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Davies v. City of Lakewood

United States District Court, D. Colorado

February 16, 2016

TAMARA DAVIES, as personal representative of the Estate of James Davies, Plaintiff,
THE CITY OF LAKEWOOD, COLORADO, and its Police Department, et al., Defendants.



This order addresses four “Daubert” motions to exclude expert testimony and two other evidentiary motions.


James Davies, an agent (officer) with the Lakewood, Colorado Police Department, was shot and killed by a fellow officer on November 9, 2012 during the course of an attempt by numerous agents to clear a residence where gunshots had been reported. His widow, Tamara Davies, as personal representative of Agent Davies’ Estate, alleges that the City of Lakewood, the officer who shot Mr. Davies, and two supervising sergeants who were present are liable in money damages for violating Agent Davies’ constitutional rights. Motions for summary judgment are pending and will be addressed separately.


Under Rule 702 of the Federal Rules of Evidence, a qualified expert may provide opinion testimony if the evidence is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Expert opinions are relevant if they would “help the trier of fact to understand the evidence or to determine a fact in issue.” Rule 702(a); see Daubert, 509 U.S. at 591. They are reliable if the expert is qualified by knowledge, education or experience, and his or her opinions are “scientifically valid” and based on “reasoning or methodology [that] properly can be applied to the facts in issue.” Daubert, 509 U.S. at 593. Factors useful in this analysis include, but are not limited to, the following:

(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique’s operation; and (4) whether the theory has been accepted in the scientific community.

Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (citing Daubert, 509 U.S. at 593- 94).

But Daubert’s principles apply not only to scientific testimony but also to other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). “Federal Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the ‘assumption that the expert’s opinion will have a reliable basis in the knowledge and experience his discipline.’” Id. at 148 (quoting Daubert, 509 U.S. at 592). The framework for assessing reliability is flexible. Kechi Township v. Freightliner, LLC, 592 F. App’x 657, 668 (10th Cir. 2014) (unpublished). Reliability generally focuses on the methodology, not the ultimate conclusions of the expert. Ho v. Michelin North America, Inc., 520 F. App’x 658, 663 (10th Cir. 2013) (unpublished).

The proponent of expert testimony has the burden to show that the testimony is admissible. U.S. v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). The trial court plays a “gatekeeping” role, but it has discretion as to how to perform that role. Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). Rule 702 was amended in 2000 in response to Daubert. The Advisory Committee observed at that time that post-Daubert case law had shown that “rejection of expert testimony is the exception rather than the rule.” Pointedly, in view of the present case, the Committee stated that the amendment was “not intended to provide an excuse for an automatic challenge to the testimony of every expert.” Id.[1]Cross-examination and the presentation of contrary evidence continue to be appropriate means of challenging shaky but admissible evidence. Id. In short, while trial courts have discretion to exclude irrelevant or unreliable evidence, Daubert and the 2000 amendments to Rule 702 generally liberalize the standard for admission of expert testimony. See, e.g., Cook v. Rockwell Intern. Corp., 580 F.Supp.2d 1071, 1082 (D. Colo. 2006).

With those broad principles in mind, I turn to the task of assessing the relevance, reliability, and, ultimately, the admissibility of the challenged testimony. I will address the Daubert motions in the order in which they were heard and then turn to the two non-Daubert motions.

A. Defendants’ Motion to Exclude Expert Testimony of Dan Montgomery [ECF No. 166]: GRANTED IN PART, DENIED IN PART.

This motion was fully briefed upon the filing of defendants’ reply brief on January 12, 2016. An evidentiary hearing was held on January 13, 2016. Dan Montgomery is a retired police chief. His CV and report may be found at ECF No. 166-1.

Chief Montgomery’s opinions, in summary form, are that

• the actions and inactions of Sgt. Michelle Current and Sgt. Thomas Grady were not in concert with professional police practices or with several policies, procedures and rules of the Lakewood Police Department, id. at 20-22;
• the actions and inactions of Agent Devaney Braley were not in concert with professional police practices or with several policies, procedures and rules of the Lakewood Police Department, id. at 22-26;
• the discipline administered with regard to the performance of Agent Braley was not in concert with professional police practices, id. at 26-29;
• post-incident investigations raised several questions about the propriety of certain Lakewood Police Department practices that may have contributed to the death of Agent Davies, including condoning a risk-taking culture; not calling out the SWAT team to save overtime costs; ignoring employee fatigue issues created by regular work schedules, overtime, and extra-duty employment; overlooking the need for senior management and supervision on the midnight shift; and not requiring psychological fitness for duty evaluations subsequent to officer-involved shooting incidents, id. at 29-35; and
• the Lakewood Police Department’s failure to train Sgt. Current contributed to the death of Agent Davies, id. at 35.

