Gerling v. City of Hermann

• Decision Date: 20 December 2019
• Docket Number: No. 4:17-CV-02702 JAR,4:17-CV-02702 JAR
• Parties: WAYNE GERLING, Plaintiff, v. CITY OF HERMANN, MISSOURI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

WAYNE GERLING, Plaintiff,
v.
CITY OF HERMANN, MISSOURI, et al., Defendants.

No. 4:17-CV-02702 JAR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

December 20, 2019

MEMORANDUM AND ORDER

This matter is before the Court on the following motions: Defendant Officer Matthew Waite ("Waite")'s Motion to Exclude Expert Testimony of Michael Leonesio (Doc. No. 79); Waite's Motion for Summary Judgment (Doc. No. 80); Defendants City of Hermann, Missouri ("City") and Police Chief Frank Tennant ("Tennant")'s Motion to Disqualify and Exclude Expert Witness Testimony of Michael Leonesio (Doc. No. 85); Tennant's Motion for Summary Judgment (Doc. No. 87); and City's Motion for Summary Judgment (Doc. No. 89). The motions are fully briefed and ready for disposition.¹

I. Background²

This civil rights action arises out of a citation issued to Plaintiff Wayne Gerling ("Gerling") for illegally parking his tractor-trailer on the street in front of his home in Hermann, Missouri. Gerling alleges that despite having all of the information necessary to issue a parking ticket after running the vehicle's license plate information, Waite proceeded to Gerling's home to procure his driver's license. When Gerling refused to produce his license, Waite intruded into his home and

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grabbed him by the wrist. As Gerling retreated, Waite tased him, causing him to fall into a table and sustain injuries to his chest and shoulder. Gerling was taken into custody and issued two citations arising out of this incident - one for violating City Ordinance No. 215.210 for resisting arrest, and one for violating City Ordinance No. 340.250 related to parking the subject vehicle. Gerling pled guilty to illegal parking. Gerling alleges that Tennant pressured the City prosecutor to prosecute him for resisting arrest. Gerling was found guilty of resisting arrest in municipal court. Gerling appealed and was granted a trial de novo. The City dismissed the charge of resisting arrest with prejudice on the day of trial, after a jury was impaneled and opening statements made, when Waite did not appear to testify.

Gerling asserts claims against Waite in his individual and official capacities for excessive force (Count I), arrest without probable cause (Count II), and prosecution without probable cause (Count III); claims against Tennant in his individual and official capacities³ for prosecution without probable cause (Count IV), and deliberately indifferent policies, practices, customs, training and supervision (Count V); and a claim against the City for deliberately indifferent policies, practices, customs, training and supervision (Count VI).

II. Defendants' Motions to Exclude Expert Testimony of Michael Leonesio

Gerling retained Michael Leonesio, a police procedures expert, to opine on Waite's use of force against him, the Hermann Police Department practices and policies related to this incident, and the Missouri Revised Statutes and City of Hermann ordinances and regulations related to this incident. Defendants do not directly challenge Mr. Leonesio's expert qualifications⁴ and after

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consideration, the Court is satisfied that Mr. Leonesio is qualified to testify on police policies and procedures based on his twenty plus years of work experience as a law enforcement officer and instructor in areas including critical incident response, use of force, defensive tactics and arrest control. (Michael Leonesio Curriculum Vitae, Doc. No. 96-6). He also has an extensive background in the use of electroshock weapons and currently manages the only electroshock weapon-exclusive independent testing laboratory in the United States. (Expert Report of Michael Leonesio, Doc. No. 96-1 at 3-4). Mr. Leonesio consults on a variety of topics, including law enforcement training/policy review, analysis, development, and implementation. He is a member of several professional associations, including the National Association of Civilian Oversight of Law Enforcement, and has received a number of professional awards relating to his police work.

In his first opinion, Mr. Leonesio concluded that Waite's response and issuance of a summons to Gerling for illegal parking was "unlawful, excessive, unnecessary and unreasonable; and constituted a gross abuse of power." (Id. at 7). In examining Waite's actions, Mr. Leonesio reviewed all published sections and schedules contained in the City's Traffic Code, Sections 300-385 and Schedules I-XVI) and found no restrictions or prohibitions related to the proper parking of a commercial vehicle on the street in front of Gerling's home. (Id. at 6). Mr. Leonesio also noted that while Waite and Tennant spoke of their extra-statutorial authority and practices regarding parking violations - especially with regard to commercial vehicles - both admitted that the applicable City ordinance addressing the ticketing of an unoccupied vehicle and its associated state statute "mandates" that the officer "shall leave a ticket on the vehicle." (Id.).

