JERRY E. SMITH, Circuit Judge:
Hector Zapata-Lara appeals the application of a sentence enhancement for possession of a dangerous weapon. Because the district court failed to find either that Zapata-Lara possessed the weapon or that a co-conspirator possessed the weapon and that that possession was foreseeable to Zapata-Lara, we vacate the sentence and remand for resentencing.
I.
Zapata-Lara pleaded guilty to conspiring to possess with the intent to distribute cocaine under 21 U.S.C. §§ 841 and 846 for his role as the broker in a drug deal between Victor Molano and Jesus Cavazos. The factual basis of the guilty plea provided that Zapata-Lara arranged for Molano and a confidential informant to obtain cocaine from a truck at Cavazos's mother's house. The presentence report ("PSR") reflects that Zapata-Lara met at this location with the buyer and seller during their inspection of the cocaine and the negotiations for the sale of the drugs. Law enforcement officers arrived and discovered over five kilograms of cocaine under the hood of the truck, which was parked in the driveway of the residence and registered to a Juan Carlos Cazares. A subsequent search revealed a loaded handgun about fifteen feet from the drug transaction inside a small refrigerator in the garage.
The record indicates that Cavazos resided at the house.
It is not evident, from the record, just when the subsequent search occurred. That is to say, nothing indicates whether it was akin to a second sweep of the area during the initial search or was a separate search that took place at another time.
The PSR recommended, in relevant part, a two-level sentence enhancement for possession of a dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b)(1). The court adopted the PSR, reasoning that "[a] gun is a well-accepted, well-known tool of the trade" and that "[i]t's been clearly established by precedent that . . . at an event such as this involving the conveyance of five-and-a-half-kilos of cocaine . . . a gun would be present."
II.
Zapata-Lara challenges the enhancement because the government failed to establish either that he was personally responsible for the gun or that possession of it was reasonably foreseeable to him, especially in light of his limited role in the offense. "Because the decision to apply § 2D1.1(b)(1) is a factual one, we review only for clear error." United States v. Eastland, 989 F.2d 760, 769 (5th Cir. 1993); see also United States v. Castillo, 77 F.3d 1480, 1498 (5th Cir. 1996) (same). Nonetheless, "we examine de novo the district court's purely legal application of the sentencing guidelines." United States v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991). Zapata-Lara's argument does not concern the specifics of the factfinding, but, rather, whether the facts found are legally sufficient to support the enhancement. Our review, then, is de novo.
Before a sentencing court can apply § 2D1.1(b)(1), the government must prove weapon possession by a preponderance of the evidence. Id. It can do that in two ways. Id. at 882. First, it can prove that the defendant personally possessed the weapon, by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant. Id. To make that showing, the government must provide evidence that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred. Id.
"Alternatively, when another individual involved in the commission of an offense possessed the weapon, the government must show that the defendant could have reasonably foreseen that possession." Id. The guidelines hold a defendant responsible for all reasonably foreseeable acts of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). Thus, a sentencing court may often "infer foreseeability" from a coconspirator's knowing possession of a weapon. Id. (citing United States v. Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990)).
In Hooten, 942 F.2d at 881-82, the district court applied § 2D1.1(b)(1) where a handgun was found on the back porch of a residence near a shed in which amphetamine was being manufactured. At sentencing, the defendant claimed no knowledge that the handgun existed or that a gun was involved in the offense. Id. at 881. Noting that the district court had failed to make a finding regarding the defendant's objection, we remanded and instructed the court to make an explicit finding as to whether the defendant personally possessed the pistol, or, if a coconspirator possessed it, whether the defendant reasonably could have foreseen that possession. Id. at 881-82.
In Aguilera-Zapata, we addressed the application of § 2D1.1(b)(1) in light of the relevant-conduct provision of § 1B1.3(a)(1). We held that because firearms are "tools of the trade of those engaged in illegal drug activities," a district court "may ordinarily infer that a defendant should have foreseen a co-defendant's possession of a dangerous weapon, such as a firearm, if the government demonstrates that another participant knowingly possessed the weapon while he and the defendant committed the offense by jointly engaging in concerted criminal activity involving a quantity of narcotics sufficient to support an inference of an intent to distribute." Aguilera-Zapata, 901 F.2d at 1215.
