Passino v. The City of Plattsburgh

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

BRYCE PASSINO,

Plaintiff,

8:17-CV-1028

V. (DJS)

RICHARD TUCKER, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

LUIBRAND LAW FIRM, PLLC KEVIN A. LUIBRAND, ESQ.

Attorney for Plaintiff

950 New Loudon Road

“| Latham, New York 12110

FITZGERALD MORRIS BAKER FIRTH, P.C. JOHN D. ASPLAND, ESQ.

Attorney for Defendants

68 Warren Street

Glens Falls, New York 12801

DANIEL J. STEWART

United States Magistrate Judge

DECISION and ORDER

This matter is presently set for trial on July 19, 2021. Motions in limine have been

filed by the parties, and the following Decision and Order resolves those pretrial matters.

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I. BACKGROUND

On September 17, 2016, members of the Plattsburgh Police were called to

downtown Plattsburgh, New York, to check an area in response to a report of a naked

man walking down the center of Oak Street. See Dkt. No. 35, Memorandum-Decision

and Order dated January 31, 2020 (“MDO”), p. 2. Plaintiff Bryce Passino was under the

influence of LSD at the time. /d. Defendant Richard Tucker was the first Plattsburgh

Police Officer to respond and have contact with Plaintiff. /d. It is alleged that Plaintiff

was noncompliant for a period, and that Defendant Tucker issued a warning and then

tasered Plaintiff numerous times until he was on the ground. /d. Thereafter, Defendant

Adam Wood and another officer became involved and Defendant Wood struck Plaintiff,

either with his hand or with a flashlight. Jd. Defendant Wood also pepper-sprayed

Plaintiff in the face. /d. Next, Plaintiff alleges that Defendant Nathan Kasprzak entered

the scene, struck Plaintiff and pepper-sprayed him in the back. /d. at pp. 2-3. According

to Plaintiff, as a result of this event he received injuries including multiple fractures of his

right cheek and right eye socket, bruising and swelling, a hematoma on the back of his

«| head, a boot mark on his right cheek, and injuries to his wrist and fingers. Dkt. No. 50,

Pl.’s Trial Brief, p. 4.

At issue in this Fourth Amendment civil rights case, therefore, is whether the

Police Officers’ actions were “objectively reasonable” in light of the facts and

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circumstances confronting them.! Graham v. Connor, 490 U.S. 386, 397 (1989). In

making the determination regarding objective reasonableness, the court and the jury does

not engage in a mechanical application of the standard, but rather considers the unique

facts and circumstances of each particular case. Those circumstances include “the

relationship between the need for the use of force and the amount of force used; the extent

of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of

force; the severity of the security problem at issue; the threat reasonably perceived by the

officer; and whether the plaintiff was actively resisting.” Kingsley v. Hendrickson, 576

U.S. 389, 397 (2015).

Il. DEFENDANTS’ MOTION TO PRECLUDE EXPERT TESTIMONY

As part of the discovery process, Plaintiff has identified an expert who he intends

to call in support of his case. That expert, former New York State Trooper Mark

Nardacci, has supplied an expert report. Dkt. No. 60-1, Aspland Aff., 9] 5-7, Exs. A &

B. As an initial matter, Mr. Nardacci was omitted from Plaintiff's witness list when the

matter was originally scheduled for trial. However, the trial was then rescheduled and

«| Plaintiff's intent to call his use of force expert was clarified. This procedural issue has

therefore been resolved.

1 me also brought a Monell claim against the City of Plattsburgh, but that claim has been dismissed. MDO at

pp. 8-10.

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Presently before the Court is Defendants’ Motion to exclude this expert testimony.

Dkt. No. 60. The bases for the requested exclusion include the alleged insufficiency of

the expert’s qualifications, the faulty foundational basis of the expert’s opinion, and the

belief that the expert’s testimony would subvert the role of the jury. Aspland Aff. at pp.

3-14. Plaintiff's counsel has opposed the Motion, and notes that the proposed expert has

twenty years of experience as a New York State Trooper and was a defensive training

instructor in the New York State Police Academy, and is therefore highly qualified. Dkt.

