Singh v. Phoenix, City of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Krish Singh, No. CV-21-00099-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. [15] 16 At issue are two motions by Defendants, the City of Phoenix (“the City”) and 17 Phoenix Police Department Officers Brittany Smith-Petersen and Annie Batway (“the 18 Officers”). The Court previously declined to adjudicate certain aspects of these motions in 19 light of the Court’s determination that Officer Smith-Petersen possessed qualified 20 immunity regarding Plaintiff Krish Singh’s claim under 42 U.S.C. § 1983 . (See Doc. 73.) 21 Now, following the Ninth Circuit’s reversal of the qualified-immunity decision and remand 22 of the case for further proceedings, see Singh v. City of Phoenix, 124 F.4th 746 (9th Cir. 23 2024), the Court must dispose of the newly revived motions. Specifically, the Court must 24 consider the residual portion of Defendants’ Motion for Summary Judgment (Doc. 52, 25 MSJ), as well as Defendants’ Daubert Motion regarding Plaintiff’s use-of-force expert 26 (Doc. 46, Daubert Motion). The Court finds these matters appropriate for resolution 27 without oral argument. See LRCiv 7.2(f). For the reasons set forth below, it grants in part 28 and denies in part each of Defendants’ motions. 1 I. Background 2 This lawsuit arises out of an incident that took place on November 11, 2019, in 3 which Officer Smith-Petersen shot and injured Plaintiff during a law-enforcement 4 encounter. Plaintiff sued Defendants on four claims: (1) assault and battery under Arizona 5 common law against Officer Smith-Petersen, for which Plaintiff asserts the City is 6 vicariously liable;1 (2) negligence and gross negligence under Arizona law against both 7 Officers, for which Plaintiff asserts the City is vicariously liable; (3) negligent hiring, 8 training, supervision, and retention under Arizona law against the City; and (4) violation 9 of Fourth Amendment civil rights under 42 U.S.C. § 1983 against Officer Smith-Petersen. 10 (Doc. 1-3 at 4–9; Doc. 85-1 Ex. 1, Complaint at 4–9.) In its prior Order, the Court 11 concluded that Officer Smith-Petersen was entitled to qualified immunity regarding the 12 § 1983 claim. (Doc. 73 at 19.) Given that the Court’s subject matter jurisdiction over this 13 case is predicated upon the existence of a federal question, the Court concluded that judicial 14 comity weighed against retaining supplemental jurisdiction over the three state-law claims 15 following dismissal of the § 1983 claim. The Court therefore remanded the case to state 16 court without passing upon the portions of Defendants’ motion for summary judgment that 17 addressed the state-law claims. (Doc. 73 at 20.) For the same reason, the Court declined to 18 adjudicate Defendants’ Daubert motion. Plaintiff appealed to the Ninth Circuit, and the 19 Maricopa County Superior Court stayed the remanded proceeding during the pendency of 20 Plaintiff’s appeal. (See Doc. 85-1 at 60.) 21 In determining whether qualified immunity shielded Officer Smith-Petersen from 22 civil damages, the Court assessed (1) whether Plaintiff had shown that the Officer violated 23 a constitutional right and (2) whether that constitutional right was clearly established at the [24] 1 Although Plaintiff styles this single claim as a claim for “assault and battery,” the 25 Court will refer to the claim as a battery claim, as the allegedly harmful touching was consummated, not merely threatened. See Gallegos v. Flores, No. 1 CA-CV 10-0178, 2012 26 WL 208858 , at *3 ¶ 11 (Ariz. Ct. App. Jan. 24, 2012) (“The two claims are the same except that assault does not require the offensive touching or contact.”). Had Plaintiff directed this 27 claim against Officer Smith-Petersen and Officer Batway, there may have been cause to conduct an assault inquiry. However, as Plaintiff brings this claim solely against Officer 28 Smith-Petersen, who consummated her allegedly wrongful touching of Plaintiff, the asserted assault is subsumed into the asserted battery. (See Complaint ¶¶ 22–29.) 1 time of the alleged misconduct. The Ninth Circuit affirmed this Court’s first-prong finding 2 that “Plaintiff has established a plausible, even though not conclusive, constitutional 3 violation at step one of the qualified-immunity analysis.” Singh, 124 F.4th at 750 . 4 However, the Ninth Circuit reversed the Court’s second-prong ruling, holding instead that 5 a 2011 opinion “put Smith-Petersen on notice that her use of deadly force plausibly violated 6 Plaintiff’s Fourth Amendment right to be free of excessive force.” Singh, 124 F.4th at 750 7 (citing Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011)). Thus, the Ninth Circuit 8 “reverse[d] the district court’s grant of summary judgment to Defendant Smtih-Petersen 9 [sic] with respect to Plaintiff’s § 1983 claim, reverse[d] the dismissal of the state-law 10 claims, and remand[ed] for further proceedings on the § 1983 claim and for reconsideration 11 of whether to exercise supplemental jurisdiction over the state-law claims.” Id. at 756. The 12 Court has determined to exercise supplemental jurisdiction over Plaintiff’s state-law 13 claims, and Plaintiff has duly re-removed those claims from state court. (See Doc. 85.) 