United States District Court, D. New Mexico
December 14, 2016
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
JOSEPH SALAZAR, in his individual capacity, GREG ESPARZA, in his individual capacity, THE ESPANOLA DEPARTMENT OF PUBLIC SAFETY, LEO MONTOYA, and THE CITY OF ESPANOLA, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon motions in limine filed by
both parties. On September 16, 2015, Plaintiff filed
plaintiff's Motion in Limine to Exclude the Expert
Testimony of Raymond J. Rael and Memorandum in Support
(“plaintiff's Motion in Limine”). (Doc. 103).
Defendants filed a response on October 7, 2015, and Plaintiff
filed a reply on October 26, 2015. (Docs. 108 & 116). On
October 13, 2015, Defendants filed Defendants' First
Motion in Limine to Exclude the Opinion Testimony of
plaintiff's Expert Roger A. Clark (“Defendants'
First Motion in Limine”) and Defendants' Second
Motion in Limine to Exclude the Opinion Testimony of
plaintiff's Expert Roger A. Clark (“Defendants'
Second Motion in Limine”). (Docs. 110 & 111).
Plaintiff filed a consolidated response to both motions, and
Defendants filed replies. (Docs. 119, 128, & 129). Having
reviewed the motions, the accompanying briefs, relevant law,
and otherwise being fully advised, the Court GRANTS
plaintiff's Motion in Limine, GRANTS IN PART and DENIES
IN PART Defendants' First Motion in Limine, and GRANTS IN
PART and DENIES IN PART Defendants' Second Motion in
a police excessive force case arising from interactions
between Russell Martinez (“Mr. Martinez”) and
Defendants Joseph Salazar and Greg Esparza. Mr. Martinez
originally filed this case on May 5, 2014, in the First
Judicial District Court, County of Rio Arriba, New Mexico.
(Doc. 1-1). Defendants removed the case to this Court on June
6, 2014. (Doc. 1). Subsequently, Mr. Martinez filed his First
Amended Complaint for Damages Resulting from Civil Rights
Violations, Intentional Torts, Negligence, and Violations of
Title II of the Americans with Disabilities Act
(“Amended Complaint”). (Doc. 88).
Amended Complaint, Plaintiff alleges that Mr. Martinez is
paraplegic, has had his lower left leg amputated, and has no
feeling in his lower body. Id. at 3:10. On May 11,
2012, Mr. Martinez and his wife, Mrs. Jackie Martinez, had an
argument in their car in a parking lot. Id. at
3:11-12. During the argument, bystanders called the police,
and Espanola Police Department Officer Joseph Salazar
(“Defendant Salazar”) arrived at the scene.
Id. at 3:12-13. Mrs. Martinez spoke to Defendant
Salazar and told him that Mr. Martinez was paraplegic,
immobile, and unable to drive. Id. at 3:14. Mr.
Martinez remained in the car. Id. at 3:13. While
investigating the incident, Defendant Salazar approached the
car and asked Mr. Martinez to exit the vehicle. Id.
at 3:16. Mr. Martinez responded that he is immobile.
Id. Defendant Salazar then pulled Mr. Martinez from
his car, beat him, and drive stunned him with a Taser,
despite the fact that he could not move his lower body.
Id. at 4:17-18. During theis encounter, Officer Greg
Esparza (“Defendant Esparza”) arrived on the
scene and shot Mr. Martinez in the chest with a Taser.
Id. at 4:21. As a result, Mr. Martinez suffered
excruciating pain and injuries, and was transported to
Espanola Hospital. Id. at 4:22-23.
on these allegations, the Amended Complaint alleges four
counts. In Count I, Plaintiff brings 42 U.S.C. § 1983
excessive force claims against Defendants Salazar and
Esparza. (Doc. 88) at 5. In Count II, Plaintiff brings New
Mexico Tort Claims Act (“NMTCA”) claims against
Salazar and Esparza for the intentional torts of assault,
battery, false arrest, and violation of the United States and
New Mexico constitutions. Id. at 5-6. In addition,
the Amended Complaint alleges respondeat superior
claims against the Espanola Department of Public Safety
(“EDPS”) and the City of Espanola for the
intentional torts allegedly committed by Salazar and Esparza.
Id. In Count III, Plaintiff brings state negligence
claims against Joe Montoya, the Director of the EDPS, for
negligently hiring, training, and/or supervising Salazar and
Esparza, and thereby causing Salazar and Esparza to commit
the intentional torts listed in Count II. Id. at
6-7. The Amended Complaint also alleges that EDPS and the
City of Espanola are liable for Montoya's negligent
actions under respondeat superior. Id. at
7. Finally, in Count IV, Plaintiff asserts claims under Title
II of the Americans with Disabilities Act (“ADA”)
against the EDPS and the City of Espanola for failing to
reasonably accommodate Mr. Martinez's disability in the
course of questioning, interacting with, and detaining him.
Id. The parties largely dispute the facts of this
party has retained experts to evaluate Defendants Salazar and
Esparza's use of force and alleged ADA violations.
See (Docs. 103-1 & 110-1). Both Plaintiff and
Defendants now move to exclude the opposing party's
expert testimony pursuant to Federal Rules of Evidence 403
and 702, on the grounds that the testimony is not reliable or
helpful for various reasons, and may be prejudicial to the
parties or confusing to the jury.
Standard of Review
Federal Rule of Evidence 702, “[a] district court may
allow expert testimony ‘[i]f [the expert's]
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue.'” United States v.