No. 69-1, Luibrand Aff., pp. 15-17. He contends that the proposed expert’s opinions are

properly predicated on facts and experience and not rooted in speculation, and would

assist the jury in its deliberative function, and therefore should be admitted. Jd.

Under the Federal Rules of Evidence, expert witnesses may testify under the

following conditions:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact in

issue;

(b) the testimony 1s based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of

the case.

FED. R. EVID. 702. The Supreme Court has ruled that Rule 702 assigns to district courts

the gatekeeper function — “ensur[ing] that any and all scientific testimony or evidence

admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals,

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Inc., 509 U.S. 579, 589 (1993). As noted in Kumho Tire Co. v. Carmichael, the court’s

“general ‘gatekeeping’ obligation [] applies not only to testimony based on ‘scientific’

knowledge, but also to testimony based on ‘technical’ and ‘other specialized’

knowledge.” 526 U.S. 137, 141 (1999) (quoting FED. R. EvID. 702(a)). Moreover, “[i]t

is a well-accepted principle that Rule 702 embodies a liberal standard of admissibility for

expert opinions, representing a departure from the previously widely followed, and more

restrictive, standard... .” Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005).

As recently noted by Judge Kahn,

The flexibility contemplated by Rule 702 is particularly helpful when an

expert’s testimony does not rest on traditional scientific methods. “In such

cases, where a proposed expert witness bases her testimony on practical

experience rather than scientific analysis, courts recognize that ‘[e]xperts

of all kinds tie observations to conclusion through the use of what Judge

Learned Hand called ‘general truths derived from . . . specialized

experience.””

Walker v. Schult, 365 F. Supp. 3d 266, 276 (N.D.N.Y. 2019) (quoting Davis v. Carroll,

937 F. Supp.2d 390, 412 (S.D.N.Y. 2013) & Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. at 149-50).

Thus, this Court’s inquiry into whether an expert meets Rule 702’s requirements

includes a review of (1) the qualifications of the proposed expert; (2) whether each

proposed opinion is based upon reliable data and reliable methodology; and (3) whether

the proposed testimony would be helpful to the trier of fact. See, e.g., Nimely v. City of

New York, 414 F.3d at 396-97. Applying the above standard to the proposed testimony

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of Mr. Nardacci, the Court concludes that he is qualified in the area of police practices

and use of force standards. As noted by other courts, the testimony of a police procedures

expert may be found reliable by virtue of that expert’s experience. See Bah v. City of New

York, 2017 WL 435823, at *11 (S.D.N.Y. Jan. 31, 2017) (expert testimony properly

predicated where it “draws on his experience, education, and training in making his

conclusions, including his time as a Master Firearms Instructor.”).

In the present case, former State Trooper Nardacci has over two decades of

experience with use of force by police officers, including as a field training officer and a

defensive tactics instructor in the Police Academy. He has specific experience regarding

arrest and restraint procedures, the use of force continuum, standards for the use of pepper

spray, proper and improper use of a police flashlight, and dealing with emotionally

distraught individuals. Dkt. Nos. 60-2 at p. 2 & 60-3, Nardacci Report, pp. 1-4. While

Defendants are correct that it appears Mr. Nardacci has not been specifically trained on

the use of a taser, as he retired before the State Police were outfitted with that particular

tool, this issue goes to the weight of the evidence and not its admissibility. This is

particularly the case where Mr. Nardacci has over twenty years of experience dealing with

the use of force generally, and knowledge of the minimum standards for application of

force on individuals who do not pose a risk to police officers or third parties. Similarly,

the fact that the proposed expert did not teach at the Zone 9 Police Academy where the

Plattsburgh officers were trained may create a legitimate issue for cross-examination, but

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does not preclude his testimony regarding minimum standards. McCullock v. H.B. Fuller

Co., 61 F.3d 1038, 1044 (2d Cir. 1995) (“Disputes as to the strength of [an expert’s]

credentials, faults in his .. . methodology, or lack of textual authority for his opinion, go

to the weight, not the admissibility, of his testimony.”).