14 As noted, the Ninth Circuit’s remand revived the portion of Defendants’ motion for 15 summary judgment that addressed Plaintiff’s state law claims. Plaintiff previously filed a 16 Response in opposition (Doc. 68, MSJ Response), and Defendants previously filed a Reply 17 in support (Doc. 72, MSJ Reply). Following the Ninth Circuit’s remand, the parties filed 18 limited supplemental memoranda supporting their respective positions on the summary 19 judgment motion. (See Doc. 88; Doc. 89.) However, the parties did not supplementally 20 brief Defendants’ Daubert motion. (See Doc. 87.) Thus, the briefing on that motion is 21 limited to Plaintiff’s Response in opposition (Doc. 61, Daubert Response) and Defendants’ 22 Reply in support (Doc. 67, Daubert Reply). 23 Both this Court and the Ninth Circuit have described the facts of the shooting 24 incident in great detail, (see Doc. 73 at 2–5; Singh, 124 F.4th at 748–49), and there is no 25 need to recapitulate that description here. However, neither this Court nor the Ninth Circuit 26 has previously addressed the facts pertaining to Plaintiff’s claim against the City for 27 negligent hiring, training, supervision, and retention of Officers Smith-Petersen and 28 Batway. Such explication is unnecessary, though, as Plaintiff has abandoned his claim of 1 direct City negligence. In their motion for summary judgment, Defendants dedicated three 2 pages to their argument that the City did not negligently hire, train, supervise, or retain 3 Officers Smith-Petersen and Batway. (See MSJ at 17–20.) Defendants also cited 4 extensively to their statement of facts. (See MSJ at 6–7.) In his Response, Plaintiff did not 5 dedicate a single word to rebuffing Defendants’ argument, nor did Plaintiff dispute any fact 6 relating to this claim. In their Reply, Defendants expressly contended that Plaintiff had 7 abandoned the claim of direct City negligence. (MSJ Reply at 17.) Critically, Plaintiff again 8 did not dedicate a single word of his supplemental brief to this claim, despite utilizing only 9 two of the ten pages afforded him by the Court. Nor did Plaintiff contest Defendants’ 10 assertion of abandonment. The Court therefore concludes that Plaintiff has abandoned his 11 claim of direct City negligence, and the Court will award summary judgment to Defendants 12 thereon. See Blackshire v. County of Yuba, 648 F. Supp. 3d 1221 , 1237 (E.D. Cal. 2023) 13 (“On a motion for summary judgment, the plaintiff’s failure to address a claim serves as 14 the plaintiff abandoning that claim.”). The Court now turns to the analysis of Plaintiff’s 15 other two state-law claims, as well as Defendants’ Daubert motion. 16 II. The Summary Judgment Motion 17 A. Legal Standard 18 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 19 when the movant shows that there is no genuine dispute as to any material fact and the 20 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 21 Catrett, 477 U.S. 317 , 322–23 (1986). “A fact is ‘material’ only if it might affect the 22 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 23 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 24 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248 (1986)). The court must view the evidence in the light most favorable to the 26 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 27 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). [28] 1 The moving party “bears the initial responsibility of informing the district court of 2 the basis for its motion, and identifying those portions of [the record] . . . which it believes 3 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232 . 4 When the moving party does not bear the ultimate burden of proof, it “must either produce 5 evidence negating an essential element of the nonmoving party’s claim or defense or show 6 that the nonmoving party does not have enough evidence of an essential element to carry 7 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., [8] 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden of 9 production, the nonmoving party must produce evidence to support its claim or defense. [10] Id. at 1103 . Summary judgment is appropriate against a party that “fails to make a showing 11 sufficient to establish the existence of an element essential to that party’s case, and on 12 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322 . 13 In considering a motion for summary judgment, the court must regard as true the 14 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 15 material. Anderson, 477 U.S. at 255 . However, the non-moving party may not merely rest 16 on its pleadings; it must produce some significant probative evidence tending to contradict 17 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 18 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 19 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040 , 1045 20 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 21 conclusory allegations unsupported by factual data.” (citation omitted)). 22 B. Discussion 23 Defendants present several arguments in support of their motion for summary 24 judgment with respect to Plaintiff’s claims of negligence, gross negligence, and battery. 25 Some of Defendants’ contentions are claim-specific, and some are general. The Court 26 addresses the latter first. 27 . . . 28 . . . 1 1. Qualified Immunity Under Arizona Common Law 2 Defendants argue that Officers Smith-Petersen and Batway are entitled to state-law 3 qualified immunity with respect to all of Plaintiff’s state-law claims. (MSJ at 14–15.) 4 Under Arizona common law, police officers and other public officials possess qualified 5 immunity from lawsuits pertaining to actions that inherently require judgment or 6 discretion. Spooner v. City of Phoenix, 246 Ariz. 119 , 123–24 ¶ 9 (Ct. App. 2018). 