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Martin A. Schwartz[/caption] Police practices experts can provide valuable testimony in §1983 excessive force cases. “Courts have permitted [these] experts to testify about discrete police practice issues when these experts are properly credentialed and their testimony assists the trier of fact.” Champion v. Outlook Nashville, 380 F. 3d 893, 908 (6th Cir. 2004). Police practices experts have been allowed to testify, for example, on the “continuum of force” (Champion v. Outlook Nashville; Kladis v. Brezek, 823 F. 2d 1014, 1019 (7th Cir. 1987)), how Tasers operate, and that a reasonable officer should know that “repeated and simultaneous Taser use poses a risk of serious injury or death” (Jones v. Las Vegas Metropolitan Police Dep’t, 873 F.3d 1123,1131(9th Cir. 2017)). The Seventh Circuit recently held that in some circumstances an expert may testify whether an officer complied with departmental policy or nationally prevailing police practices relating to use of force. United States v. Brown, 871 F.3d 532 (7th Cir. 2017). Brown is an important decision ,and we will return to it after laying the necessary groundwork. Over the years there has been much disagreement and uncertainty as to the type of testimony police practices experts may give. This is largely because, despite numerous Supreme Court decisions and an ongoing staggering volume of lower court excessive force cases, important Fourth Amendment excessive force issues still remain unresolved. These unresolved substantive issues impact admissibility determinations based on relevance. Fed. R. Evid. 403 and Fed. R. Evid. 702 (expert testimony). A police officer’s use of force in making an arrest or stop is evaluated under a Fourth Amendment objective reasonableness standard. See, e.g., Los Angeles v. Mendez, 137 S. Ct. 1539 (2017); Scott v. Harris, 550 U.S. 372 (2007); Graham v. Connor, 409 U.S. 386 (1989). The dispositive question is whether, under the totality of the circumstances facing the officer, the officer employed the type of force a hypothetically reasonable officer could have employed. The court in Graham identified some of the pertinent circumstances: (1) the severity of the crime the arrestee was suspected of committing; (2) whether the suspect was attempting to flee or resist arrest; and, most importantly (3) whether the suspect posed an immediate threat of harm to the officer or others. The circuit courts disagree as to whether the fact finder should be allowed to consider the officer’s actions leading up to the use of force. See Los Angeles v. Mendez, 137 S. Ct. at 1547* (noting issue but leaving it unresolved). The Second Circuit takes the rigid view that only the officer’s conduct at the moment force was used is relevant. Under that view, a trial judge might exclude expert testimony (and other evidence) concerning the officer’s conduct leading up to the use of force on grounds of (1) relevance; (2) Rule 403 weighing of probative value against the dangers of creating unfair prejudice, confusing the issues, or misleading the jury; and (3) the testimony will not help the trier of fact (Fed. R. Evid. 702). On the other hand, even under the Second Circuit’s “rigid” approach, a trial judge might still admit the testimony as “background” evidence. Other circuits have taken a more flexible approach to the Fourth Amendment issue. For example, the Third Circuit considers the officer’s conduct leading up to the use of force on the common sense rationale that in order to evaluate the reasonableness of an officer’s use of force, the trier should be able to consider “all content and causes prior to the moment force was employed; after all, “[h]ow is the reasonableness of a bullet striking someone to be assessed if not by examining the preceding events?” Abraham v. Raso, 183 F. 3d 279, 291 (3d Cir. 1999). Under this view, expert testimony concerning the officer’s conduct leading up to the use of force may be helpful and admissible. There is also substantial judicial disagreement over whether, on a Fourth Amendment excessive force claim, the plaintiff may introduce evidence that the officer acted in violation of (1) departmental policy or (2) nationally prevailing police practices. All courts agree that whether the officer violated police department policy or standard police practices is not dispositive on the objective reasonableness of the officer’s use of force under the Fourth Amendment. In other words, neither departmental policy nor prevailing police practices can control the constitutional issue. The federal courts disagree, however, whether the jury is entitled to consider these factors as part of the totality of the circumstances for determining the reasonableness of an officer’s use of force. See Martin A. Schwartz, Section 1983 Litigation: Federal Evidence §1.04[c] (5th ed. 2017) (compiling various authorities). Expert