United States District Court, D. New Mexico
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.
MEMORANDUM OPINION AND ORDER
matter comes before the Court on the County
Defendants' 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).
Background and Procedural History
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 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.
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
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.
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.
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.
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
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.
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
Plaintiff's Retained Expert, William Harmening
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.
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.
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