Having found that the proposed expert 1s qualified, and that his years of experience

satisfy the reliability standard, the final inquiry for the Court is whether the proposed

testimony is appropriate and will assist the trier of fact. As an initial point, the Court

agrees with defense counsel that certain proposed testimony goes too far. For example,

in the conclusion of his expert report, Nardacci states: “the application of force by

Officers Wood, Tucker and Kasprzak was unreasonable and unnecessary, and an

excessive use of force under the circumstances applicable to police officers.” Nardacci

Report at p. 4. In other points in his report, however, the expert points to specific training

practices and standards applicable to police officers arresting and detaining individuals

and opines how certain conduct of Defendants depicted in videos deviated from those

accepted standards. /d. (E.g., “Standard police procedure prohibits use of a flashlight as

«la tactical weapon, with the possible exception for an extreme emergency situation

involving the use or threatened use of deadly physical force”; “[t]here is no authority in

any police training, instruction, policies or practices to ever strike an individual

experiencing a psychological event or impairment and in fact the training is contrary to

that”; “Police Officer Wood’s use of the OC spray occurred after Mr. Passino was

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subdued and, on the ground, and would be considered .. . not in line with his police

training.”’).

In the Court’s view, it would be proper and potentially helpful for the expert to

testify to the training and the minimum standards applicable to police officers, and to

express an opinion as to whether the conduct alleged, or actions depicted on video, either

complied with or violated those standards. This is particularly true where issues such as

use of a police flashlight as a weapon, use of pepper spray and tasers, and dealing with

emotional disturbed individuals may well be ones outside the ken of the jury. It would

not be appropriate, however, for the expert to testify as to whether the conduct of the

police officers was objectively reasonable or unreasonable, as that decision is for the jury

to make based upon its application of my instruction and their common sense. See Hygh

v. Jacobs, 961 F.2d 359, 363-64 (2d Cir. 1992) (“This circuit is in accord with other

circuits in requiring exclusion of expert testimony that expresses a legal conclusion.”).

The Second Circuit recently considered the appropriateness of expert testimony

concerning police practices in a case in which the jury was to make a determination as to

| the reasonableness of a police officer’s conduct. The Second Circuit approved the District

Court’s admission of that expert testimony, and stated as follows:

[The expert] testified to minimally accepted police practices, “‘a baseline

type of behavior or protocols that law enforcement officers follow.” Trial

Tr. at 1776. He testified only about what minimally accepted police

practices required and about his opinion that Volpe’s conduct departed from

accepted police practices. “When an expert offers an opinion relevant to

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applying a legal standard such as probable cause [or Brady], the expert’s

role is limited to describing sound professional standards and identifying

departures from them,” Jimenez v. City of Chicago, 732 F.3d 710, 721 (7th

Cir. 2013) (internal quotation marks omitted), which is precisely what

Fischer did in this case. This expert testimony on applicable professional

standards 1s relevant because it “can give a jury a baseline to help evaluate

whether a defendant’s deviations from those standards were merely

negligent or were so severe or persistent as to support an inference of

intentional or reckless conduct that violated a plaintiff's constitutional

rights.” Jd. at 721-22. It is true that Fischer’s “opinions had direct

implications for applying legal standards,” but that is exactly “why his

testimony was relevant.” /d. at 721. The court correctly limited Fischer’s

testimony to professional practices and departures in this case, and Fischer

did not stray from these bounds.

Restivo v. Hessemann, 846 F.3d 547, 579-80 (2d Cir. 2017); accord, Bah v. City of New

York, 2017 WL 435823, at *12 (“The jury arriving at an answer to the question of whether

“| the defendant officers’ actions conformed with accepted police practices is not an end in

and of itself, but rather a means by which the jury can understand the full set of

circumstances surrounding the force used on Bah so as better to conduct their analysis,

which will take into account the totality of those circumstances, as to whether the force

used on Bah was reasonable. .. .”); see also Lombardo v. City of St. Louis, Missouri, 2021

WL 2637856, at *2 (U.S. June 28, 2021) (noting that evidence of a police policy relating

to getting a suspect off his stomach as soon as he is handcuffed, and its alleged violation,

could be pertinent to the factfinder on the issue of “the relationship between the need for

the use of force and the amount of force used, the security problem at issue, and the threat

— to both [the suspect] and others — reasonably perceived by the officers.”’).

