United States District Court, E.D. North Carolina, Western Division
MICHAEL J. MORGAN, Plaintiff,
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.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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. 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
Defendants' Motion to Exclude Expert Testimony on WCSO
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
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
Seventh Circuit does not share defendants' interpretation
of its own case law either. In a recent decision, that court
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.
United States v. Brown. 871 F.3d 532, 537 (7th Cir.
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
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.
Defendants' Motion to Exclude Evidence of Alternative
Tactics (DE 143)
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.
'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 ...