Defendants City of Lakewood, Sgt. Current and Sgt. Grady assert a multitude of arguments as to why Chief Montgomery’s opinions should be excluded. I will address their arguments in terms of their relevance and reliability.

1. Relevance.

For purposes of Rule 702, whether Mr. Montgomery’s opinions are “relevant” depends on whether they would help the jury understand the evidence. In my view it is beyond dispute that a lay juror is unlikely to have more than a vague notion of the standards applicable to police officers without the testimony of a qualified expert.

Defendants argue that Chief Montgomery’s comparison of the officers’ conduct to “professional police practices” is irrelevant because “professional police practices” amounts to Chief Montgomery’s own personal standard and is designed to establish liability. I disagree. It is evident from a review of his report, see, e.g., ECF No. 166-1 at 3 (definition of “professional police practices”), and from his testimony at the hearing, that what Chief Montgomery calls “professional police standards” is simply his way of describing what he believes to be the standard of care applicable to police officers.

Whether Agent Braley used excessive force when he shot Agent Davies turns on whether Braley’s conduct was “objectively reasonable in light of the circumstances confronting him.” Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir. 1989) (Zuchel I).[2] Thus, compliance with the applicable standard of care is not dispositive of the constitutional issue. See, e.g., Marquez v. City of Albuquerque, 399 F.3d. 1216, 1222 (10th Cir. 2005) (violation of “law enforcement standards” is not ipso facto a Fourth Amendment violation). But, expert testimony regarding the standard of care applicable to police officers in such areas as police tactics, use of force, administration, supervision and training is relevant to excessive force claims. See Zuchel v. City and County of Denver, 997 F.2d 730, 738-41 (10th Cir. 1993) (Zuchel II) (expert testimony regarding generally accepted police custom and practice). Zuchel II also recognized the propriety of the expert’s opinion testimony that inadequacies in the Denver Police Department’s police training program caused the shooting of Mr. Zuchel. Id. at 739-40.[3]

Defendants argue that Chief Montgomery’s opinions might confuse the jury because violation of the applicable standard of care is not ipso facto a Fourth Amendment violation. I agree that the legal standard for an excessive force determination under the Fourth Amendment is different from the violation of the standard of care. I do not agree that the jury will be confused, any more than the jury was confused in Zuchel II. The Court will give the jury clear instructions on the elements of the alleged constitutional violation. I note as well, as discussed below, that defendant Braley is the proponent of expert testimony from an expert named William Everett who - unlike Chief Montgomery - is a lawyer as well as a law enforcement officer and whose opinions appear to be based both on the standard of care and the constitutional standard. That defendant, at least, appears not to be worried about jury confusion.

Defendants suggest that Chief Montgomery is providing opinions on the applicable law, and that such testimony is inadmissible under Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988). As plaintiff points out, the Tenth Circuit rejected the same argument in Zuchel II. The court observed that the argument overlooks the “critical” distinction between an expert who was a lawyer specializing in constitutional law (Specht) and an expert who “had a doctorate in criminal justice and was an expert in police training, tactics and the use of deadly force.” 997 F.2d at 742. “Courts generally allow experts in this area to state an opinion on whether the conduct at issue fell below accepted standards in the field of law enforcement.” Id. Chief Montgomery does not purport to express an opinion on the law, see ECF No. 166-1 at 20, nor would this Court permit him to do so.

I do agree with defendants to the extent that Chief Montgomery’s opinions that the actions of the individual officers were inconsistent with the policies, procedures and rules of the Lakewood Police Department are not admissible. See, e.g., Tanberg v. Sholtis, 401 F.3d 1151, 1163-64 (10th Cir. 2005). I will address that subject in more detail below in my discussion of defendant’s motion to exclude consideration of inadmissible evidence in its determination of their motion for summary judgment.

2. Reliability.

Earlier I noted that opinions are generally deemed reliable for purposes of Rule 702 if the expert is qualified by knowledge, education or experience, and the opinions are scientifically valid, if they are of a scientific nature, or otherwise have a reliable basis in the knowledge and experience of the expert’s discipline. Dan Montgomery has spent 53 years in law enforcement, serving five police departments in California and Colorado. He retired in 2007 as the Chief of Police in Westminster, Colorado. He has a number of degrees in related subjects, including an MS Degree from the University of Colorado in Criminal Justice Administration, and many training courses. His lists of certifications, trainings, awards, and professional writings are lengthy. He began consulting on a part-time basis while still serving as Westminster’s police chief, and after retiring he formed his own consulting business in Arvada, Colorado. He has been qualified as an expert in police practices in numerous federal and state courts, citing some 211 cases in 15 states during which he has been hired by police officers and governmental entities defending against misconduct allegations, citizens asserting police misconduct, and other matters. Unsurprisingly, defendants do not question his credentials.

