# O'Hara v. Lott

> District Court, E.D. Missouri · September 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11133242

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11133242

## How later opinions describe it (automated extraction)

- concluding that the opinions of a police-practices expert regarding the overall reasonableness of evidence-collection and strip-search procedures used were impermissible legal conclusions

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

OMAR O’HARA, )
)
Plaintiff, )
)
v. ) No. 4:23CV442 HEA
)
TERRENCE LOTT and )
MARLISSA BUTLER-CHERRY, )
)
Defendants. )
)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment, [ECF No. 64], and Plaintiff’s Motion to Exclude Defendants’ Expert,
[ECF No. 69]. For the reasons set forth below, Defendants’ Motion for Summary
Judgment is denied, and Plaintiff’s Motion to Exclude Defendants’ Expert is
granted.
I. Facts and Background1
Plaintiff Omar O’Hara brings this civil rights action against Defendants
Terrence Lott and Marlissa Butler-Cherry, who are police officers with the
University City Police Department (“UCPD”), in their individual capacities. [ECF
No. 1]. Plaintiff alleges that Defendants violated his constitutional rights when they

1 Unless otherwise noted, the facts in this section are not in dispute.
wrongfully arrested him during the early morning hours on March 15, 2023. Id. at
1-3. Plaintiff brings claims of excessive force (Count I), unlawful seizure (Count

III), battery (Count IV), and false arrest and imprisonment (Count V) against
Defendant Lott; and he asserts that Defendant Butler-Cherry failed to intervene
(Count II), id. at 5-6.2

In February 2023, Plaintiff’s driver’s license was revoked after an unrelated
traffic stop. Plaintiff filed a petition for review of the revocation in state court, and
he obtained an order staying the revocation while the petition was pending. On
March 15, 2023, the Regional Justice Information System (“REJIS”) showed that

Plaintiff had a February 2023 “chemical action” pending in municipal court and
the status of that action was “Stayed Appealed.”3
In his deposition, Plaintiff testified that he met with a friend in University

City on the evening of March 14, 2023. The following morning, Plaintiff drove his

2 In Count V, Plaintiff challenges both his arrest and his subsequent 24-hour
detention, which was allegedly ordered by Defendant Lott, as lacking probable
cause. [ECF No. 1 at 8].

3 Defendants object to the facts in this paragraph as irrelevant but do not
specifically controvert them. [ECF No. 86 at 1-2]. As a result, the uncontroverted
facts are deemed admitted for purposes of summary judgment. See Fed. R. Civ. P.
56(e)(2) (“If a party fails to . . . properly address another party’s assertion of fact as
required by Rule 56(c), the court may . . . consider the fact undisputed for purposes
of the motion); E.D. Mo. L.R. 4.01(E) (providing that all matters set forth in a
party’s “Statement of Uncontroverted Material Facts shall be deemed admitted for
purposes of summary judgment unless specifically controverted by the opposing
party.”).
friend to her car, which was parked at Blueberry Hill restaurant. Plaintiff testified
that on the morning of March 15, 2023, he had been awake for approximately 36

hours due to family and work obligations. Before leaving the restaurant, Plaintiff
fell asleep in his car and was awakened when Defendant Lott opened his car door.4
Defendant Lott ordered Plaintiff to exit his car, and Plaintiff complied. After

conducting a pat-down and finding that Plaintiff was unarmed, Defendant Lott
stated that Plaintiff appeared to be intoxicated and that he was being detained.
Plaintiff responded that he was not intoxicated but merely tired. After Plaintiff
provided his identifying information to Defendants, Defendant Butler-Cherry went

to her vehicle and called police dispatch while Defendant Lott continued to speak
with Plaintiff.
Defendant Lott asked Plaintiff if he had any physical impairments that

would prevent him from performing a field sobriety test, and Plaintiff stated that he
was tired due to working long hours and that he had recently fallen down the stairs
and injured his back. After administering the field sobriety tests, Defendant Lott
told Plaintiff that he could relax, and Plaintiff stood still with his arms crossed.5

4 Defendants object to the facts in this paragraph as irrelevant but do not
specifically controvert them. [ECF No. 86 at 2-3]. See Fed. R. Civ. P. 56(e)(2);
E.D. Mo. L.R. 4.01(E).

5 The parties dispute the results of the field sobriety tests. The video
evidence does not conclusively disprove Plaintiff’s assertion that he successfully
completed the tests.
While Defendant Lott was administering the tests, the video evidence shows
that Defendant Butler-Cherry radioed dispatch to request an inquiry on Plaintiff

and then entered Plaintiff’s identifying information into REJIS on her police laptop
as she waited for dispatch’s response, but the results of her search are not legible in
the video. A couple of minutes later, dispatch told Defendant Butler-Cherry that

Plaintiff’s license had been revoked.
Defendant Butler-Cherry then returned to where Defendant Lott and Plaintiff
were standing and relayed the information from dispatch. Defendant Lott
immediately told Plaintiff to put his hands behind his back and grabbed him by the

arm, and Defendant Butler-Cherry grabbed Plaintiff’s other arm. Plaintiff
repeatedly asked Defendants why he was being arrested, and Defendants stated
that he was being arrested for driving with a revoked license. Plaintiff stated in his

deposition that he had been confused during the encounter because the revocation
of his license had been stayed.6 Defendant Lott stood behind Plaintiff and repeated
the order to put his hands behind his back. Plaintiff continued standing with his
arms crossed and asking Defendants why he was being arrested.

Then—approximately 30 seconds after first ordering Plaintiff to put his hands

6 Defendants object to Plaintiff’s statements regarding his mental state as
irrelevant but do not specifically controvert them. [ECF No. 86 at 5-6]. See Fed. R.
Civ. P. 56(e)(2); E.D. Mo. L.R. 4.01(E).
behind his back—Defendant Lott applied his taser in drive-stun mode against the
right side of Plaintiff’s back for approximately 12 seconds.7

The parties dispute certain facts about the 30 seconds after Defendant Lott
first deployed the taser. Defendants assert that Plaintiff attempted to grab
Defendant Lott’s taser and actively resisted arrest, making Defendant Lott’s

subsequent uses of force reasonable. But Plaintiff testified that he never attempted
to grab the taser, and the video evidence does not clearly disprove Plaintiff’s
version of events.
The following facts concerning the 30 seconds after Defendant Lott first

deployed the taser are undisputed: Plaintiff leaned to his left as he was being tased,
Defendant Lott moved with Plaintiff and held onto his arm, and Defendant
Butler-Cherry grabbed Plaintiff’s other arm. Defendant Lott kicked Plaintiff in the

groin multiple times, and then fell with Plaintiff to the ground. After Plaintiff fell
on his back onto the ground, Defendant Lott righted himself, knelt across
Plaintiff’s torso, grabbed Plaintiff’s arm, tased him again, and repeatedly struck

7 When deploying a taser in drive-stun mode, the taser is applied directly
against a person’s body, which causes a painful burning sensation. [ECF No. 82-15
at 3]. Defendants object to Plaintiff’s statements about the taser as irrelevant but do
not specifically controvert them. [ECF No. 86 at 24].
Plaintiff in the face and head with his fist and elbow.8 Defendant Lott then grabbed
Plaintiff’s wrists and held them down with his body weight.