Here, the district court determined that the enhancement was applicable because of the presence of a handgun. The court's comments suggest a finding of foreseeability based on Aguilera-Zapata, but the court never connected the handgun to any particular co-participant. It is prerequisite that a coconspirator knowingly possessed the weapon; only then can the court determine whether there existed the required link between the non-possessing defendant and the weapon by finding that the co-participant's possession was foreseeable to the defendant. Thus, because nothing in the record explicitly links the weapon to any of Zapata-Lara's coconspirators, he cannot be held derivatively responsible for it.
We have no occasion to determine whether any such possession would have been foreseeable to Zapata-Lara, in light of his limited role in the transaction. See, e.g., United States v. Ramos, 71 F.3d 1150, 1158 (5th Cir. 1995). That determination, if applicable, is left to the district court on remand.
Furthermore, there appears to be nothing in the record to support the enhancement on the basis that Zapata-Lara personally possessed the weapon. The PSR does not contain sufficient facts establishing a temporal and spatial relationship of the gun, the drug trafficking activity, and Zapata-Lara. As to the spatial relationship, the gun was fifteen feet from Zapata-Lara and the drugs, inside an appliance in another structure, and the activity took place on someone else's property. That situation is hardly a textbook case of possessing a dangerous weapon during the commission of a drug-trafficking offense.
Cf. Castillo, 77 F.3d at 1498 (gun found in defendant's house where drugs were stored); United States v. Mitchell, 31 F.3d 271, 277 (5th Cir. 1994) (gun found in defendant's bedroom); U.S.S.G. § 2D1.1, cmt. 3 (deciding that unloaded hunting rifle in closet does not support enhancement).
But even assuming that the PSR does adequately support a spatial connection between the handgun and the offense, the PSR indicates that the handgun was not discovered until a "subsequent search" of the premises was conducted. It is thus uncertain whether there was the necessary temporal connection between the handgun and the offense. At any rate, our present concern is more limited. We cannot be sure what rationale the court had in mind to support the enhancement, based on its limited statement.
We reject the government's argument that Zapata-Lara has not shown that it was plainly improbable that the handgun was connected to the offense. The defendant has that burden only after the government has met its initial burden of proving a connection between the handgun and the drug-trafficking activity. See United States v. Cooper, 274 F.3d 230, 245-46 n. 8 (5th Cir. 2001); see also U.S.S.G. § 2D1.1 cmt. 3 (discussing burden-shifting with regard to the dangerous-weapon enhancement).
III.
We VACATE the sentence and REMAND for resentencing. If, on remand, the district court determines that the weapon enhancement is applicable, it should make the appropriate findings and state plainly the basis for its decision. Cf. Hooten, 942 F.2d at 881. We express no view on what sentence the court should impose on remand.
of his vehicle. A person should not be arrested for Disorderly Conduct for voicing concerns
to the police. And in fact, there is no evidence that Mr. Jackson's actions disturbed anyone in the vicinity. Mr. Jackson's actions resulting in his arrest stem from the police officer's use of force against him and not from Mr. Jackson's own actions.
(Docket No. 151 at 7).
III. DISCUSSION
The use of an expert witness at trial is governed by both the federal procedural and evidentiary rules. Rule 26 of the Federal Rules of Civil Procedure details the discovery procedures for the disclosure of expert witnesses, their reports and matters considered by the expert, while Rule 702 of the Federal Rules of Evidence governs the admissibility of expert opinion testimony at trial.
A. Rule 26 Analysis
Baranowski testified that he did not produce all of the matters that he considered to the Defendants in conjunction with his expert report, including the 4th Edition of the CALEA standards (2001), which he referenced several times during his testimony. This is a violation of Rule 26(a)(2)(B), which provides that:
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(I) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii)
the data or other information considered by the witness in forming them
;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
FED.R.CIV.P. 26(a)(2) (emphasis added). A party is also required to supplement expert disclosures made under Rule 26(a)(2) pursuant to Rule 26(e)(2). FED.R.CIV.P. 26(e). Failure to abide by the disclosure requirements in these provisions is governed by Rule 37(c)(1), which provides that "[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED.R.CIV.P. 37(c)(1). However, prior to excluding evidence, the United States Court of Appeals for the Third Circuit has held that a district court must consider:
(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted;
(2) the ability of the party to cure that prejudice;
(3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and
(4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.
Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d Cir. 2000). In addition, "`the
importance of the excluded testimony' should be considered."
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997) (quoting
Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904 (3d Cir. 1977)).
After considering all of these factors, the Court finds that they weigh against striking the proffered testimony that relies on the CALEA standards. First, Defendants have not expressly claimed prejudice related to the untimely disclosure. Secondly, as Plaintiff has pointed out on multiple occasions, they had the opportunity to depose Baranowski during the discovery phase of this case but chose not to do so. Moreover, after the Court determined that a Daubert hearing was necessary to resolve Defendants' motion to exclude Baranowski, they were given the opportunity to cross-examine him. Thus, the prejudice to Defendants is minimal. Thirdly, any such prejudice can be cured by ordering that Plaintiff produce the CALEA standards to the Defendants prior to trial. The CALEA standards are cited in several of the City's Policies. Thus, the Defendants should have some familiarity with these documents, but pretrial disclosure of the specific CALEA standards relied on by Baranowski will enable Defendants to prepare more effective cross examination of him at trial. Finally, there is no evidence that the Rule 26 violation was made in bad faith or that the cited documents were willfully withheld and Baranowski's proffered expert testimony is a significant part of Plaintiff's case.
B. Rule 702 Analysis
1. Legal Standard
In their motion, Defendants have challenged the admissibility of proffered expert testimony. Federal Rule of Evidence 702, which memorializes the Supreme Court's landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the basic framework for the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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 witness has applied the principles and methods reliably to the facts of the case.
FED.R.EVID. 702. The United States Court of Appeals for the Third Circuit has held that "Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit." Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citations omitted). "[T]he district court acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury." Id. In this role, the district court is not the finder of fact but must focus on the methodology of the expert in order to "satisfy itself that `good grounds' exist for the expert's opinion." United States v. Mitchell, 365 F.3d 215, 244 (3d Cir. 2004) (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786). Thus, the district court should not conflate "its gatekeeping function with the fact-finders' function as the assessor of credibility." In re TMI Litigation, 193 F.3d 613, 713 (3d Cir. 1999).
FED R. EVID. 702 was amended in 2000 in response to Daubert, but pre-2000 precedent regarding the Daubert analysis also applies to the analysis under Rule 702. See, e.g., Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008).
Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct. As long as an expert's scientific testimony rests upon "good grounds, based on what is known," it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily
weigh its inadequacies. In short,
Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance. It demands only that the proponent of the evidence show that the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion.
Mitchell, 365 F.3d at 244 (quoting
Ruiz-Troche v. Pepsi Cola Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (citations omitted));
see also Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 809 (3d Cir. 1997) ("The trial judge must be careful not to mistake credibility questions for admissibility questions."). The party asserting the admissibility of the proffered testimony has the burden to demonstrate by a preponderance of the evidence that the opinions are based on "good grounds."
Kannankeril, 128 F.3d at 807.
In a case such as this, where an expert is proffered to testify regarding non-scientific matters, "[t]he relevant reliability concerns [will] focus upon personal knowledge [and] experience" of the witness and the methodology used will be applying that experience to the facts of the case. Roberson v. City of Philadelphia, Civ. A. No. 99-3574, 2001 WL 210294, at *5, n. 10 (E.D.Pa. Mar. 1, 2001) (internal quotation omitted); see also Fed.R.Evid. 702, Advisory Comm. Notes, 2000 Amd. ("when a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of conversations."); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 907 (6th Cir. 2004). As in other contexts, a witness may not testify as an expert outside the scope of his or her expertise — the expert's qualifications and skills set the boundaries for that expert's testimony.
Regarding the "fit" element of the analysis, a non-scientific expert "must apply his experience reliably to the facts; his opinions must be well-reasoned, grounded in his experience, and not speculative." See Roberson, 2001 WL 210294, at *4. Further, a properly qualified non-scientific expert may not offer an opinion as to an ultimate legal issue because to permit this type of evidence would subvert the jury's function to decide the disputed facts and issues after being properly instructed as to the law by the court. See Whitmill v. City of Philadelphia, 29 F.Supp.2d 241, 246 (E.D.Pa. 1998) (excluding proffered expert testimony that an interaction with law enforcement "was not a proper Terry stop"); Watkins v. New Castle County, 374 F.Supp.2d 379, 392-93 (D.Del. 2005) (excluding proffered expert testimony that the defendant police officers' conduct was reckless, willful, indifferent, and that they violated the plaintiff's constitutional rights); Roberson, 2001 WL 210294, at *5, n. 10 (excluding proffered expert testimony that an officer's conduct was "deliberately indifferent" toward the plaintiff). Likewise, non-scientific expert witnesses are not permitted to express opinions as to the credibility of witnesses or of the facts generally. See Whitmill, 29 F.Supp.2d at 246-47 (excluding proffered expert testimony discussing the credibility of an officer-defendant). The ultimate inquiry is whether the proffered testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue." FED.R.CIV.P. 702.
