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Johnson v. Holmes

United States District Court, W.D. Virginia, Charlottesville Division

March 19, 2018

Bianca Johnson and Delmar Canada, Plaintiffs,
Andrew Holmes, ET AL., Defendants.



         This selective law enforcement case is set for trial on March 20-21, 2018. The Court has heard argument on the parties' cross-motions in limine. The general overview of this case is as follows. In 2014, defendant police officer Andrew Holmes pulled over Plaintiff Delmar Canada, who is black and was driving a BMW, and cited him for driving on a suspended license. Canada denied knowledge that his license was suspended. Co-plaintiff Bianca Johnson later arrived on the scene, and Officer Holmes remarked she was driving a “nice” car.

         After the incident, Holmes obtained a search warrant for Plaintiffs' residence ostensibly to search for the notice of suspension that Canada denied receiving. (Prior to this, Holmes had inquired with the local drug task force about Canada and was told that, although his name was familiar, there were no drug investigations open against him.) Holmes then executed the search warrant on the house late at night, finding neither the suspension notice nor any drugs. The Plaintiffs' Fourth Amendment claim was previously dismissed by Judge Conrad, and trial is scheduled only for the Equal Protection claim. Generally, that claim is premised on the contention that Holmes was selectively using law enforcement mechanisms because Plaintiffs are black and based on Holmes' assumption that they were likely to be engaged in criminal drug activity because they were black citizens driving “nice” cars.

         I. Plaintiffs' Daubert Motion

         Officer Holmes has identified Richard Morrison as an expert witness, and Plaintiffs move to exclude him an unqualified. Morrison is a police officer, and Plaintiffs assert that his expertise is unclear except “other than the most general [expertise] regarding police practices.” (Dkt. 69 at 1). Most relevantly, Morrison intends to opine on the meaning of statistics Plaintiffs hope to offer to show Holmes engaged in racially disparate citations and arrest of blacks, and on Holmes' racial motivation for his actions.

         Plaintiffs are critical of Morrison's hypothesizing about other factors that could have resulted in arrest disparities attributed to Officer Holmes. They also challenge Morrison's competency to opine about Officer Holmes' (supposed lack of) racial animus, which Morrison based on his review of Holmes' evaluations, training record, and promotion history. In sum, Plaintiffs contend that nothing in Morrison's report “is beyond the pale of ordinary jurors.” (Dkt. 69 at 4). “Jurors can look at statistics just as well as” Morrison, who lacks statistical expertise, to assess a discriminatory effect, and they can just as well discern Officer Holmes' mental state. The Court largely agrees with Plaintiffs.

         A. Standard

         An expert qualified “by knowledge, skill, experience, training, or education, may testify” as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. Fed.R.Evid. 702. Such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data, ” (2) “the testimony is the product of reliable principles and methods, ” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” Id. “[A] court may consider whether the expert witness theory or technique: (1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017) (citation and internal quotation marks omitted); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). This list of factors is not exhaustive. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

         The Court's consideration of these factors is “to ‘ensure that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (quoting Daubert, 509 U.S. at 597). If the expert meets this threshold, criticisms of his testimony will go to its weight, not its admissibility. See Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195-96 (4th Cir. 2017). A court must not evaluate the expert's conclusion itself, but only the opinion's underlying methodology. Bresler, 855 F.3d at 195.

         “The main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony.” Nease, 848 F.3d at 231. “A reliable expert opinion must not be based on belief or speculation.” Id. at 231. An expert must present “more than a hypothesis.” Id. at 232.

         B. Analysis

         Morrison spent 28 years in law enforcement and completed police academies for three different agencies. (Dep. at 6). He worked for the Roanoke Police Department for 21 years, retiring as a captain in 2017. (Id.). He was mainly focused on “using crime data to better use police resources to solve crimes” during his 9 years as a line officer. When promoted to sergeant, his duties became more managerial-e.g., ensuring sufficient training, regulation compliance, etc. (Id. at 8). In 2000, he became certified as an instructor by the Department of Criminal Justice Standard Services (CJSS), a requirement to instruct other officers in Virginia.