At Defendant Lott’s request, Defendant Butler-Cherry called for assistance,
While he was on the ground, Plaintiff repeatedly asked Defendant Lott, “Why are
you doing this?” Defendant Lott stated that Plaintiff had assaulted him, and

Plaintiff responded that he had not assaulted Defendant Lott and that “you
assaulted me.” While Defendant Lott was kneeling on his chest, Plaintiff looked at
Defendant Butler-Cherry and stated multiple times that he “didn’t do anything to
[Defendant Lott]” and that “[Defendant Butler-Cherry] saw that.”

Approximately 30 seconds after Defendant Butler-Cherry called for
assistance, additional officers arrived at the scene. Three of the officers
immediately grabbed Plaintiff’s arms and legs, flipped him onto his stomach, and

then handcuffed him. After Plaintiff had been flipped onto his stomach and was
being held down by the three officers, Defendant Lott tased Plaintiff a third time.
While he was being restrained by the officers on the ground, Plaintiff continued
asking, “Why are you guys doing this?” and “Why are you being like this?” He

repeatedly stated that he “didn’t do anything to deserve this” and that “there’s no
reason for this.” As the other officers escorted him to a police car, Plaintiff said

8 Plaintiff asserts that Defendant Lott was holding the taser in his right hand
while striking him in the head, [ECF No. 86 at 12], but this is not clearly depicted
in the video evidence.
that “this is so rough and unnecessary” and that he had “never done anything to
anyone here.” Plaintiff did not raise his voice at any time during the incident.

At an August 2024 municipal bench trial concerning charges arising from
the March 15, 2023 incident, Defendant Lott testified that Plaintiff had not made
any threatening movements towards him or verbally threatened him before he

initially deployed the taser.9 Defendant Lott stated that he decided to drive stun
Plaintiff because he had a sore knee and did not want to further injure it. Defendant
Butler-Cherry testified that Plaintiff did not threaten her, attempt to flee, or strike
anyone during the incident.

II. Motion for Summary Judgment
A. Legal Standard
Summary judgment is proper if the movant shows there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). “The movant bears the initial responsibility of informing
the district court of the basis for its motion and must identify those portions of the

9 Defendants object that Plaintiff’s statements regarding their testimony at
the municipal bench trial are irrelevant but do not specifically controvert them.
[ECF No. 86 at 18-20]. Defendants also challenge the admissibility of the
declaration supporting Plaintiff’s statements, arguing that the declaration is
hearsay. Id. First, Defendants’ prior testimony regarding Plaintiff’s arrest is plainly
relevant to this matter. Second, Federal Rule of Civil Procedure 56(c)(1)(A)
specifically lists declarations and affidavits as examples of competent evidence
that parties can use to support their statements of fact at summary judgment, and
statements of party opponents are not hearsay. Fed. R. Civ. P. 801(d)(2).
record which it believes demonstrate the absence of a genuine issue of material
fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en

banc) (citation modified). “If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts showing that there is a
genuine issue for trial.” Id. (citation modified).

“On a motion for summary judgment, ‘facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to those
facts.’” Id. (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the evidence are jury functions, not those of a judge.” Id. (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). But “the
nonmovant must do more than simply show that there is some metaphysical doubt

as to the material facts, and must come forward with specific facts showing that
there is a genuine issue for trial.” Id. (citation modified). “Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial.” Id. (quoting Ricci, 557 U.S. at 586).

B. Discussion
To determine whether an official is entitled to qualified immunity, the Court
asks: “(1) whether the facts shown by the plaintiff make out a violation of a

constitutional or statutory right, and (2) whether the right at issue was clearly
established at the time of the defendant’s alleged misconduct.” Morgan v.
Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc) (quoting Nord v. Walsh

Cnty., 757 F.3d 734, 738 (8th Cir. 2014)). “The defendants are entitled to qualified
immunity unless the answer to both of these questions is yes.” McCaster v.
Clausen, 684 F.3d 740, 746 (8th Cir. 2012).

1. § 1983 Excessive Force (Count I) & State Law Battery (Count IV)
Plaintiff alleges that Defendant Lott violated his clearly established right to
be free from excessive force by initially tasing him, repeatedly striking him in the
groin and face, and tasing him after multiple officers had restrained and cuffed him

on the ground. Defendant Lott contends that he is entitled to qualified immunity
because each use of force was reasonable. He asserts that Plaintiff’s battery claim
fails because he did not use excessive force, and as a result, he is entitled to official

immunity under Missouri law.
“The Fourth Amendment protects citizens from being seized through
excessive force by law enforcement officers.” Thompson v. City of Monticello, 894
F.3d 993, 998 (8th Cir. 2018) (quoting Mettler v. Whitledge, 165 F.3d 1197, 1202

(8th Cir. 1999)). “To establish a constitutional violation under the Fourth
Amendment’s right to be free from excessive force, the test is whether the amount
of force used was objectively reasonable under the particular circumstances.” Id.

(quoting Coker v. Ark. State Police, 734 F.3d 838, 842 (8th Cir. 2013)).
“The inquiry is based on the totality of the relevant circumstances, including
‘the severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officer or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Westwater v. Church, 60 F.4th 1124, 1128
(8th Cir. 2023) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts

“analyze these factors from ‘the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.’” Id. (quoting Graham, 490 U.S. at
396). This analysis accounts “for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396-97.
“[W]hen the issue of unreasonable force is raised in a motion for summary

judgment, a court must construe the facts in favor of [Plaintiff], the non-moving
party.” Westwater, 60 F.4th at 1128-29 (citing Frederick v. Motsinger, 873 F.3d
641, 644 (8th Cir. 2017)). “Thus, when opposing parties tell two different stories,
the court must view material disputed facts in a light most favorable to the

non-moving party—as long as those facts are not so blatantly contradicted by the
record that no reasonable jury could believe them.” Id. at 1129 (citation modified).
“The critical factor in this excessive force case, as in most others, is whether
[Plaintiff] . . . posed a realistic threat to the safety of [Defendants] or a risk of flight
that justified the degree of force used.” Id.

“Because officers have the right to make arrests and investigatory stops, they
are permitted to use some degree of physical coercion or threats to facilitate an
arrest or stop.” Nieters v. Holtan, 83 F.4th 1099, 1108 (8th Cir. 2023) (citing

Wilson v. Lamp, 901 F.3d 981, 989-90 (8th Cir. 2018)). But “an officer’s ‘use of
force against a suspect who was not threatening and not resisting’ is unreasonable.”
Wilson, 901 F.3d at 990 (quoting Shannon v. Koehler, 616 F.3d 855, 864-65 (8th
Cir. 2010). “The use of force is least justified against a nonviolent misdemeanant

who does not flee or actively resist arrest and poses little threat to officers or the
public.” Westwater, 60 F.4th at 1129 (quoting Kohorst v. Smith, 968 F.3d 871, 876
(8th Cir. 2020)).

Under Missouri law, “a police officer has the benefit of official immunity,”
which “protects public employees from liability for alleged acts of negligence
committed during the course of their official duties for the performance of
discretionary acts.” Boude v. City of Raymore, 855 F.3d 930, 935 (8th Cir. 2017)

(citation modified). An officer’s decisions to arrest someone and to use force in the
performance of his duties are discretionary. Id. Official immunity does not apply
“when an officer ‘uses more force than is reasonably necessary’ when making an
arrest.” Hendrix v. City of St. Louis, 636 S.W.3d 889, 902 (Mo. Ct. App. 2021)
(quoting Neal v. Helbling, 726 S.W.2d 483, 487 (Mo. Ct. App. 1987)).

