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Wrongful Death Estate of Gonzalez v. Board of County Commissioners of County of Bernalillo

United States District Court, D. New Mexico

July 29, 2019

WRONGFUL DEATH ESTATE OF MIGUEL GONZALEZ, by and through Wrongful Death Estate Personal Representative Joanna Rodríguez, JOANNA RODRIGUEZ, on her own behalf and as Mother and Next Friend of ME Gonzalez, a minor child, DJ Gonzalez, a minor child, and AX Gonzales, a minor child, Plaintiffs,
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, NEW MEXICO, MANUEL GONZALES, III, Sheriff of Bernalillo County, CHARLES COGGINS, a Deputy Sheriff of the Bernalillo County Sheriff's Department, and JOHN DOES 1 through 7, Deputy Sheriffs Deputy Sheriffs of the Bernalillo County Sheriff's Department, Individually and in their Official Capacities, Defendants.


         This matter comes before the Court on the County Defendants'[1] Daubert Motion to Exclude the Testimony of William Harmening (Motion to Exclude), filed November 29, 2018. (Doc. 92). Plaintiffs filed a response on January 7, 2019, and the County Defendants filed a reply on January 21, 2019. (Docs. 104, 110). Having considered the briefing, the record, and the relevant law, the Court grants the County Defendants' Motion to Exclude (Doc. 92).

         I. Background and Procedural History[2]

         Around 1:00 a.m. on July 4, 2017, Deputy Charles Coggins (Coggins) was dispatched to a car wash based on a report that some individuals were loitering. Deputy Skartwed also responded, but did not remain at the car wash. Coggins was in a marked Bernalillo County Sherriff's Office (BCSO) vehicle. At the car wash, Coggins noticed a red Monte Carlo sedan and observed the driver[3] make a quick or furtive motion. Coggins ran the Monte Carlo's license plate through a database which reported the license plate to be stolen.

         Coggins lost sight of the Monte Carlo at some time before leaving the car wash, but Deputy Skartwed observed the Monte Carlo and radioed back the vehicle's location. Coggins and Deputy Skartwed, in separate vehicles, proceeded to follow the Monte Carle into a neighborhood. At a “T” intersection, Deputy Skartwed went one direction and Coggins went the other.

         As Coggins drove, he noticed a vehicle headed toward him. Coggins activated his spotlight to illuminate the vehicle and saw that it was the red Monte Carlo. Coggins identified the driver's physical characteristics over the radio. The Monte Carlo accelerated toward Coggins' vehicle and passed him, driving in the oncoming traffic lane. Coggins made a U-turn, engaged his emergency lights, and followed the Monte Carlo. The Monte Carlo did not yield to the emergency lights and came to a stop only after running over a curb.

         The driver, Gonzalez, got out of the Monte Carlo and ran south toward a house. Coggins gave chase. Coggins attempted to activate his radio during the chase five times to update dispatch and Deputy Skartwed on his location, but he was unable to activate the radio. Coggins heard Gonzalez yelling something indistinct as Gonzalez ran toward the residence. Gonzalez continued toward the side yard of the house and jumped a gate leading to the backyard. Coggins continued to pursue Gonzalez and also jumped the gate.

         Coggins testified at his deposition that he heard Gonzalez say “get back or I'll shoot.” Deputy Skartwed was nearby, but did not hear this alleged statement.

         When Coggins came to a stop in the backyard, Gonzalez stood near a cinderblock wall and was “bladed” (i.e., at ¶ 90-degree angle) toward Coggins. Gonzalez “punched out” his right arm - meaning that he fully extended his arm as if aiming a gun - toward Coggins. Gonzalez was holding a dark object in his hand. Coggins believed the dark object was a firearm, based on Gonzalez's body position and statements. Based on all of these factors, Coggins believed Gonzalez was preparing to shoot him.

         Coggins fired four shots, striking Gonzalez four times. Gonzalez died on scene from his injuries. Investigating officers recovered a holstered handgun, identified by Gonzalez's children as the one he regularly carried in his waistband.

         Joanna Rodriguez (Rodriguez), as personal representative of Gonzalez's estate, brought this case against Coggins and the other County Defendants, alleging Coggins violated Gonzalez's Fourth Amendment right to be free from the use of excessive force. Specifically, Rodriguez asserts that Gonzalez was running away from Coggins, did not brandish a firearm, and did not pose a danger to Coggins at the time of the shooting.

         A. Plaintiff's Retained Expert, William Harmening

         The Court originally set a June 1, 2018, deadline for Rodriguez to disclose her experts and provide expert reports, (Doc. 14) at 2, and it extended the deadline until July 16, 2018, on joint motion of the parties, (Doc. 33) at 2. On July 16, 2018, Rodriguez disclosed Professor William Harmening (Harmening) as an expert in police practice and use of force. (See Doc. 64-1) (Harmening's “Force Analysis” Report, dated July 16, 2018). Harmening holds an M.A. in Psychology from the University of Illinois at Springfield, teaches psychology and criminal justice at various institutions as an adjunct professor, and serves as the Chief Special Agent for the Illinois Securities Department. (Doc. 64-1) at 2; (Doc. 84-5) at 2.

         During his career in law enforcement, Harmening participated in one homicide investigation, sometime between 1990 and 1993. (Doc. 92-2) at 6. He has never been a crime scene specialist or criminalist. (Id.) at 7. As an instructor at the Lincolnland Police Training Center, in Springfield, Illinois, Harmening taught crime scene processing techniques approximately ten times to police cadets, but has never taught courses or segments involving the techniques of crime scene processing to criminalists. (Id.) at 7-8. Harmening has never investigated an officer-involved shooting, though he participated in collecting and documenting a shooting crime scene approximately four times. (Id.) at 8. He has never conducted forensic analysis on a bullet, and admits he is not qualified to analyze the characteristics of blood or other fluids, or to examine a firearm, cartridge, or bullet for tool marks. (Id.) at 9. He has never studied the manner in which ammunition travels through the body and admits he is not qualified to make such analyses. (Id.) at 10. In 1991 Harmening took one course on investigative methods, including wound characteristics, which lasted less than a day; he took other investigative training in the early 1980s. (Id.) at 10-11. He is not a member of any professional organization involving forensic analysis of any kind and does not hold any certifications or licenses involving crime scene analysis or reconstruction. (Id.) at 12-13. He has never conducted any experiments in wound ballistics or characteristics. (Id.) at 13. Harmening testified that he has not received any training regarding blood stain patterns, shooting reconstruction, or crime scene processing with regard to evidence in a violent crime since 1993. (Id.) at 14. Though Harmening has been published in peer-reviewed formats, none of those publications deal with processing or analyzing physical evidence. (Id.) at 14. Harmening has been accepted as an expert in securities fraud and securities fraud investigation, but has never been accepted by a court as an expert in any other area. (Id.) at 17.

         In preparing his report and opinions, Harmening used “reports, incident scene charts, measurements, and photographs” created by the BCSO and the Albuquerque Police Department, “lab reports drafted by the New Mexico Dept. of Public Safety Forensics Lab and the Office of the Medical Examiner at the University of New Mexico Health Science Center, ” and the “statements of Deputies ...

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