Law Enforcement Expert Witness’ Conclusions Regarding Control Excluded
Posted on October 4, 2024 by Expert Witness Profiler
In the early hours of September 24, 2021, Cedric Lofton was arrested for allegedly battering officers of the Wichita Police Department. WPD determined that, due to his arrest, Lofton needed to be taken into custody. Because Lofton was still a juvenile, he was transported to the Sedgwick County Juvenile Intake and Assessment Center (“JIAC”) for processing.
When WPD left Lofton at JIAC to be processed, Lofton did not cooperate. Lofton displayed escalating noncompliance and made threatening comments. As Lofton continued to fight, kick, and resist the Defendants’ efforts to control him, they transferred Lofton to the prone position in hope of restraining him safely until he calmed down. Lofton continued resisting and fighting, never appearing to tire or give up and a call was made to WPD so that Lofton could be transported to a hospital. Eventually, they were able to handcuff Lofton, and he later stopped resisting and appeared to fall asleep. Defendants waited WPD to arrive to have them transport Lofton from JIAC to a hospital. After several minutes, Lofton stopped breathing. Conklin began performing CPR and EMS was called. Lofton was transported to a hospital and died a few days later.
Defendants Jason Stepien, Brenton Newby, William Buckner, Karen Conklin, and Benito Mendoza (“the JIAC/JDF Defendants”) were sued for excessive force, deliberate indifference to a medical need, and failure to intervene. They were also sued for battery, negligence, and both the intentional and negligent infliction of emotional distress under Kansas law.
Plaintiff retained Jerome Davis and Michael Lyman to provide testimony about nationally recognized definitions and standards, and that based on those measures, Lofton was controlled by Defendants and Defendants continued use of force was excessive and unreasonable.
Law Enforcement Expert Witnesses
Jerome Davis has investigated and reviewed numerous uses of force, while
working in various supervisory ranks for New York City Department of Correction, and as Deputy Commissioner of Operations for the New York City Department of Juvenile Justice.
Michael Lyman is currently employed as a litigation consultant in the area of police practices and procedures and has served as an expert witness since August 2001. In May 2019, he retired from the Columbia College Department of Criminal Justice and Human Services where I was employed as a full professor for 32 years.
He has authored seven books dealing with various areas of policing. These have been published by both nationally and internationally recognized publishing houses.
Discussion by the Court
Jerome Davis
Defendants criticized Davis because (1) his testimony was not based on sufficient facts or data; (2) his methodology was not based on reliable principles; and (3) even if his methodology were sound, he failed to reliably apply his methodology to the facts of the case.
Defendants added that Davis only relied upon the JIAC security footage in forming his opinion, and because the video lacks sound and is shot from an obstructed angle, most of Davis’ opinions are based on speculation.
Plaintiff argued that Davis’ testimony is necessary to refute Defendants’ claim that Lofton’s continued resistance justified their prone restraint. To do so, Plaintiff proffered that Davis will provide a definition of “control” which the jury can use to determine whether Defendants’ actions were objectively reasonable.
When pressed on what Davis’ definition of control was, the ultimate consensus came from Davis’ deposition. There, Davis said, “If you look at the video and you watch, while he’s in that prone position on the floor, within a minute or two of that, you see no movement at all, which means, from that point on, they had complete control of Lofton.” In sum, Davis’ definition of “control,” based on commonly recognized corrections standards, is the point at which the detainee has ceased struggling or has stopped moving.
Davis’ Definition of Control
When the Court asked Defendants whether it would “be appropriate for Davis to opine on his definition of control,” Defendants replied, “I think that opinion would not necessarily be improper.” In fact, in response to the Court’s questions, Defendants stated that they “would not disagree” with “Davis’ expert opinion that once a Defendant has stopped struggling . . . it is not inappropriate at that point to consider that he’s under control.”
Given that Davis’ definition of control is uncontroverted, the Court allowed Davis to testify about how “control” is defined by the corrections community and what uniform national standards recognize as signs of a Defendant being under officer control.
Davis’ Conclusions Regarding Control
Because the question of “control” is a factual finding, the Court decided that Davis will also not be permitted to testify as to his factual or legal conclusions about whether Lofton was under control since allowing him to do so would essentially “tell the jury what result it should reach without providing any explanation of the criteria on which that opinion is based or any means by which the jury can exercise independent judgment.”
The Court cannot allow an expert to “usurp the function of the jury in deciding the facts” or “interfere with the function of the judge in instructing the jury on the law.”
Michael Lyman
Defendants made a similar argument regarding expert Lyman’s testimony. They asked the Court to prohibit Lyman from testifying about the reasonableness of Defendants’ force because “objective reasonableness” is a fact issue for the jury and “excessive force” is a legal conclusion that the judge must instruct on.
The Court permitted Lyman to testify regarding nationally accepted corrections practices regarding use of force and the JIAC policies, but it did not allow him to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.
Additionally, the Court did not permit Lyman to testify as to the credibility of any witness, the state of mind of any witness or party, or advise the jury as to case law or constitutional standards.
Held
The Court granted in part and denied in part the Defendants’ motion to strike or exclude certain opinions of Jerome Davis and Michael Lyman.
Key Takeaway:
The Court did not permit Davis to testify as to his own conclusions regarding the officers’ control over Lofton because the jury can watch the JIAC security footage for itself and form its own opinions as to whether Lofton was under the officers’ control.
Similarly, the Court did not permit Lyman to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.
Case Details:
| Case Caption: | Teetz V. Sedgwick County, Kansas Et Al |
| Docket Number: | 6:22cv1134 |
| Court: | United States District Court, Kansas |
| Order Date: | October 03, 2024 |