Under the totality of the circumstances, the Court finds that there are
genuine disputes of material fact as to whether Defendant Lott used excessive
force against Plaintiff. It is undisputed that Plaintiff was suspected of a nonviolent

misdemeanor, and with respect to the initial tasing, Defendants do not point to any
evidence suggesting that Plaintiff was an immediate threat to the safety of
Defendants or the public, and there is no evidence in the record indicating that
Plaintiff was actively resisting or attempting to flee prior to the initial tasing.

Although Defendants contend that the initial tasing was reasonable because
Plaintiff did not immediately comply with Defendant Lott’s orders to put his hands
behind his back, “[n]oncompliance and arguing do not amount to active

resistance.” Tatum v. Robinson, 858 F.3d 544, 549 (8th Cir. 2017) (collecting
cases). Additionally, there is nothing in the record indicating that Defendant Lott
was faced with the need to make any “split-second judgments” or that the
circumstances were “tense, uncertain, and rapidly evolving” in the moments before

he first deployed the taser. See Graham, 490 U.S. at 396-97.
Defendants contend that Defendant Lott’s subsequent kicks to Plaintiff’s
groin, blows to Plaintiff’s face, and deployments of the taser were reasonable

because the videos of the incident show that Plaintiff was struggling for control of
the taser and resisting arrest, but the videos do not conclusively disprove Plaintiff’s
view of the incident, which is that his body instinctively turned away from and

attempted to bat away the unexpected source of pain when Defendant Lott initially
drive stunned him in the back without a warning. The videos also do not clearly
contradict Plaintiff’s allegation that he was not resisting arrest or attempting to

grab the taser when Defendant Lott kicked him at least twice in the groin and
struck him repeatedly in the head and face while he was pinned to the ground
under Defendant Lott’s weight. A jury could believe Plaintiff’s version of
events—namely, that after the initial tasing, he only raised his arms to maintain

balance and protect his face and body from Defendant Lott’s blows. See
Westwater, 60 F.4th at 1129 (“[W]hen opposing parties tell two different stories,
the court must view material disputed facts in a light most favorable to the

non-moving party.” (citation modified)). Additionally, the video evidence shows
that Defendant Lott’s final deployment of the taser took place while Plaintiff was
lying on his stomach and being restrained by three police officers, and the videos
do not conclusively show that Plaintiff was actively resisting arrest at that time.

Thus, viewing the facts in the light most favorable to Plaintiff, the Court cannot
conclude that Defendant Lott’s uses of force were objectively reasonable as a
matter of law.
Defendants argue that Plaintiff cannot show that the case law was clearly
established such that a reasonable officer in Defendant Lott’s position would

understand that his conduct violated Plaintiff’s constitutional rights under the
circumstances. The Court disagrees. It is clearly established that “an officer’s ‘use
of force against a suspect who was not threatening and not resisting’ is

unreasonable.” Wilson, 901 F.3d at 990 (quoting Shannon, 616 F.3d at 864-65);
see, e.g., Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (“[I]t
is clearly established that force is least justified against nonviolent misdemeanants
who do not flee or actively resist arrest and pose little or no threat to the security of

the officers or the public.”); Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006)
(concluding that defendant’s use of pepper spray “may have been a gratuitous and
completely unnecessary act of violence” that violated plaintiff’s Fourth

Amendment rights where plaintiff asserted that he did not resist arrest, was lying
on the ground, and posed “little or no threat” to the safety of anyone (citation
modified)); cf. Bauer v. Norris, 713 F.2d 408, 412 (8th Cir. 1983) (“The use of any
force by officers simply because a suspect is argumentative, contentious, or

vituperative is not to be condoned.” (citation modified)). Accordingly, summary
judgment must be denied as to Counts I and IV.
2. § 1983 Failure to Intervene (Count II)
Defendants argue that Defendant Butler-Cherry had no duty to intervene

because Defendant Lott’s uses of force were reasonable. Alternatively, if
Defendant Lott’s uses of force were not reasonable, Defendants assert that the
video evidence shows that Defendant Butler-Cherry did not have a reasonable

opportunity to intervene. Plaintiff contends that Defendant Butler-Cherry had
ample time to intervene as Defendant Lott was tasing, kicking, and hitting him.
It is “clearly established that a state actor may be liable for an unreasonable
seizure under the Fourth Amendment if he fails to intervene to prevent the

unconstitutional use of excessive force by another official.” Krout v. Goemmer,
582 F.3d 557, 565 (8th Cir. 2009). A police officer may be liable for failing to
“intervene to prevent the use of excessive force when (1) the officer observed or

had reason to know that excessive force would be or was being used, and (2) the
officer had both the opportunity and the means to prevent the harm from
occurring.” Robinson v. Payton, 791 F.3d 824, 829 (8th Cir. 2015) (quoting Nance
v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009)).

Taking the evidence in the light most favorable to Plaintiff, a reasonable jury
could find that Defendant Butler-Cherry violated Plaintiff’s clearly established
rights when she observed Defendant Lott’s uses of excessive force and had an

adequate opportunity to intervene but failed to do so. Defendants contend that there
was no reasonable opportunity for Defendant Butler-Cherry to intervene, but they
point to no evidence that specifically contradicts Plaintiff’s contention that

Defendant Butler-Cherry was in a position to prevent Defendant Lott’s excessive
uses of force and failed to do so.
The video evidence shows that approximately two minutes elapsed between

Defendant Lott’s first and final deployments of the taser and that Defendant
Butler-Cherry was standing next to Plaintiff and Defendant Lott the entire time.
Based on these facts, the Court finds that Plaintiff has established a submissible
case against Defendant Butler-Cherry for failing to intervene. Nance, 586 F.3d at

612 (concluding that an officer may be liable for “failure to take action to
deescalate the situation if he had an opportunity and means to do so” where
defendant admitted that he failed to give any warning or try to stop another officer

from using excessive force (citation modified)); Krout, 583 F.3d at 566 (holding
that five minutes was “a period which a jury could find sufficient to afford the
onlooking officers an opportunity to intervene”); Forgarty v. Gallegos, 523 F.3d
1147, 1164 (10th Cir. 2008) (holding that a period of three minutes was sufficient

to give defendant an opportunity to intervene); see also Abdullahi v. City of
Madison, 423 F.3d 763, 774 (7th Cir. 2005) (“Whether an officer had sufficient
time to intervene or was capable of preventing the harm caused by the other officer

is generally an issue for the trier of fact unless, considering all the evidence, a
reasonable jury could not possibly conclude otherwise.” (quoting Lanigan v. Vill.
of E. Hazel Crest, 110 F.3d 467, 478 (7th Cir. 1997))). Thus, Defendant

Butler-Cherry is not entitled to summary judgment on Count II.
3. § 1983 Unlawful Seizure (Count III) & State Law False Arrest
(Count V)

