The owner of a dog that was shot by a police officer sued for violation of his fourth amendment rights. The plaintiff called upon three witnesses to assist in his case. The challenge was mostly denied.
Facts: This case (Branson v. Price et al – United States District Court – District of Colorado – September 24th, 2015) involves a chase, and subsequent killing, of a dog-at-large. The plaintiff hired three experts to testify on his behalf: Jonathan Priest, James Crosby, and Sean Miller, the latter two being dogs expert witnesses.
In November of 2012, a call was made to 911 regarding a dog-at-large. Arica Borges, a community services officer, responded to the scene and was subsequently joined by city police officers Christopher Castillo and Robert Price. The three officers devised a plan to take the dog into custody using catch poles and a taser. The incident was captured on video by a neighbor. While trying to apprehend the dog, the officers testified that it was trying to attack them and was acting aggressively, but witnesses stated that this was not the case. The dog was caught in the catch poles, but, according to the defendant, was still acting aggressively and used the taser 5 times on the animal. After the dog was shot with the taser the final time, it lay lifeless on the driveway.
The owner of the dog, Gary Banson, sued Mr. Price, arguing that he acted unreasonably when he shot the dog, which was a violation of his fourth amendment rights. The defense does not challenge the qualifications of the experts, but did file a Daubert motion on other issues.
Discussion: Mr. Priest was asked to conduct a physical evidence and reconstruction of the incident at issue and compare and contrast this with best practices in the use of force for law enforcement officers. He opined that the plan that was devised by the officers was ill-conceived and provided alternative options. The defense challenges this testimony, stating that the jury does not need any assistance from an expert to decide whether he acted properly. The court disagreed, stating that the issues in this case require specialized knowledge.
In addition, Mr. Branson stated that part of Mr. Priest’s testimony are considered a credibility determination, which is not admissible under Rule 702. The court agreed, noting that Mr. Priest would not be allowed to opine directly or indirectly on the credibility of the plaintiff.
Regarding James Crosby, the defendant challenges the testimony on the grounds on the accuracy of the police reports, whether or not the dog was acting aggressively, and the reasonableness of Mr. Branson’s actions. He then lays out 11 examples from the testimony of Mr. Crosby. The judge agreed with the defense, stating that any flaws in the testimony of Mr. Crosby go to the weight of the opinion, not its admissibility.
Sean Miller then testified on the dog’s fear and intent during the incident. The defense challenges these opinions because they instruct the jury on what result to reach and they his opinions are not based on any reliable data. The court disagreed, stating that these opinions will be helpful to the jury and are thus admissible.
Held: All expert testimony proffered by the plaintiff’s are allowed, except that Mr. Priest cannot opine directly or indirectly on the credibility of Mr. Branson.