Written by Muna Busailah and Robert Rabe   

Allgoewer v. City of Tracy, et al, filed July 5, 2012: California Court of Appeal, Third Appellate District

In a case of “first impression” in California, the Court of Appeal has ruled that a plaintiff in a case alleging excessive force by a police officer does not have to present expert testimony on “what force a reasonable law enforcement officer would have used under the same or similar circumstances.”  The trial court granted nonsuit on the ground that the plaintiff could not prevail without offering expert testimony.  The Court of Appeal reversed, stating that the trial court had erred when it concluded that expert testimony was required in the case.

Allgoewer’s ex-wife complained that he had violated a child custody order by failing to return their child to her.  Officer Mejia and Officer Freitas went to Allgoewer’s house, where they found him gardening with a rake in the yard.  Officer Mejia told him he was in violation of the custody order and was going to have to give the child back to his ex-wife.  Allgoewer began to get upset and started to raise his voice. 

Officer Mejia told Allgoewer to put the rake down, but Allgoewer did not comply.  He told the officers he was not going to hurt them.  Officer Freitas told Allgoewer to put the rake down or he was going to “tase” him.  Then, before either officer told him he was under arrest, Officer Freitas moved toward Allgoewer, grabbed his right arm, and attempted to kick the rake out of his hand. 

Officer Freitas then drove Allgoewer to the ground with a leg sweep.  When Allgoewer refused to comply with Officer Freitas’s command to put his arms behind his back, Officer Mejia applied his Taser to Allgoewer twice.  The officers arrested Allgoewer for violating a court order, brandishing a weapon and resisting arrest.

Allgoewer filed a complaint against the City of Tracy which alleged that the degree of force the officers used in arresting him was unreasonable under the circumstances.  During the trial, the defendants filed a motion for nonsuit, contending that the amount of force a reasonable police officer would have used under the circumstances the officers faced was “not within the common knowledge of laypersons,” and therefore it was “necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case.” 

The trial court found “that it would be necessary to have that kind of testimony” and granted the motion for nonsuit.

Generally, the opinion of an expert is admissible when it is “related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”  That is usually the case, for example, in medical malpractice actions, “[b]ecause the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts’, expert testimony is required to prove or disprove that the defendant performed in accordance with the standard prevailing of care.” 

This rule does not apply, however, when the negligence is obvious to a layperson.  “Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.”  In this case, the defendants took the position - and the trial court agreed - that the “standard of conduct” in an excessive force case is like the standard of care in a medical malpractice case in that, in all but the egregious cases, the degree of force a reasonable police officer would use under a particular set of circumstances is peculiarly within the knowledge of experts.

Since whether expert testimony is necessary to establish that a particular amount of force was objectively unreasonable is not a question that has been addressed in California, the Court of Appeal looked to out-of-state authorities for guidance on the issue. 

A case from Wisconsin was found that supported the proposition that expert testimony is not required in an excessive force case.  There, the court in explaining its conclusion noted, “requiring expert testimony rather than simply permitting it represents an extraordinary step, one to be taken only when unusually complex or esoteric issues are before the jury.” 

The Court of Appeal found the analysis of the Wisconsin Supreme Court persuasive, stating the fact that “[t]he average layperson does not have training or experience in police practices and procedures, and does not have experience with the tools, methods or theories of implementing those practices and procedures” does not mean that expert testimony is required for a jury to determine whether a particular amount of force was unreasonable under the circumstances of a particular case. 

The Court of Appeal then held, there “is nothing about the particular use of force in this case that was so far removed from the comprehension of a lay jury as to necessitate expert opinion testimony on the applicable standard of conduct or on what amount of force was reasonable under the circumstances that confronted the officers who arrested Allgoewer.

Comment: While expert testimony will not always be required in an excessive force case, that does not mean that it is not always admissible.  Expert testimony can be admissible on the issue of reasonable force.  Whenever possible, an officer who is defending himself in such a case should have an expert witness available to give evidence that would assist the jury.

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