Court Admits Law Enforcement Expert Witness’ Opinion on Police Tactics for Dealing with Pet Dogs
Posted on January 6, 2025 by Expert Witness Profiler
On September 6, 2018, Rochester Police Department (“RPD”) officers Jeremy Nellist (“Nellist”) and Joshua P. Kelly (“Kelly”) traversed through the backyard of Plaintiff Erin Gursslin’s (“Plaintiff”) property on St. Paul Street, in the City of Rochester (the “City”), during the course of executing a search warrant at a location three properties north of Plaintiff’s home. On their return trip, Nellist and Kelly encountered Plaintiff’s foster dog, Nina, whom they shot and killed. Plaintiff thereafter sued the City, Nellist, Kelly, RPD Commander Fabian Rivera (“Rivera”), and RPD Lieutenant Aaron Springer (“Springer”) (collectively “Defendants”) pursuant to 42 U.S.C. § 1983 for having unreasonably searched the curtilage of Plaintiff’s property, for having unlawfully seized Nina, and for having unlawfully seized Plaintiff, all in violation of the Fourth Amendment.
Defendants filed a motion to preclude Plaintiff from using James Crosby (“Crosby”) as an expert in this matter.
In his expert report, Crosby offers 23 opinions, which Defendants have separated into five categories: (1) the Fourth Amendment (opinions 1, 3, and 7); (2) SWAT tactics and operations (opinions 2, 4, 5, 6, 8, and 9); (3) “dogs, dog behaviors, and law enforcement encounters with dogs” (opinions 10, 11, and 13); (4) firearms (opinion 12); and (5) training and municipal liability (opinions 14-23).
Law Enforcement Expert Witness
James Crosby holds a Ph.D. in Veterinary Medical Science from the College of Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics; [and] a Master of Science degree from the College of Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics. He is also a Certified Behavior Consultant—Canine-Knowledge Assessed. Crosby served as a police officer with the Jacksonville Sheriff’s Office from 1977 to 1999, “performing twenty-two years of active service.” During his career Crosby served as “a Patrolman, a Sergeant, and a Lieutenant.”
He is a Certified Animal Control Officer in the state of Florida and “served as the Animal Control Division Manager for Bay County, Florida, from February 2008 to September 2010.” He also served as “the acting Chief of Animal Care and Protective Services for the City of Jacksonville, Florida from March through December of 2016.” Crosby has “trained police departments in the proper and effective use of less- and non-lethal force; recognition of canine body language, behavior, and dog bite risk analysis; and methods for safe engagement with domestic dogs across the United States.”
Discussion by the Court
Defendants argued that Crosby “should be precluded from testifying as an expert in all five of the proposed areas, mainly because he lacks expertise in the majority of them. His opinions also lack factual support, are not reliable, and seek to tell the jury what to conclude.” The Court considers these arguments below.
1. Fourth Amendment Opinions (Opinions 1, 3, and 7)
Defendants first argued that Crosby should be precluded from offering opinions 1, 3, and 7, regarding the Fourth Amendment and Nellist and Kelly’s entry into Plaintiff’s yard. The Court need not reach this argument, because opinions 1, 3, and 7 are all related to Plaintiff’s claim for an unreasonable search of her curtilage, on which the Court has already granted summary judgment to Defendants. This portion of Defendants’ motion is accordingly denied as moot.
2. SWAT-Related Opinions
Defendants next argued that Crosby has “no SWAT experience or training” and that his opinions on SWAT-related issues are not based on “sufficient facts on which to make a reliable opinion.” Plaintiff argued that this argument is a “red herring” because Crosby “is not offering an opinion on specialized SWAT tactics or procedures,” but instead is focusing on “the straightforward issue” of “why Officers Nellist and Kelly chose to trespass through Gursslin’s yard after the conclusion of the SWAT operation when they could have simply exited through the vacant lot.”
Opinion 2
Opinion 2 reads in relevant part: “Any reasonable officer in 2018 would have known that because exigent circumstances did not exist to justify entry into the yard, they were required to request permission prior to entering the yard, or at least provide a warning to the home’s occupants of their presence.”