Adams, 271 F.3d 1236, 1245 (10th Cir. 2001) (citing
Fed.R.Evid. 702); see United States v. Hill, 749
F.3d 1250, 1258 (10th Cir. 2014) (“The touchstone of
admissibility under rule 702 is the helpfulness of the
evidence to the trier of fact.”) (citing United
States v. Rangel-Arreola, 991 F.2d 1519, 1524 (10th Cir.
1993)). The Court must act as a gatekeeper under Rule 702 to
ensure the reliability and relevance of all proffered expert
testimony. Kumho Tire Co. Ltd. v. Carmichael, 526
U.S. 137, 147 (1999) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)).
Indeed, “[t]he [United States] Supreme Court has held
that Rule 702 imposes a special obligation upon a trial judge
to ensure that all expert testimony, even non-scientific and
experience-based expert testimony, is both relevant and
reliable.” Adams, 271 F.3d at 1245 (internal
addition, any “proffered expert testimony must also
pass muster under Federal Rule of Evidence 403.”
Schinagel et al. v. City of Albuquerque, et al., No.
Civ. 07-481 LH/RLP, at *4 (D.N.M. Mar. 25, 2009)
(unpublished). Rule 403 provides that “evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” Fed.R.Evid. 403.
parties ask this Court to exclude the opposing party's
expert testimony on several grounds. The Court will address
each expert report and the relevant objections in turn.
plaintiff's Motion in Limine to Exclude the Report and
Testimony of Defendants' Expert Raymond J. Rael
retained Raymond J. Rael to conduct an evaluation of the
propriety of the use of force by Defendants Salazar and
Esparza during the encounter with Mr. Martinez. (Doc. 103-1)
at 1. Mr. Rael's report indicates that he seeks to
testify that Defendants Salazar and Esparza did not use
excessive force while interacting with Mr. Martinez, and that
the officers did not necessarily violate the ADA.
Id. at 10-12. In the Motion in Limine, Plaintiff
moves to exclude Mr. Rael's testimony completely, on the
grounds that Mr. Rael's conclusions are improperly
predicated on his credibility determination that
Defendants' account of what happened is more likely to
have occurred. Defendants respond that Mr. Rael's report
properly renders opinions on the ultimate issues in this case
and makes no credibility determinations.
Tenth Circuit] ha[s] said that ‘[t]he credibility of
witnesses is generally not an appropriate subject for expert
testimony.'” Adams, 271 F.3d at 1245
(citing United States v. Toledo, 985 F.2d 1462, 1470
(10th Cir. 1993)). This is because “[s]uch testimony:
(1) usurps a critical function of the jury; (2) is not
helpful to the jury, which can make its own determination of
credibility; and (3) when provided by impressively qualified
experts on the credibility of other witnesses is prejudicial
and unduly influences the jury.” Hill, 749
F.3d at 1258 (internal citations and quotations omitted).
review of Mr. Rael's report, it is evident that he has
formulated his analysis and conclusions by making credibility
determinations of the witnesses. Indeed, Mr. Rael explicitly
states that, “[i]n light of conflicting reports and the
lack of independent witnesses, the evaluation of this case is
by necessity conducted based on the most likely and
reasonable scenario.” (Doc. 103-1) at 9. He then goes
on to opine that Defendant “Salazar's version of
events appears more logical, and suggests that he acted
reasonably in arresting Martinez after being punched, and
justified in using reasonable force, up to and including
intermediate weapons such as a baton or Taser, to prevent Mr.
Martinez from accessing his firearm and forcing compliance
for restraint and custody.” Id. at 10. Mr.
Rael continues to base his conclusions on Mr. Martinez's
purported aggressive and violent resistance, his attempts to
acquire Defendant Salazar's firearm, and the fact that
Defendant Salazar may not have known that Mr. Martinez was
disabled. Id. at 11, 12.
the facts surrounding the physical interaction between Mr.
Martinez and defendants are highly disputed. For instance,
Plaintiff disputes whether Mr. Martinez or Defendant Salazar
was the initial aggressor in their interaction, and whether
Mrs. Martinez explicitly told Defendant Salazar that Mr.
Martinez was paraplegic and could not move from the waist
down. As a result, while Mr. Rael utilizes his experience and
methodology to come to his conclusions, he bases those
conclusions on his assumption that the facts are as
Defendants suggest, and not as Plaintiff alleges.
Mr. Rael's report and testimony relies completely on this
credibility determination, the Court finds that the testimony
would not be helpful to the jury, and should be excluded.
See Schinagel, No Civ. 07-481 LH/RLP, at *5-6
(holding that expert testimony which relied on
defendant's version of facts, and discounted
plaintiff's, merely vouched for credibility of witness
and encroached on jury's exclusive function and does not
assist trier of fact). The Court notes that, to the extent
Mr. Rael's conclusions did not rely on his credibility
determination, those opinions could have been admitted. But
it is clear, based on the Court's review of his report,
that Mr. Rael's entire analysis and corresponding
opinions rely are based on his credibility determinations,
and this Court is limited to considering his report and
proposed testimony. Id.; See Fed. R. Civ.
P. 26(a)(2)(B). For these reasons, plaintiff's Motion in
Limine to exclude Mr. Rael's testimony will be GRANTED.
Defendants' Motions in Limine to Exclude the Testimony of
plaintiff's Expert Roger A. Clark
retained Roger A. Clark to conduct an evaluation and render
his opinion on Defendants Salazar and Esparza's use of
force and tasing of Mr. Martinez. (Doc. 110-1) at 1.
Clark seeks to testify that Defendants Salazar and Esparza
used excessive force while interacting with Mr. Martinez, and
that there appears to be inadequate policies and procedures
within the EDPS regarding the use of force and accommodating
individuals with disabilities. Id. at 10-12. In
their First and Second Motions in Limine, Defendants move to
exclude Mr. Clark's testimony on several grounds.