2. Trial Issues
The matter is set for jury selection and trial on August 23, 2010. In their Joint Stipulations, the parties have proffered the following issues to be resolved at said trial:
1. Did the officers have probable cause to arrest the plaintiff and take him into custody for violating Pennsylvania Crimes Code 18 Pa.C.S.A. § 5503 and 5504, Disorderly Conduct and Resisting Arrest?
2. In making the arrest, was the force used by the officers reasonable and necessary?
3. The officers performed a search of the vehicle. It is disputed whether such search was an inventory search or a more invasive search which would require a warrant. If it was an inventory search, did the officers have a lawful basis to conduct an inventory search?
4. Are the Defendant officers entitled to qualified immunity on each of Plaintiff's claims as they did not violate the clearly established rights of the Plaintiff and their actions on November 2, 2001, were objectively reasonable?
5. Did the Plaintiff suffer any compensable injuries, and if so, what is the proper measure of damages for such injuries?
6. Are punitive damages to be awarded to the Plaintiff?
(Docket No. 140).
3. The Parties' Arguments
Defendants challenge the foundation of Baranowski's opinions, arguing that they are unreliable because they are based on unproven or speculative facts. (Docket No. 126). They further maintain that Plaintiff's proffer of Baranowski is improper because his "opinions" are either not relevant to the issues in dispute at trial, or are not proper expert opinions because they involve statements resolving disputed facts, the resolution of which are within the province of the jury. Defendants concede that if Baranowski had the type of training and experience that he proffers in his report and affidavit, he would have the necessary qualifications to offer an opinion regarding the force used by the officers in this case. However, they do not believe that type of opinion is what has been proffered.
They specifically seek to exclude Baranowski's opinions that: (1) plain clothes, narcotics officers, such as the Defendants in this case, should not routinely engage in traffic stops because it is not a productive use of their time and can be dangerous when conducted out of uniform; (2) the Defendants were "trolling" or profiling for arrests prior to their stop of Plaintiff's car; (3) the Defendants acted improperly by arresting Plaintiff and taking him into custody for minor traffic violations; (4) the Defendants acted improperly by refusing Plaintiff's request to call a family member to pick up his car, rather than to have it towed; and (5) Defendant Kreger's actions in pushing Plaintiff, who approached him from the rear, were not warranted given Baranowski's interpretation of the facts of the case. (Docket No. 127). In later briefing, Defendants further contend that several of Baranowski's opinions are improper legal conclusions and that, ultimately, his use of force opinion is within the understanding of lay jurors, negating the need for expert testimony on the issue of the reasonableness of the force used. (Docket No. 195).
Defendants contend that Plaintiff was arrested for disorderly conduct resulting from his threatening actions toward them made after the traffic stop. (Docket No. 127).
In response, Plaintiff maintains that Baranowski's expert report and proffered testimony are sufficient to withstand Daubert scrutiny and that any discrepancies should be tested by Defendants during cross-examination. (Docket No. 145). Plaintiff believes that Baranowski is properly qualified and has sufficient personal knowledge and experience regarding all matters raised in his report and later testimony. (Docket No. 197). Plaintiff contends that Baranowski's opinions are critical to his case and that they will assist the jury in resolving the disputed facts in this case. ( Id.).
