Law Enforcement Expert Partly Allowed to Opine on the Shooting Incident

This Section 1983 action arises from the killing of James Lowery by Defendant Joshua Payne on December 26, 2021. 40-year-old James Lowery was unarmed and running from Payne when he flung himself over a gate, feet to the sky. Within one second, Payne, who was following Lowery, reached over the gate and shot Lowery in the back of the head.

The City's Police Department ("TPD") concluded that Defendant Payne violated several of TPD's orders concerning standards of conduct and the use of deadly force.

On June 1, 2022, Payne was arrested for manslaughter in connection with the killing of Lowery. Thereafter, Payne resigned as an officer from TPD. Ultimately, on December 06, 2024, Payne pled guilty to the manslaughter of Lowery. While the criminal case against Payne was pending, Plaintiff initiated this civil action in June of 2023.

The Plaintiff disclosed Andrew J. Scott, III as an expert in law enforcement policies and procedures. The Defendant sought to exclude Scott's opinion that it was not reasonable for the Defendant to use deadly force against the victim, Lowery.

Law Enforcement Expert Witness

Andrew J. Scott, III has over 30 years of law enforcement experience and 16 years of expert witness experience. He has consulted in over 1600 cases as an expert witness and has been qualified as a police practices and procedures expert in both state and federal courts.

Get the full story on challenges to Andrew Scott's expert opinions and testimony with an in-depth Challenge Study.

Discussion by the Court

The Defendant did not challenge Scott's considerable qualifications to offer opinions on law enforcement policies and procedures, including excessive use of force. He challenged only Scott's methodology and the helpfulness of his opinions.

It should be noted that the Daubert motion was jointly filed by Payne and the City of Titusville. The Court granted summary judgment in favor of the City on Count Four, leaving only Payne. As a result, Scott's opinions relating to Count Four (TPD's alleged failure to train on foot pursuits) are no longer relevant to any issue in dispute. Accordingly, the Court found the motion as it pertains to Count Four as moot.

A. Use of Deadly Force

The Defendant contended that Scott's opinion that "considering the totality of circumstances involving this shooting incident, it was not reasonable for Payne to use deadly force against Lowery" invaded the province of the jury.

The Defendant has not explained how Scott's opinion that the use of deadly force was unjustified invaded the province of the jury. At best, the Defendant is criticizing Scott's methodology solely because Scott was not present when the Defendant shot Lowery.

Scott lists in his expert report the materials he considered in forming his opinions. The list consists of 57 items, including the Defendant's deposition (item 7), footage from the Defendant's body worn camera (item 11), the Defendant's training records (item 21), other deposition testimony (items 3-7), the three-volume TPD Internal Investigation (item 9), and TPD training on the use of force (items 54-57).

Contrary to the Defendant's claim, Scott considered the body-worn camera footage and the Defendant's testimony concerning how quickly the events unfolded. Scott's opinion did not disregard the Defendant's version of the events leading up to the shooting. Rather, Scott opined that the use of deadly force against Lowery as he was fleeing the Defendant violated TPD policy, well-established police practices, and Florida state statutes.

Scott explained in his report that his opinions are formed from the totality of his specialized knowledge, skill, education, and the research, literature, training, and information he reviewed. He stated that there is a "body of knowledge and literature about the practices and standards to which modern, professionally administered police agencies should adhere." And he concluded that the Defendant failed to adhere to those standards. The Defendant's assertion that Scott's opinion that lethal force was unjustified invaded the province of the jury, or, alternatively, that it lacked sufficient reliability is not supported by the record. The Court agreed with the Plaintiff that the Defendant's challenge failed to take into account the myriad of records and evidence specifically discussed in Scott's report. Moreover, Scott's opinion is not inadmissible simply because it touches upon the ultimate issue of whether the use of force was reasonable.

B. Shooter's Stance

The Defendant also asserted that Scott "simply uses conjecture in his analysis, suggesting that Payne's perception of Lowery being in a 'shooter's posture' or presenting furtive movement should be ignored." Scott noted that the Defendant stated for the first time in his deposition that Lowery was crouched in a shooter's posture and that the Defendant feared for his life when he fired the fatal shot. Scott does not opine that the Defendant's testimony on this matter should be ignored. Rather, Scott points out that even taking the Defendant's version as true, Lowery was not in a "shooter's posture" when the Defendant shot and killed him. That is, Scott observes that, according to the Defendant, Lowery scaled the fence headfirst, feet vertical, landing on his knees, and looking over his shoulder at the Defendant. Since Lowery had his back to the Defendant for the second or two prior to being shot, he was "not in the posture of a shooter as it pertained to Defendant Payne." Scott bases his opinion that kneeling, back to the Defendant, is not a shooter's posture on his "extensive law enforcement experience, training, knowledge, education, and expert witness experience." The Plaintiff averred that Scott's testimony is based on a proper methodology; that is, his training and experience, and is helpful to a lay jury that may not know what a "shooter's stance" looks like. The Court agreed that the Defendant placed in issue what a "shooter's stance" means, and the Plaintiff's expert is clearly competent to address that issue.

C. Recent Fabrication

The Defendant sought to exclude Scott's "insinuation" that because the Defendant did not give any statements during the criminal case filed against him and accepted a plea to manslaughter, that "this undermines any reasonableness for the shooting of Lowery."

The Court found that expert testimony is not required for the jury to compare the Defendant's pre-conviction silence regarding Lowery's alleged furtive motions and having assumed a "shooter's stance" with his deposition testimony.

Held

The Defendant's motion to exclude the testimony of Dr. Andrew Scott was granted in part, denied in part and found as moot in part by the Court.

Key Takeaway

Expert testimony helps with matters beyond the ken of the average juror and allows the jury to understand the evidence or resolve a factual dispute. Conversely, there will be no need for an expert's opinion when the jury can decide a disputed issue by applying common sense or simple logic, considering the evidence and testimony presented at trial. Further, like all evidence and testimony, an expert's opinion must be relevant to an issue in the case and must hold probative value that outweighs the concerns listed in Rule 403.

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