Plaintiff opposes both motions in their entirety.
Defendants' First Motion in Limine
their First Motion in Limine, Defendants move to exclude Mr.
Clark's testimony with regard to plaintiff's
excessive force claims on the grounds that he makes factual
and credibility determinations, draws legal conclusions,
discusses police operating procedures and national police
practices, and focuses on “less intrusive”
alternatives to the use of force in this case. In response,
Plaintiff maintains that Mr. Clark does not vouch for any
witness's credibility or come to any impermissible legal
conclusions, and should be able to testify about national and
local policing standards and de-escalation tactics.
Mr. Clark's Testimony and Witness Credibility
Similar to Plaintiff, Defendants first argue that Mr.
Clark's testimony improperly makes factual and
credibility determinations in plaintiff's favor, which
inform his analysis and conclusions. Specifically, Defendants
maintain that Mr. Clark made factual and credibility
determinations in his consideration of Defendants Salazar and
Esparza's perception of Mr. Martinez's disability and
the parties' accounts of how the incident began,
including Mr. Martinez's aggressive behavior. In
response, Plaintiff contends that Mr. Clark does not vouch
for any witness's credibility, and indicates where his
conclusions assume the truth of one set of facts.
explained above, “[t]he credibility of witnesses is
generally not an appropriate subject for expert
testimony.” Hill, 749 F.3d at 1258 (citing
Toledo, 985 F.2d at 1470). At the same time,
“experts are not barred from assuming facts if it is
clear that the expert is assuming facts and not confirming
the facts being assumed.” Chambers v. Fike,
No. 13-1410-RDR, 2015 WL 404810, at *7 (D. Kan. Jan. 29,
2015) (citing Champagne Metals v. Ken-Mac Metals,
Inc., 458 F.3d 1073, 1080 n.4 (10th Cir. 2006)).
Defendants' expert, Mr. Rael, Mr. Clark makes no
statements as to the reasonableness or likelihood of either
party's version of events in his report. Rather, Mr.
Clark acknowledges the parties' different accounts and,
at different points throughout the report, assumes the
veracity of either Mr. Martinez's or Defendants Salazar
and Esparza's story, and renders an opinion based on
those events. Defendants urge that Mr. Clark relies on facts
that are in dispute to render an opinion favorable to
Plaintiff, including whether Defendants Salazar and Esparza
were aware of Mr. Martinez's disability, whether his
wheelchair was visible in the trunk of the car, whether
Plaintiff was the initial aggressor in the interaction, and
the appropriate level of force.
several of the excerpts from the report, which Defendants
cite as resolving factual disputes, are taken from Mr.
Clark's account of either Defendants' or
plaintiff's version of the events underlying this case.
Indeed, they fall within sections titled “Defendant
Officers Salazar & Esparza's Account of the Events
and Commentary” and “Mr. Martinez's and Mrs.
Martinez's Account and Commentary.” See
(Doc. 110-1) at 3-6.
in rendering his opinions in the section titled,
“Opinions Thus Far, ” Mr. Clark does not appear
to resolve any factual issues. To the contrary, Mr. Clark
often relies on undisputed facts in his analysis. For
instance, in opining that “Officer Salazar was required
to know the obvious factors that would indicate that Mr.
Martinez, in this set of facts, could not, and did not, pose
a danger that could possibly justify the force [Officer
Salazar] inflicted on him[ ], ” Mr. Clark states that
“Mr. Martinez was a paraplegic, immobile and
unarmed.” Id. at 6-7. Defendants insist that
Defendants Salazar and Esparza were not aware of Mr.
Martinez's paraplegia during the altercation, and that
there is a dispute as to whether Mr. Martinez's
wheelchair was visible during the altercation. However, Mr.
Clark does not rely on whether Defendants were aware of the
paraplegia, or whether the wheelchair was in fact visible, to
render his opinion. Instead, Mr. Clark opines that the
officers should have realized that Mr. Martinez was not a
threat based on the undisputed facts that he was paraplegic
and that his lower left leg was amputated. (Doc. 110-1) at 7.
Mr. Clark does not cite the presence of the wheelchair at the
scene as a dispositive fact underlying his opinion, in
neither his report nor his deposition. Id. at 6-7;
(Doc. 131-2) at 72:1-22, 74:20-25, 75:1-16. Even if he did,
that fact appears undisputed. (Doc. 131-3) at 5 (Second
Supplemental Answers to plaintiff's First Set of
Interrogatories to Defendant Salazar) (“I first noticed
plaintiff's wheelchair after he was cuffed.”). The
question of whether Defendants Salazar and Esparza noticed,
or should have noticed, the wheelchair at the beginning of
the encounter is an entirely separate question.
addition, when providing analysis of other issues, Mr. Clark
acknowledges that he is accepting one party's facts as
true. Indeed, in finding that Defendants Salazar and
Esparza's use of force was not justified, he states that
there was nothing to “justify the use of any physical
force whatsoever, even assuming Officer Salazar initially
thought that Mr. Martinez might have a firearm.” (Doc.
110-1) at 7:2. Elsewhere, Mr. Clark assumes the facts to be
as Plaintiff alleges, stating that “[t]he allegations
by Mr. Martinez that he was thrown to the ground, punched and
tased, portray[ ] a harrowing narrative of excessive and
unnecessary force . . . .” Id. at 7:4. Mr.
Clark clarifies that this was his intention in his
deposition. (Doc. 119-4) at 90:7-25, 91:1- 12. This is
entirely proper under Rule 702. Chambers, No.
