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Morgan v. Spivey

United States District Court, E.D. North Carolina, Western Division

September 5, 2019

MICHAEL J. MORGAN, Plaintiff,
v.
RICKY J. SPIVEY, in his individual and official capacities as a Wake County Sheriffs Deputy, Y L. MILLER, in his individual and official capacities as a Wake County Sheriffs Deputy, JOSHUA K. LEGAN, in his individual and official capacities as a Wake County Sheriffs Deputy, and THE OHIO CASUALTY INSURANCE COMPANY, individually, and as subsequent subsidiary of Liberty Mutual Insurance Company, as Surety, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter came before the court at final pretrial conference September 3, 2019, in advance of jury trial to commence September 16, 2019, on defendants' motion at conference to exclude expert testimony regarding the policies of the Wake County Sheriffs Office ("WCSO") on use of force, their motions in limine to exclude evidence of alternative tactics (DE 143) and of liability insurance (DE 149), and defendants' motion raised at conference to bifurcate trial should the court disagree with defendants' position that no mention should be made at trial about the existence of any insurance.[1] For the reasons that follow, defendants' motions to exclude expert testimony regarding WCSO policies, evidence of alternative tactics, and evidence of liability insurance all are denied. Defendants' contingent motion to bifurcate trial on punitive damages, to which plaintiff consented in part, is allowed.

         COURT'S DISCUSSION

         A. Defendants' Motion to Exclude Expert Testimony on WCSO Policies

         At pretrial conference, defendants moved to exclude any reference by plaintiffs expert witness to WCSO policies in giving an opinion as to whether the use of force was reasonable in the instant case. Defendants principally rely upon an opinion from the Seventh Circuit, which held that consideration of a police department's general order on the use of force "sheds no light on what may or may not be considered 'objectively reasonable' under the Fourth Amendment given the infinite set of disparate circumstances which officers might encounter." Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006).

         However, the Fourth Circuit has held that an expert may refer to an officer's training on use of a gun, or standards of conduct for using weapons, to help provide an opinion on objective reasonableness of that officer's actions. Kopf v. Skyrm, 993 F.2d 374, 379 (4th Cir. 1993); see, e.g., Henry v. Purnell, 501 F.3d 374, 384 (4th Cir. 2007) (remanding for consideration of defendant's training on use of handguns and tasers); United States v. Mohr, 318 F.3d 613, 624 (4th Cir. 2003) ("We explained that an' objective reasonableness' test like that used to determine the reasonableness of force 'implies the existence of a standard of conduct,' and where that standard is defined, not by a reasonable person, but by a reasonable officer, 'it is more likely that Rule 702's line between common and specialized knowledge has been crossed.'").

         The Seventh Circuit does not share defendants' interpretation of its own case law either. In a recent decision, that court emphasized that:

Despite its strong language, Thompson should not be understood as establishing a rule that evidence of police policy or procedure will never be relevant to the objective-reasonableness inquiry. We recently clarified that expert testimony concerning police policy is not categorically barred. See Florek v. Village of Mundelein. 649 F.3d 594, 602-03 (7th Cir. 2011). Even though jurors can understand the concept of reasonableness, in some cases they may not fully grasp particular techniques or equipment used by police officers in the field. In those instances an expert's specialized knowledge can "help the trier of fact to understand the evidence or to determine a fact in issue," as Rule 702 requires. Fed.R.Evid. 702(a).

United States v. Brown. 871 F.3d 532, 537 (7th Cir. 2017).

         Other circuits also are in accord. See, e.g.. Stamps v. Town of Framingham. 813 F.3d 27, 32 n.4 (1st Cir. 2016) ("The defendants argue that we may not consider police training and procedures in determining whether there was a Fourth Amendment violation. We disagree. Such standards do not, of course, establish the constitutional standard but may be relevant to the Fourth Amendment analysis. We have approved the taking of evidence about police training and procedures into consideration."); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003) ("Although such training materials are not dispositive, we may certainly consider a police department's own guidelines when evaluating whether a particular use of force is constitutionally unreasonable."); McCoy v. City of Monticello. 342 F.3d 842, 849 (8th Cir. 2003) (holding that a jury must evaluate "the circumstances from the perspective of a reasonable officer following customary police practices").

         Where the law of this circuit and other circuits counsels against defendants' position, defendants' motion to exclude reference by plaintiffs expert to WCSO policies, training, and standards of conduct regarding use of force is denied. Plaintiffs expert may refer to the subject policies and procedures to support his opinions as to what a reasonable officer would do under the circumstances of this case.

         B. Defendants' Motion to Exclude Evidence of Alternative Tactics (DE 143)

         Defendants also move to exclude evidence of "alternative tactics" that defendants could have employed instead of using force. Defendants speculate on several different lines of argument that plaintiff may try to offer, including 1) defendant Spivey could have avoided trying to arrest plaintiff, 2) defendant Spivey could have driven around plaintiffs truck or backed up and left the field through another entrance, 3) defendant Spivey could stand by and watched then tried to give plaintiff a ticket, 4) defendant Miller could have used a Taser, and 5) defendant Miller could have stood by and not used any force to stop the truck from dragging defendant Spivey.

         "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396 (1989). "[T]he reasonableness of the officer's actions in creating the dangerous situation is not relevant to the Fourth Amendment analysis; rather, reasonableness is determined based on the information possessed by the officer at the moment that force is employed." Waterman v. Batton. 393 F.3d 471, 477 (4th Cir. 2005) (citing Elliott v. Leavitt99 F.3d 640, 643 (4th Cir. 1996); Greenidge v. Ruffin. 927 F.2d 789.792 (4th Cir. 1991)). Reasonableness of officers' conduct depends on the totality of the circumstances. Hensley on behalf of N. Carolina v. Price, 876 F.3d 573, 582 (4th Cir. 2017) (citing Yates v. Terry, 817 F.3d 877, 883 (4th Cir. 2016)). Where multiple uses of force are involved, "[t]he better way ...


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