7 However, Arizona’s doctrine of qualified immunity does not extend to situations in which 8 a public official “knew or should have known that [s]he was acting in violation of 9 established law or acted in reckless disregard of whether h[er] activities would deprive 10 another person of their rights,” even if such action was a discretionary act that she 11 undertook within the scope of her public duties. Id. ¶ 10 (quoting Chamberlain v. Mathis, [12] 151 Ariz. 551, 558 (1986)). The Spooner court went on to illustrate this concept by stating 13 that “[a] public official’s conscious disregard of the law or the rights of others constitutes 14 gross negligence, and she remains liable for such conduct, [b]ut a public official performing 15 a discretionary act encompassed within her public duties is shielded from liability for 16 simple negligence.” Id. (internal citations omitted). 17 As noted, Plaintiff’s remaining state-law claims are negligence, gross negligence, 18 and battery. Plaintiff’s negligence claim is plainly barred by Arizona’s doctrine of qualified 19 immunity, as the doctrine is expressly aimed at precluding a public official’s liability for 20 simple negligence. See Spooner, 246 Ariz. at 123–24 ¶¶ 9–10. The Court therefore grants 21 summary judgment to Defendants on this claim. 22 It is equally plain, however, that Arizona’s doctrine of qualified immunity does not 23 extend to Plaintiff’s gross-negligence claim. See Spooner, 246 Ariz. at 123–24 ¶¶ 9–10. In 24 supporting their invocation of qualified immunity, Defendants argue that their conduct was 25 not grossly negligent, but the Court rejects this argument as duplicative. If Defendants can 26 demonstrate at the summary-judgment stage that their conduct was, as a matter of law, not 27 grossly negligent, then Plaintiff’s gross-negligence claim would fail on the merits, and 28 there would be no need to consider whether Defendants are also entitled to qualified 1 immunity regarding that failed claim. Likewise, if Defendants cannot demonstrate that they 2 are entitled to summary judgment on Plaintiff’s gross-negligence claim, then they logically 3 also cannot establish entitlement to qualified immunity, as there would necessarily remain 4 a jury question as to whether the challenged conduct rose to the level of gross negligence. 5 For similar reasons, Arizona’s doctrine of qualified immunity does not bar 6 Plaintiff’s claim of battery, which is an intentional tort. In Arizona, the intent required for 7 common-law battery is not a mere generalized intent to complete an action, but is rather a 8 particularized intent to cause harm. See Ryan v. Napier, 245 Ariz. 54 , 59 ¶ 18 (2018) 9 (“Acting with ‘intent’ does not refer to the act itself. It means that the actor desires to cause 10 the consequences of his act, or that he believes that the consequences are substantially 11 certain to result from it. Thus, as pertinent here, a battery claim requires proof that the 12 defendant intended to cause harmful or offensive contact with the plaintiff.” (cleaned up)). 13 Therefore, by definition, a meritorious claim of common-law battery involves a form of 14 intent that precludes an application of state-law qualified immunity. See Spooner, 246 Ariz. 15 at 123–24 ¶¶ 9–10. 16 Thus, the Court finds that Arizona’s common-law doctrine of qualified immunity 17 bars Plaintiff’s claim of simple negligence, but not his claims of gross negligence or 18 battery. This conclusion is nearly identical to that reached by the Spooner court, which 19 affirmed both (1) the trial court’s denial of judgment as a matter of law on claims of 20 intentional or grossly negligent misconduct and (2) the trial court’s award of judgment as 21 a matter of law on a claim of simple negligence. See 246 Ariz. at 124–25 ¶¶ 12. The Court 22 now turns to Defendants’ claim-specific arguments in favor of summary judgment. 23 2. Gross Negligence 24 Under Arizona law, a plaintiff may not recover under a theory of negligence (and 25 thus also gross negligence) regarding misconduct that was intentional. Ryan, 245 Ariz. 54 26 at 60 ¶ 20 (holding that “negligence and intent are mutually exclusive grounds for 27 liability”). However, the Arizona Supreme Court has recognized that the extent to which a [28] 1 given fact pattern can support an intentional tort, an unintentional tort, both, or neither is 2 highly fact specific. [3] We also disagree with the court of appeals and [the plaintiff] that negligence 4 liability can result from a law enforcement officer’s “evaluation” of whether to intentionally use force against another person. A negligence claim requires 5 either “an act” or a failure to “act.” An “act” is “an external manifestation of 6 the actor’s will.” An actor’s internal evaluation about whether to use force and the decision to do so are not “acts” and therefore cannot, by themselves, 7 constitute negligence. Here, [the officer’s] “act,” and the sole cause of [the 8 plaintiff’s] injuries, was [the officer’s] intentional release of [a police dog] to bite and hold [the plaintiff]. As previously explained, an intentional act 9 cannot also constitute negligence. In short, [the officer’s] internal evaluation of whether to release [the dog] and his decision to do so was part and parcel [10] of his intent to inflict harmful or offensive contact on [the plaintiff]. 