13-1410-RDR, 2015 WL 404810, at *7.
further characterize Mr. Clark's report and deposition
testimony as expressing his opinion on whether
Defendants' allegations themselves are true, possible, or
unreasonable. Specifically, Defendants first assert that
“[Mr.] Clark finds it incredulous that it took two (2)
police officers and a Good Samaritan to subdue the
Plaintiff.” (Doc. 128) at 2. The Court disagrees with
this characterization. In fact, Mr. Clark opines that, given
that two officers and a civilian were working together to
subdue Mr. Martinez, it was not reasonable for Defendant
Esparza to use a Taser as a method of gaining compliance or
affecting an apprehension. (Doc. 131-2) at 64:20-24, 66:25,
Defendants argue that Mr. Clark disagrees with Defendants as
to how Mr. Martinez exited his vehicle during the
interaction, in particular when he refers to Defendant
Salazar “pulling” Mr. Martinez out of the car.
However, in making the observation that Mr. Martinez was
pulled out of the car, Mr. Clark states that he relies on
Defendant Salazar's own account of what happened. While
Defendant Salazar's testimony to this issue is confusing,
it is clear that Mr. Clark bases his opinion of whether
Defendants acted reasonably on the facts as a whole according
to Defendants, not on the facts as Mr. Clark believes them to
be. (Doc. 128-1) at 62:3-15, 63:23-25, 65:18-25, 66:1-24.
Indeed, Mr. Clark is sure to point out that the likelihood or
possibility for the events to have occurred as Defendants
allege is up to a jury to decide. (Doc. 128-1) at 55:15-23.
This is in stark contrast to Defendants' expert, Mr.
Rael, who, as explained above, has rendered opinions as to
which version of events is more reasonable or logical, and
based his entire analysis on that set of facts.
Court acknowledges that Mr. Clark's testimony should be
clear as to the particular set of facts Mr. Clark relies on,
and whether he assumes a certain set of facts to render his
opinions. However, the Court finds that these assumptions can
easily be clarified at the time of trial and on
cross-examination, and that there is no need to exclude Mr.
Clark's testimony entirely at this time. As a result, the
Court will not exclude Mr. Clark's testimony on the basis
that he makes improper credibility determinations in his
Mr. Clark's Testimony and Legal Conclusions
Defendants argue that Mr. Clark's testimony contains
numerous legal conclusions regarding Defendants Salazar and
Esparza's use of excessive force and violations of
training, policy, and law. Defendants contend expert
witnesses are not permitted to testify as to legal
conclusions and, as a result, Mr. Clark's testimony
should be excluded.
response, Plaintiff maintains that, generally, Mr. Clark
opines that the level of force used against Mr. Martinez was
excessive and unnecessary based on his experience and
expertise in police practices and standards, which is
entirely proper. Plaintiff does concede, however, that Mr.
Clark may not inform the jury directly as to what the law is,
or whether Defendants have violated it. Plaintiff states that
there are several isolated instances in the report where Mr.
Clark states that Defendants Salazar and Esparza acted
contrary to law, and provides background information
regarding various aspects of the ADA. Plaintiff assures the
Court that she will not elicit testimony at trial about
whether Defendants violated the law or different components
of the ADA.
Federal Rule of Evidence 704(a) “allows an expert
witness to testify in the form of an opinion or inference
even if that opinion or inference embraces an ultimate issue
to be determined by the trier of fact.” A.E. By
& Through Evans v. Indep. Sch. Dist. No. 25, of Adair
Cty., Okl., 936 F.2d 472, 476 (10th Cir. 1991) (internal
citations omitted). However, “[t]he [Federal] Rules [of
Evidence] do not . . . allow an expert to offer testimony
that merely tells the jury what result they should reach or
testimony phrased in terms of ‘inadequately explored
legal criteria.'” Moriarty v. Bd. of Cty.
Comm'rs for Cty. of Sandoval, 931 F.Supp.2d 1142,
1162 (D.N.M. 2013) (citing United States v. Simpson,
7 F.3d 186, 188 (10th Cir. 1993)). Indeed, “an expert
may not state legal conclusions drawn by applying the law to
facts.” A.E., 936 F.2d at 476 (citing
United States v. Jensen, 608 F.2d 1349, 1356 (10th
Cir. 1979); Frase v. Henry, 444 F.2d 1228, 1231
(10th Cir. 1971)). At the same time, an expert may refer to
the law in expressing his opinion. Id. (citing
Specht v. Jensen, 853 F.2d 805, 809 (10th Cir.
the Court agrees that Mr. Clark's conclusions that
Defendants Salazar and Esparza acted contrary to law and
background information regarding various aspects of the ADA
are legal conclusions which usurp the jury's role as
factfinder. These questions of law are the subject of the
Court's instructions and not the subject of expert
testimony and, as such, the Court finds them inadmissible.
A.E., 936 F.2d at 476; Moriarty, 931
F.Supp.2d at 1163.
the remainder of Mr. Clark's report, Mr. Clark opines
that Defendants Salazar and Esparza's use of force was
unnecessary and unjustified based on EDPS policy and police
training standards. (Doc. 110-1) at 6-7. Indeed, Mr. Clark
states that, as trained law enforcement officers, both
defendants should have known that Mr. Martinez was paraplegic
and responded according to EDPS policy and training.
Id. Based on Mr. Clark's experience and
expertise in police training, Mr. Clark states that they
failed to do so, and that the resulting use of force was
inappropriate. Id. This is entirely proper, as an
expert in police customs and practices is generally allowed
to opine as to whether conduct falls below these standards.