4. Analysis of Baranowski's Opinions
With this backdrop, the Court now turns to Defendants' challenge to the proffer of Mr. Baranowski. In this Court's estimation, Baranowski is qualified to offer an expert opinion regarding the use of force by the officers and their application of standardized police procedures in this case as well as the use of force continuum and the proper training for same, based on his experience with the state police, his training and his related teaching experience. Defendants admitted same during the pretrial conference. The methodology used by Baranowski in forming his opinions was to apply his personal knowledge and experience to the facts of this case. This type of methodology is permitted in the context of expert testimony offered by a non-scientific expert. As noted, Defendants primarily challenge the "reliability" or "fit" of Baranowski's various opinions. They claim that many of his opinions are not relevant to the issues to be tried and that others are based on assumptions and speculation. They further argue that his opinions should be excluded because they are based on a flawed analysis of the facts, including his resolution of disputed factual issues and credibility assessments. The Court will address each of the challenged areas, in turn.
i. Traffic Stop
Baranowski's opinions regarding the propriety of the initial traffic stop and the City's alleged misuse of Narcotics Officers, in plain clothes and unmarked vehicles, to make traffic stops are not relevant and are based on improper assumptions and speculation. Thus, these opinions will be excluded at trial. First, the propriety of the traffic stop is not at issue in this case as Plaintiff pled guilty to a summary offense and paid a fine for failing to operate a turn signal. The disputed issues at trial are the reasonableness of the inventory search of Jackson's car, whether there was probable cause to arrest Jackson for disorderly conduct and/or resisting arrest and the reasonableness of the force used against Jackson during the arrest. (Docket No. 140, Parties' Joint Stipulations). Thus, the proffered opinions that the narcotics officers were misused when making traffic stops or that it is unsafe to use undercover officers to make traffic stops are not relevant.
In any event, Jackson recognized that the unmarked vehicle that pulled him over was a police car. Specifically, in his sworn statement to OMI, Jackson stated "I went past Beer World, and I noticed there were lights like in the grill . . . of a vehicle, which I figured was a plainclothes police car, pulled over to the right, thinking they're going — like going after someone around me or going somewhere, and they pulled right behind me." (Docket No. 83-2 at 36). Therefore, the safety concerns articulated by Baranowski simply were not present in this case. Further, as to Baranowski's suggestion that the officers should have radioed for a marked police car to make the stop, Baranowski admitted that he did not know if the City had a policy requiring them to do so, or if there were any marked police cars available in the area that could have made the stop if they had called. Thus, this opinion is without factual support.
However, even if the traffic stop were in issue, Baranowski would not be permitted to testify regarding his opinions that the officers were "trolling" for drug arrests or "profiling" at the time of the incident. Baranowski admitted that he was assuming that a profile was used by the officers on the date of the arrest but pointed to no evidence in support of this assertion. He relied on a statement by Detective Goob that the officers often make traffic stops when on narcotics duty in support of his opinion that the officers were "trolling" for drug arrests but that term was not used at any point in the record. Baranowski did not review any of the officers' arrest records to determine if his belief that they did not always enforce traffic laws as they asserted was in error. Thus, these opinions are based on improper assumptions and/or speculation and must be excluded. Moreover, the terms "trolling" and "profiling" are prejudicial to Defendants, and the prejudice to them substantially outweighs the limited probative value of Baranowski's use of these terms, given that they have no factual support in the record. See FED.R.EVID. 403 ("evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice").
In sum, the proffered expert testimony regarding the traffic stop is not relevant under Rule 403 and, the testimony relying on assumptions and speculation do not "fit" the case, and would not assist the trier of fact under Rule 702.
ii. Initial Encounter
Baranowski's opinions as to the initial encounter between Jackson and the officers after the traffic stop shall be excluded. Based on his experience as a state trooper, Baranowski is arguably qualified to render an opinion as to the proper procedure to be followed after a traffic stop is made. However, his opinions as to how an officer is to determine if a person's license is suspended must be excluded because they are improper legal conclusions and/or without foundation. For instance, he summarizes the law; stating that an officer cannot arrest an individual for violation of traffic laws, but also that an out of state resident can be arrested for violations of traffic laws. He testified to his belief that an individual cannot be arrested for driving with a suspended license without first receiving information from PennDot that the person's license is suspended in the form of a certified copy of the person's driving record. He explained that officers in the field cannot rely on the information that is provided regarding a person's driving history in the computers in their squad cars to determine if a person's license is suspended. The parties dispute the applicable law in this area. Defendants challenged Baranowski on his interpretation of the law at the Daubert hearing, but he offered no policy, regulation or statute in support for his opinion. Defendants cited 75 Pa.C.S. § 6309.2 in opposition. The version of that statute in effect on November 2, 2001, provided, in relevant part, that:
If a person operates a motor vehicle or combination on a highway or
trafficway of this Commonwealth while the person's operating privilege is suspended, revoked, canceled, recalled or disqualified, or where the person is unlicensed, as verified by an appropriate law enforcement officer in cooperation with the department, the law enforcement officer shall immobilize the vehicle and the appropriate judicial authority shall be so notified.