Another defense argument is that Chief Montgomery’s opinions should be precluded because they are based on hindsight. Well, yes, in one sense that has to be true. Obviously, neither the experts nor the jurors were present when the incident occurred. But, as I have said, and as the jury will be instructed, the conduct of these officers must be judged by what a reasonable officer knew or should have known at the time of the incident.

3. Conclusion.

I have considered the objections to Chief Montgomery’s testimony raised in defendants’ motion, ECF No. 166, and further developed in their reply, ECF No. 206. With the exception of his opinions based on the officers’ violation of Lakewood Police Department policies, I am not persuaded that any of these arguments provides a basis for exclusion of the testimony under Rule 702.[4]

B. Defendants’ Motion to Exclude Expert Testimony of Dr. Ron Martinelli [ECF No. 181]: GRANTED IN PART, DENIED IN PART.

This motion was fully briefed upon the filing of defendants’ reply brief on January 12, 2016. An evidentiary hearing was held on January 14, 2016. Ron Martinelli is a forensic criminologist. A portion of his report may be found at ECF No. 181-1. His full report, CV, case history, fee schedule, and complete deposition transcript were provided to the Court at the Daubert hearing as Exhibits 1 through 5.

Dr. Martinelli has a Ph.D. in Criminology with an emphasis in forensic psychology from Columbia Pacific University in 1986. Between 1975 and 1992 he was a police officer in Redwood City and San Jose, California. For two years he worked in administration of a police academy and training center before returning to police work as a field training officer and detective from 1992 to 1995. Since that time he’s done a variety of things in law enforcement related fields, including consulting, teaching and writing. He has a long list of awards and special achievements.

The objection filed by City of Lakewood, Sgt. Current and Sgt. Grady focuses on the opinions in Dr. Martinelli’s report expressed at sections 5.3 and 6.14-1 through 6.14-4:

Agent Braley’s sudden fear reaction in response to a subject exclaiming “Hey” in a manner he describes as attempt to get his attention was not consistent with his recognized police practices and was not objectively reasonable for a number of reasons:
(1) Agent Braley does not describe the voice as loud, harsh, aggressive, or threating in a manner that would normally create an acute fear response.
(2) The agent was aware that there were numerous officers at and surrounding the property. He was aware that these officers were all armed and it would have been normal for officers involved in a critical incident to have established a perimeter surrounding the property.
(3) Agent Braley had several years of experience as a field officer and SWAT team member. He was a SWAT Assistant Team Leader and had been involved in scores of critical incidents: he had directed the establishment of perimeters and had personally manned many perimeters himself. Therefore, it would have been both a normal and an expected occasion for a police officer to be observed on the perimeter and to call out to him.
(4) It would have been a normal and expected observation that any officer on the perimeter of the property would be armed with an exposed handgun if they were searching for an armed suspect.
(5) Agent Braley was aware that the critical incident was well over one hour old by time the entry team had emerged from the residence. He was aware that Denver PD’s Air-1 had been aloft for sometime prior to the entry team searching the residence.
(6) A reasonable trained and experienced officer given a similar set of circumstances would have logically determined that armed suspects do not call out to police officers if they intend to ambush them.
A reasonably trained and experienced officer would have determined that suspects fleeing a crime scene do not remain in plain view in the midst of a police helicopter and numerous officers guarding a perimeter who can easily detect and engage them and then call out to an officer for the purpose of ambushing them.
(7) Based upon Agent Braley’s professional education, training, and experience as a police officer and SWAT Assistant Team Leader, including his knowledge of what had transpired at the scene to that point, it would have been unreasonable for him to believe that any suspect from the residence would have remained in plain view in or on the perimeter armed with a handgun and not have been observed and challenged by the police assets on scene.
Agent Braley’s representation of his encounter with the subject of the northside fence is not supported by the forensic evidence -
In attempting to reconcile the crime scene and defendant Agent Braley’s statements regarding his actions and encounter with the subject he fired at (Agent Davies) on the date of incident, a multidisciplinary team of forensic investigators was retained to further investigate and analyze the ...

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