164 at 1-2). 3 Mr. Kataris’ report reflects that as a sheriff, he developed policies “for the 4 application of police K-9’s for tracking, drug interdiction, as well as for force, following 5 the ‘bite and hold’ procedures.” (Doc. 155-1 at 3-4). He also represents that as a police 6 officer, he worked as a K-9 assisting officer and participated in K-9 training and suspect 7 apprehension. (Id. at 4). He has also served as a regional, statewide, and nation trainer on 8 “‘Use of Force’ seminars for which policy and procedure for K-9 deployment” were his 9 topics, and has taught in the area use of force involving K9s, including jail and prison 10 procedures involving use of K-9s. (Id.) Finally, Mr. Katsaris states that he has been 11 qualified as an expert in several federal courts to testify regarding K9 “bite and hold” and 12 “surround and bark” procedures and tools.” (Id.) 13 The Court finds that Mr. Katsaris is qualified to testify as an expert on use-of-force 14 involving a canine. Defendants’ objection as to his lack of particularized expertise “goes 15 to the weight of the testimony, not its admissibility,” and is not a basis for his exclusion. 16 United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993). 17 2. Relevance and Reliability 18 Although qualified, the Court nonetheless finds that Mr. Katsaris’ proffered 19 testimony is inadmissible for the following reasons: 20 A. Mr. Katsaris’ Opinions Will Not Assist the Jury 21 As noted above, under Rule 702, expert testimony is relevant only if it assists the 22 trier of fact in understanding the evidence or in determining a fact in issue. See Daubert I, 23 509 U.S. at 591. The Court finds that Mr. Katsaris’ opinions are not helpful in this regard: 24 they simply articulate his subjective version of the events at issue and improperly make 25 credibility determinations about witnesses. 26 Throughout much of his report, Katsaris describes how he perceives the events 27 unfolding on the officers’ body-cam videos. (Doc. 155-1 at ¶ 2 (from his viewing of the 28 video it showed Plaintiff was not fighting, contrary to Deputy Jackson’s testimony); ¶ 3 1 (observing that Deputy Jackson is “physically much larger than McGough, had complete 2 control over McGough from the point he pulled him off the bench, took him to the floor of 3 the cell, and throughout the egregious deployment of the K9…); ¶ 4 (stating Plaintiff “does 4 not offer any physical resistance to the three armed law enforcement officers” ); ¶ 5 (stating 5 that at the time canine was deployed it was “completely obvious to me that McGough posed 6 no threat to anyone, nor was he resisting or attempting to escape”); ¶ 6 (“McGough 7 complied, or was attempting to comply with the verbal instructions he was receiving…”); 8 ¶ 7 (during the three-minute bite, “the K-9 was obviously inflicting great pain and injury 9 to McGough, who was dressed only in a swimsuit, which did not provide any protection 10 from the K-9 bites”); ¶ 10 (stating that the body-cam videos show that it is “obvious” 11 Deputy Jackson pulled Plaintiff off the bench but Defendant Eversole testified that Plaintiff 12 “was coming off the bench in an aggressive manner toward Deputy Jackson”); ¶ 12 13 (Plaintiff “was not actively resisting or attempting to flee, nor was he an immediate risk of 14 threatening harm to the officers of others”). 15 Other conclusions opine on the veracity of witness statements and positions. (See 16 e.g., id. at ¶ 9 (stating that “a comparison of the videos to the submitted reports readily 17 shows that the officers statements regarding McGough’s supposed physical resistance is 18 untrue at worst, and greatly exaggerated at best”); ¶ 11 (calling Defendant Eversole’s 19 justification for the use of force “a flawed thought process” because Eversole was not 20 present when the pre-incident assault occurred). (See also id. at ¶¶ 2, 10). 21 The Court finds that these opinions would not be helpful to jurors in determining 22 the reasonableness of Deputy Eversole’s conduct. “[E]xpert testimony does not help where 23 the jury has no need for an opinion because the jury can easily reach reliable conclusions 24 based on common sense, common experience, the jury’s own perceptions, or simple logic.” 25 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6265.2 26 (2d ed., April 2016 update). The videos Mr. Katsaris viewed in reaching his opinions will 27 be made available to the jurors during trial; the jurors can then make their own 28 determination of how events unfolded. Mr. Katsaris’ factual narrative, as interpreted 1 through his own subjective viewing, will not assist the trier of fact to understand or 2 determine a fact in issue. He would instead be acting as an additional juror. 3 Moreover, whether certain witness are credible or truthful are questions that raise 4 factual issues for the jury to decide. For example, Plaintiff says he offered little to no 5 resistance in the holding cell; Eversole says otherwise. Without specification, Katsaris 6 says “a comparison of the videos to the submitted reports” shows Plaintiff is the credible 7 one in this regard. But expert opinions do “not help [jurors] if [they] simply assume[] 8 crucial facts that are in dispute.” Id. Whether the jury choses to believe Plaintiff or 9 Eversole on this, and many other crucial facts that are in dispute in this action, will be a 10 decision “for the jury—the jury is the lie detector in the courtroom.” United States v. 11 Barnard, 490 F.2d 907, 912 (9th Cir. 1973). See also Christopher B. Mueller, Laird C. 12 Kirkpatrick & Charles H. Rose III, Evidence Practice Under the Rules 739 (4th ed. 2012) 13 (“where the issue and subject are ones that lay jurors can appreciate and evaluate by 14 applying common knowledge and good sense, admitting expert testimony. . . may warrant 15 reversal if it likely to dissuade the jury from exercising independent judgment or to take 16 over the jury’s traditional function of appraising the credibility of witnesses”). Katsaris’ 17 opinions as to the credibility of the officers is improper and unhelpful. 