Zuchel v. City & Cty. of Denver, Colo., 997 F.2d
730, 742-43 (10th Cir. 1993) (affirming district court's
admission of testimony by expert in police training and use
of force on whether defendant's conduct violated standard
Mr. Clark does use language such as “excessive”
and “unnecessary” when describing Defendants
Salazar and Esparza's use of force, the Court does not
find that such language requires the exclusion of the
testimony in its entirety. First, in analyzing an excessive
force claim, the relevant question is whether Defendants
Salazar and Esparza were “objectively reasonable in
light of the surrounding facts and circumstances.”
Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th
Cir. 1997). Mr. Clark does not use such language, and counsel
shall guard against his use of these terms at trial. In
addition, the Court's review of the report confirms that
Mr. Clark couches the terms “unnecessary” and
“excessive” in light of EDPS and general police
custom and procedure, not necessarily the United States
Constitution. Zuchel, 977 F.2d at 742- 43 (holding
that expert testimony was properly admitted where expert did
not give an opinion on whether defendant's conduct was
unconstitutional, but rather inappropriate in light of
generally accepted police custom and practice). Furthermore,
as analyzed above, Mr. Clark's conclusions that
Defendants Salazar and Esparza used unnecessary and excessive
force are not based on speculation, but based on the
undisputed facts of this case, namely that Mr. Martinez was
paraplegic and could not move his lower body. Cf.
Moriarty, 931 F.Supp.2d at 1163 (excluding expert
testimony that comprised nothing but legal conclusions and
appeared to be based on speculation not rooted in the
undisputed facts of the case); see supra pp. 7-10.
the Court will exclude any testimony that Defendants Salazar
and Esparza acted contrary to law. In addition, the Court
will exclude any testimony by Mr. Clark regarding general
background of the ADA. The remainder of Mr. Clark's
testimony, however, will not be excluded on these grounds.
Mr. Clark's Testimony Regarding National Police
next argue that the Court should also exclude Mr. Clark's
opinions that Defendants Salazar and Esparza failed to follow
nationally recognized police procedures and customs.
Defendants maintain that expert testimony regarding
departures from established standards of police procedure are
irrelevant to Fourth Amendment excessive force claims, and
that the testimony should therefore be excluded. Defendants
further contend that, even if the Court were to find this
testimony relevant, it should be excluded under Fed.R.Evid.
403, as the introduction of such standards could confuse and
mislead the jury into applying the wrong evidentiary standard
in its deliberation.
responds that the Tenth Circuit permits the use of general
policing standards by experts in excessive force cases, and
that the cases Defendants cite to the contrary are
distinguishable from the facts at bar. In addition, Plaintiff
contends that, even if the Court were to find that Mr.
Clark's testimony regarding policing standards is
irrelevant to plaintiff's Fourth Amendment excessive
force claim, the testimony is certainly relevant to
plaintiff's other claims, including her state law and
related supervisory liability claims, and failure to
accommodate under the ADA.
Tenth Circuit has affirmed both the admission and exclusion
of expert testimony on nationally accepted police
practices.” United States v. Rodella, No. CR
14-2783 JB, 2014 WL 6634310, at *18 (D.N.M. Nov. 19, 2014)
(comparing Zuchel, 997 F.2d at 742-43 (affirming
district court's admittance of expert testimony on
generally accepted police customs and practices), with
Marquez v. City of Albuquerque, 399 F.3d 1216,
1221-22 (10th Cir. 2005) (affirming district court's
exclusion of expert testimony on well-established police
procedures)). Several courts have relied on Zuchel
for the proposition that expert testimony of nationally
accepted police practices may be admitted in excessive force
cases to show that a defendant's conduct violated those
standards. Rodella, 2014 WL 6634310, at *18
(collecting cases). On the other hand, courts have relied on
Marquez in order to exclude such testimony.
Id. at *19 (collecting cases). Additionally, the
Tenth Circuit and this District have often excluded expert
testimony regarding local or generally accepted police
standards. Rodella, 2014 WL 6634310, at *26 (noting
that relevance and confusion concerns are same for both
nationally accepted police standards and local standard
operating procedures); Tanberg v. Sholtis, 401 F.3d
1151, 1164 (10th Cir. 2005); L'Esperance v.
Mings, No. CIV-02-0258 MCA/RLP, 2003 WL 25692557, at *4
(D.N.M. July 14, 2003); Buck v. City of Albuquerque, et
al., No. CV 04-1000 WPJ/DJS, 2009 WL 4263562, at *3
(D.N.M. Nov. 16, 2009); Chamberlin v. City of
Albuquerque, et al., No. CIV 02-0603 JB/ACT, at *3-7
(D.N.M. July 31, 2005) (unpublished).
excluding both national and local police standards, courts
have reasoned that evidence of a violation of police
standards is irrelevant to whether an individual officer used
excessive force in an arrest. Tanberg, 401 F.3d at
1163-64. The Tanberg Court noted that “[the
Tenth Circuit] has consistently held that the violation of
police regulations is insufficient to ground a [Section] 1983
action for excessive force.” Id. at 1163.
Indeed, the issue in Fourth Amendment excessive force cases
is whether, under the totality of the circumstances, an
officer's use of force was objectively reasonable.
Graham v. Connor, 490 U.S. 386, 397 (1989). This
test involves viewing the reasonableness of an officer's
use of force from an “on-scene” perspective.
Saucier v. Katz, 533 U.S. 194, 205 (2001),
overruled in part on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2009). “The fact that an
officer did not comply with his or her employer's
standard operating procedures and training [ ] does not
necessarily mean that the officer's conduct was
‘unreasonable' under the Fourth Amendment.”
L'Esperance, 2003 WL 25692557, at *4 (citing
Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir.
2001)). “Thus, a party may not use evidence of standard
operating procedures [or] training [ ] in order to supplant
the legal standard of objective reasonableness that has been
defined by the Supreme Court and the Tenth Circuit . . .
