The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JOHNNIE ROCHELL, JR. PLAINTIFF
V. CASE NO. 5:16-CV-5093
DETECTIVE CODY ROSS DEFENDANT
AMENDED ORDER1
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Now before the Court are Plaintiff Johnnie Rochell, Jr.’s Motion to Exclude Expert
Witness (Doc. 134) and Brief in Support (Doc. 135) and Defendant Detective Cody Ross’s
Response in Opposition (Doc. 138). Detective Ross retained John J. “Jack” Ryan, a
former police officer, to testify as an expert on police use of force. Pending for trial is Mr.
Rochell’s claim that Detective Ross used excessive force against him during an arrest,
violating Mr. Rochell’s constitutional rights and creating a cause of action under 42 U.S.C.
§ 1983.
The contours of the claim are well defined, and the relevant facts needed for the
jury to make its decision are relatively few. Mr. Rochell maintained in his pro se
Amended Complaint: “Cody [Ross] threatened my life with his gun as I layed [sic] on the
ground with my hands behind my back.” (Doc. 8, pp. 5–6). After that, Mr. Rochell
retained counsel, who filed a response on Mr. Rochell’s behalf in opposition to Detective
Ross’s motion for summary judgment. Mr. Rochell explained in that response:
1 During the final pre-trial conference on September 14, 2021, Detective Ross’s counsel
orally moved for reconsideration of the Court’s Order excluding the testimony of his
expert, Jack Ryan. (Doc. 163). For the reasons stated from the bench, the Court granted
reconsideration for purposes of better explaining the Court’s ruling that Mr. Ryan’s
opinions were not supported by the pertinent facts. This Order replaces and supersedes
the Court’s Order of September 10, 2021, at docket entry 163.
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When Detective Ross pointed his gun at the back of Rochelle’s head
at a point blank range and threatened to blow his head off, there was
no immediate threat to the safety of the officer, nor was Mr. Rochelle
trying to resist arrest. He was lying face down on the ground, unarmed
and complying with officer commands. At that point, Detective Ross’s
actions were excessive in violation of Mr. Rochelle’s Fourth Amendment
protections. As such, Detective Ross is not entitled to summary judgment
as a matter of law as a genuine issue of material fact remains as to whether
a reasonable officer would believe that Rochelle was posing an immediate
threat to the safety of the officers, or whether he is actively resisting arrest
or attempting to evade arrest by flight and, thus whether Ross used
excessive force.
(Doc. 59, p. 14 (emphasis added)).
The Court then issued its ruling on summary judgment, denying Detective
Ross qualified immunity on the excessive-force claim and framing the claim as
follows:
Viewing the facts in the light most favorable to Mr. Rochell, after he was
disarmed, with his weapon on the ground several feet from him, and
he was lying on the ground with his hands behind his back, posing no
threat to anyone, Detective Ross then pressed his weapon “behind
[Mr. Rochell’s] right ear” and screamed, “I’ll blow your fucking brains
out if you ever approach me like that again!” (Doc. 53-1, p. 7). For his
part, Detective Ross does not recall specifically what he said once Mr.
Rochell went to the ground, but he does remember screaming at Mr.
Rochell and admits that he pointed his gun at Mr. Rochell “when he was on
the ground,” at “[a]lmost point blank” range, (Doc. 53-7, p. 29), and that it
was “[v]ery likely” that he placed the barrel of his pistol directly against Mr.
Rochell, just as Mr. Rochell claims he did, id. at 30. Detective Ross neither
admits nor denies that he then threatened to “blow [Mr. Rochell’s] fucking
head off.” Id.
Under these facts, Mr. Rochell has constructed a triable claim for excessive
force that should be presented to a jury.
(Doc. 69, p. 18 (emphasis added)).
The Eighth Circuit then opined on appeal that “the facts the district court found
sufficiently supported at summary judgment gave rise to a Fourth Amendment violation
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because a police officer uses excessive force by pointing his service weapon at the
head of a suspect who has dropped his weapon, has submitted to arrest, and no
longer poses an immediate threat to the safety of officers or others.” (Doc. 83-1,
p. 2 (emphasis added)). The above quotations from Mr. Rochell’s summary judgment
brief, this Court’s summary judgment opinion, and the Eighth Circuit’s appellate opinion
set forth the excessive-force claim that will be presented to the jury.
Turning now to the basis of his expert opinion, Mr. Ryan’s report identifies the
materials he reviewed and relied upon in forming his opinions, including the depositions
of Mr. Rochell and Detective Ross. See Doc. 135-1, pp. 12–14. Mr. Ryan then
summarizes certain facts that are supposedly important to his opinions, including the
following:
• Mr. Rochell’s testimony:
o “I put my hands up immediately out in front of me palms out facing
towards him. At this time Cody [Ross] did not identify himself as a
police officer.” Id. at p. 20.
o [after Detective Ross identified himself as a police officer:] “I’m
steady watching his body language . . . trying to [not] get shot. . . .
just trying to really wait for him to like cool down before I make any
moves, so that’s when I took my left hand with my thumb, I grabbed
the strap and pulled it over my head, passed it to my right hand and
set it on the ground, hands still out in front of me.” Id. at p. 21.
