Elkins v. Pelayo

• Decision Date: 14 April 2022
• Docket Number: 1:13-CV-1483 AWI SAB
• Parties: THE ESTATE OF CECIL ELKINS, JR., et al., Plaintiffs v. HIPOLITO PELAYO, Defendant
• Court: U.S. District Court — Eastern District of California

THE ESTATE OF CECIL ELKINS, JR., et al., Plaintiffs v. HIPOLITO PELAYO, Defendant

No. 1:13-CV-1483 AWI SAB

United States District Court, E.D. California

April 14, 2022

ORDER ON THE PARTIES MOTIONS IN LIMINE (Doc. Nos 146, 147, 148, 149, 151, 152, 153, 154, 155, 156, 157, 158 159, 248)

This is a civil rights lawsuit that stems from a fatal encounter between decedent Cecil Elkins, Jr. (“Elkins”) and Defendant California Highway Patrol Officer Hipolito Pelayo (“Defendant or “Pelayo”) that occurred on November 13, 2012.^[1] Plaintiffs, who are the estate of Elkins and Elkins' wife (Creasha Elkins (“Creasha”)), mother (Tina Terrell (“Terrell”)), stepdaughter (Valiecia Perez (“Valiecia”)), and two minor sons (Devin Ekins (“Devin”) and Dylan Elkins (“Dylan”)), seek damages under federal and state law arising out of the death of Elkins. Currently before the Court are Plaintiffs' six motions in limine and Defendant's eight motions in limine. This order resolves the parties' respective motions.^[2]

DEFENDANT'S MOTIONS IN LIMINE

I. Motion 1 - Exclude Certain Opinions of Expert Roger Clark Defendant's Argument

Pelayo argues that six opinions of Plaintiffs' police practices expert Roger Clark should be excluded.

Clark's first opinion is that the use of force was unreasonable, and his second opinion is that Elkins did not pose an imminent threat. Exclusion of these opinions is appropriate because they are unreliable and purport to resolve factual questions. Clark does not list the relevant factors that he used to assess reasonableness, or discuss how he applied those factors. Clark also ignored or mistook key data points and reversed his positions on others, including whether there was information that Elkins was armed, whether Elkins had previously been convicted of a gun crime, and whether Elkins may have made a furtive gesture by reaching into his waistband. Clark also ignored the guidelines he cited regarding imminent threat and appears to have substituted his own personal standards. Instead, Clark should be permitted to testify about how law enforcement are trained and answer hypothetical questions regarding such training.

Clark also opines that Pelayo's actions reflect deliberate indifference to life and that California Highway Patrol (“CHP”) supervisors endorsed Pelayo's conduct. These opinions are speculative and irrelevant. No CHP official is a defendant in this case. Further, Clark does not identify how he concluded that Pelayo acted with a deliberately indifferent state of mind, and opining that Pelayo acted deliberately indifferent is an impermissible legal conclusion that invades the province of the jury.

Clark also opines that Pelayo erred in his tactics and opines that he should have used less lethal means to apprehend Elkins. Clark fails to identify any specific tactics that Pelayo failed to comply with. Instead, Clark admitted that the issue was that Agent Navarro should not have decided to chase Elkins, and also appears to have criticized decision to alter the surveillance operation into an apprehension situation. However, Clark conceded that Pelayo acted appropriately in backing up Navarro, and there is no evidence that Pelayo played any role in changing the operation to apprehension. Additionally, Clark fails to identify what less lethal means Pelayo should have used, when officers are taught to use such means, and whether Pelayo even had any of those less lethal options available to him. Although Clark cited to the relevant guideline, he fails to quote it or explain how it supports his opinion.

Finally, although not listed in his report, Clark has opined in other cases that officers should wait to see a gun before firing. This opinion should be excluded under Rule 37(c)(1) if he attempts to offer it at trial. Moreover, such an opinion is unsupported by anything in relevant training guidelines.

Plaintiffs' Opposition

Plaintiffs argue that exclusion of Clark's testimony is inappropriate.

Clark is qualified to testify as a police practices expert who has 27 years of law enforcement experience and who has been consistently recognized as a qualified expert by numerous courts. Plaintiffs concede that Clark's testimony should be explored through hypothetical questioning, and he can also testify about whether Pelayo's conduct comported with applicable procedures and policies on the date in question. The reasonableness of Pelayo's conduct can also circumstantially show Pelayo's state of mind and show that his conduct deviated from the norm of what a reasonable officer would have done. To testify as to the generally accepted training and standards, legal principles of necessity may need to be expressed. That alone, however, is not a basis to exclude the testimony. That is, to the extent that the testimony is in the appropriate hypothetical form, the testimony should not be excluded because it touches on an ultimate issue.

With respect to the opinion that Pelayo's conduct reflects deliberate indifference and that CHP supervisors endorsed this conduct, the opinions are relevant to assist the jury in determining whether Pelayo's conduct deviated so far from institutional norms that they could conclude that Pelayo's was reckless or deliberately indifferent to Elkins's rights. The testimony is also relevant to the Fourteenth Amendment familial association claim, which requires a finding of “deliberate indifference” when actual deliberation is practical. Therefore, the opinion that Pelayo acted in reckless disregard of his training is admissible.

With respect to the opinion that Pelayo erred in his tactics or should have used less lethal means, exclusion is improper. Ninth Circuit Model Instruction 9.25 expressly includes as a consideration of the reasonableness of force used the consideration of whether alternative methods of taking Elkins into custody was available. Therefore, Clark's opinion is admissible.

Finally, Plaintiffs argue that exclusion under Rule 37(c)(1) depends on the circumstances of the case. The purpose of the expert report is to convey the substance expert report so that an adversary can rebut, cross-examine, or offer competing expert testimony. So long as the expert's testimony does not substantially differ from the opinions offered in the expert report, they are not subject to exclusion under Rule 37. Here, Pelayo has not pointed to any opinion that is outside the scope of Clark's report that Defendant has not anticipated. Defense counsel anticipates Clark's opinion based on counsel's prior experience with Clark. Therefore, Pelayo cannot claim to be prejudiced because they could have explored this theory in deposition. Exclusion is improper.

Discussion

The Court will address each opinion separately.

1. Use of Force Was Unreasonable

Initially the parties agree that Clark should generally testify through hypothetical questions. This is an accepted method for expert witness testimony. See Stevenson v. Holland, 504 F.Supp.3d 1107, 1119 (E.D. Cal. 2020). Also, there is nothing that precludes Clark from considering disputed facts and basing opinions on disputed facts, so long as either the disputed fact is part of a hypothetical question or is specifically identified as a disputed fact.

There is also no real dispute that Clark, who worked in law enforcement with the L.A. Count Sheriff's Department for 27 years, is a qualified police practices expert. Clark has provided expert testimony in numerous federal courts, including this Court. E.g. Lucas v. City of Visalia, 2013 U.S. Dist. LEXIS 65855, *31-*32 (E.D. Cal. May 7, 2013). As a qualified police practices expert, Clark may testify about when it is appropriate to use certain weapons or tactics, what other force options or strategies for apprehending Elkins were available to Pelayo (but not other officers because it is Pelayo's conduct that is at issue), and comment on the significance of actions and events from a law enforcement perspective in terms of Pelayo's use of force. Clark may also offer opinions about whether Pelayo's use of force and actions comported with or deviated from applicable police standards and practices. See Jimenez v. City of Chicago, 732 F.3d. 710, 721-22 (7th Cir. 2013); Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (upholding admission of expert testimony that a practice violated insurance industry standards and noting that although expert testified that practice violated industry standards, expert did not opine that the defendant acted in legal “bad faith”). However, Clark may not offer opinions about whether Pelayo used “excessive force, ” violated the Fourth Amendment, or acted “unreasonably, ” since such opinions are merely legal conclusions. See Jimenez, 732 F.3d at 721. Further, Clark's opinions should be grounded in the facts that were known to Pelayo at the time force was used, and Clark cannot offer speculative opinions, make credibility determinations, resolve factual disputes, or utilize indisputably false facts to support an opinion.

Within the above limitations, Clark can offer opinions regarding Pelayo's use of force against Elkins. Questions as to the correctness of Clark's opinions, or the relative weaknesses or strengths of the factual underpinnings of Clark's opinions, are questions that go the weight of the opinions, not their admissibility. See Pyramid Techs., Inc. v. Hartford Ins. Co., 752 F.3d 807, 813-14 (9th Cir. 2014); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n.5 (9th Cir. 1987). A “shaky” opinion may be attacked through cross-examination and contrary evidence. See Pyramid Techs., 752 F.3d at 813-14.

2. Elkins Did Not Pose an Imminent Threat

Whether Elkins posed an imminent threat is a consideration that is part of the bedrock of excessive...