Defendants argue that Defendant Lott is entitled to qualified immunity on
Counts III and V because he had arguable probable cause to arrest Plaintiff for
driving while intoxicated and driving with a revoked license. Plaintiff counters that
there are genuine disputes of material fact about whether Defendant Lott had
probable cause to arrest him for the alleged offenses.
“A warrantless arrest is reasonable under the Fourth Amendment ‘where

there is probable cause to believe that a criminal offense has been or is being
committed.’” Dunn v. Does 1-22, 116 F.4th 737, 746 (8th Cir. 2024) (quoting
Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). And in 2023, it was clearly

established that “a warrantless arrest, unsupported by probable cause, violates the
Fourth Amendment.” Id. (quoting Thurairajah v. City of Fort Smith, 925 F.3d 979,
984 (8th Cir. 2019)).
Under Missouri law, “[a] false arrest occurs when there is a confinement

without legal justification.” Kurtz v. Shrewsbury, 245 F.3d 753, 757 (8th Cir. 2001)
(citing Desai v. SSM Health Care, 865 S.W.2d 833, 836 (Mo. Ct. App. 1993)).
“The unlawfulness of the restraint is a key element in a cause of action for false
arrest.” Id. (citing Desai, 865 S.W.2d at 836). “A police officer who has probable
cause to believe that a suspect has committed a crime is not liable for the state law

tort of false arrest simply because the suspect is later proven innocent or the
charges are dismissed.” Id. (citing Hannah v. City of Overland, 795 F.2d 1385,
1389 (8th Cir. 1986)).

“Probable cause exists when the totality of the circumstances shows that a
prudent person would believe that the arrestee has committed a crime.” Amrine v.
Brooks, 522 F.3d 823, 832 (8th Cir. 2008) (citing Illinois v. Gates, 462 U.S. 213,
238-39 (1983)). “Exculpatory evidence is therefore relevant to whether an officer

has probable cause.” Id. “An officer contemplating an arrest is not free to disregard
plainly exculpatory evidence, even if substantial inculpatory evidence (standing by
itself) suggests that probable cause exists.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th

Cir. 1999) (citing Bigford v. Taylor, 834 F.3d 12134, 1218 (5th Cir. 1988)). “But
officers are still entitled to qualified immunity if they have arguable probable
cause—that is, ‘if they arrest a suspect under the mistaken belief that they have
probable cause to do so, provided that the mistake is objectively reasonable.’”

Dunn, 116 F.4th at 746 (quoting Amrine, 522 F.3d at 832). “That the officer may
have mistakenly thought he had probable cause to arrest for other offenses is
immaterial so long as probable cause existed for the one offense.” Arnott v.
Mataya, 995 F.2d 121, 124 n.3 (8th Cir. 1993) (citing Linn v. Garcia, 531 F.2d
855, 862 (8th Cir. 1976)).

At the time of Plaintiff’s arrest, existing precedent established that a
warrantless arrest must be supported by probable cause and that in assessing
whether probable cause exists, “an officer must not disregard plainly exculpatory

evidence, even if substantial inculpatory evidence suggests that probable cause
exists.” Bell v. Neukirch, 979 F.3d 594, 608 (8th Cir. 2020) (citing Kuehl, 173 F.3d
at 650). “Law enforcement officers have a duty to conduct a reasonably thorough
investigation prior to arresting a suspect, at least in the absence of exigent

circumstances and so long as ‘law enforcement would not be unduly hampered if
the agents wait to obtain more facts before seeking to arrest.” Kuehl, 173 F.3d at
650 (citation modified). “An officer need not conduct a ‘mini-trial’ before making

an arrest, . . . but probable cause does not exist when a ‘minimal further
investigation’ would have exonerated the subject.” Id. (citation modified). “As
probable cause is determined ‘at the moment the arrest was made,’ any later
developed facts are irrelevant to the probable cause analysis for an arrest.” Amrine,

522 F.3d at 832 (quoting United States v. Rivera, 370 F.3d 730, 733 (8th Cir.
2004)).
In Kuehl and Bell, the Eighth Circuit held that there was no probable cause

to arrest the subjects where readily available exculpatory evidence showed that no
offense was committed. Kuehl, 173 F.3d at 650; Bell, 979 F.3d at 608-09. In Kuehl,
the court concluded that there was no arguable probable cause because the officer

there had spoken with the suspect for only twenty seconds, ignored exculpatory
evidence, and disregarded an eyewitness account. 173 F.3d at 650. In Bell, the
Eighth Circuit determined that a reasonable jury could conclude that the officer did

not reasonably consider exculpatory video evidence because “it should have been
obvious to any reasonable officer that [plaintiff’s clothing] were different from the
suspect’s [clothing] at the scene.” 979 F.3d at 608. The court explained that
“[q]ualified immunity requires more than subjective good faith; it requires

objectively reasonable official conduct.” Id. at 608-09 (citing Harlow v. Fitzgerald,
457 U.S. 800, 815-16 (1982)). “Simply scanning a video does not make conduct
objectively reasonable if an officer ignores or overlooks plainly exculpatory

evidence.” Id. at 609 (citing Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259-60
(10th Cir. 1998)). Thus, the Eighth Circuit concluded that “[a]n officer who
repeatedly watched the video and failed to take note of the substantial
discrepancies between Bell and the suspect demonstrates less diligence that what is

expected of competent police officers about to limit someone’s liberty by arrest.”
Id.
In Furlow v. Belmar, the Eighth Circuit explained that:

a warrantless arrest prompted by a notice from one officer to another is
unconstitutional unless: (1) the arresting officer is able to make an
independent finding of probable cause . . . or (2) the arresting officer
has been working closely with the officer who made the initial and valid
probable cause determination (encompassing both hot pursuit/fleeing
suspect cases and collective knowledge doctrine cases).

52 F.4th 393, 404-05 (8th Cir. 2022) (citation modified). In Furlow, the Eighth
Circuit concluded that the defendant detective was not entitled to qualified
immunity because—while it was arguable that the detective had probable
cause when she first issued the warrantless electronic notice (“Wanted”)—by
the time the defendant was arrested pursuant to the wanted, the detective did
not make herself aware of the development of a state agency’s investigation
into the suspect’s alleged conduct, which had been closed based on a finding
of insufficient evidence; did not speak to the suspect about the allegations;

and did not interact with any of the investigating agency’s employees. Id. at
405. The Eighth Circuit concluded that under the circumstances, the detective
“should have known that probable cause had evaporated” because if she “had

engaged in even ‘minimal further investigation,’ then she would have been
aware that probable cause (or even arguable probable cause) had dissipated,
leave no continuing justification for the Wanted.” Id.
With respect whether Defendant Lott had probable cause to believe that

Plaintiff was driving while intoxicated, most of the material facts leading up to the
arrest are in dispute. If Defendants’ version of the facts is true, then Defendant Lott
had probable cause to arrest Plaintiff, but if Plaintiff’s version is true, then
Defendant Lott lacked probable cause. And contrary to Defendants’ assertion, the
video evidence does not clearly disprove Plaintiff’s version of events. “In such a

case, where the facts are disputed or where they are subject to different inferences,
the question of probable cause is for the jury and summary judgment is
inappropriate.” Arnott, 995 F.2d at 124 (citing Linn, 531 F.2d at 861).

Defendants’ only argument that Defendant Lott had probable cause to arrest
Plaintiff for driving with a revoked license is that Defendant Butler-Cherry “was
told by dispatch that Plaintiff’s license was revoked. She told this to Sgt. Lott, who
then had arguable probable cause to arrest Plaintiff for driving while revoked.”