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In his second opinion, Mr. Leonesio concluded that Waite's use of the taser on Gerling was "clearly excessive, unnecessary, and unreasonable," citing to, among other things, the Supreme Court's decision in Graham v. Conner, 490 U.S. 386 (1989), the Fourth Amendment, and the objectively reasonable officer standard. In evaluating Waite's actions, Mr. Leonesio "[took] into account 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.'" (Id. at 8) (quoting Graham, 490 U.S. at 396).

With regard to the severity of the crime at issue, Mr. Leonesio noted that both of the offenses for which Gerling was charged were classified as misdemeanors, which cuts against a finding that the force used to effect an arrest was reasonable. (Id. at 9). He further stated that neither of the offenses could be considered especially dangerous or violent, and would not provide "a substantial government interest sufficient to justify the use of significant force such as a taser." (Id.).

In considering whether Gerling posed an immediate threat to the safety of officers or others, Mr. Leonesio stated that Gerling, "while certainly displaying noncompliant behavior during this incident, never verbally or physically threatened Waite's safety or that of anyone else on scene, and was obviously unarmed." (Id.). Mr. Leonesio noted that police officers are trained to employ tactical de-escalation techniques, deliver clear verbal commands, and exert competent physical control over subjects without, or before, resorting to significant force options, such as the taser, unless there are facts demonstrating an immediate threat warranting such force. Here, however, he concludes that Waite attempted none of these less invasive tactics, and failed to present facts demonstrating an immediate threat to officers or others justifying the use of significant force. Mr. Leonesio also referenced the Hermann Police Department's taser policy which states that the taser

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not be used unless "necessary to control or subdue violent or potentially violent individuals." (See Doc. No. 84).

As for whether Gerling actively resisted arrest or attempted to evade arrest by flight, Mr. Leonesio assumed Gerling displayed a level of active resistance (by pulling away from Waite's grasp) and that his refusal to raise his hands when told to do so constituted passive resistance. Regardless, Mr. Leonesio concluded that given the totality of the circumstances, he "[saw] no evidence to justify the deployment of a significant force option like the taser." (Doc. No. 96-1 at 10-11; see also Deposition of Michael Leonesio ("Leonesio Depo."), Doc. No. 96-2 at 95:8-13). He also considered that industry best practice requires providing a warning that significant force would be used if one does not comply, and Waite did not provide such a warning to Gerling. (Id. at 11).

For his third and final opinion, Mr. Leonesio concluded that the Hermann Police Department knew, or should have known, that Waite required annual taser training as required by Department policy, industry standards, and manufacturer's recommendations and failed to provide that training. (Id. at 13). However, he acknowledged that he had received no training material to review in this case. (Id. at 11).

Legal standard

The Court acts as a gatekeeper for all expert testimony, ensuring that it is "not only relevant but reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Under Federal Rule of Evidence 702, expert testimony is admissible where (1) the testimony is "based on scientific, technical, or other specialized knowledge," and is "useful to the finder of fact in deciding the ultimate issue of fact.," i.e., it is relevant; (2) the expert is "qualified to assist the finder of fact;" and (3) "the proposed evidence

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[is] reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires." Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014) (citation omitted).

While an expert may offer opinions that embrace the ultimate issue in the case, Fed. R. Evid. 704(a), he cannot testify as to matters of law, and legal conclusions are not a proper subject of expert testimony, Lombardo v. Saint Louis, No. 4:16-CV-01637-NCC, 2019 WL 414773, at *8 (E.D. Mo. Feb. 1, 2019). See also S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995). Similarly, "[o]pinions that 'merely tell the jury what result to reach' are not admissible." Lee v. Andersen, 616 F.3d 803, 809 (8th Cir. 2010) (quoting Fed. R. Evid. 704 advisory committee's note). "Courts must guard against invading the province of the jury on a question which the jury is capable...