11 . . . . To be clear, plaintiffs may plead a negligence claim for conduct that is [12] independent of the intentional use of force or plead negligence and battery as 13 alternate theories if the evidence supports each theory. For example, if the evidence here also supported a finding that [the officer] unintentionally [14] dropped [the dog’s] leash, resulting in the attack against [the plaintiff], a 15 negligence claim would have been appropriate. It is the jury’s role (or the judge’s in a bench trial) to establish what occurred and then apply the correct [16] legal theory to arrive at a verdict. [17] Id. at 60–62 ¶¶ 22, 31 (internal citations omitted). [18] Thus, in order to maintain a claim of gross negligence, Plaintiff must show that [19] Officers Smith-Petersen and Batway engaged in grossly negligent conduct independent of [20] the shooting itself. Such conduct must be distinct from Officer Smith-Petersen’s intentional [21] decision to discharge her firearm at Plaintiff, as the Arizona Supreme Court has warned [22] against permitting plaintiffs to “plead around” the standards governing intentional torts. [23] See id. at 61 ¶ 23. [24] Plaintiff does not dispute any of the foregoing principles. Instead, Plaintiff contends [25] he has established that Officers Smith-Petersen and Batway engaged in conduct that was [26] both grossly negligent and independent of the shooting. (MSJ Response at 20–24.) In [27] particular, Plaintiff argues that the Officers engaged in grossly negligent behavior by [28] failing to retreat from Plaintiff and use their cars as a barrier, by failing to use their tasers 1 against Plaintiff, and by failing to call a crisis intervention officer or otherwise employ 2 de-escalation techniques. (MSJ Response at 22; Complaint at 5–7.)2 Defendants contend 3 that none of the aforementioned acts and omissions are truly independent of Officer 4 Smith-Petersen’s subsequent decision to shoot Plaintiff. (MSJ Reply at 14.) Plaintiff 5 supports his assertion of independence by citing to Garcia v. City of South Tucson, 131 6 Ariz. 315, 319 (Ct. App. 1981), in which the Arizona Court of Appeals held that a police 7 sergeant’s negligent ordering of an assault on a house at which an officer was already 8 present, without alerting that officer as to the impending assault, could support a cause of 9 action sounding in negligence, thereby implying that the ordering of the assault was an 10 action independent from the subsequent shooting that occurred as part of the assault. 11 Plaintiff’s point is well-taken, but the Court need not determine whether or to what extent 12 the present case is analogous to Garcia. Even assuming that Officers Smith-Petersen and 13 Batway’s pre-shooting conduct was independent from the shooting, such conduct clearly 14 does not rise to the level of gross negligence. 15 “Gross negligence differs from ordinary negligence in quality and not degree.” 16 Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 595 (Ct. App. 1991). “Wanton 17 negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain 18 terms. It is ‘in the air,’ so to speak. It is flagrant and evinces a lawless and destructive 19 spirit.” Id. (quoting Scott v. Scott, 75 Ariz. 116, 122 (1953)). No reasonable juror could 20 find the Officers’ decisions not to circle their cars, not to tase Plaintiff, and not to call a 21 crisis officer to be grossly negligent. Although those actions may carry the veneer of gross 22 negligence when viewed in conjunction with Officer Smith-Petersen’s subsequent decision 23 to shoot Plaintiff, that sort of adjudicatory perspective is precisely what Arizona law 24 prohibits. In order for Plaintiff’s gross-negligence claim to stand, the pre-shooting conduct 25 of the Officers must be independently grossly negligent, not grossly negligent only when 26 contemplated as part of a larger battery. Garcia is instructive here. Although Garcia was 27 2 Plaintiff also contends that Officer Smith-Petersen grossly negligently failed to warn Plaintiff that she might shoot him, (Complaint ¶¶ 42–45), but this averment is plainly 28 contradicted by the record. In any event, such conduct fails to support a claim of gross negligence for the same reasons that apply to the remainder of the Officers’ conduct. 1 decided decades before Spooner and therefore did not analyze gross negligence, it 2 nevertheless informs the Court’s analysis of this issue. A sergeant’s decision to commence 3 an armed assault of a home without warning the officers already on the scene is an order 4 of magnitude more negligent than the pre-shooting conduct alleged by Plaintiff in the 5 instant case. Although the Officers’ failure to circle their cars, tase Plaintiff, and call a 6 crisis-intervention specialist may have been negligent, such conduct is not wanton, 7 flagrant, highly potent, or in the air. As Plaintiff’s invocation of gross negligence renders 8 the distinction between simple negligence and gross negligence a nullity, the Court must 9 reject Plaintiff’s position and award summary judgment to Defendants on the 10 gross-negligence claims. 