[ECF No. 87 at 7]. Plaintiff emphasizes that his license was not, in fact, revoked at
the time of his arrest and contends that, in the absence of exigent circumstances,
Defendant Lott lacked probable cause, failed to conduct a reasonably thorough

investigation, and failed to give him an opportunity to explain that the revocation
had been stayed prior to arresting him. [ECF No. 80 at 23].
Defendants have not shown that Defendant Lott had arguable probable cause
to arrest Plaintiff for driving with a revoked license. It is undisputed that Defendant

Lott “was not himself possessed of any factual data tending to corroborate” that
Plaintiff was driving with a revoked license, see Whiteley v. Warden, Wyo. State
Penitentiary, 401 U.S. 560, 568 (1971), and that—in the absence of exigent

circumstances—Defendant Lott did not attempt to make an independent finding of
probable cause even though readily available exculpatory evidence such as REJIS
and the docket in Plaintiff’s revocation case showed that no offense was

committed, see Furlow, 52 F.4th at 405 (explaining that a “warrantless arrest
prompted by a notice from one officer to another is unconstitutional unless: (1) the
arresting officer is able to make an independent finding of probable cause . . . or

(2) the arresting officer has been working closely with the officer who made the
initial and valid probable cause determination” (citation modified)); Bell, 979 F.3d
at 605, 608-09 (concluding that the officers lacked probable cause where they
could have used “readily available sources” for corroborative identification);

Romero v. Fay, 45 F.3d 1472, 1476-77 & n. 2 (10th Cir. 1995) (stating that police
need not interview alleged alibi witnesses but must “reasonably interview
witnesses readily available at the scene, investigate basic evidence, or otherwise

inquire if a crime has been committed at all before invoking the power of
warrantless arrest and detention”); Sevigny v. Dicksey, 846 F.2d 953, 957 n.5 (4th
Cir. 1988) (“Objective inquiry into the reasonableness of an officer’s perception of
the critical facts leading to an arrest . . . must charge him with possession of all the

information reasonably discoverable by an officer acting reasonably under the
circumstances.” (citation modified)); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.
1986) (“A police officer may not close her or his eyes to facts that would help

clarify the circumstances of an arrest. Reasonable avenues of investigation must be
pursued especially when, as here, it is unclear whether a crime had even taken
place.”).

Defendants do not dispute that the revocation of Plaintiff’s license had been
stayed or that REJIS reflected that the revocation had been stayed at the time of
Plaintiff’s arrest, and they do not argue that either Defendant Butler-Cherry or the

police dispatcher had probable cause that could be imputed to Defendant Lott. Cf.
United States v. De Leon-Reyna, 898 F.2d 486, 490 (5th Cir. 1990) (“The
government cannot bootstrap reasonable suspicion from an officer’s good faith
reliance on a radio report when the . . . dispatcher lacked reasonable suspicion. The

issuance of an incorrect registration report due to police negligence is no different
from the distribution of a wanted flyer without reasonable suspicion in Whiteley.”);
United States v. Thompson, 906 F.2d 1292, 1296 n.7 (8th Cir. 1990) (explaining

that an officer “was entitled to rely on the information [that had been received by
another officer from a reliable confidential informant and] transmitted over the
all-points bulletin as long as the originator of the radio bulletin had reasonable
suspicion to believe a crime would be or had been committed”) (citing Hensley,

469 U.S. at 232). Thus, Defendant Lott’s reliance on Defendant Butler-Cherry’s
incorrect statement was not objectively reasonable. See De Leon-Reyna, 898 F.2d
at 489-90 (“[T]he police may not rely upon incorrect or incomplete information

when they are the ones responsible for that faulty information.” (citing LaFave, 2
SEARCH & SEIZURE § 3.5(b) (2d ed. 1987))); State v. Kinkead, 983 S.W.2d 518
(Mo. 1998) (en banc) (concluding that the state failed to show that the dispatch was

based on probable cause where the defendant had shown that the dispatcher’s
information that his license had been suspended was false and the prosecution
“made no attempt to show that the dispatcher had probable cause”).

Like the defendants in Furlow and Kuehl, if Defendant Lott had “engaged in
even ‘minimal further investigation,’ then []he would have been aware that
probable cause (or even arguable probable cause) had dissipated.” See Furlow, 52
F.4th at 405; Kuehl, 173 F.3d at 650. And nothing in the record suggests that

Defendant Lott would have been “unduly hampered” by running a separate REJIS
search, reviewing the docket in Plaintiff’s municipal case, and conducting “a more
thorough interview of [Plaintiff].” See Kuehl, 173 F.3d at 650-51 (collecting

cases); Romero, 45 F.3d at 1476-77 (“[T]he probable cause standard of the Fourth
Amendment requires officers to reasonably interview witnesses readily available at
the scene, investigate basic evidence, or otherwise inquire if a crime has been
committed at all before invoking the power of warrantless arrest and detention.”).

Accordingly, summary judgment will be denied as to Counts III and V.
III. Motion to Exclude Defendants’ Expert
Plaintiff moves to exclude the opinions, testimony, and report of

Defendants’ police-practices expert, Steven Ijames, under Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702. Plaintiff
argues that all four of Ijames’s opinions constitute impermissible legal conclusions,

would not assist the jury, and are irrelevant, unreliable, and inadmissible.
Defendants argue that certain portions of Opinions I and II are admissible and will
assist the jury in deciding whether Defendant Lott had probable cause to arrest

Plaintiff and whether he used excessive force. They concede, however, that
Opinions III and IV, which relate to Plaintiff’s battery and failure-to-intervene
claims, constitute impermissible legal conclusions. As a result, Opinions III and IV
will be excluded. Opinions I and II will be also excluded for the reasons that

follow.
A. Ijames’s Report
Opinion I concerns whether Defendant Lott had arguable probable cause to

arrest Plaintiff. In his report, Ijames provides the following summary for Opinion I:
Sergeant Lott had adequate knowledge and reasonably trustworthy
information, facts, and a totality of circumstances that were sufficient
to lead a prudent, experienced, and professionally trained police officer
to believe that Mr. Omar O’Hara had committed the crimes of operating
a motor vehicle with a revoked license and while intoxicated.
Accordingly, his arrest was not an unreasonable seizure but was based
on a totality of circumstances that a prudent, experienced and
professionally trained police officer would have recognized as adequate
probable cause, and was not a “false arrest/imprisonment” but an arrest
that was justified, appropriate, consistent with generally and commonly
accepted police training, policy, and practice, and consistent with that
of a prudent, experienced, and professionally trained police officer
facing these or similar circumstances.

[ECF No. 70-2 at 2]. In his report, Ijames states that Opinion I is based on his review
of the video evidence, out-of-court interviews with Defendants at the UCPD on
August 12, 2024, and the narrative from Defendant Butler-Cherry’s police report.
Id. at 2-8. He concludes that:
If it is assumed that the information provided by Sgt. Lott and Officer
Butler-Cherry accurately characterizes what they observed and or
reasonably perceived and believed, then the totality of circumstances
outlined above would have been adequate knowledge and reasonably
trustworthy information and facts, sufficient to lead prudent,
experienced, and professionally trained police officers to believe that
Mr. Omar O’Hara had committed the crimes of operating a motor
vehicle with a revoked license and while intoxicated.

