Packard v. The City Of New York

Background

George Packard, Edward Beck, Michelle Berger, and Ari Cowan brought a putative class action under 42 U.S.C. § 1983 against the City of New York. They alleged that their First and Fourth Amendment rights were violated when they were arrested while participating in protests marking the first anniversary of Occupy Wall Street on September 15, 16, and 17, 2012. They alleged that the City failed to properly train New York Police Department officers on applying disorderly-conduct and obstructing-governmental-administration laws to peaceful sidewalk protests.

The City moved to prevent the court from considering the report and opinions of the plaintiffs’ proposed expert, Robert E. Brown, in deciding the parties’ cross-motions for summary judgment and to prevent Brown from testifying at trial. Brown was an attorney and retired New York Police Department captain. The plaintiffs offered him to address whether inadequate or outdated training for police executive officers was connected to the plaintiffs’ arrests.

Legal standard

Federal Rule of Evidence 702 governs expert testimony. The court explained that an expert must be qualified by knowledge, skill, experience, training, or education; rely on sufficient facts or data and reliable methods; and provide testimony that will help the jury understand the evidence or decide a disputed fact. The court serves as the gatekeeper for expert evidence, but exclusion is the exception rather than the rule. Challenges that affect the strength of an expert’s conclusions generally concern the weight of the testimony, which can be tested through cross-examination, rather than its admissibility.

Disclosure requirements

The City argued that the plaintiffs failed to make the required expert disclosure under Federal Rule of Civil Procedure 26(a)(2)(A) and failed to provide a complete statement of Brown’s compensation. The court declined to exclude Brown’s testimony for the disclosure issue because the City had the report, had not shown harm or bad faith, and exclusion would be a drastic remedy. The court also found that the report stated Brown received a $5,000 retainer and charged $425 per hour; any incomplete compensation disclosure could be corrected easily and was harmless on this record.

The court therefore denied the City’s request to exclude Brown’s report and testimony based on alleged Rule 26(a)(2) disclosure deficiencies.

Qualifications, reliability, and helpfulness

The court found Brown qualified to testify about the effect police training can have on officers’ actions. It relied on his fifteen years of New York City law-enforcement experience, service as an executive officer and NYPD captain, supervision of officers, experience at approximately fifty protests and demonstrations, and work involving disciplinary matters and police training.

The court also found Brown’s opinions sufficiently reliable. Although they were not based on traditional scientific methods, they relied on his professional experience, the NYPD procedure manual, and his review of evidence in the case. The court concluded that any weaknesses in his methods, including his calculation of case-dismissal rates, went to the weight of his opinions rather than their admissibility.

The court further found that Brown’s opinions about police training and supervision would help the jury because those subjects were beyond most jurors’ ordinary experience. The court therefore rejected the City’s challenges to Brown’s qualifications, reliability, and helpfulness.

Opinions about probable cause

The City argued that Brown could not testify about whether probable cause existed to arrest the plaintiffs. Probable cause is a legal question, and the court agreed that Brown could not offer an expert opinion deciding it. The court therefore granted the City’s motion to exclude Brown’s testimony on the ultimate legal issue of whether probable cause existed.

The court distinguished that excluded opinion from testimony about accepted police practices. Brown could testify about how the NYPD’s conduct departed from sound professional standards and procedures, so the jury could use those standards when evaluating the police conduct. His role was limited to describing professional standards and identifying departures, not applying the legal standard himself or deciding whether probable cause existed.

Summary-judgment report

A magistrate judge’s report and recommendation stated that Brown’s report had not been used in resolving the parties’ cross-motions for summary judgment. Neither party objected to that recommendation, and Judge Torres found no clear error. The court therefore denied as moot the City’s request to prevent consideration of Brown’s report in resolving the cross-motions for summary judgment.

Disposition

The court concluded that the City’s motion to preclude Brown’s report and opinions at summary judgment and trial was granted in part and denied in part. The clerk was directed to terminate the motion at ECF No. 260.