.” Id.; see e.g., Tanberg, 401 F.3d
at 1163-64; Buck, 2009 WL 4263562, at *3.
reconciling these two lines of cases, courts have noted that
Zuchel involved municipal liability claims against
the City of Denver for inadequate training, which was a
direct cause of the individual police officer's
unjustifiable use of force. 997 F.2d at 733; see also
Ortega v. City & Cty. of Denver, No.
11-CV-02394-WJM-CBS, 2013 WL 438579, at *3-5 (D. Colo. Feb.
5, 2013) (stating that Tenth Circuit had “repeatedly
permitted expert testimony on whether departmental policies
comply with generally accepted practices when municipal
liability is at stake”). On the other hand,
Marquez, Tanberg, and their progeny include
only Section 1983 excessive force claims against the
individual police officers alleged to have used unjustifiable
force. 399 F.3d at 1219-20; 401 F.3d at 1154 . Thus, while
national and generally accepted police practices may be
relevant to proving a claim resting on municipal or
supervisory liability, those same standards are not relevant
to whether an individual officer acted reasonably under
certain circumstances. See, e.g., L'Esperance,
2003 WL 25692557, at *4 (excluding evidence of standard
operating procedures and noting that there is no pending
claim against municipality for improper training or
supervision); Buck, 2009 WL 4263562, at *3 (noting
that general police practices may be relevant to municipal
liability claim); Ortega, 2013 WL 438579, at *3-5.
considering the most recent Tenth Circuit precedent and cases
interpreting it, the weight of authority favors excluding Mr.
Clark's testimony on whether Defendants Salazar and
Esparza followed police policies and practices as it relates
to plaintiff's excessive force claim under Section 1983.
However, Defendants do not ask the Court to exclude this
evidence as to plaintiff's remaining
claims. Indeed, case law supports the use of
references to any national or local policing policies and
standards in relation to plaintiff's state law claims and
municipal claims against EDPS and the City of Espanola under
the ADA. Zuchel, 997 F.2d at 742-43;
L'Esperance, 2003 WL 25692557, at *4 (excluding
evidence of standard operating procedures and noting that
there is no pending claim against municipality for improper
training or supervision); Buck, 2009 WL 4263562, at
*3 (noting that general police practices may be relevant to
municipal liability claim); Ortega, 2013 WL 438579,
at *3-5 (stating that Tenth Circuit has “repeatedly
permitted expert testimony on whether departmental policies
comply with generally accepted practices when municipal
liability is at stake”); Rodella, 2014 WL
6634310, at *24-26. In addition, the Tenth Circuit has
acknowledged that standard operating procedures may be
relevant to Defendants Salazar and Esparza's liability
under plaintiff's state law claims, including assault,
battery, and false arrest. Tanberg, 401 F.3d at
this evidence does not warrant exclusion under Rule 403. The
Court acknowledges that, in admitting this testimony in
connection with plaintiff's remaining claims, there is a
risk that the jury will improperly consider the testimony in
connection with plaintiff's excessive force claims under
Section 1983. However, this risk can be sufficiently reduced
with a limiting instruction at trial. Hence, the Court will
instruct the jury to consider this evidence only to decide
the issues of municipal liability under the ADA and theories
of liability under the NMTCA. See Zuchel, 997 F.2d
at 743; Frederick v. Swift Transp. Co., 616 F.3d
1074, 1084 (10th Cir. 2010) (upholding district court's
evidentiary ruling where evidence was relevant to claims and
court gave appropriate limiting instructions as to relevance
of evidence); The SCO Grp., Inc. v. Novell, Inc.,
439 F.App'x 688, 695 (10th Cir. 2011) (holding that risk
of prejudice was significantly reduced by court's
limiting instruction); see also United States v.
Jones, 530 F.3d 1292, 1299 (10th Cir. 2008) (“[W]e
presume that juries follow limiting instructions.”)
(internal citations and quotations omitted). The Court
further notes that, at trial, Plaintiff must establish that
any testimony on police standards is specifically relevant to
her theory of municipal liability under the ADA and her state
law claims. In light of this, the Court determines that the
probative value of nationally accepted and local police
standards to both plaintiff's municipal claims under the
ADA and her state law claims is not substantially outweighed
by the danger of unfair prejudice or confusing the jury.
Accordingly, the Court finds that, at this time, while Mr.
Clark's testimony on standard police practices is not
relevant to plaintiff's excessive force claims under
Section 1983, it is relevant and admissible as to
plaintiff's state law claims and municipal ADA claims.
Mr. Clark's Testimony on “Less Intrusive” or
“Less Forceful” Alternatives
Finally, Defendants seek to exclude testimony that Defendants
Salazar and Esparza used constitutionally unjustifiable force
because “less intrusive” or “less
forceful” alternatives were available. As grounds,
Defendants maintain that whether a police officer could have
used “less intrusive” or “less
forceful” means is irrelevant to the reasonableness
analysis under the Fourth Amendment. Plaintiff responds that
Mr. Clark is not offering testimony regarding the
“least intrusive means” available to police, or
suggesting that such a test may be used to evaluate the
reasonableness of Defendants Salazar and Esparza's
Tenth Circuit has held that whether a police officer used
more than a minimum amount of force than necessary, or failed
to use less intrusive means, in detaining a suspect, is
irrelevant to the question of whether that officer acted
“reasonably” under the Fourth Amendment.
Marquez, 399 F.3d at 1221-22. This is because
“the reasonableness standard does not require that
officers use ‘alternative less intrusive
means.'” Medina, 252 F.3d at 1133 (citing
Illinois v. Lafayette, 462 U.S. 640, 647-48 (1983)).