18 In sum, the following opinions are excluded because they are unhelpful in assisting 19 the jury: ¶¶ 2, 3, 4, 5, 6, 7, 9, 10, 11. 20 B. Mr. Katsaris Testifies on Ultimate Issues of Law 21 Other aspects of Mr. Katsaris’ testimony will be excluded because they plainly 22 opine as to ultimate issues of law. While expert testimony is not objectionable just because 23 it embraces an ultimate issue, see Fed. R. Evid. 704(a), “an expert witness cannot give an 24 opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” United 25 States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (emphasis in original) (citing Hangarter 26 v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004)). Opinions, for 27 example, that Deputy Eversole acted unreasonably, or that Plaintiff did not pose a threat or 28 was not under control, are impermissible legal conclusions on ultimate issues of law. 1 Because paragraphs 1, 7, 8, and 12 of Mr. Katsaris’ report contain impermissible legal 2 conclusions, they will be excluded. 3 C. Mr. Katsaris’ Testimony is Lacking in Reliability 4 The Court is also concerned about Mr. Katsaris’ failure to articulate the policies or 5 industry standards that form the basis for his opinions. The reliability factors from Daubert 6 I, such as peer review, publication, and error rate, do not apply to non-scientific expert 7 testimony, because the reliability of this kind of testimony depends on the expert’s 8 knowledge and experience more than the expert’s methodology or theory. Hangarter v. 9 Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (quoting Mukhtar, 299 10 F.3d at 1169); United States v. Hankey, 203 F.3d 1160, 1169 & n.7 (9th Cir. 2000). 11 “However, the court cannot conclude that a non-scientific expert’s proffered testimony is 12 reliable unless the expert explains the manner in which her knowledge and experience 13 support her conclusions.” Johnson v. Kelly, 2017 WL 1838140, at *4 (W.D. Wash. May 8, 14 2017) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either 15 Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence 16 that is connected to existing data only by the ipse dixit of the expert.”). 17 Expert testimony about police procedures or what a hypothetical reasonable officer 18 might have done, to the extent this testimony is based on sufficient facts or data, may be 19 proper expert testimony in use of force cases. See e.g., Bui v. City and Cty. of San 20 Francisco, 2018 WL 1057787, at *10 (N.D. Cal. Feb. 27, 2018) (“an expert may address 21 hypothetical situations (such as what a police officer might do in a given situation”). Here, 22 Mr. Katsaris generally references Supreme Court caselaw Graham and Kingsley and 23 concludes that “[t]he manner of force and the proportionality renders the force excessive 24 and immensely beyond the recognized, accepted and trained law enforcement procedures.” 25 (Doc. 155-1 ¶ 1). He further states that “[w]hile the initial K-9 deployment was in and of 26 itself unreasonable, unnecessary, and far outside and below the recognized accepted and 27 trained K-9 deployment policy and procedures anywhere in the USA, the duration of the 28 “Bite and Hold” commands by Eversole was egregiously unjustified by any law 1 || enforcement measure.” (/d. at § 7). Elsewhere, he conclusively states that it is his opinion || that the deployment of the canine and three-minute hold “was contrary to [Maricopa || Country Sherriff’s Office (“MCSO”’)] Force Policy, CP-1 (MCSO-00256-261) and Canine Unit Operations Policy, Policy GJ-25 (MCSO 00263-266).” (/d. at 4 8). But at no point 5 || does he state what “the recognized, accepted and trained law enforcement procedures,” 6|| “the recognized accepted and trained K-9 deployment policy and procedures,” or even □□ MCSO’s Force Policy, or Canine Unit Operations Policy actual say about the use of force 8 || in these situations. 9 Indeed, absent these general references, Mr. Katsaris’ report contains no discussion || of policies or procedures or what a hypothetical reasonable officer would have done in 11 || Defendant Eversole’s position. He simply reiterates that Deputy Eversole’s conduct was 12 || contrary to recognized and accepted standards and policy. “The trial court’s gatekeeping 13} function requires more than simply ‘taking the expert’s word for it.’” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. “The more subjective and controversial 15 || the expert’s inquiry, the more likely the testimony should be excluded as unreliable.” Jd. As discussed above, each of these conclusions improperly opine on an ultimate issue of 17 || law and will be excluded on that basis. But the unreliability of these statements also 18 |} justifies exclusion of this testimony. V. Conclusion 20 In sum, Mr. Katsaris’ testimony is inadmissible under Rule 702. Accordingly, 21 IT IS ORDERED that Defendants’ Motion in Limine No. 1 to Exclude Testimony 22 || of W. Ken Katsaris (Doc. 155) is GRANTED. 23 Dated this 22nd day of April, 2021. 24 25 oC. . fo □ 26 norable'Diang4. Huretewa United States District Judge 28

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