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Both parties highlight a recently issued Northern District Decision by Magistrate

Judge Thérése Dancks, Hansen v. Warren Cty., 2019 WL 5853392, at *5 (N.D.N.Y. Nov.

8, 2019). In that case a police expert was precluded from testifying at trial on behalf of

the plaintiff. /d. The reason for that exclusion dealt specifically with the qualifications

of that particular expert. /d. at *5 (noting that the proposed expert has never been a

policeman, attended or taught at the police academy, executed an arrest, or developed

police procedures or policies, and therefore “he is not qualified to testify to the issues

presented in this case, namely, a police officer’s use of non-lethal physical force to

effectuate an arrest without the use of any firearm, Taser, or chemical spray.”). Judge

Dancks’ decision should not be read to preclude qualified police experts generally.

Indeed, the defense attorney in the Hansen case offered, and the court allowed, expert

testimony concerning police use of force practices where the expert had qualifications

similar to that of former Trooper Nardacci. /d. at *6. (“[U]nlike [plaintiffs expert], the

Court finds [the defense expert] 1s well-qualified to opine on the issue of use of force in

this case based on his experience and credentials, which include, inter alia, more than

«| fifteen years of experience as an active police officer, formal and specialized education

training in police operations including the use of force and defensive tactics by police,

experience using and deploying non-lethal force in police arrest scenarios, and his

experience training police officers in the proper and safe use of defensive tactics and use

of force to effectuate arrests.”’).

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In sum, after considering the parties’ arguments and upon review of Mr.

Nardacci’s expert report in light of the governing standard, Defendants’ Motion to

Preclude is denied. Plaintiffs expert will be allowed to testify concerning the appropriate

police practices and minimum standards at issue, and alleged deviations and departures

from those standards. Plaintiff's expert will not be allowed to testify, however, regarding

his opinion of the reasonableness of Defendants’ conduct, or the officers’ state of mind.

Those issues are for the jury. As with this and every other evidentiary issue, the Court

will exercise its authority during trial to prevent superfluous, cumulative, or otherwise

inappropriate testimony.

I. PLAINTIFF’S PRE-TRIAL MOTIONS

Plaintiff seeks a number of in limine rulings, Dkt. No. 69, which the Court

addresses below.

A. Plaintiff's Military Discharge

Plaintiff first seeks to preclude testimony about the facts and circumstances of his

discharge from the United States Army. Luibrand Aff. at 9] 4-12. Plaintiff received a

| “General Discharge” after an incident in which he struck a superior. /d. at J 5-6. Plaintiff

contends that this incident is irrelevant and thus inadmissible. /d. at 97. Defendants seek

admission of this information on the theory that it correlates to the facts in dispute here.

They contend that Plaintiff's military record is admissible “to show that Mr. Passino had

knowledge of the likely outcome of his actions of becoming intoxicated” because Plaintiff

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testified that the incident in the military arose, in part, due to his use of alcohol, and the

facts here concern Plaintiff being under the influence of an intoxicant. Dkt. No. 72 at 7

7-8 & 18. Defendants intend to argue that Plaintiff has a proclivity for aggressive

behavior when intoxicated. See id. at { 27.