75 Pa.C.S. § 6309.2(a)(1) (1996), 1996 July 2, P.L. 535, No. 93, § 5.
This statute is silent regarding whether a certified copy of a person's driving record is required. Thus, there is no foundation for Baranowski's opinion. Baranowski, a former police officer, is not qualified to engage in an analysis of the applicable law. Because there is no foundation for this testimony, it must be excluded.
The present version of this statute provides that:
If a person operates a motor vehicle or combination on a highway or trafficway of this Commonwealth while the person's operating privilege is suspended, revoked, canceled, recalled or disqualified or where the person is unlicensed, as verified by an appropriate law enforcement officer in cooperation with the department, the law enforcement officer shall immobilize the vehicle or combination or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storage agent pursuant to subsection (c), and the appropriate judicial authority shall be so notified.
75 Pa.C.S. § 6309.2(a)(1) (2005). In any event, it is unclear whether either version of this statute was adopted by the City of Pittsburgh on the date of the incident. See Commonwealth v. Henley, 909 A.2d 352, 361-62 (Pa.Super. 2006) (holding that the City of Pittsburgh did not adopt section 6309.2 and "municipalities are only subject to the specific procedures set forth in the statute if they choose to adopt them.").
iii. Plaintiff's Request to Move Car/Defendants' Towing Policy Violation
Baranowski's opinions regarding the City's Towing Policy and the officers' compliance with same must also be excluded. The relevant policy provides that:
Vehicles of arrested persons shall not be towed unless:
• the vehicle presents a traffic hazard and cannot be driven away;
• it is necessary for investigative or evidentiary purposes;
• the arrested person may give his permission to another person to move the vehicle;
• the disposition of the vehicle shall be noted on the police report.
(Docket No. 160-2, D-10, Order #41-4, § 5.1.). Baranowski's opinions consist of his interpretation of this law and do not rely on his experience with any other towing laws or regulations. His opinions are more akin to legal argument than expert testimony. He testified that the Towing Policy, as written, takes all discretion away from the officers in making a determination regarding whether to tow a vehicle but grants the arrested person, Plaintiff in this instance, the discretion to request that he be able to call another person to come to the scene of the traffic stop and move the car on his behalf. Baranowski then concluded that the officers acted in violation of this policy when they rejected Plaintiff's request to call his father to move the vehicle for him.
In this Court's estimation, Baranowski's analysis is an improper legal conclusion, which subverts both the Court's role in instructing the jury on the law and also the jury's role in resolving the disputed facts. There is also no factual or legal foundation for Baranowski's analysis; the policy is silent regarding the proper procedures to be used in the situation that these officers were presented with on November 2, 2001, i.e., Jackson is pulled over while driving by himself, the officers determine that he has a suspended Pennsylvania license, they determine that the vehicle is blocking traffic and must be towed, and Jackson requests that he be able to call a third party to move his car rather than have it towed. Accordingly, Baranowski's opinions interpreting the Towing Policy are excluded.
iv. Custodial Inventory
Baranowski's opinions, to the extent that he has offered any, regarding the custodial inventory search are also excluded. In his report, Baranowski purportedly summarizes the law regarding a custodial inventory, and offers no actual opinions regarding how the search itself was conducted by the officers. Likewise, his affidavits and testimony did not address the custodial inventory. Because Baranowski's summary of the law regarding custodial inventories is not offered in support of any actual opinions, any testimony in this regard would serve no purpose other than to confuse the jury. This type of testimony would also invade the Court's duty to charge the jury as to the applicable law. Further, as no opinions on this issue were ever proffered, to the extent that Baranowski attempts to testify regarding the custodial inventory at trial, his opinions will be excluded as a violation of Rule 26 in light of the standards set forth above.