Id. at 8.
In Opinion II, Ijames discusses Defendant Lott’s uses of force. In his report,
Ijames summarizes Opinion II as follows:
The soft empty hand, TASER, and hard empty hand (kicking/striking)
force used by Sgt. Lott against Mr. Omar O’Hara was based on
adequate cause, basis, and provocation, was used to overcome the
resistance to arrest being put forth, was used to control/secure/recover
and prevent the unlawful procurement of a police weapon (TASER) by
the suspect, was in self-defense and defense of others, and was to effect
an arrest. Accordingly[,] the force used was not excessive, was
consistent with that of a prudent, experienced, and professionally
trained police officer facing these or similar circumstances, and was
consistent with commonly accepted police training, policy, and practice
when facing these or similar circumstances.
[ECF No. 70-2 at 8-9]. Ijames states that Opinion II is based on his review of the
video evidence, his out-of-court interview with Defendant Lott, national policing

standards, and the UCPD’s Use of Force Policy. Screenshots from the video
evidence are interspersed throughout Ijames’s report, most of which are
accompanied by captions describing what he claims the screenshots show.10

In the final “Overall Force Assessment” section, Ijames says that “[i]n
assessing whether the overall force used and referenced above was consistent with
generally and commonly accepted police training and practice, the totality of
circumstances presented should be viewed in the context of the key factors

referenced under Graham v. Connor[:]”
• The severity of the crime involved: The totality of circumstances
presented would have caused a prudent, experienced, and
professionally trained police officer to believe that Mr. O’Hara had
been placed under arrest for operating a motor vehicle under revocation
and while intoxicated, and that he then feloniously disarmed and
assaulted a police officer while resisting the above referenced arrests.

10 Based on the allegations in Ijames’s report, it appears that his interview
with Defendant Lott involved reviewing the video evidence with Defendant Lott
and asking him to characterize what was happening at any given moment. All of
Ijames’s captions are consistent with his allegations about what Defendant Lott
purportedly told him during the out-of-court interview. See, e.g., [ECF No. 70-2 at
13] (stating in the body of the report that “Lott addressed this point of the
interaction during out interview, stating, ‘I fell and rolled, and put myself of top of
him. . . . He then grabbed the TASER. . . .”; and stating in the caption, “Mr.
O’Hara grabbing Sgt. Lott’s right arm/wrist, which is holding the TASER”).
Contrary to Ijames’s caption, the screenshot does not show Plaintiff holding the
taser. Defendant Lott’s body is blocking the view, and the taser’s light—which
points in the same direction as the taser’s electrodes—is pointed at Plaintiff’s back.
• The immediate threat to the safety of officers or others: Mr.
O’Hara was actively and assaultively resisting arrest, was attempting to
disarm Sgt. Lott and reportedly disarmed Sgt. Lott. The TASER is a
less lethal device when used lawfully as designed and intended.
Likewise, in the hands of a suspect who has feloniously taken it from a
police officer and is using it or potentially using against him while
resisting arrest (as a striking instrument, or electronically to gain
tactical advantage and increase the probability of causing death or
serious physical injury), this has provided adequate cause and basis for
the justified use of deadly force on numerous occasions nationwide.
Accordingly, the totality of these circumstances would have caused a
prudent, experienced, and professionally trained police officer to
reasonably believe that Mr. O’Hara was an immediate threat to officers.
• The suspect actively resisting seizure: Mr. O’Hara was actively
resisting seizure and doing so while attempting to disarm and after
having disarmed a police officer.
• Rapidly evolving circumstances: The totality of circumstances
presented in this case were tense, uncertain, and rapidly evolving.

Id. at 24-25.

“In consideration of the totality of circumstances and information provided
above,” Ijames concludes that:
a prudent, experienced, and professionally trained police officer facing
these or similar circumstances would have believed that the key factors
in Graham v. Connor had been met, and that he/she was justified to use
the soft empty hand, grappling techniques, TASER, and kicks/strikes
as described and acknowledged in self-defense, defense of others, to
overcome resistance to control, to prevent disarming and to recover a
lost weapons, and to effect an arrest.

Id. at 25.

B. Legal Standard
“The proponent of the expert testimony must prove its admissibility by a
preponderance of the evidence.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686
(8th Cir. 2001) (citing Daubert, 509 U.S. at 592). The admissibility of expert
testimony is governed by Federal Rule of Evidence 702. Rule 702 imposes a

special gatekeeping obligation on district courts to ensure that expert testimony “is
not only relevant, but reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999) (quoting Daubert, 509 U.S. at 589). Rule 702 “permits a qualified

expert to give opinion testimony if the expert’s specialized knowledge would allow
the jury to better understand the evidence or decide a fact in issue.” Lee v.
Andersen, 616 F.3d 803, 808 (8th Cir. 2010) (citing United States v. Arenal, 768
F.2d 263, 269 (8th Cir. 1985)).

“The inquiry envisioned by Rule 702 is a flexible one.” Adams v. Toyota
Motor Corp., 867 F.3d 903, 914 (8th Cir. 2017). “The test for determining the
appropriateness of expert testimony is ‘the common sense inquiry whether the

untrained layman would be qualified to determine intelligently and to the best
possible degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute.’” Pelster v. Ray,
987 F.2d 514, 526 (8th Cir. 1993) (quoting Fed. R. Evid. 702 advisory committee’s

note). “The touchstone for the admissibility of expert testimony is whether it will
assist or be helpful to the trier of fact.” Lee, 616 F.3d at 808 (citing McKnight ex
rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994)).

“Rule 704(a) provides that expert evidence is not inadmissible because it
embraces an ultimate issue to be decided by the jury.” Id. at 808-09. “If the subject
matter is within the jury’s knowledge or experience, however, the expert testimony

remains subject to exclusion ‘because the testimony does not then meet the
helpfulness criterion of Rule 702.’” Id. (citing Arenal, 768 F.2d at 269). “Opinions
that ‘merely tell the jury what result to reach’ are not admissible.” Id. (quoting Fed.
R. Evid. 704 advisory committee’s note). “[C]ourts must guard against ‘invad[ing]

the province of the jury on a question which the jury was entirely capable of
answering without the benefit of . . . expert opinion.” Robertson v. Norton Co., 148
F.3d 905, 908 (8th Cir. 1998) (quoting Walton v. Sherwin-Williams Co., 191 F.2d

277, 285 (8th Cir. 1951)).
C. Discussion
1. Opinion I
Plaintiff argues that Ijames’s opinions that Plaintiff’s arrest “was not an

unreasonable seizure,” was supported by “reasonably trustworthy information” and
“adequate probable cause,” “was not a ‘false arrest/imprisonment,’” and “was
justified, appropriate, and consistent with generally and commonly accepted police

training, policy, and practice” are impermissible legal conclusions. Plaintiff
contends that Ijames’s opinions as to what the video evidence portrays are
irrelevant and unhelpful to the jury. Defendants concede that “the Court may

appropriately preclude Mr. Ijames from opining that this ‘was not an unreasonable
seizure’ or that ‘probable cause’ to arrest existed.” [ECF No. 73 at 5]. But they
contend that Ijames “will provide an explanation of established policing standards

and . . . context for the actions taken by [Defendants] in light of those standards.”
Id. Defendants assert that Ijames should be able to conclude that Plaintiff’s arrest
was within policing standards “if it is assumed that Sgt. Lott made the findings that
he claims to have made.” Id. at 6.