o “I took a step to my left over away from the weapon, and that's when
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he came around his truck and he became even more agitated at that
point, ‘I'll f-ing blow your brains out, get on the ground. I'll f-ing kill
you, get on the ground.’" Id.
o “So as I'm turning to get on the ground I noticed another SUV parked
at the corner. It was a silver SUV. As I'm turning to get on the ground,
that other SUV pulled up and I'm on my knees, you know, getting
down, and then he ran up and he like kind of pushed me, and I was
already going to the ground to like lay down flat, and he tried to like
push me anyway, and then that's when he took his gun and he
pressed it behind my right ear and [Detective Ross said,] ‘I'll
blow your f-ing brains out if you ever approach me like that
again. Don't you ever approach me like that again.’” Id. at p. 21
(emphasis added).
• Detective Ross’s testimony:
o He was parked at the curb in front of Mr. Rochell’s house in a truck
that was not marked as law enforcement. Id. at p. 15.
o Detective Ross testified that his badge was on a chain. He stated
that he did not hold the badge up high or point at Mr. Rochell Rochell.
Id. at p 18.
o Mr. Rochell did not make any threatening gestures towards Detective
Ross: “[H]e was . . . waving at me with his arm, kind of just waving
up and down. He was obviously trying to get my attention.” Id. at p.
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15.
o Mr. Rochell did not point the rifle at Detective Ross. Id. at p. 16.
o According to Detective Ross: “I was scared and I had my weapon
drawn, I pointed it at [Mr. Rochell].” Id.
o “I rounded the front of my vehicle, giving commands to drop the
weapon and [Mr. Rochell] kind of just froze, which I think is
understandable at this point. I think he was probably just as shocked
as I was. And he just kind of froze and stood there; not being
uncooperative by any means but certainly didn’t drop the weapon
initially.” Id.
o “And after what seemed like just a split second, but it was probably
ten or fifteen, twenty seconds of me screaming at him, he finally did
unsling the weapon. He put it on the ground.” Id.
o “He grabbed the sling and he just lifted it over his head, as you
typically would unsling a rifle. It was obviously a pretty tense moment
because no he is kind of holding it but he never made any aggressive
movements. He did it very slowly and very correct—I mean he did it
the correct way.” Id. at p. 18.
o “I basically advanced on him and placed my hand on his chest, his
upper chest somewhere and I just shoved him to the ground . . . [a]nd
eventually [Mr. Rochell] got onto his belly . . . .” Id. at p. 19.
o Mr. Rochell did not resist Detective Ross as he forced Mr. Rochell to
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the ground. Id.
o Detective Ross was still pointing his Glock at Mr. Rochell when Mr.
Rochell was on the ground. Id.
o Detective Ross believes it is “very likely” that his Glock touched Mr.
Rochell. Id.
o Detective Ross believes it is “very likely” that the barrel of his Glock
was placed against Mr. Rochell. Id.2
1F
Against this backdrop of remarkably similar versions of the same event by
opposing parties, Mr. Ryan offers the following expert opinions:
• “It is my opinion . . . that the use of force used by Detective Ross by pointing
a firearm at Mr. Rochell, maintaining cover of Mr. Rochell and putting
Rochell on the ground was consistent with generally accepted [police]
policies, practices, training, industry standards, and legal mandates.”
(Doc. 135-1, p. 25).
• “[Mr. Rochell’s] sudden[] appear[ance] with an AR-15 rifle and move[ment]
toward Ross . . . . was clearly the type of rapidly evolving situation where
an officer is forced to make split-second decisions with respect to the
appropriate response.” Id. at p. 26.
• “Rochell’s subjective intentions as to what he was going to do with his rifle
2 Tellingly, though, Mr. Ryan fails to reference Detective Ross’s testimony about the
singular event on which the claim is premised. Omitted from Mr. Ryan’s expert report is
Detective Ross’s testimony that “[Mr. Rochell] has alleged . . . that I made the statement
‘I’m going to blow your fucking head off.’ I don’t deny that it happened, but I don’t recall
that it happened either.” (Doc. 53-7, p. 30).
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are not relevant to the use of force analysis. Based on the foregoing facts
detailed in this report, any reasonable and well-trained officer would
conclude that he or she was about to have confrontation with an individual
who had armed themselves with a rifle.” Id.
• Officers are trained using the three-part test in Graham v. Connor “to
consider the seriousness of the offense; whether or not the subject poses
an immediate physical threat to the officer or anyone else; and finally
whether the subject is actively resisting or attempting to evade arrest by
flight.” Id. at p. 27.
• “[According to policy] governing all federal law enforcement, the threat
posed by a subject who has brandished a firearm and is now running is
clearly recognized as an imminent threat of serious bodily harm or death
that justifies the use of deadly force . . . . Thus, even when Mr. Rochell put
the rifle down and . . . took one broad step away, he remained in close
proximity to the rifle. As such, all law enforcement training and policy
would recognize the continued imminent threat and the need to maintain
cover on Rochell. Thus, the continued constructive authority, by pointing
a firearm at Rochell until he was secured in handcuffs and searched would
be consistent with generally accepted [police policies] . . . .” Id. at pp. 29–
30.