The Court concludes that admission of the underlying facts at issue regarding

Plaintiffs discharge should be precluded. Defendants’ attempt to draw a parallel between

an alcohol-related incident in the military and the use of drugs in this case does not

represent a close comparison, bears at best slim relevance to the question of whether

excessive force was used, and risks substantial prejudice to Plaintiff. The theory of

relevance proffered by Defendants would seek to place Plaintiff's possible history of

substance abuse at issue. Courts, however, recognize that substance abuse “is considered

as much a disease as a reflection of character or habit.” Ortiz v. City of New York, 2017

WL 5613735, at *9 (S.D.N.Y. Nov. 21, 2017). Plaintiff's alleged intoxication when

encountered by Defendants is clearly relevant to the facts at issue. Raising prior instances

of such intoxication and behavior attributable to it, however, is prejudicial within the

«| meaning of Federal Rule of Evidence 403. Moreover, permitting this evidence would run

the risk of diverting the jury’s attention from the facts of this discrete incident to a “mini

trial” regarding the facts of Plaintiff's military service which, given the attenuated theory

of relevance and the clear risk of prejudice, the Court finds is unwarranted. See Kaufman

v. Columbia Mem’! Hosp., 2014 WL 3888229, at *4 (N.D.N.Y. Aug. 7, 2014).

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Should Plaintiff testify about his military service, Defendants are free to inquire

about the fact that he received a general discharge as opposed to an honorable discharge,

but should inquire no further.

B. An Alleged Incident with a Dog and its Owner

Plaintiff seeks to preclude Defendants from eliciting testimony about whether

“plaintiff once kicked a dog.” Luibrand Aff. at § 13 (internal quotations omitted). To the

extent that Defendants seek to question Plaintiff about whether he ever kicked a dog, the

Court finds that such testimony is prejudicial and bears no relevance to the facts at issue.

Accordingly, any questioning about whether Plaintiff kicked a dog is precluded under

Federal Rule of Evidence 403.

Defendants, however, contend that as a result of that incident, which allegedly

occurred prior to the events to be tried, the dog’s owner punched Plaintiff in the eye,

fracturing his eye socket. Dkt. No. 72 at 4 35. Since Plaintiff claims that this injury

occurred at the hands of Defendants, whether it was in fact a pre-existing injury may well

be relevant. The Court, therefore, will consider at trial the relevance and admissibility of

prior physical altercation should any party seek to raise it.

C. Plaintiff's Prior Conviction

Plaintiff next seeks to preclude the introduction of evidence regarding Plaintiffs

conviction for driving while ability impaired in violation of New York Vehicle and

Traffic Law section 1192. Luibrand Aff. at § 17-54. That conviction represents a “non-

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criminal violation[]” under New York law. See Gonzalez v. United States, 2016 WL

270451, at *1 (S.D.N.Y. Jan. 21, 2016). While arguing for the admissibility of the

conviction, Defendants have failed to articulate a basis for finding the conviction relevant

and admissible under the Federal Rules of Evidence. See Dkt. No. 72 at 4] 42-46. The

conviction appears to bear no relevance and evidence of it would be prejudicial to

Plaintiff. See Ali v. Connick, 2016 WL 3080799, at *4 (E.D.N.Y. May 31, 2016). The

Court, therefore, grants the Motion to preclude evidence of this conviction.

D. The Admissibility of Photographs

Plaintiff also seeks an order regarding the admissibility of certain photographs.

Luibrand Aff. at 9] 55-78. Defendants object to the admission of the photos. Dkt. No.

72 at J 47-82. To the extent Defendants seek to preclude the photographs based on

untimely disclosure or prejudice, the Court rejects that argument. The photographs at

issue have been known to Defendants for some time. While Defendants claim prejudice

from the fact that they have not deposed the individual who took the photos, it does not

appear that, despite the expiration of the discovery deadline, they sought leave to do so

«| after becoming aware of them.

The Court will otherwise reserve decision on the admissibility of the photographs

until trial given that a primary point of contention between the parties relates to whether

Plaintiff can establish a proper foundation for the photos and the Court cannot make a

ruling on that question until Plaintiff attempts to lay an appropriate foundation.

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IV. CONCLUSION

ACCORDINGLY, it is hereby

ORDERED, that Defendants’ Motion to Preclude Expert Testimony is

GRANTED IN PART and DENIED IN PART as set forth above; and it is further

ORDERED, that Plaintiff's Motion in limine is GRANTED IN PART and

DENIED IN PART as set forth above.

Date: July 1, 2021

Albany, New York

Daniel ¥ S ewa) art

“ US-Magistrate Judge

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