Public Safety Expert Partly Allowed to Opine on Handcuffing

Plaintiff R.P. was one of more than one hundred people, mostly minors, arrested in 2023 in the aftermath of the Dolores Hill Bomb, an unsanctioned skateboarding event near Dolores Park in San Francisco. He brought claims for wrongful arrest and excessive force in violation of the Fourth Amendment to the U.S. Constitution, as well as related claims under state law.

Defendants sought to exclude certain opinions of Plaintiff's expert witness Adam Bercovici, a public safety consultant and former police officer.

Public Safety Expert Witness

Adam Bercovici has an extensive background in public safety, which includes a career spanning 30 years as a police officer, sergeant, and lieutenant for the Los Angeles Police Department (LAPD).

In 2012, Bercovici retired as the Officer-in-Charge of the Homicide Special Section, Robbery Homicide Division, and was, for a period in 2011, the Acting Commanding Officer of the Robbery-Homicide Division.

Want to know more about the challenges Adam Bercovici has faced? Get the full details with our Challenge Study report.

Discussion by the Court

A. Plaintiff was "Improperly Detained"

Bercovici's first opinion is that "San Francisco Police Department leadership, including Captain Thomas Harvey and Lieutenant Matthew Sullivan, improperly detained Plaintiff as part of a mass arrest." Defendants sought to exclude Bercovici's opinion that "Defendants 'improperly detained' Plaintiff" on the basis that it "is the ultimate issue of law in this false arrest case."

Plaintiff opposed Defendants' motion to the extent it could be construed as seeking to exclude the remainder of Bercovici's first opinion addressing "established policies and standards for ensuring bystanders are not arrested in a mass arrest situation." Defendants clarify in their reply brief that they seek only to exclude Bercovici's opinion on the ultimate issue of the propriety of Plaintiff's detention, and "did not move to exclude the remainder of Bercovici's first opinion."

The Court granted as unopposed Defendants' motion to exclude Bercovici's opinion that Plaintiff was improperly detained. The remainder of Bercovici's first opinion is not excluded.

B. Opinions Regarding Handcuffing

1. Summary of Opinions

In his third opinion, Bercovici critiques Defendants' use of plastic handcuffs (also known as flex cuffs) to detain Plaintiff. According to Bercovici, the correct response was to "ensure that R.P., a minor, was not in pain and loosen the handcuffs as requested."

2. Opinion Regarding Too-Tight Handcuffs

Defendants sought to exclude "Bercovici's opinion that Officer Nelson Wong put the handcuffs on 'too tight'" as lacking any basis in specialized knowledge and intruding on the role of the jury.

In the absence of any explanation for how Bercovici determined that Wong applied the handcuffs too tightly, the Court granted the Defendants' motion to exclude that opinion.

Plaintiff instead argued in his opposition brief that Bercovici should be allowed to testify "that Defendant Wong was trained in specialized crowd management duties, including handcuffing, and that an officer with the same training and experience as Defendant Wong would know how to properly secure a minor in flex cuffs without cutting off the circulation to the minor or injuring them." In their reply, Defendants do not dispute that "Bercovici can testify about training and handcuffing procedure," and do not otherwise address the testimony that Plaintiff contemplates regarding Wong's training and experience. Plaintiff has agreed to dismiss all claims against Wong, but in light of Defendants' non-objection to these opinions regarding training, the Court declined to exclude them to whatever extent that they might be relevant to Plaintiff's remaining battery and excessive force claims against Solomon and the City.

3. Opinion Regarding Extended Time

Defendants sought to exclude "Bercovici's opinion that the handcuffs were 'too tight for an extended time'" as "unsupported and unreliable," noting that Bercovici testified at his deposition that he did not know how long Plaintiff was handcuffed.

Plaintiff asserted that even though Bercovici "did not know the exact amount of time Plaintiff remained in handcuffs, Plaintiff was in flex cuffs for over an hour, which was too long for Defendants to keep juvenile detained in flexcuffs."

According to the Court, Defendants are correct that Bercovici has no apparent basis to opine on how long Plaintiff was handcuffed—or at the very least, no basis that rests on the sort of specialized knowledge appropriate for expert testimony. To the extent that Bercovici offered an opinion that a minor should not be handcuffed for over an hour, however, Defendants have not addressed that opinion specifically or offered a specific reason to exclude it. The Court declined to exclude that opinion.