The problem here is that Mr. Ryan’s ultimate opinions are not based on the
objective facts that he spent ten pages detailing in his report. Nor do his opinions align
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with the very law that he correctly cites. One need only compare the objective facts
outlined in Mr. Ryan’s own report with the Eighth Circuit’s explanation of the law in this
very case: “[A] police officer uses excessive force by pointing his service weapon at the
head of a suspect who has dropped his weapon, has submitted to arrest, and no longer
poses an immediate threat to the safety of officers or others.” (Doc. 83-1, p. 2).
Although Mr. Ryan cites to Graham v Connor, 490 U.S. 386 (1989), he does not
identify a single fact that supports his conclusion that Detective Ross’s actions were
objectively reasonable under Graham’s three-part analysis. First, when considering the
“severity of the crime,” Mr. Ryan references the fact that Detective Ross was legally
parked at the street curb. That is factually irrelevant. Mr. Rochell was lawfully standing
in his own yard. He was not the suspect of any crime. As to the “threat” presented by
Mr. Rochell, Detective Ross’s own testimony (excerpted above) is that Mr. Rochell did
not brandish the rifle or point it towards him, he froze in place, complied with commands,
marshaled the rifle correctly upon disarming, stepped away from the rifle, and did not
resist being placed on his belly away from the rifle. Mr. Ryan fails to explain how these
facts—all of which occurred prior to Detective Ross pressing his Glock against Mr.
Rochell’s head—constitutes immediate physical threat to Detective Ross. The third
component is whether Mr. Rochell attempted to flee, and certainly no one is suggesting
here that Mr. Rochell was attempting to do that.
At best, Mr. Ryan opines generally that it was acceptable police practice for
Detective Ross—when startled by Mr. Rochell’s approach with a rifle slung on his back—
to “point[] a firearm at Mr. Rochell, maintain[] cover of Mr. Rochell and put[] Rochell on
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the ground.” (Doc. 135-1, p. 25). But as the Eighth Circuit also explained in its opinion
in this case, while it is true that “officers may reasonably brandish weapons when
confronted with serious danger in course of investigative stops, [ ] they are not permitted
to ignore changing circumstances . . . .” (Doc. 83-1, (citing Wilson v. Lamp, 901 F.3d
981, 989–90 (8th Cir. 2018)). The problem here is that Mr. Ryan’s opinion is limited to
the events surrounding Mr. Rochell’s approach of the undercover vehicle—all of which
occurred prior to the alleged moment of excessive force in question, as framed by this
Court and the Court of Appeals. Mr. Ryan’s opinions are fatally flawed in that they do
not seriously address the relevant period after Mr. Rochell slowly and carefully disarmed,
stepped away from the rifle, and lay prone on the ground without resistance. It is both
telling and disingenuous that the opinion section of Mr. Ryan’s report is devoid of any
reference to Detective Ross’s placement of his Glock against Mr. Rochell’s head and Mr.
Rochell’s unabated claim that Detective Ross said, “I'll blow your f-ing brains out if you
ever approach me like that again. Don't you ever approach me like that again.”
In other words, Mr. Ryan offers no expert opinions on the pertinent issue of whether
national and/or local policing training and standards endorse a police officer pointing a
weapon at the head of a suspect and threatening to kill him, when that suspect has
dropped his weapon and no longer poses an immediate threat to officer safety. The
closest Mr. Ryan comes is his opinion that the force used was reasonable based on the
imminent threat posed by Mr. Rochell in light of a concept known as the “constructive
continuation of authority.” (Doc. 135-1, p. 30). But the Court finds this opinion to be
nothing more than ipse dixit because it is unsupported by the facts and legal authorities
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on which Mr. Ryan claims to have relied.
The decision whether to exclude expert testimony is committed to a district court’s
discretion, subject to the Federal Rules of Evidence, including Rule 702. Johnson v.
Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014). Rule 702 requires expert
witness testimony to be “based on sufficient facts and data,” the “product of reliable
principles and methods,” and the “reliable application” of those principles and methods to
the facts of the case. For the reason explained above, Mr. Ryan’s opinions do not meet
these requirements and his testimony will therefore be excluded as_ unreliable,
extraneous, and unhelpful to the trier of fact. To the extent Detective Ross argues that
such criticisms go to weight and credibility and not admissibility under Rule 702—such as
his broad opinions on when a crime scene should be considered “under control” or how
a police officer should appropriately “cover” a threatening individual—the Court finds such
testimony excludable under Rule 403, because it would tend to confuse or mislead the
jury as to the narrowly defined moment of alleged excessive force, and therefore the
probative value of such generally broad opinions would be substantially outweighed by
the risk of unfair prejudice to Mr. Rochell.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Exclude Expert Witness
(Doc. 134) is GRANTED, and Mr. Ryan will not be permitted to testify.
IT IS SO ORDERED on this 17" day of September, 2021.
UNITED STATES DISTRICT JUDGE
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