“In deciding whether expert testimony will be helpful to the fact-finder, the Court must determine whether the testimony ‘usurps either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.'”
The Court held that Opinion 2 not only runs afoul of this prohibition but also offers a legal opinion on issues that this Court has already considered in ruling on the motion for the first summary judgment.
Opinion 4
Opinion 4 reads: “Even as overwatch sniper units, Nellist and Kelly should have been equipped with and prepared to use less-lethal tools should they have encountered any person or animals not posing a threat of death or serious injury during their passage to and from their position, especially considering that an uninvolved person or homeowner could reasonably be expected to have confronted them, not recognizing they were police officers.”
The Court agrees with Defendants that this opinion falls outside the scope of Crosby’s expertise. Crosby has never been a member of a SWAT team nor has he ever supervised a SWAT team.
Plaintiff has not demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
Opinion 5
Opinion 5 relates to Nellist and Kelly’s prior “scout” of Plaintiff’s back yard, and reads in relevant part: “In short, they did nothing in the planning phase to learn whether Nina or any other dog resided at the property, despite having the time and opportunity to do so. Nellist and Kelly’s failure to conduct a proper scout or do anything whatsoever to learn whether a dog resided at the property was unreasonable under the circumstances and constituted a violation of good and accepted police practices and professional standards of care.” The Court did not find that this opinion is specifically related to SWAT tactics or organization, as opposed to planning for the possible presence of a dog in connection with the execution of a search warrant, which is a topic in which Crosby does have expertise.
Further, while Defendants argue that it is “demonstrably false” that Nellist and Kelly took no steps to investigate whether a dog resided on the property, that argument is based solely on the fact that they conducted a scout, which Crosby acknowledges in his expert report. The Court held that it is a factual dispute, not a reason to exclude expert testimony.
Opinion 6
Opinion 6 reads:
“Nellist and Kelly demonstrated a lack of situational awareness when they reentered Gursslin’s back yard while exfiltrating from their Final Operating Position. Prior to entering Gursslin’s back yard, they should have recognized that there was an additional car parked in her driveway that was not there when they arrived; that there were lights on inside of the house that were not on when they arrived; and that the motion sensor light on the side of the house was on. At this point, good and accepted police practices and professional standards of care required that they radio to their supervisors to learn whether anyone was home and whether it was safe to enter the yard.
At the least, they should have recognized the heightened possibility that they might encounter a person or a dog in the yard, and paused and developed a plan for what to do if they encountered a person or a dog in the yard. Their failure to do so was unreasonable under the circumstances and contrary to the actions of any reasonably and properly trained police officer and constituted a violation of good and accepted police practices and professional standards of care.”
Like opinion 5, opinion 6 is not SWAT-specific, but relates generally to procedures after execution of a search warrant. Further, while Defendants attacked the factual basis for this opinion, their citations did not support their argument. The Court will not preclude opinion 6 on this basis.
Opinion 8
Opinion 8 relates to Springer and Rivera’s supervision of the execution of the HRSW. Specifically, opinion 8 concluded that Springer and Rivera did not properly supervise and oversee the SWAT operation because “the uniformed police officers stationed in front of Gursslin’s property—Herbert McClellan and Jonathan Kent—failed to appreciate that Nellist and Kelly were exfiltrating from their final operating position by walking through Gursslin’s back yard” and “[i]f Springer and Rivera had properly informed McClellan and Kent, then they could have warned Gursslin on her arrival at the home that police officers were using her backyard as part of the SWAT operation and prevented her from going into her back yard on the morning of the incident.”
The Court agreed with Plaintiff that this opinion is not specifically related to SWAT tactics, as opposed to general law enforcement practices when accessing citizens’ properties during the execution of a search warrant.
The Court further rejects Defendants’ contention that opinion 8 lacks a sufficient factual basis. Defendants argue that “neither Officer McClellan nor Officer Kent saw Plaintiff or anyone the morning prior to the dog being shot.” But Plaintiff testified that she and her boyfriend went up to a police officer in a car and asked him what was going on. And McClellan only testified that he did not remember anyone coming to his car and speaking to him. Again, this is a factual dispute, not a basis to preclude expert testimony. The Court will not exclude opinion 8.
Opinion 9
Finally, opinion 9 is that “Nellist and Kelly had no plan for the use of less-lethal or non-lethal force regarding encountering Nina, or indeed any dog, in this incident. . . . In 2018, no reasonable and well-trained officer would fail to make and implement such a plan—especially considering that they had at least one week prior to the incident to conduct such an investigation—and the lack of planning directly led to the needless shooting of Nina. Failure to recognize the availability of, or to attempt to use less- or non-lethal methods in their encounter with Nina constituted objectively unreasonable action by Nellist and Kelly.” This opinion has nothing to do with the specifics of SWAT-related operations, and is within the scope of Crosby’s expertise. The Court will not preclude opinion 9.
Defendants also make a general argument that Crosby’s opinions regarding “good and accepted police practices” and “professional standards of care” are unreliable. The Court is unpersuaded by this argument, which cites no case law. Crosby’s opinions are based on his experience and training.
The Court is also unpersuaded by Defendants’ argument that opinions 5 and 9 contradict one another, such that Crosby is not a reliable witness. Defendants argue that it is inherently contradictory to acknowledge that Kelly and Nellist scouted Plaintiff’s property but to also opine that they took no steps to ascertain whether a dog resided at the property. But in reviewing Crosby’s expert report, it is clear that his view is that during the scout, Kelly and Nellist took no steps to ascertain whether a dog resided at the property. There is no inherent contradiction.
Opinions on Dog Behavior and Dog Encounters (Opinions 10, 11, and 13)
Defendants next sought to preclude Crosby’s opinions on dog behavior and dog encounters, arguing that: (1) expert testimony on this topic is not needed; (2) Crosby seeks to replace the jury and not to aid it; (3) Crosby has not adequately defined “good and accepted police practices”; and (4) Crosby has not reliably applied his principles to the facts of this case. The Court is unpersuaded by these arguments.
As to the first argument, while lay people may be generally familiar with dogs, the Court finds that the jury would benefit from expert opinion on police tactics for dealing with pet dogs.
Defendants’ second argument fails as a matter of law. Defendants argue that Crosby “should also be precluded, because he impermissibly decides a jury question.” But Federal Rule of Evidence 704(a) expressly provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue.” This is not a basis to preclude Crosby’s testimony.
The Court has already rejected Defendants’ third argument regarding “good and accepted police practices,” and that analysis applies with equal force here. Finally, Defendants’ fourth argument is nothing more than a disagreement with Crosby’s conclusions regarding Kelly’s placement of his rifle bag between himself and Nina. Specifically, Crosby has criticized Kelly for throwing the bag down in front of Nina instead of holding it between himself and the dog. Defendants contended that this is an improper conclusion by Crosby regarding the use of a barrier versus a shield, but this is merely their interpretation of Crosby’s testimony. Defendants are free to cross-examine Crosby on this topic at trial. The Court will not preclude Crosby from testifying regarding dog behavior and dog encounters.
Firearms Opinion (Opinion 12)
Defendants contended that Crosby’s opinion 12 relates to firearms and that he is not an expert in this topic. Defendants further argued that this opinion is unsupported by facts.
Opinion 12 states:
“Nellist and Kelly were, by their own admission, firing without regard for any potential collateral risk to person(s) that might have been behind Nina in the yard or in Gursslin’s home. Nellist and Kelly never checked for other occupants in the yard or in the home, nor did they contact Plaintiff to ascertain whether there were other animals or persons within the home lawfully. They fired their sidearms at Nina as Gursslin was in the backyard just several feet behind Nina.
They also fired while facing towards the back of Gursslin’s home, where Gursslin’s downstairs neighbors were present in their apartment, and her boyfriend was present in the upstairs apartment. Nellist and Kelly should have recognized that a distinct possibility existed that a human or other animal subject could have been within the yard and the home and thereby needlessly and recklessly exposed to injury or death from one or more of the bullets fired.”