“A trial court may . . . exclude opinion testimony if it is so couched in legal
conclusions that it supplies the fact finder with no information other than what the
witness believes the verdict should be.” Williams v. Wal-Mart Stores, Inc., 922

F.2d 1357, 1360 (8th Cir. 1990) (citing Hogan v. AT&T, 812 F.2d 409, 411 (8th
Cir. 1987)); Lee, 616 F.3d at 809 (“Opinions that ‘merely tell the jury what result
to reach’ are not admissible.” (quoting Fed. R. Evid. 704 advisory committee’s
note)). The Eighth Circuit has repeatedly held that an expert’s opinion about

whether an officer’s conduct was reasonable in light of constitutional standards and
“nationally accepted standards” is a legal conclusion that does not assist the jury in
determining the facts and is therefore inadmissible. See, e.g., Peterson v. City of

Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (holding that it was an abuse of
discretion to allow police-practices expert to testify that “each action the officers
took was consistent with ‘nationally accepted standards’” and that “the officers’

conduct comported with the ‘standards under the Fourth Amendment’” because it
was a “statement of legal conclusion”); Schmidt v. City of Bella Villa, 557 F.3d
564, 570 (8th Cir. 2009) (concluding that the opinions of a police-practices expert

regarding the overall reasonableness of evidence-collection and strip-search
procedures used were impermissible legal conclusions).
In Peterson, the district court allowed a police-practices expert to testify on
behalf of the defendant officers to show that they had acted reasonably in their

encounter with the plaintiff. 60 F.3d at 475. The expert “set forth his opinion as to
why each action the officers took was consistent with ‘nationally accepted
standards’” and “comported with the ‘standards under the Fourth Amendment.’”

Id. The Eighth Circuit explained that while “[b]oth probable cause and qualified
immunity are ultimately questions of law,” the jury’s role was “limited to settling
disputes as to predicate facts,” which meant that “the jury was entitled to determine
what facts were known to the officers at the time of the arrest.” Id. (citing Arnott,

995 F.2d at 123-24). “None of [the expert]’s testimony assisted the jury in this
regard” because the expert’s “testimony involved only his views concerning the
reasonableness of the officers’ conduct in light of ‘Fourth Amendment standards.’”

Id. Thus, the expert’s testimony “was not a fact-based opinion, but a statement of
legal conclusion.” Id. (citing Estes v. Moore, 993 F.2d 161, 163 (8th Cir. 1993)
(per curiam)). Because “[t]he legal conclusions were for the court to make,” the

Eighth Circuit concluded that “[i]t was an abuse of discretion to allow the
testimony.” Id.
As Defendants concede, much of Opinion I consists of impermissible legal

conclusions about the reasonableness of Defendant Lott’s conduct in light of
constitutional standards. See Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816
(8th Cir. 2010) (“Whether the police had probable cause at the time of [plaintiff]’s
arrest is a question of law for a court to decide.” (citing Peterson, 60 F.3d at 475));

Estes, 993 F.2d at 163 (“While the existence of probable cause is a mixed question
of law and fact, the ultimate conclusion is a question of law. . . . The proposed
testimony was, therefore, not opinion testimony but rather it was a statement of a

legal conclusion.” (citation modified)). Just like the expert’s testimony in Peterson,
Opinion I “set[s] forth [Ijames’s] opinion as to why each action [Defendant Lott]
took was consistent with ‘nationally accepted standards,’” and “[h]is overall
opinion [i]s that the officer[’s] conduct comported with the ‘standards under the

Fourth Amendment.’” Peterson, 60 F.3d at 475. Because Opinion I “involves only
[Ijames’s] views concerning the reasonableness of [Defendant Lott’s] conduct in
light of ‘Fourth Amendment standards,” it does not constitute a “fact-based

opinion, but a statement of legal conclusion.” Id. And legal conclusions are for the
Court to make, not an expert witness. See id. (“The legal conclusions were for the
court to make. It was an abuse of discretion to allow the [police-practices expert’s]

testimony.”); see also S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc.,
320 F.3d 838, 841 (8th Cir. 2003) (“Matters of law are for the trial judge, and it is
the judge’s job to instruct the jury on them.”); United States v. Klaphake, 64 F.3d

435, 438-39 (8th Cir. 1995) (“As a general rule, ‘questions of law are the subject of
the court’s instructions and not the subject of expert testimony.’” (quoting United
States v. Vreeken, 803 F.2d 1085, 1091 (10th Cir. 1986))).
Opinion I also “invad[es] the province of the jury on a question which the

jury [i]s entirely capable of answering without the benefit of . . . expert opinion.”
Robertson, 148 F.3d at 908 (quoting Walton, 191 F.2d at 285). Like the expert
opinion in Lee, Opinion I is “based on [Ijames’s] observation of the video[s]—he

did not employ any technique or utilize any specialized skill that is unavailable to
the jury.” Lee, 616 F.3d at 808. Because the jury will be “entirely capable of
analyzing the images” and drawing inferences about what Defendants knew at the
time of Plaintiff’s arrest, Opinion I “does not . . . meet the helpfulness criterion of

Rule 702.” Id. at 809; Pelster, 987 F.2d at 526 (“The test for determining the
appropriateness of expert testimony is ‘the common sense inquiry whether the
untrained layman would be qualified to determine intelligently and to the best

possible degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute.’” (quoting Fed. R.
Evid. 702 advisory committee’s note)).

Further, the report makes clear that in reaching Opinion II, Ijames relied
heavily on Defendants’ out-of-court statements about the incident and the narrative
in Defendant Butler-Cherry’s police report, all of which is inadmissible hearsay,

and that he accepted Defendant’s hearsay version of events as true.11 As such,
Ijames’s testimony would be unhelpful and usurp the jury’s task of assessing the
witnesses’ credibility. See Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 883 (8th
Cir. 1998) (explaining that expert testimony “is not helpful if it draws inferences or

reaches conclusions within the jury’s competence or within an exclusive function
of the jury” (citing United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997)));
Westcott v. Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995) (“[A]n expert may not go

so far as to usurp the exclusive function of the jury to weigh the evidence and
determine credibility. . . . Nor may an expert pass judgment on a witness’
truthfulness in the guise of a professional opinion.” (citation modified)). The jury

11 See, e.g., [ECF No. 70-2 at 2] (“On August 12, 2024, . . . I met with
Sergeant Lott at the [UCPD and] asked him to tell me about his interaction with
Mr. Omar O’Hara on March 15, 2023. He told me that . . . .”), id. at 3 (“Sergeant
Lott told me that he was concerned the driver was intoxicated. . . .”), id. at 5 (“Lott
said that Mr. O’Hara then attempted the test, and the following results were
observed.”); id. at 8 (“If it is assumed that the information provided by Sgt. Lott
and Officer Butler-Cherry accurately characterizes what they observed . . ., then
the totality of circumstances. . . .”).
will be entirely capable of reviewing the video evidence and determining whether
Defendants’ testimony is credible without Ijames’s testimony. See Nichols, 154

F.3d at 883 (“Weighing evidence and determining credibility are tasks exclusive to
the jury, and an expert should not offer an opinion about the truthfulness of witness
testimony.” (citation modified)).