testimony admissibility issues were before the court in Callahan v. Wilson, 863 F.3d 144 (2d Cir. 2017). The major issue in the case concerned the correctness of the jury instructions for the plaintiffs’ §1983 deadly force claim. The circuit court, over the dissent of Judge Reena Raggi, reversed a judgment in favor of the defendant officers because the trial judge failed to give the jury a Garner instruction that a law enforcement officer may employ deadly force only when the suspect poses a threat of serious physical harm to the officer or others. Tennessee v. Garner, 471 U.S. 1 (1985). The fundamental issue is whether in deadly force cases it suffices for the trial judge to give the jury a general Graham v. Connor objective reasonableness instruction, or whether the instructions must include a Garner instruction. Second Circuit law requires a Garner instruction. Rasanen v. Doe, 723 F. 3d 325 (2d Cir. 2013). This is a very important issue that has generated a split in the circuits, and the defendants in Callahan have petitioned for certiorari on that issue. Because the Second Circuit in Callahan reversed and remanded for a new trial, it “briefly” addressed the evidentiary issues raised on appeal in order to provide guidance for the retrial. One of these issues was whether the district court erred in excluding expert testimony that, inter alia, the defendant officers “did not act in accordance with police room clearing techniques when they arrived at the Callahan residence” where they employed deadly force or, in other words, “what a properly trained officer would or would not have done in a similar situation.” Callahan, 863 F.3d at 153. The circuit court ruled only that the district court’s exclusion of the evidence was not an abuse of its broad gatekeeping discretion to exclude expert testimony which is not ‘“relevant to the task at hand’” because it does not “shed light on the dispositive question here—whether [Officer] Wilson had probable cause to believe that Callahan posed a significant threat to his safety.” 863 F. 3d at 153. In the author’s view, this analysis is problematic. To begin with, expert testimony is not helpful only when it sheds light on a dispositive issue. In addition, the circuit court’s view that excluding the evidence was not an abuse of discretion does not necessarily mean that admitting the evidence would have been an abuse of discretion. In other words, the circuit court’s opinion in Callahan does not resolve the basic issue of whether a jury should be able to consider police department policy and/or prevailing police practices in determining the reasonableness of an officer’s use of force. The circuit court in Callahan was on firmer ground in finding that the expert’s “suggestions that Officer Wilson did not act reasonably under the circumstances intrude on the jury’s exclusive role as finder of facts.” Id. This is another way of saying that an expert’s opinion on the ultimate legal issue in a case should usually be excluded as not helpful because it does nothing more than tell the jury which result to reach, and may interfere with the trial judge’s function to instruct the jury on the law. But even here there is the tricky issue of whether the expert was referring to “reasonably” in the Fourth Amendment sense, or with respect to prevailing police practices. In the author’s view this issue is best determined by viewing an expert’s use of terms like “reasonable” or “reasonably” in the context of the expert’s entire testimony. The Seventh Circuit’s recent decision in United States v. Brown, 871 F.3d 532 (7th Cir. 2017) carefully analyzed the admissibility of expert testimony of police department policy and police practices proffered on the reasonableness of a law enforcement officer’s use of force. Former Chicago Police Officer Brown was charged and convicted of violating 18 U.S.C. §242 for willful use of excessive force under color of law in violation of the Fourth Amendment. 18 U.S.C. §242 is roughly the criminal counterpart to 42 U.S.C. §1983. On appeal, Brown contested the district court’s exclusion of the testimony of his police practices expert, a former Chicago police officer, that Brown acted in accord with departmental policy. The circuit court, in an opinion by Judge Diane S. Sykes, rejected this argument. The appellate court held that the district court did not abuse its discretion in excluding expert testimony explaining why Brown’s actions “were consistent with departmental policy, and that his response was appropriate under the circumstances.” 871 F.3d at 535. The circuit court’s opinion carefully distinguished evidence of an officer’s compliance (or non-compliance) with his department’s policy, from compliance with nationally prevailing police practices. The circuit court said that as a strong general rule evidence of an officer’s violation of departmental policy is not admissible. The court explained: