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Hill v. City of New York

July 5, 2007


The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge


PlaintiffSean Hill brings this action against defendants Detective Gregory Barrett ("Barrett"), Police Officer John Does, and the City of New York, pursuant to 42 U.S.C. § 1983, alleging violations of his Fourth and Fourteenth Amendment rights, and state tort claims of assault, battery, intentional inflection of emotional distress, and negligence. Following the Opinion and Order of the Honorable Allyne R. Ross on December 29, 2005, granting in part and denying in part the defendants' motions for summary judgment (docket no. 50, 12/29/05 Opinion and Order), plaintiff's remaining claims against Detective Barrett and the Police Officer John Does are that, pursuant to 42 U.S.C. § 1983, they violated plaintiff's constitutional rights in that:

(1) they used excessive force in stopping and detaining plaintiff, and (2) they "conspired together and maliciously and willfully entered into a scheme to deprive plaintiff" of his rights (docket no. 12, Am. Compl. ¶ 70). Plaintiff's sole remaining claim against the City of New York is a respondeat superior claim arising from plaintiff's claims against Detective Barrett and the Police Officer John Does.

After the resumption of expert discovery, and after the court granted leave to plaintiff to file an amended expert report following the defendants' first motion to preclude plaintiff's expert report (see order dated 10/4/06), defendants moved for a second time to preclude the report and testimony of plaintiff's expert witness, Dr. Stephen Leinen. Plaintiff seeks to introduce Dr. Leinen as an expert in police procedures to testify regarding police culture and the "Blue Wall of Silence." For the reasons stated below, the court grants defendants' motion to preclude Dr. Leinen's expert report and testimony.


The facts of this case, relevant to the instant motion, are briefly summarized here.*fn1

On the afternoon of July 2, 2002, plaintiff witnessed a shooting at Rutland Road and 94th Street in Kings County, New York. Plaintiff was riding a yellow and black motorcycle at the time of the shooting. After observing the shooting, plaintiff parked his motorcycle at the corner of 94th Street to take a closer look at the shooting victim, and remained on the scene talking to a friend about the incident. Police arrived at the crime scene, secured the area, and told plaintiff he could not leave the secured area. Plaintiff explained that he needed to leave to start his shift at his job with the New York City Transit Authority, provided his name to the police, and was permitted to leave the crime scene.

According to defendants, at some point, a description of the perpetrator as an African-American male driving a yellow and black motorcycle was transmitted over the police radio. Defendant Barrett and his partner, Detective Patrick Rafferty, were driving in the vicinity of the crime scene at this time, received the radio transmission, and observed plaintiff driving on his motorcycle from the crime scene. The detectives followed plaintiff, who stopped at a red traffic light at the intersection of Remsen Avenue and Winthrop Street.

According to plaintiff, a car hit his motorcycle from behind and threw him from his motorcycle to the ground. Plaintiff claims that two white male officers and two black male officers surrounded him with guns in his face and then threw him on the car, handcuffed him, and searched his person. Plaintiff further claims that he broke his right hand as a result of the defendants' conduct. Defendants, on the other hand, claim that Barrett stopped his car behind the motorcycle, and that Detectives Barrett and Rafferty then exited their vehicle and removed plaintiff from the motorcycle. Meanwhile, two deputy sheriffs arrived at the scene and parked their car in front of plaintiff's motorcycle. Defendants claim that plaintiff never fell to the ground and never complained of any injuries, and that there was no damage to the rear of plaintiff's motorcycle.

Defendants bring the instant motion to exclude the amended expert report and testimony of plaintiff's expert, Dr. Leinen. In his report, Dr. Leinen, a former New York City Police Officer and a professor of sociology and criminology, opines that,

The statements of both deputy sheriffs and Detectives Barrett and Rafferty are in sharp contrast to Mr. Hill's statement that the detective vehicle did in fact bump/ram his vehicle. What might account for these contrasting statements? One strong possible explanation is the Blue Wall of Silence and Code of Silence. (Docket no. 73, Ex. A to Affidavit of Hillary A. Frommer, Report by Stephen Leinen, Ph.D., dated December 18, 2006 ("Leinen Report") at 4.)

Dr. Leinen defines the Blue Wall of Silence as "the reluctance of members of law enforcement to act upon the misconduct of other members" and defines the Code of Silence as "that unwritten, often unspoken, rule that prohibits members of law enforcement from reporting the misconduct of other members." (Id. at 5.) In a section titled "Retaliation," Dr. Leinen states that "Retaliation is punishment inflicted upon members of the Department who violate the code of silence. Retaliation is designed to punish informers and to convey the message to other members of the Department that should they turn against their colleagues or bosses, despite any abuses they may have experienced, they too could be subjected to reprisals." (Id. at 8.) Dr. Leinen also notes that "Retaliation is not necessarily an individual action. It can be conspiratorial in nature in the sense that it could involve a number of persons." (Id.)

Defendants assert that Dr. Leinen's expert report and testimony should be excluded on the grounds that: (1) Dr. Leinen's opinion that witnesses provided conflicting accounts of the July 2, 2002 incident is an opinion as to witness credibility which is not relevant or admissible; (2) Dr. Leinen's proposed testimony about the Blue Wall of Silence and Mollen Commission report*fn2 is not relevant and should be excluded; and (3) Dr. Leinen's expert opinion fails to meet the reliability requirements mandated by the Supreme Court. (Docket no. 72, Defendants' Notice of Motion, at 1.) In response, plaintiff argues that: (1) Dr. Leinen's expert testimony is helpful to the jury in understanding the relevant evidence and determining the facts in issue; (2) Dr. Leinen's opinion, expert report and testimony meet the requirements of Rule 702 of the Federal Rules of Evidence and his testimony should be admissible; (3) Dr. Leinen's credentials, submitted pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, qualify him to testify as an expert on the ...

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