If courts were to “consider the expert's assertions
regarding the failure to use [less intrusive means], we would
be evaluating the officer's conduct from the 20/20
perspective of hindsight rather than from the perspective of
an officer making split-second judgments on the scene.”
argues that Marquez is inapposite to this case.
There, the plaintiff's expert based his opinion on the
theory that only the least intrusive means of detention were
reasonable. Marquez, 399 F.3d at 1221-22. Here, on
the other hand, Mr. Clark opines that “all issues
[between Mr. Martinez and the officers] were easily resolved
by ‘Officer presence and/or Verbal Skills' methods.
Officer Salazar failed to use the required more reasonable
(less forceful) methods when dealing with Mr.
Martinez.” (Doc. 110-1) at 7. Mr. Clark further states
that “office[r] presence and de-escalation tactics
would have sufficed.” Id. Plaintiff further
maintains that such testimony is relevant to the issues
presented because “the excessive force inquiry
evaluates the force used in a given arrest or detention
against the force reasonably necessary to effect a lawful
arrest or detention under the circumstances of the
case.” Cortez v. McCauley, 478 F.3d 1108, 1126
(10th Cir. 2007). Additionally, “it is excessive to use
a Taser to control a target without having any reason to
believe that a lesser amount of force-or a verbal
command-could not exact compliance.” Casey v. City
of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir. 2007).
Plaintiff does not explain why the reasoning underlying the
decisions in Marquez and Medina does not
apply here. Indeed, Mr. Clark's testimony seems to fall
squarely within the type of testimony which involves
“evaluating the officer's conduct from the 20/20
perspective of hindsight rather than from the perspective of
an officer making split-second judgments on the scene.”
Medina, 252 F.3d at 1133. Nor does Plaintiff provide
any cases in which a court admitted testimony of available
“less intrusive” means in an excessive force case
against individual defendants.
the cases applying and interpreting the reasoning in
Marquz and Medina have excluded such
evidence on the grounds that expert testimony regarding an
individual defendant's failure to use “alternative
less intrusive” means is irrelevant to the
reasonableness analysis under the Fourth Amendment. See
e.g. L'Esperance, 2003 WL 25692557, at *4 (holding
that evidence of less intrusive alternatives to force is not
relevant to reasonable analysis under Fourth Amendment, and
that any marginal relevance is substantially outweighed by
danger of unfair prejudice, confusion of issues, and
misleading jury); Chamberlin, No. CIV 02-0603
JB/ACT, at *3 - 4 (excluding any evidence of standard
operating procedures regarding lesser intrusive alternative
methods of force); Taylor v. Hudson et al., No. CIV
02-0775 JB/RHS, at *10-12 (D.N.M. Nov. 21, 2003)
(unpublished) (interpreting Tenth Circuit law to state that
evidence of less intrusive alternatives to force is
irrelevant to Fourth Amendment reasonableness inquiry and
thus inadmissible); Ornelas v. Lovewell, No.
11-2261-JAR-KMH, 2013 WL 3271016, at *6-7 (D. Kan. June 27,
2013), aff'd, 613 F.App'x 718 (10th Cir.
2015) (excluding testimony that defendant could have used
less intrusive alternative to force used, as such evidence is
irrelevant to Fourth Amendment excessive force claim).
result, this Court similarly finds that, under Tenth Circuit
precedent, evidence of less intrusive alternatives to
Defendants Salazar and Esparza's use of force is not
relevant to the question of whether they acted reasonably
under the circumstances. Accordingly, Mr. Clark's
testimony to that effect must be excluded.
for the foregoing reasons, Defendants' First Motion in
Limine will be GRANTED IN PART and DENIED IN PART.
Defendants' Second Motion in Limine
Defendants' Second Motion in Limine, Defendants argue
that Mr. Clark's opinions with regard to Defendants'
liability under the ADA and related inadequate police
procedures are speculative and otherwise lack proper
foundation, and that those opinions should be excluded. In
particular, Defendants first contend that the ADA is
inapplicable to the facts presented here under the
“exigent circumstances exception.” Second, they
argue that Mr. Clark otherwise fails to properly support his
opinions on inadequate police policies and procedures.
Plaintiff responds that the “exigent circumstances
exception” to the ADA has not been adopted in this
Circuit and that, in any event, the facts of this case do not
fall within the exception. Further, Plaintiff maintains that
Mr. Clark sufficiently supports his opinions that here were
inadequate policies and oversight within EDPS.
initial matter, Defendants assert that Mr. Clark cannot opine
on whether Defendants violated the ADA for failure to
accommodate Mr. Martinez's disability during the
encounter. Defendants reason that, “Title II [of the
ADA] does not apply to an officer's on-the-street
responses to reported disturbances or other similar
incidents, whether or not those calls involve subjects with
mental disabilities, prior to the officer's securing the
scene and ensuring that there is no threat to human
life.” Hainze v. Richards, 207 F.3d 795, 801
(5th Cir. 2000). Defendants make this same argument as
grounds for dismissing plaintiff's ADA claims in their
First Motion for Partial Summary Judgment Against Plaintiff
Russell Martinez (“First MSJ”). (Doc. 112).