11 There thus remain no claims against Officer Batway. Perhaps foreseeing this 12 outcome, Plaintiff asserted for the first time in his Response that Officer Batway is jointly 13 and severally liable for Officer Smith-Petersen’s alleged battery because the two were 14 acting in concert. (MSJ Response at 18–19.) Defendants replied that Plaintiff did not bring 15 a claim of battery against Officer Batway and that Plaintiff had never previously sought 16 joint and several liability on the battery claim. (MSJ Reply at 16–17.) Plaintiff’s assertion 17 of joint and several liability is cursory at best, as Plaintiff does not explain what the 18 elements of such a finding are or what evidence supports Plaintiff’s allegation of concerted 19 action. It must be noted here that joint and several liability is the exception in Arizona, not 20 the rule. See A.R.S. § 12-2506 (abolishing joint and several liability but creating an 21 exception where defendants are found to have been “acting in concert,” which is defined 22 as “entering into a conscious agreement to pursue a common plan or design to commit an 23 intentional tort and actively taking part in that intentional tort” as limited by the express 24 caveat that “[a] person’s conduct that provides substantial assistance to one committing an 25 intentional tort does not constitute acting in concert if the person has not consciously agreed 26 with the other to commit the intentional tort”). Critically, following Defendants’ contention 27 that “Plaintiff cannot be allowed to belatedly assert a claim against Officer Batway for 28 assault and battery without amending his Complaint,” (see MSJ Reply at 16–17), Plaintiff 1 elected not to provide a response in his supplemental brief, despite using only a small 2 fraction of the allotted page limit. The Court deems this issue conceded and construes 3 Plaintiff as evincing a desire not to amend his Complaint for the purpose of asserting joint 4 and several liability on the battery claim. See Blackshire, 648 F. Supp. 3d at 1237 (“On a 5 motion for summary judgment, the plaintiff’s failure to address a claim serves as the 6 plaintiff abandoning that claim.”). 7 Moreover, even if Plaintiff were to request leave to amend his Complaint now, such 8 request would likely be fatally dilatory. Discovery has long since concluded, and the Court 9 is not inclined to reopen it. Both the Court’s interest in its management of this case and the 10 parties’ interest in final justice weigh against regressing to prior stages of the litigation 11 process, particularly as Plaintiff could have sought leave to assert joint and several liability 12 long ago but chose not to do so. As no claims remain against Officer Batway, the Court 13 will dismiss her as a party to this action. 14 3. Battery 15 Plaintiff’s final state-law claim is a claim of battery against Officer Smith-Petersen, 16 for which he asserts that the City is vicariously liable. (See Complaint at 4.) Defendants 17 argue that this claim fails “for the same reasons” that Plaintiff’s § 1983 claim fails and that 18 various Arizona statutory defenses applicable to the use of force bar such claim “for the 19 same reasons” that apply to Plaintiff’s § 1983 claim. (MSJ at 15.) As the Ninth Circuit has 20 now clarified that those reasons are all unavailing at the summary-judgment stage, the 21 Court must deny summary judgment on the battery claim. It is for the jury to determine 22 both whether Plaintiff has established the elements of this claim and whether any of the 23 statutory defenses to a claim involving a police officer’s use of force are available on the 24 facts of this case. 25 4. Punitive Damages 26 Finally, Defendants argue that punitive damages are unavailable because Plaintiff 27 has failed to adduce any evidence of an evil motive or of callous indifference. (MSJ at 20.) 28 Plaintiff did not respond to this argument, either in his Response or his supplemental brief, 1 even after Defendants expressly noted in their Reply that Plaintiff had failed to mount a 2 response in his Response, (see MSJ Reply at 17). The Court therefore deems this point 3 conceded and will grant summary judgment to Defendants on the issue of punitive 4 damages. See Blackshire, 648 F. Supp. 3d at 1237 (“On a motion for summary judgment, 5 the plaintiff’s failure to address a claim serves as the plaintiff abandoning that claim.”). 6 C. Conclusion 7 Plaintiff has abandoned his claim against the City for negligent hiring, training, 8 supervision, and retention. The Court therefore awards summary judgment to the City 9 thereon. Plaintiff’s negligence claim is barred by Arizona’s common-law doctrine of 10 qualified immunity. The Court therefore awards summary judgment to Defendants thereon. 11 Plaintiff’s gross-negligence claim fails on the merits. The Court therefore awards summary 12 judgment to Defendants thereon and dismisses Officer Batway as a party. Plaintiff’s battery 13 claim against Officer Smith-Petersen and indirectly against the City stands. Finally, the 14 Court grants summary judgment to Defendants on the issue of punitive damages. 15 III. The Daubert Motion 16 A. Legal Standard 17 Under Federal Rule of Evidence 702, an expert may testify on the basis of 18 “scientific, technical, or other specialized knowledge” if it “will assist the trier of fact to 19 understand the evidence,” provided the testimony rests on “sufficient facts or data” and 20 “reliable principles and methods,” and “the witness has reliably applied the principles and 21 methods to the facts of the case.” Fed. R. Evid. 702(a)–(d). The trial judge acts as the 22 “gatekeeper” of expert witness testimony by engaging in a two-part analysis. Daubert v. 23 Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 592 (1993). First, the trial judge must 24 determine that the proposed expert witness testimony is based on scientific, technical, or 25 other specialized knowledge. Id.; Kumho Tire Co. v. Carmichael, 526 U.S. 137 , 147 26 (1999). Second, the trial court must ensure that the proposed testimony is relevant—that it 27 “will assist the trier of fact to understand or determine a fact in issue.” Id. “Evidence is 28 relevant if it has any tendency to make a fact more or less probable than it would be without 1 the evidence and the fact is of consequence in determining the action.” Fed. R. Evid. 401. 