Law Enforcement Expert’s Testimony on the Use of Soft-Empty-Hand Control Limited
Posted on October 27, 2025 by Expert Witness Profiler
Plaintiff Jeffrey Fulkerson accused Deputy Keegan Kirkpatrick of the Nelson County Sheriff’s Office (“NCSO”) of using excessive force during his arrest.
Defendants retained Brian S. Batterton as a “police practices expert.” Batterton’s report contains three opinions:
“(1) Based upon the facts and reasons contained Paragraphs 25 through 41 . . . a reasonable and well-trained law enforcement officer would be acting consistent with generally accepted police practice and training in using soft-empty-hand control to escort Fulkerson to a police vehicle for transport to jail.
(2) Based upon the facts and reasons contained Paragraph 45 through 52 . . . Sergeant Brian Voils supervised the October 16, 2022 incident involving Jeffrey Fulkerson in accordance with generally accepted police practice . . . and that Sergeant Voils supervised Deputy Kirkpatrick according to generally accepted police practice, based on Kirkpatrick’s Annual Evaluation and Response to Resistance reports documented and reviewed by Sergeant Voils.
(3) Based on . . . the information discussed in Paragraphs 56 and 58 . . . Deputy Kirkpatrick was trained in accordance with generally accepted police practice for his position as a Nelson County Sheriff’s Deputy.”
Fulkerson filed a motion to exclude each of Batterton’s opinions based on the argument that the opinions are not helpful to the jury and thus not relevant.
Law Enforcement Expert Witness
Brian Scott Batterton has been actively involved in police practices and law
enforcement since 1994. His education includes a Bachelor of Science Degree in Criminal Justice from Georgia State University in Atlanta, Georgia and a Juris Doctor from John Marshall Law School in Atlanta, Georgia. He is an active member of the State Bar of Georgia.
He is currently on the Legal and Professional Advisory Board of the Legal and Liability Risk Management Institute.
Discussion by the Court
1. Batteron’s First Opinion Regarding the Use of Soft-Empty-Hand Control
Fulkerson argued that Batterton’s opinion that an officer’s use of soft-empty-hand control would be consistent with generally accepted police practice is not helpful to the jury because it will not help the trier of fact determine whether Fulkerson’s or Kirkpatrick’s version of events is true.
Batterton’s report explains how law enforcement officers are generally trained to make investigatory stops, provides factors that officers must consider when determining how much force is necessary, and provides information on the “use of force continuum”—the different levels of force officers are trained to use in different situations.
The report also explains how officers are trained to handle domestic dispute calls—the type of call that officers were responding to in this case. This information will help jurors understand how a trained officer would behave in the situation, and, upon determining which version of events they believe, whether Kirkpatrick acted reasonably. The jury can use the opinion about training standards as a guide, but it does not go to the ultimate issue of, and is not determinative of, whether the officer acted reasonably and does not equate to a finding that the officer acted unreasonably.
The Court found Fulkerson’s argument that Batterton’s report improperly invades the province of the jury by basing his opinions on Defendants’ version of events similarly unavailing. The fact that Batterton bases his conclusions on Defendants’ version of events did not prevent the jury from making its own credibility determination or accepting Fulkerson’s version as true.
However, to the extent that Batterton opined as to the reasonableness of Kirkpatrick’s actions, it is not admissible.
2. Batteron’s Second Opinion Regarding Whether Voils Acted in Accordance with Generally Accepted Police Practice
Batterton’s second opinion stated that “Sergeant Voils supervised the . . . incident involving Jeffrey Fulkerson in accordance with generally accepted police practice” and that “Voils supervised Deputy Kirkpatrick according to generally accepted police practice, based on Kirkpatrick’s Annual Evaluation and Response to Resistance reports documented and reviewed by Sergeant Voils.”
Fulkerson argued that this opinion is not helpful to the jury because he “entirely adopts the Defendants’ version of events” and ignored Fulkerson’s claim that Voils threatened to bring additional charges.
To hold a supervisor liable for a violation of a Plaintiff’s constitutional rights, there must be (1) knowing acquiescence to the unconstitutional conduct by the supervisor; (2) a causal connection between supervisor’s acts and the deprivation of rights, and (3) a deprivation of a clearly established right.
According to the Court, Batterton’s opinion gives the jury an understanding of how supervisors are typically expected to respond to and investigate such incidents, which will allow the jury to determine whether Voils acted in accordance with those practices and thus whether he “knowingly acquiesced” to unconstitutional conduct. As a result, Batterton’s testimony is relevant and admissible to the extent that it opines as to generally accepted police practices and whether Voils acted in accordance with such practices in supervising the incident.
However, to the extent that Batterton’s opinion relied on now-excluded evidence, it is not admissible. Batterton cited to the NCSO general directives manual and Kirkpatrick’s personnel files, both of which are excluded pursuant to the magistrate judge’s order.
3. Batterton’s Third Opinion as to Whether Kirkpatrick was Trained in Accordance with Generally Accepted Police Practice
As to Batterton’s third opinion, Fulkerson reasserted his argument that the opinion is not helpful because Batterton simply adopted the Defendants’ version of events and “concluded that if the Defendants are telling the truth, they are not liable.”
Batterton may rely on the assumption that Defendants’ version of events is true in giving his opinion. Moreover, testimony as to whether Kirkpatrick was trained in accordance with generally accepted practices would be directly relevant to the question of whether Voils properly supervised Kirkpatrick. However, Batterton’s third opinion is based almost exclusively on Kirkpatrick’s personnel files from the NCSO and the LaRue County Sheriff’s Office, both of which have been excluded.
To the extent that Batterton’s opinion relied on these documents, it was deemed inadmissible. The Court recognized that Kirkpatrick may have personal knowledge of his training to which he can testify. If that is the case, Batterton may opine as to whether those training practices align with generally accepted practices, provided he does not rely on the excluded documents.
Held
The Court granted in part and denied in part Fulkerson’s motion to exclude the testimony of Brian Batterton.
Key Takeaway:
In other words, Batterton bases his opinions on an assumption that one version of events is true—which is permitted under the Rules—not an explicit endorsement of that version. Outright exclusion of this testimony by the Court would not be appropriate, particularly when “rejection of expert testimony is the exception, rather than the rule.”
However, to the extent that Batterton opined as to the reasonableness of Kirkpatrick’s actions, it is not admissible. Although the Federal Rules of Evidence allow an expert’s opinion to “embrac[e] an ultimate issue,” the Sixth Circuit has held that this “reference must be to stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue.”
Case Details:
| Case Caption: | Fulkerson V. Kirkpatrick Et Al |
| Docket Number: | 3:23cv520 |
| Court Name: | United States District Court for the Western District of Kentucky, Louisville Division |
| Order Date: | October 24, 2025 |