         Morrison trained officers on the application and execution of search warrants, with a focus on “bias-based policing” and community policing. (Id. at 10). He also was trained in and taught “tactical analysis, ” which he described as “using data beyond numbers” and “putting the why behind the numbers.” Morrison admitted, though, that he was “not the data cruncher” and “not the person who develops the algorithms and does all the research.” (Dep. at 22). Instead, he was “the guy at the end of the day when all that is done” who helps with “when the information is presented in a way that the end user, which is the officer, can use that to dictate how he or she is going to patrol certain areas based on the crime.” (Dep. at 22). He testified that when the data reveal a higher rate of interdictions against one race, “you can't glean from that alone about bias” because there are “too many variables, ” such as an officer's work zone and types of crimes he might be assigned to investigate. Morrison further stated that using general census population data is unhelpful because it “doesn't represent” the actual driving population in an area.

         Morrison reviewed the depositions, Holmes' car camera video, Holmes' disciplinary record, his employee evaluations, and Albemarle County's policing policies. He opined in both his deposition and his report that bias had nothing to do with the search for the home, finding that Holmes acted “professionally” and stating that there was probable cause for the warrant based on Canada's denial that he received notice of his license suspension.

         Morrison found nothing improper about the time the warrant was executed, stating that most warrants are executed in the evening or night. It is often preferable to execute a warrant at that time because normally fewer people are out during that time, lessening the spectacle and the possibilities of interlopers. He also vouched for the propriety of keeping Plaintiffs seated and restricted from moving about during the search, as this again concerned both officer and citizen safety. Morrison concluded based on his review of the documents and depositions that Holmes conducted himself professionally during the search. (Dep. at 19-20). Morrison testified that there was nothing about the execution of the search warrant that made him think that Officer Holmes was acting on the basis of racial bias. (Id. at 20).

         All told, Morrison appears to be qualified as an expert based on his training and experience in general police practices and could competently (and helpfully) testify as to whether actions by Officer Holmes complied with those practices. His opinions regarding the interpretation of the statistical data and of Holmes' intent, however, are neither within his realm of expertise nor helpful to the jury.

         Although Morrison had some engagement with policing statistics in his career, he admitted that it was on the output end of the equation-effectively, helping officers glean from the statistics how to improve their policework. He has no experience with the collection, calculation, input, or generation of data. Additionally, while Morrison opines on what the data in this case means, neither his report nor his deposition details any “principles and methods” he used, how he applied them to the data, or whether any methods he might have used have been tested. Fed.R.Evid. 702; Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017). Put simply, he has a bald opinion based on (rather common-sense) intuitions about the statistics. (Dkt. 69-1 at ECF 3-4). He is not a statistician, criminologist, demographer, or, in the case of his opinion about Holmes' intent, a psychologist. The Court will therefore not permit him to testify about whether statistics sought to be introduced by Plaintiffs illustrate a racially discriminatory intent or show the creation of a racially discriminatory effect, which are the elements of Plaintiffs' selective enforcement claim.[1]

         Morrison is competent to testify about whether Holmes' actions in obtaining and executing the warrant followed proper protocol (which could be relevant in showing a lack of bad intent), but he has no basis to testify directly about Officer Holmes' state of mind. The testimony is not permissible as lay opinion under Fed.R.Evid. 701, because such testimony “must be based on personal knowledge, ” which he obviously does not have. United States v. Johnson, 617 F.3d 286, 292-93 (4th Cir. 2010) (reversing admission of officer's testimony interpreting meaning of wiretapped phone calls when officer “did not participate in the surveillance during the investigation, but rather gleaned information from interviews” after listening to the calls). As for the Rule 702 side of the equation, Holmes has not offered any explanation for why the issue of his intent on the day in question is one of “scientific, technical, or other specialized knowledge.” Fed.R.Evid. 702(a). That is a question well within the comprehension of the ordinary juror. “The touchstone of admissibility of testimony that goes to the ultimate issue . . . is helpfulness to the jury.” United States v. Perkins, 470 F.3d 150, 157 (4th Cir. 2006).

         Accordingly, Plaintiffs' motion is limine is GRANTED in part and DENIED in part. Morrison may testify as to generally accepted police procedures standards, and whether Holmes' actions in this case complied with them. But ...

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