In short, Opinion I is so couched in legal conclusions and impermissible
credibility determinations that it would provide the jury with no information other
than what Ijames believes the verdict should be. See Williams, 922 F.2d at 1360
(“A trial court may . . . exclude opinion testimony if it is so couched in legal

conclusions that it supplies the fact finder with no information other than what the
witness believes the verdict should be.” (citing Hogan, 812 F.2d at 411)); Lee, 616
F.3d at 809 (“Opinions that ‘merely tell the jury what result to reach’ are not

admissible.”). Thus, Opinion I will be excluded.
2. Opinion II
Opinion II is inadmissible for the same reasons as Opinion I. Ijames’s
opinion that “[i]n assessing whether the overall force used and referenced above

was consistent with generally and commonly accepted police training and practice,
the totality of circumstances presented should be viewed in the context of the key
factors referenced under Graham v. Connor” invades the province of the Court by

purporting to instruct the jury on matters of law. See S. Pine Helicopters, 320 F.3d
at 841 (“Matters of law are for the trial judge, and it is the judge’s job to instruct
the jury on them.”); Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992) (“Whereas

an expert may be uniquely qualified by experience to assist the trier of fact, he is
not qualified to compete with the judge in the function of instructing the jury.”).
And Ijames’s opinions that Defendant Lott’s uses of force were “not excessive”

and that a reasonable “officer facing these or similar circumstances would have
believed that the key factors in Graham v. Connor had been met” are
impermissible legal conclusions. See Schmidt, 557 F.3d at 570 (affirming the
district court’s exclusion of a police-practices expert’s testimony as impermissible

legal conclusion where the expert’s “report consisted of his opinions regarding the
overall reasonableness of the procedures used and, as such, were not fact-based
opinions”); Brossart v. Janke, 859 F.3d 616, 624 (8th Cir. 2017) (“Whether the

force used was constitutionally excessive is an issue of law.” (citing Davis v.
White, 794 F.3d 1008, 1013 (8th Cir. 2015))).
Opinion II invades the province of the jury by drawing inferences from
Defendants’ unsworn characterizations of the incident, reaching conclusions about

what the video evidence shows, and “mirroring [Defendants’ hearsay] version of
events” “in the guise of a professional opinion.” See Nichols, 154 F.3d at 883
(explaining that expert testimony “is not helpful if it draws inferences or reaches

conclusions within the jury’s competence or within an exclusive function of the
jury” (citation modified)); Lee, 616 F.3d at 809 (affirming the exclusion of expert
testimony as to what was shown in surveillance footage because “[t]he opinion

would not have assisted the jury but rather would have told it what result to
reach”); Westcott, 68 F.3d at 1076 (“[A]n expert may not go so far as to usurp the
exclusive function of the jury to weigh the evidence and determine credibility. Nor

may an expert pass judgment on a witness’ truthfulness in the guise of a
professional opinion.” (citation modified)); United States v. Cruz, 981 F.2d 659,
664 (2d Cir. 1992) (holding that “expert testimony cannot be used solely to bolster
the credibility of . . . fact-witnesses by mirroring their version of events”). The

jurors will be entirely capable of reviewing the video evidence, assessing the
credibility of the witnesses’ testimony, and drawing reasonable inferences about
what happened during Plaintiff’s arrest without Ijames’s testimony. See Bartak v.

Bell-Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir. 1980) (“Where the subject
matter is within the knowledge or experience of laymen, expert testimony is
superfluous.”).
In an apparent attempt to distance Ijames’s statements concerning Defendant

Lott’s conduct in the context of policing standards from his impermissible legal
conclusions about the reasonableness of his conduct in the context of the Graham
factors, Defendants initially assert that Ijames’s opinions concerning Defendant

Lott’s uses of force “are not in reference to the Fourth Amendment and/or its
‘reasonableness’ standard. Rather, Mr. Ijames has framed his opinions from the
applicable national standards (IACP/NCP) and local agency standards (University

City PD) for police practices.” [ECF No. 73 at 6]. But Defendants later contend
that “a discussion of [the Graham] factors as considerations that are embodied in
police training and . . . practices is appropriate” because “Ijames has explained that

the Graham factors must be considered in determining ‘whether the overall force
used and referenced above was consistent with generally and commonly accepted
police training and practice,’” id. at 8 (quoting [ECF No. 70-2 at 24]), and in his
deposition, “Ijames specifically refers to the Graham factors and how those factors

are taught to and applied by police officers.” Id. Plaintiff counters that, by setting
out “how he thinks the evidence . . . does or does not meet each factor of Graham
v. Connor,” “Ijames is quite literally stating what the law is and how it should be

applied.”12 [ECF No. 74 at 4]. The Court agrees with Plaintiff.
As Defendants acknowledge and the record makes clear, both the IACP and
UCPD policies unsurprisingly incorporate the Fourth Amendment’s reasonableness
standard and the Graham factors. See, e.g., [ECF No. 82-15 at 3] (“The decision

[to use the X26 Taser] must be made dependent on the actions of the subject(s) or

12 Plaintiff also notes that Ijames’s brief summary of the IACP policy in his
report does not include the statement that taser use “should be prohibited on those
who passively resist when they are not reasonably perceived as an immediate
threat.” [ECF No. 74 at 4].
threat facing the officer(s), and the totality of the circumstances surrounding the
incident. In any event, the use of the X26 Taser must be reasonable and

necessary.”); [ECF No. 70-2 at 19] (stating that a taser “is generally authorized to
be used in circumstances where grounds to arrest or detain are present, and the
subject’s actions cause a reasonable officer to believe that physical force will be

used by the subject to resist the arrest or detention”); [ECF No. 70-3 at 3] (“That’s
kind of how officers are taught, to make decisions that are, you know, objectively
reasonable. They assess the facts and then consider the totality of the Graham
factors.”); Electronic Control Weapons, IACP Law Enforcement Policy Center

(Sept. 2023) https://www.theiacp.org/sites/default/files/2023-
09/Electronic%20Control%20Weapons%20-%202023.09.pdf (citing Graham for
the proposition that tasers are “authorized to be used when it is objectively

reasonable under the totality of the circumstances and what is known to the officer
at the time”). Thus, regardless of whether Ijames couches his impermissible legal
conclusions in the context of Graham or the IACP and UCPD standards, it is clear
that Opinion II would provide the jury “with no information other than what

[Ijames] believes the verdict should be.” See Williams, 922 F.2d at 1360; Lee, 616
F.3d at 809 (“The opinion would not have assisted the jury but rather would have
told it what result to reach.”); Peterson, 60 F.3d at 475 (holding that it was an

abuse of discretion to allow police-practices expert to testify that “each action the
officers took was consistent with ‘nationally accepted standards’” and that “the
officers’ conduct comported with the ‘standards under the Fourth Amendment’”
because it was a “statement of legal conclusion’’). As such, Opinion II must be
excluded.
IV. Conclusion
Based on the foregoing analysis, Defendants’ Motion for Summary
Judgment is denied. Plaintiff's Motion to Exclude Defendants’ Expert is granted.
None of Ijames’s proffered opinions are admissible. Thus, his testimony, report,
and deposition will be excluded.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment, [ECF No. 64], is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Exclude
Defendants’ Expert, [ECF No. 69], is GRANTED.
Dated this 4" day of September, 2025.
Kash doed [lbp
~ HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

42

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11133242. Public record. Not legal advice.