4. Opinions Regarding Injuries and Causation

Defendants also argued that "Bercovici is not qualified to opine on Plaintiff's injuries or causation," quoting Bercovici's deposition testimony acknowledging that he is "not a medical expert," does not "know what Plaintiff's injuries were," and is "certainly not qualified to opine on his injuries."

The Court granted Defendants' motion to exclude any opinions regarding the nature of Plaintiff's injuries or how they were caused based on Bercovici's acknowledgment that he is not qualified to offer such opinions.

5. Opinions Regarding Discomfort of Plastic Cuffs

In response to Defendants' motion, Plaintiff contended that "the Court should permit Bercovici to explain to the jury that police are trained to know that plastic cuffs are significantly more uncomfortable than regular metal handcuffs, and they can cause a significant amount of damage if they are left on too tightly."

Defendants objected that Bercovici did not disclose that opinion in his report, where he instead stated that plastic handcuffs have "the same in form and function as metal handcuffs."

Without reaching the question of whether Bercovici sufficiently disclosed an opinion regarding the relative discomfort of plastic versus metal handcuffs, or whether his statement regarding their "same form and function" precludes that opinion, the Court declined to consider Defendants' argument for exclusion raised for the first time in their reply.

This decision is without prejudice to the parties addressing that question on motions in limine if they are unable to resolve this dispute without the Court's intervention. The precise question that the parties may revisit is whether Bercovici sufficiently disclosed his opinion that police are trained that plastic cuffs are significantly more uncomfortable than regular metal handcuffs, and they can cause a significant amount of damage if they are left on too tightly.

6. Opinion That Solomon Ignored Plaintiff

Defendants sought to exclude Bercovici's opinions that John Solomon "ignored" Plaintiff's complaints and improperly failed to loosen his handcuffs.

Plaintiff contended that the Court should allow Bercovici "to opine that based on his experience and training on flex cuffs, simply placing fingers inside the cuff was not an adequate assessment of whether the cuffs were on too tightly or whether the cuffs were causing unnecessary pain."

Taken as a whole, Bercovici's report and testimony suggested that his opinion regarding the unreasonableness of Solomon's conduct—testing the gap with his finger and "presumably" visually inspecting the cuffs—is based at least primarily on Bercovici's own views derived from his experience as a police officer, including as an officer with supervisory responsibilities.

The Court, therefore, denied the Defendants' motion to the extent that the Court will allow Bercovici to testify that in response to a complaint of pain, he "would have done something to ensure that person was comfortable, as much as possible with plastic handcuffs until the transport was completed," rather than merely checking the tightness of the handcuffs with his finger.

Defendants are free to cross-examine Bercovici about the basis for that opinion and the extent to which it comports with police training. These are issues that the jury is capable of resolving and best positioned to address.

7. Opinions Regarding Negligence

Defendants sought to exclude Bercovici's opinions that Wong and Solomon were negligent, asserting that they are improper legal conclusions and unsubstantiated conclusory assertions.

Plaintiff's opposition brief did not address Bercovici's negligence opinions at all. As a result, the Court granted Defendants' motion to exclude Bercovici's opinions that Wong and Solomon were negligent as unopposed, and on the basis that those opinions are improper legal conclusions.

8. Opinions Regarding State of Mind

Defendants sought to exclude Bercovici's opinions "that Wong and Solomon's conduct was 'punitive,' 'malicious,' and 'willful.'"

The Court granted the Defendants' motion to exclude those opinions since the Plaintiff did not oppose Defendants' motion to exclude Bercovici's third opinion regarding Defendant Wong and Defendant Solomon's state of mind or intent.

C. Opinions Regarding Probable Cause

Defendants sought to exclude Bercovici's fourth opinion, regarding probable cause, as consisting entirely of improper legal conclusions.

In a footnote, Plaintiff made it clear that he "does not oppose exclusion of Bercovici's Fourth Opinion that Plaintiff was arrested without sufficient probable cause."

The Court, therefore, granted the Defendants' motion to exclude Bercovici's fourth opinion.

Held

The Court granted in part and denied in part the Defendants' motion to exclude certain opinions of Plaintiff's expert witness Adam Bercovici.

Key Takeaway

It is well-established that expert testimony concerning an ultimate issue is not per se improper. That said, an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.

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