2 “The inquiry envisioned by Rule 702” is “a flexible one.” Daubert, 509 U.S. at 594 . 3 “The focus . . . must be solely on principles and methodology, not on the conclusions that 4 they generate.” Id. The advisory committee notes on the 2000 amendments to Rule 702 5 explain that Rule 702 (as amended in response to Daubert) “is not intended to provide an 6 excuse for an automatic challenge to the testimony of every expert.” See Kumho Tire, 526 7 U.S. at 152. “Vigorous cross-examination, presentation of contrary evidence, and careful 8 instruction on the burden of proof are the traditional and appropriate means of attacking 9 shaky but admissible evidence.” Daubert, 509 U.S. at 595 (citation omitted). 10 B. Discussion 11 Defendants bring a partial Daubert motion seeking to preclude certain portions of 12 the intended testimony of Plaintiff’s use-of-force expert, Roger Clark. Although 13 Defendants concede that Mr. Clark is a qualified expert entitled to opine on certain aspects 14 of the Officers’ use of force, (see Daubert Motion at 5, 6), Defendants contend that 15 Mr. Clark’s report transgresses the bounds of proper expert testimony in three distinct 16 ways. The Court addresses each in turn. 17 1. Ultimate-Issue Testimony 18 First, Defendants argue that numerous sections of Mr. Clark’s report resolve 19 ultimate issues and are thus inadmissible. (Daubert Motion at 2–5.) Although an expert 20 opinion “is not objectionable just because it embraces an ultimate issue,” see Fed. R. Evid. 21 704(a), an expert opinion may not provide a legal conclusion, see Hangarter v. Provident 22 Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). “The reasoning behind this 23 prohibition is that ‘when an expert undertakes to tell the jury what result to reach, this does 24 not aid the jury in making a decision, but rather attempts to substitute the expert’s judgment 25 for the jury’s.’” Garcia v. Vitus Energy, LLC, 605 F. Supp. 3d 1179 , 1184 (D. Alaska 2022) 26 (quoting United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017). The question, then, is 27 whether Mr. Clark’s proffered testimony merely touches upon an ultimate issue, which is 28 permissible, or veritably instructs the jury on an ultimate issue, which is impermissible. 1 Some of Mr. Clark’s report clearly crosses the line. For instance, his assertion that 2 the Officers’ conduct was “in violation of . . . law as taught to all officers” does more than 3 simply provide an aid to the jury’s deliberation. (See Daubert Motion Ex. 1, Report at 25.) 4 It is, on its face, a legal opinion. Although the statement is technically qualified by the 5 phrase “as taught to all officers,” the Court finds such qualification insufficient and more 6 likely to confuse than to illuminate. Mr. Clark may not present testimony of this nature. 7 The remainder of Mr. Clark’s report presents a more challenging analysis. The 8 majority of the statements that Defendants attack involve the words “excessive” or 9 “unreasonable.” (Daubert Motion at 2–5.) The difficulty presented by the use of those 10 words derives from the fact that the terms “excessive” and “unreasonable” are both legal 11 terms of art and plain English. It is appropriate for an expert such as Mr. Clark to provide 12 an opinion regarding what a reasonable police officer might do in a given scenario in light 13 of relevant training and police-conduct norms. In doing so, Mr. Clark would not violate the 14 Federal Rules of Evidence simply by using the terms “unreasonable” and “excessive.” 15 However, Mr. Clark may not testify that Officers Smith-Petersen or Batway themselves 16 acted unreasonably, as such an assertion would not merely embrace an ultimate issue but 17 would be functionally equivalent to a legal conclusion. Mr. Clark’s report straddles this 18 line, at times complying with the relevant evidentiary standard and at times transgressing 19 it. 20 For instance, Mr. Clark writes that “[i]n my opinion, under the set of facts 21 demonstrated here, the Defendant Officers could not have reasonably believed that any of 22 the [circumstances justifying deadly force] existed at the time they used lethal force on Mr. 23 Singh, who held a knife at his own throat, didn’t utter a single threat toward any of the 24 Defendants and never pointed the knife at the Defendants.” (Report at 19.) It is clear that 25 Mr. Clark’s goal in making that statement was to distinguish the Officers’ conduct in this 26 case from the type of conduct that Mr. Clark deems reasonable according to police norms 27 and regulations, but the statement is inappropriate insofar as it explicitly declares that the 28 Officers acted unreasonably in their interactions with Plaintiff. Similarly, Mr. Clark writes 1 that “[i]n my opinion, under the version of events given by Officers Smith-Petersen and 2 Batway, their (in particular Officer Smith Peterson) use of lethal force was excessive and 3 unreasonable under the circumstances.” (Report at 25.) Again, that statement approaches 4 propriety, as it is fundamentally an attempt to compare the conduct of the Officers to the 5 conduct that Mr. Clark would deem reasonable under the circumstances. However, because 6 the statement encompasses a direct assertion that the Officers acted excessively and 7 unreasonably in this case, the statement is impermissible. 