Because these arguments are identical, and challenge the
merits of plaintiff's ADA claims, the Court finds that it
is more appropriate to consider them in the context of
Defendants' First MSJ. As a result, the Court will not
exclude Mr. Clark's ADA testimony for these reasons at
this time. The Court will now turn to whether Mr. Clark's
opinions on inadequate police policies and procedures are
purely speculative and, thus, improper testimony.
its gatekeeper role, a court must assess the reasoning and
methodology underlying an expert's opinion, and determine
whether it is both scientifically valid and relevant to the
facts of the case, i.e., whether it is helpful to
the trier of fact.” Rodella, 2014 WL 6634310,
at *9 (citing Daubert, 509 U.S. at 594-95;
Witherspoon v. Navajo Ref. Co., LP, No. CIV 03-1160
BB/LAM, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005)). In
doing so, “[t]he court must reject unsupported
speculation as well as testimony that is based on unreliable
methodology.” Vigil v. Burlington N. & Santa Fe
Ry. Co., 521 F.Supp.2d 1185, 1204 (D.N.M. 2007) (citing
Ammons v. Aramark Uniform Servs., Inc., 368 F.3d
809, 815-16 (7th Cir. 2004); Brown v. Am. Honda Motor
Co., 939 F.2d 946, 952 (11th Cir. 1991)). Opinions are
pure speculation when they are not based on sufficient facts
or data, and must be excluded as unreliable under Fed.R.Evid.
702. Id. at 1205 (citing Gibson v. Norfolk S.
Corp., 878 F.Supp. 1455, 1460 (N.D. Ala. 1994). Indeed,
“neither Daubert nor the Federal Rules of
Evidence ‘require[ ] a district court to admit opinion
evidence which is connected to existing data only by the
ipse dixit of the expert.'” Norris v.
Baxter Healthcare Corp., 397 F.3d 878, 886 (10th Cir.
2005) (citing General Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997)). As a result, the Court is free to conclude
that “there is simply too great an analytical gap
between the data and the opinion proffered, ” and
within its discretion to exclude such evidence. Id.
Mr. Clark opines that both Defendants Salazar and Esparza
should have been trained on the requirements of the ADA, that
they should have considered Mr. Martinez as disabled, and
that they should have accommodated Mr. Martinez during the
encounter. (Doc 111-1) at 7:5-6. Mr. Clark goes on to say
that “[t]he [EPDS] through its chain of command appears
to have endorsed the dangerous out-of-policy tactics that are
connected to this incident. As such, their collective
approval of these tactics puts the general public at
unnecessary future risk of death and/or injury from their
personnel who have been, or are now, similarly trained and/or
supervised.” Id. at 8. However, Mr. Clark
provides no further explanation as to how he reached this
conclusion. While Mr. Clark describes portions of Title II of
the ADA, and states that he has reviewed EDPS general orders
and training documentation for Defendants Salazar and
Esparza, Mr. Clark does not offer any methodology or analysis
which would connect these facts to his conclusion.
Id. at 1-2, 9-12. For instance, there is no
indication whether Defendants Salazar and Esparza received
training on ADA requirements, whether any training was
inadequate, or whether they failed to apply their training on
Mr. Clark provides no methodology or explanation to support
his analytical leaps from the orders, training, and law, to
“out-of-policy tactics” which “ put[ ] the
general public at unnecessary risk . . . of death and/or
injury.” Id. at 8. As a result, the Court
finds that his related opinions are speculative and, thus,
unreliable under Fed.R.Evid. 702. Therefore, Mr. Clark's
opinions as to inadequate police policies and procedures
under the ADA are inadmissible.
conclusion, Defendants' Second Motion in Limine will be
GRANTED IN PART and DENIED IN PART.
light of the foregoing, IT IS THEREFORE ORDERED that the
GRANT plaintiff's Motion in Limine to Exclude the Expert
Testimony of Raymond J. Rael and Memorandum in Support, (Doc.
GRANT IN PART and DENY IN PART Defendants' First Motion
in Limine to Exclude the Opinion Testimony of Plaintiff s
Expert Roger A. Clark, (Doc. 110); and
GRANT IN PART and DENY IN PART Defendants' Second Motion
in Limine to Exclude the Opinion Testimony of Plaintiff s
Expert Roger A. Clark. (Doc. 111).
 On December 7, 2015, plaintiff's
Counsel filed a statement notifying the Court and the parties
that Mr. Martinez had passed away. (Doc. 139). The Court then
substituted Jackie Martinez, as personal representative of
Mr. Martinez's estate, as the plaintiff in this case.
 Defendants also assert that Mr. Clark
fails to account for Mr. Martinez's use of drugs during
the encounter. Mr. Clark's report does not take a
position on the issue of whether Mr. Martinez was under the
influence of any substances, and his deposition clarifies
that the use of drugs would not affect the analysis of this
case. (Doc. 131-2) at 113:13-115:18. Moreover, Mr. Clark did
not engage in any factual or credibility determinations on
this issue, and the question of whether or not Mr. Martinez
was under the influence of any substances can be addressed
during trial on cross examination.
 It should be noted that the disputed
facts in this case may be further developed as the Court
considers Defendants' pending dispositive motions.
See (Docs. 112 & 113). Depending on those
findings, it may be appropriate to reconsider the reliability
and helpfulness of Mr. Clark's report. Until that time,
however, it would be inappropriate to completely exclude Mr.
Clark's report and testimony.
 As Plaintiff notes, all case law cited
in connection with Defendants' argument excluded national
and local police standards in connection with Section 1983
claims, exclusively. In addition, Defendants do not respond
to plaintiff's contention that evidence of national and
local policing standards is relevant to her remaining claims
in their reply brief. See (Doc. 119) at 15; (Doc.
128) at 12.
 Plaintiff argues that Mr. Clark refers
to testimony from former EDPS Chief Lee Montoya regarding the
failure to document and track Taser use and use-of-force
incidents to support his conclusion that there are inadequate
polices and oversight at EDPS. However, as Defendants make
clear in their reply brief, they seek only to exclude Mr.
Clark's opinions on policies related to the ADA, not
Defendants' use of force. (Doc. 129) at 9-10.