United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION IN LIMINE NO. I: TO EXCLUDE PLAINTIFF'S EXPERT
WITNESS FROM TESTIFYING AS TO THE ULTIMATE ISSUES IN THIS
MATTER is before the Court on Defendants Kacy Ramos, Michael
Rico, and City of Albuquerque's Motion in Limine
No. I: To Exclude Plaintiff's Expert Witness from
Testifying as to the Ultimate Issues In This Case, filed on
June 30, 2017 (Doc. 77). Having reviewed the
relevant pleadings and the applicable law, the Court finds
the Motion is well-taken, and is therefore
lawsuit centers on an encounter between Plaintiff Max Montoya
and Albuquerque Police Department (“APD”)
Officers Kacy Ramos and Michael Rico. On August 27, 2011,
shortly after 10:00 p.m., Officers Ramos and Rico were
dispatched to 510 Dartmouth Dr. SE in reference to an
anonymous 911 call regarding a disturbance on Dartmouth Dr.
SE. Officers Ramos and Rico were advised that there were two
males in an argument and one of the males mentioned a gun.
Officers Ramos and Rico made contact with an unidentified
female, who indicated that the argument had come from
Plaintiff's residence, 511 Dartmouth Dr. SE. As Officers
Ramos and Rico were walking towards 511 Dartmouth, Officer
Rico put his flashlight on the house and shone it on
Plaintiff, who ducked down and moved towards his front door.
The officers approached Plaintiff, who was at the front door
of his residence with a beer in his hand.
parties dispute what happened next. Defendants state they
were concerned Plaintiff might have been armed with a gun.
Plaintiff was intoxicated and stumbling, and officers feared
for their safety when Plaintiff stumbled toward them. Officer
Ramos asked Plaintiff to step toward him, and Plaintiff
became aggressive. Plaintiff then moved toward Officer Rico
and was laughing. Officers could smell alcohol on his breath.
Plaintiff became louder and more aggressive. He stepped
closer to Officer Rico with his fists balled up. Officers
Ramos and Rico took Plaintiff into custody. Defendants
maintain that the officers had reasonable suspicion to
support an investigative detention of Plaintiff and his
aggressive actions toward the officers gave them probable
cause for Plaintiff's arrest based on their perception
that Plaintiff battered and/or assaulted officers.
contrast, Plaintiff argues Officers Ramos and Rico lacked
reasonable suspicion to detain him and they did not have
probable cause to arrest him. Plaintiff states that the
officers dragged him off of his front porch, attacked him,
and injured him as they attempted to place him in handcuffs,
and despite Plaintiff telling officers he had recently been
the altercation, Plaintiff was charged with “Assault
Upon Peace Officer” in violation of NMSA 1978, §
30-22-21 and “Resisting, Obstructing, Refusing”
in violation of City of Albuquerque Ordinance 12-2-18. After
an evidentiary hearing, Bernalillo County Metropolitan Court
Judge Christina Argyres dismissed the charges without
prejudice for lack of probable cause and lack of reasonable
lawsuit, Plaintiff has sued the Defendants for civil rights
violations under 42 U.S.C. § 1983 and the New Mexico
Tort Claims Act. See Doc. 41. Plaintiff filed his
First Amended Motion for Partial Summary Judgment on May 26,
2017. See Doc. 71. In the Motion, Plaintiff argues
the Court should grant summary judgment in his favor on his
claims that the arrest on August 27, 2011 was executed
without probable cause and that officers did not have
reasonable suspicion to detain him. Id. For summary
judgment purposes, Plaintiff asks the Court to consider
evidence from his liability expert, Retired Chief of Police
Dan Montgomery. Mr. Montgomery reviewed the tape of the
arrest and opines that Officers Ramos and Rico did not act in
accordance with proper police standards. In his Motion for
Partial Summary Judgment, Plaintiff states that Mr.
Montgomery believes there was no probable cause or reasonable
suspicion to justify detaining and arresting Plaintiff on
August 27, 2011. See Doc. 71 at 6-7, 9. Defendants
filed the instant Motion in Limine (Doc. 77) to
exclude Mr. Montgomery's testimony to this effect,
alleging it would be improper for Mr. Montgomery to opine as
to ultimate issues in this case: whether Plaintiff's
detention and arrest were effectuated without probable cause
and reasonable suspicion, depriving Plaintiff of his Fourth
Amendment right to be free from unlawful arrest and excessive
Fed.R.Evid. 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). Rule 702 assigns to the
district judge a gatekeeping role to ensure that scientific
testimony is both reliable and relevant. See Dodge v.
Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003).
Under Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137 (1999), a reliability finding is a prerequisite for
all expert testimony in areas beyond the knowledge
and experience of lay jurors, not just technical or
Court reads Defendants' request as a narrow one: Mr.
Montgomery should be precluded from testimony that
unequivocally states Defendants did not have reasonable
suspicion to detain or probable cause to arrest Plaintiff.
The Court agrees with Defendants that Mr. Montgomery should
be barred from testifying as to the ultimate issues in this
case. This finding does not mean, however, that Mr.
Montgomery would be prohibited from testifying as to his
expert opinions on whether the seizure and arrest of
Plaintiff by Defendants was inconsistent with modern and
well-established police standards assuming Mr. Montgomery was
properly qualified as an expert under the requirements set
forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597 (1993) and assuming his
testimony would aid the jury under according to Rule 702.
Indeed, Defendants point out that “Mr. Montgomery did
not specifically set forth the opinions as characterized by
Plaintiff in his Motion for Partial Summary Judgment.”
Doc. 77 at 5. Thus, to the extent Plaintiff's counsel
intends to have Mr. Montgomery testify that Defendants did
not possess reasonable suspicion or probable cause, such
testimony will be excluded.
appropriately point out that although an expert opinion may
permissibly embrace the ultimate issue in a given case, the
expert cannot state a legal conclusion by applying the law to
the facts. See Fed. R. Evid. 704(a); Okland Oil
Co. v. Conoco, Inc., 144 F.3d 1308, 1328 (10th Cir.
responds that he does not intend to have Mr. Montgomery
encroach on the Court's duty to instruct the jury
regarding the law. Plaintiff states Mr. Montgomery's
opinions on whether Defendants acted in accordance with
proper policing standards will help the jury perform its
functions. Without Mr. Montgomery's testimony, the jury
will have no way to evaluate whether the officers'
conduct was reasonable. Plaintiff points out that Mr.
Montgomery did not opine that the seizure and arrest of
Plaintiff was unlawful. Rather, he opined that the seizure
and arrest was not done in a manner “consistent with
modern and well established police standards.” Doc. 80
Court concludes that to the extent Mr. Montgomery
unequivocally states legal conclusions as to the ultimate
issues in this case, such testimony is improper and will be
excluded. The relevant legal questions at issue in this case
are whether Defendants had reasonable suspicion to detain
Plaintiff, and whether Defendants had probable cause to
arrest Plaintiff. “[A]n expert may not state legal
conclusions drawn by applying the law to the facts.”
A.E. by and through Evans v. Independent School Dist. No.
25, of Adair County, Okla., 36 F.2d 472, 476 (10th Cir.
1991). Expert testimony that invades the province of the jury
or renders opinions on issues of law is improper. See
Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988)
(explaining that testimony on ultimate issues of law an
expert “is inadmissible because it is detrimental to
the trial process”). Any statements that usurp the
province of the jury are inadmissible. Testimony from Mr.
Montgomery that Defendants did not have probable cause or
reasonable suspicion to justify their detention and arrest of
Plaintiff would constitute legal conclusions on ultimate
issues of law, and the Court agrees with Defendants that this
type of ...