8 Most of the statements in Mr. Clark’s report that Defendants attack as improperly 9 adjudicating an ultimate issue are statements that could be salvaged by a reframing. Rather 10 than parse every word of the report in search of evidentiary violations, the Court elects to 11 set forth a broadly applicable principle and to defer resolution of statement-specific 12 disputes until trial. Mr. Clark is permitted to testify on the general reasonableness of police 13 conduct in light of given circumstances, but Mr. Clark may not opine that the Officers in 14 this case acted unreasonably or excessively. See Valtierra v. City of Los Angeles, 99 F. 15 Supp. 3d 1190, 1198 (C.D. Cal. 2015) (“Although the Court finds that [the plaintiffs’ 16 expert] is qualified to opine as to whether the officers’ use of force was excessive or 17 unreasonable, the Court concludes that such testimony should be explored through 18 hypothetical questioning so as to avoid invading the province of the jury.”). 19 2. Mental Health Diagnoses 20 Next, Defendants attack Mr. Clark’s report as providing an opinion on whether and 21 to what extent Plaintiff was suffering from a mental pathology at the time of the shooting. 22 (Daubert Motion at 6–7.) The Court rejects this argument as a mischaracterization of 23 Mr. Clark’s report. Therein, Mr. Clark states that “it is not the role of or within the capacity 24 of peace officers to attempt to diagnose a person’s disability.” (Report at 22.) However, 25 Mr. Clark goes on to assert that “officers are trained to recognize cues and other indicators 26 in order to make appropriate decisions regarding intervention strategies” and that officers 27 use a wealth of mental-health frameworks as the basis of their recognition of mental 28 pathologies in their day-to-day interactions. (Report at 22.) After describing the training 1 that police officers undergo regarding the practical identification of people with mental 2 abnormalities, Mr. Clark opines that the Officers should have recognized Plaintiff as 3 “possibly mentally ill and/or emotionally distraught” and that Plaintiff exhibited “a clear 4 sign of mental distress” when he repeatedly asked the Officers to kill him. (Report 5 at 21, 22.) This proffered testimony is plainly not a psychological diagnosis of Plaintiff. 6 Rather, it is a characterization of Plaintiff’s appearance and the consequences that ought to 7 have followed therefrom. In other words, it is a description of what a reasonable police 8 officer should have concluded based upon the concrete behavior of Plaintiff. Such 9 testimony is within the ambit of Mr. Clark’s expertise. Defendants also criticize Mr. Clark 10 for writing that Plaintiff “suffered from PTSD, drug addiction, and ADHD,” (Daubert 11 Motion at 6), but Defendants omit important context. The full statement, which is located 12 in the background section of the report, is that “[a]ccording to Sunita Singh (his mother), 13 Mr. Singh suffered from PTSD, drug addiction and ADHD.” (Report at 3–4.) Whether such 14 an averment would be impermissible hearsay is not at issue here.3 Plainly, however, Mr. 15 Clark has not diagnosed Plaintiff with any particular mental malady. 16 The Ninth Circuit has repeatedly held that police officers must consider whether the 17 person against whom they contemplate using force is mentally ill or emotionally disturbed. 18 See, e.g., Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010). Indeed, the Ninth 19 Circuit held in the instant case that “the officers ‘were or should have been aware that 20 [Plaintiff] was emotionally disturbed.’” Singh, 124 F.4th at 754 (quoting Glenn, 673 F.3d 21 at 875 ). If those holdings are to have any meaning, use-of-force experts must be able to 22 provide testimony regarding how a reasonable police officer ought to interpret a given 23 person’s outward behavioral manifestations. Defendants’ motion is therefore unavailing on 24 this basis. 25 3. Contravention of the Video Evidence 26 Defendants’ final Daubert contention is that Mr. Clark’s report is based on 27 inadequate data because it contradicts the video evidence in this case. (Daubert Motion 28 3 In any event, Ms. Singh’s averment would be addressed easily under Federal Rule of Evidence 703. 1 at 7–11.) The Court rejects this argument as not meaningfully substantiated. The majority 2 of Defendants’ briefing on this point consists of quoting Mr. Clark’s report without 3 explaining in what way it is inconsistent with the video. (See Daubert Motion at 9–10.) 