The Court disagrees that this is an opinion about firearms, as opposed to an opinion about when it is appropriate for a police officer to use his firearm and what he should take into consideration before doing so. Crosby’s law enforcement experience and training qualifies him to opine on a police officer’s use of his firearm.
Defendants’ Factual Attacks on this Opinion lack Merit
Defendants claimed that it is “possible” that Nellist and Kelly were not facing Plaintiff’s house when they shot Nina, but it is equally possible that they were. They also claimed that it is “misleading to state that the officers Nellist and Kelly fired their sidearms at Nina as Ms. Gursslin was in the backyard just several feet behind Nina when neither Sgt. Kelly nor Officer Nellist saw Plaintiff prior to shooting the dog or knew anyone was in the yard.” But this argument actually reinforces Crosby’s conclusions. Kelly and Nellist did not ascertain whether there were human beings present in the yard before opening fire, causing them to shoot bullets only feet from Plaintiff, who was doing nothing more than standing in her own yard. The Court will not preclude opinion 12.
Training and Municipal Liability Opinions (Opinions 14-23)
Finally, the Court considered Defendants’ argument that Crosby should not be permitted to opine on issues related to municipal liability. Defendants contend that Crosby is not an expert on municipal liability and that he improperly attempts to take the role of the jury. The Court has carefully reviewed opinions 14 through 23 and finds that only opinion 14 can fairly be said to be about municipal liability as a legal concept, as opposed to the adequacy of the RPD’s training regarding use of force in dog encounters.
The Court does agree with Defendants that opinion 14, which states, “In my professional opinion, the City of Rochester exhibited deliberate indifference by failing to provide any of the free and effective trainings that were widely available and easily accessible regarding how to safely and lawfully interact with dogs,” goes beyond the scope of Crosby’s expertise. “Deliberate indifference” is—as discussed further below—a legal concept that has a specific meaning in this context, and Crosby has no particular expertise in whether or not that definition has been satisfied. The Court will preclude opinion 14 on this basis. But, according to the Court, opinions 15 through 23 do not suffer from similar infirmities.
Defendants have also made specific factual arguments about opinions 19 and 21. As to opinion 19, in which Crosby “states that the City should have taken notice of the demonstrably effective trainings on dog encounters and provided those effective trainings to RPD officers,” Defendants argue that Crosby “does not know how many dogs shootings occurred in each year or if the annual numbers decreased after the City gave” a training in 2014. But Defendants have not provided the Court with the portions of Crosby’s deposition transcript that they claim support this argument.
Crosby has significant experience in training law enforcement officers how to interact with dogs
Opinion 21 is about the training provided by the RPD to its officers, and includes the opinion that “best practices require at least a four-hour training.” Defendants argued that this opinion is outside Crosby’s expertise, because he “does not have advanced education or training in teaching, course development, pedagogy, etc.” However, the Court held that Crosby has significant experience in training law enforcement officers how to interact with dogs, and his lack of formal training in teaching and course development does not prevent him from being an expert in this field.
Held
The Court granted in part and denies in part Defendants’ motion to preclude Plaintiff’s expert witness James Crosby.
Key Takeaways:
- The jury would benefit from Crosby’s opinion on police tactics for dealing with pet dogs. Most jurors have no law enforcement experience, and are unlikely to be familiar with the circumstances in which law enforcement are likely to encounter pet dogs, or what options they have available to them in such circumstances.
- Crosby has significant experience in training law enforcement officers how to interact with dogs, and his lack of advanced education or training in teaching, course development and pedagogy does not prevent him from being an expert in this field.
- However, Crosby has never been a member of a SWAT team nor has he ever supervised a SWAT team. Plaintiff has not demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
Case Details:
| Case Caption: | Gursslin V. City Of Rochester Et Al |
| Docket Number: | 6:20cv6508 |
| Court: | United States District Court, New York Western |
| Order Date: | January 3, 2025 |
