Police PracticesThe Ninth Circuit recently heard an appeal of a Plaintiff who alleged that his constitutional rights were violated when he was arrested while volunteering to observe an interagency government operation to herd buffalo into Yellowstone National Park. Among the issues on appeal was the district court’s exclusion of his expert witness.

During the incident, Plaintiff was instructed by law enforcement on where to park and move to observe the herding. Plaintiff protested that he was “not interfering with the haze” and “not breaking any law,” the Deputy cited Plaintiff for obstructing a peace officer or other public servant–a misdemeanor–pursuant to Mont. Code Ann. § 45-7-302.

While issuing the citation, the Deputy said: “You’ve been instructed by law enforcement to do something. You didn’t do it.” The citation includes the following hand-written description: “was told by a law enforcement officer to be in a specific place during a governmental operation 3 times and still did not comply.” At the time he issued the citation, no buffalo, horses, or riders were in the Deputy’s sight and he knew neither the planned haze route for the day nor the specific location of the herd at that time.

After the Deputy issued the citation, Plaintiff told him that it was “illegal” to tell them they had to go to a specific place if they were not actually obstructing anything. Deputy told Plaintiff that he would be arrested if he didn’t move outside of the blockaded area.

Video footage of the buffalo inside Yellowstone showed that later on the same day, members of the public were permitted to observe the same herding operation from roughly 50 yards away. The state prosecutor moved to voluntarily dismiss the obstruction charge against Plaintiff after Plaintiff’s attorney provided the video and witness declarations documenting the citation.

Plaintiff filed this lawsuit in the U.S. District Court for the District of Montana, asserting that the Deputy’s conduct violated his First and Fourth Amendment, and that the County, the Sheriff’s Office, and the Sheriff failed to train officers regarding Montana’s obstruction statute and the First and Fourth Amendments. At trial, the district court excluded Plaintiff’s police practices expert witness. Defendants moved for judgment as a matter of law which the district court granted.

On appeal, Plaintiff argued that the district court abused its discretion in excluding the testimony of Plaintiff’s police practices expert, a police chief in Virginia. The expert’s testimony related primarily to the failure-to-train claim, which the district court dismissed prior to addressing the motion to exclude.

Chief District Judge John R. Tunheim found that it was appropriate to allow the district court to reconsider the order excluding the chief’s testimony given that it may be more relevant in the context of a revived failure-to-train claim. While the district court may have had a proper basis to exclude portions of the expert report in its discretion, the Ninth Circuit found multiple “manifestly erroneous” misstatements of law and fact in the district court’s order.

First, the district court stated that an expert may only rely upon evidence that is in the record or that is “of the sort that any expert would rely on,” including, for example, the number of feet in a mile or the average body temperature of an adult human being. Based on the use of these examples, Chief Judge Tunheim said that it appeared that the district court believed it was only permissible for an expert to rely on facts not admitted in the record if those facts are judicially noticeable under Federal Rule of Evidence 201. However, the Chief Judge found this to be contrary to Rule 703, which allows an expert to “base an opinion on facts or data in the case that the expert has been made aware of or personally observed” as long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” In such circumstances, the facts the expert relies on “need not be admissible for the opinion to be admitted.”

Second, the district court found the police practices expert’s report objectionable for commenting on “the ability or perhaps non-ability of others to do their job,” because such comments functioned “at least indirectly, if not absolutely directly, [to] raise questions about the credibility of persons and parties to the lawsuit.” Chief Judge Tunheim held that while “[a]n expert witness is not permitted to testify specifically to a witness’ credibility,” there is no rule barring expert testimony because it might indirectly impeach the credibility of an opposing party’s testimony. Indeed, the key question for Plaintiff’s failure-to-train claim was whether Defendants performed their job functions in line with Fourth Amendment standards. As a result, the Chief Judge held that Plaintiff was permitted to present expert testimony critical of Defendants’ job performance or in conflict with Defendants’ testimony as long as the expert’s testimony complied with Daubert and the Federal Rules of Evidence.

Third, the district court held that Plaintiff’s police practices expert’s report:

… unfortunately contains what are appropriately being characterized as disparaging comments on the conduct of non-parties. Specifically, in paragraph 165 there’s criticism of the county prosecutor made. That is plainly over the top in terms of the balanced view to be expressed by an expert.

Plaintiff correctly pointed out that neither in that paragraph elsewhere in his report did the police chief criticize the county prosecutor. Chief Judge Tunheim said that it appeared that the district court’s frustration about this “criticism” of the county prosecutor “materially colored its view of the validity of the report as a whole.” The Chief Judge was also troubled by other statements in the district court’s order that suggested that the court excluded the expert report in part because the court “simply . . . disagree[d] with the conclusions of the expert,” which is not a proper basis for excluding such testimony.

Clearly, the district court need not permit Plaintiff’s police practices expert to present legal opinions. But because the district court abused its discretion in excluding the entirety of the police practices expert’s testimony, the Ninth Circuit reversed that decision for reconsideration under the proper legal standard.


Reed v. Lieurance, 863 F.3d 1196, 1209 (9th Cir. Mont. July 24, 2017)