4 Even where Defendants do attempt to explain the purported infirmity of Mr. Clark’s report, 5 their arguments fall flat. Defendants object to Mr. Clark’s statement on page five of his 6 report that: [7] After she took a position on the passenger’s side of her patrol unit, Officer 8 Smith-Petersen said, “If you come any closer, I will kill you!” Based on the video/audio recording, Mr. Singh did not advance and simply held the knife 9 at his throat and stood approximately 10 feet west of Officer 10 Smith-Petersen’s patrol car. 11 (Daubert Motion at 9.) Defendants characterize Mr. Clark’s report as a misrepresentation 12 because, according to Defendants, “[t]he video clearly shows Singh advancing towards the 13 officers at multiple points.” (Daubert Motion at 9.) Defendants elide the fact that Mr. Clark 14 states on page six of his report that Mr. Singh did in fact advance “toward the front bumper 15 of Officer Smith-Petersen’s patrol car” even after Officer Smith-Petersen had told him not 16 to do so. Mr. Clark goes on to recount that: [17] As Mr. Singh approached Officer Smith-Petersen’s patrol car, and despite 18 their being ample room to move about—including behind her patrol car—neither Officer SmithPeterson nor Officer Batway made any attempt to [19] move to create more distance or obtain a safer position of “cover”. Per the 20 recording, both of the Officers chose not to reposition up but rather to stand their ground. As Mr. Singh slowly stepped toward her patrol car, Officer 21 Smith-Petersen shot and wounded him in the abdomen/pelvic region. [22] (Report at 6.) Defendants do not meaningfully grapple with Mr. Clark’s report. [23] Defendants also contend that Mr. Clark’s report is unsupported because he states [24] that the Officers did not use de-escalation techniques, whereas Defendants claim that they [25] utilized the primary de-escalation technique of “issu[ing] over twenty lawful orders to drop [26] his weapon or stop moving,” as well as talking with Plaintiff and assuring him that they [27] did not think he was crazy. (Daubert Motion at 9–10.) Again, Defendants’ argument rests [28] 1 upon an overly simplistic characterization of the parties’ dispute. Mr. Clark gives the 2 following examples of de-escalation techniques: [3] a. Slow down and elongate the encounter with the suspect; 4 b. Establish a relationship and rapport with the suspect, by asking his name, introducing themselves by name, explaining why they were 5 called, asking open-ended questions, or offering options, etc.; 6 c. Communicate empathy to the suspect by explaining that they were there to help him and reassuring him that he is safe, etc.; and 7 d. Speak in a calm demeanor and avoid yelling - officers are taught that 8 if they take a less authoritative, less controlling, less confrontational approach, they actually will have more control. [9] (Report at 5–6.) It is unclear whether ordering a person to disarm and stop moving [10] constitutes de-escalation as Mr. Clark’s report conceives of it, and if it does not, it is unclear [11] whether the relatively small amount of additional interlocution employed by the Officers [12] constitutes meaningful de-escalation. Thus, there appears to be a bona fide dispute as to [13] whether the Officers did in fact utilize sufficient de-escalation procedures. The Court [14] expresses no opinion on the resolution of that dispute, but it rejects Defendants’ argument [15] that Mr. Clark’s report is so factually unsupported that his testimony ought to be precluded [16] as a matter of law. Defendants are free to address and probe the perceived insufficiencies [17] of Mr. Clark’s opinion on cross-examination. [18] C. Conclusion [19] The Court grants Defendants’ Daubert motion insofar as it seeks to preclude [20] Mr. Clark from providing testimony that so resolves ultimate issues as to constitute jury [21] instruction, but denies it on all other bases. [22] IV. Conclusion [23] IT IS THEREFORE ORDERED granting in part and denying in part Defendants’ [24] Motion for Summary Judgment (Doc. 52). The Court grants summary judgment to [25] Defendants on Count Two (negligence and gross negligence) and Count Three (negligent [26] hiring, training, supervision, and retention) of Plaintiff’s Complaint (Doc. 85-1 Ex. 1), as [27] well as on the issue of punitive damages generally. Count One (assault and battery) and [28] Count Four (civil rights violation under § 1983) shall proceed to trial. 1 IT IS FURTHER ORDERED granting in part and denying in part Defendants’ 2|| Daubert Motion (Doc. 46) as described hereinabove. 3 IT IS FURTHER ORDERED setting a telephonic Status Conference on June 27, 2025 at 9:30 AM (Arizona time) before District Judge John J. Tuchi in Courtroom 505, 5 || 401 W. Washington Street, Phoenix, AZ 85003. Self-represented parties and counsel who || will try the case shall have their calendars available and be prepared to discuss the trial || schedule, length of trial, and any other issues related to trial of this matter. Chambers will 8 || e-mail dial-in information to all self-represented parties or counsel prior to the conference. 9 IT IS FURTHER ORDERED that no later than two days prior to the telephonic || status conference, the parties shall file a joint notice to the Court setting out (1) their 11 || estimated number of trial days, to include jury selection (if applicable); and (2) if a Prescott || case, whether the parties will stipulate to using a Phoenix jury. 13 At this initial Status Conference, the Court will set a schedule for the parties to file || joint proposed questions for a prescreening juror questionnaire, a joint proposed pretrial 15 || order, a joint stipulated statement of the case, joint proposed voir dire questions, joint 16 || proposed jury instructions, a joint stipulated form of verdict, witness and exhibit lists, a 17 || trial memorandum of law, and motions in limine. The Court will also set a schedule for the 18 || Final Pretrial Conference and a firm trial date. 19 Dated this 12th day of June, 2025. ON Unifgd StatesDistrict Judge [28] -19-