v. Reasons for the Disposition of the Dismissed Charges
Baranowski's opinions regarding the reasons for the dismissal of the charges initially brought against Jackson, including resisting arrest and disorderly conduct, are excluded. Like the other matters discussed above, these opinions are also not grounded in fact and are legal conclusions or assumptions and speculation. To that end, Baranoski may not testify to any of the following: that because the charges were dismissed, one can "assume" that the charges were without merit; that no evidence of any crime ever existed; or that the officers did not have sufficient evidence to prove any of the dismissed charges. Moreover, Baranowski does not have expertise in the type of prosecutorial discretion involved in making the decision of whether to prosecute charges against an individual. Further, the Court will charge the jury regarding the dismissal of the charges consistent with the instruction recommended in the Third Circuit's Model Civil Jury Instructions. See 3d Cir. Model Civil Jury Inst., § 4.12.2.
vi. Use of Force
Baranowski will be permitted to testify as to the use of force by the police officers in this case. However, his testimony will be limited. Defendants contend that Baranowski's use of force opinions should be excluded because they involve improper credibility assessments and the resolution of disputed facts. The Court agrees that Baranowski is not permitted to make credibility assessments of the witnesses, including the truthfulness of their respective testimony or statements. See Whitmill, 29 F.Supp.2d at 246-47. Credibility assessments are left solely for the jury to decide and Baranowski's opinions evaluating the credibility of Jackson given his prior involvement with law enforcement and Detective Kreger in light of the prior complaints against him, will be excluded. Id. Baranowski's report and testimony also consist of his resolution of many factual disputes and he admitted that he was acting as a "fact finder" during his analysis. The resolution of factual disputes is likewise within the province of the jury, but "[a]n expert is . . . permitted to base his opinion on a particular version of the disputed facts and the weight to be accorded to that opinion is for the jury." Walker v. Gordon, 46 Fed.Appx. 691, 695-96 (3d Cir. 2002) (not precedential); FED.R.EVID. 702, 2002 Amendments ("The emphasis in the amendment on `sufficient facts or data' is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other."). Therefore, in this Court's estimation, Baranowski cannot testify in the manner that he has presented in his report. Many of his opinions and statements explain only why he feels certain evidence is more credible than the other evidence. These types of explanations impinge on the jury's function. To this end, given these and the other matters discussed above which are not admissible, Baranowski's report cannot be presented to the jury as an exhibit as Plaintiff has requested. See FED.R.EVID. 703 ("Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."); FED.R.EVID. 703, 2000 Amendments Comm. ("Rule 703 has been amended to emphasize that when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted."). But, Baranowski's report may be used to impeach him.
Despite the fact that Baranowski's presentation of the facts in his report resolves matters left for a jury determination, his opinions can be presented at trial if they are offered in response to properly formulated hypothetical questions. Said hypothetical questions must be founded on facts already in evidence and they must not be phrased in a manner requesting that the expert testify on the ultimate legal issue of whether the force used by the officers was "reasonable." See Samples v. City of Atlanta, 916 F.2d 1548, 1551-52 (11th Cir. 1990) (discussing the use of a hypothetical question by a use of force expert in a § 1983 case); Burger v. Mays, 176 F.R.D. 153, 157 (E.D.Pa. 1997) (holding that use of force expert may testify as to whether an officer's actions "were in line with standard police procedures," but prohibiting testimony that the officer's actions were "unreasonable"); Tschappat v. Groff, Civ. A. No. 3:CV-01-2279, 2004 WL 5509087, at *4 (M.D.Pa. Jun. 2, 2004). These opinions can then be tested through cross examination. See Walker, 46 Fed. Appx. at 696 (citing Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002)).
Finally, Defendants summarily contend that expert testimony is not needed in this case because the content of Baranowski's proffered testimony is not "beyond the ken of the average juror." (Docket No. 195). The Court disagrees. Expert testimony is commonly permitted in use of force cases and given Baranowski's considerable background and experience in these areas, his proffered testimony, so limited by this opinion, will assist the trier of fact on the disputed issues in this case.
The scope of Baranowski's permitted testimony is as follows:
(1) His knowledge, experience and extensive law enforcement background; (2) The standardized police procedures at issue in this case, including the City of Pittsburgh's Use of Force Policy, the Continuum of Control, and the CALEA standards (if the CALEA standards are produced prior to trial as discussed above); and, (3) Whether the Defendants' use of force was in accord with the standardized police procedures given the facts of this case (properly presented to him by way of a hypothetical question).
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion [126] is granted, in part and, denied, in part. An appropriate Order follows.