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Blankenship v. McDevitt

United States District Court, D. Idaho

September 29, 2016

LAURA BLANKENSHIP, as Co-Personal Representative and a Legal Heir of the Estate of Alexander L. Mandarino; and LAMONT MANDARINO, as Co-Personal Representative and a Legal Heir of the Estate of Alexander L. Mandarino, Plaintiffs,


          Edward J. Lodge United States District Judge


         Pending before the Court in the above-entitled matter is the Defendants' Motion for Summary Judgment and related Motion in Limine. The parties have filed their responsive briefing and the matters are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.


         On June 12, 2013, police dispatch received a 911 call from a motorist reporting a possible accident involving a red passenger vehicle that may have gone off the road near mile marker 73 or 74 on interstate 90, near the top of Lookout Pass in north Idaho. This information was relayed to Shoshone County Sheriff's Office (SCSO) Deputy Adam Durflinger who responded to the call.

         Deputy Durflinger soon came upon an orange-colored Toyota Scion parked in a large turnout area and noticed the jersey barrier in the middle of the interstate, near the turnout, looked as if it had been hit. At approximately 11:05 a.m., Deputy Durflinger parked his patrol vehicle behind the Scion, informed dispatch of his location, and called in the Scion's license plate number and description. Deputy Durflinger observed some damage to the left rear of the vehicle. Upon approaching the Scion, Deputy Durflinger saw a male sleeping in the front passenger seat. Because there was not enough damage to the vehicle to indicate it had hit the barrier, Deputy Durflinger concluded the person in the Scion had just pulled over to sleep and he decided to return to his patrol car and clear the scene.

         Dispatch then notified Deputy Durflinger that the license plates on the Scion returned to a different vehicle. At 11:07 a.m., Deputy Durflinger activated his dash camera and returned to the Scion to make contact with the occupant and determine who the registered owner of the vehicle was and what license plates should be on the vehicle. (Dkt. 51-6, video exhibit.) When the Deputy knocked on the driver's side window he smelled marijuana. The occupant of the Scion awoke and Deputy Durflinger asked for the vehicle's registration. The individual opened the lower glove compartment and responded that he could not find the registration but was able to produce a receipt with the Scion's VIN but no license plate number. The individual told the Deputy that he had recently obtained the vehicle and offered his Montana driver's license which identified him as 26 year old Alexander Mandarino.

         Deputy Durflinger confirmed that the VIN from the receipt matched the Scion's VIN and then returned to his patrol vehicle to run the driver's license and VIN through dispatch. While Deputy Durflinger was waiting for dispatch in his patrol vehicle, Mr. Mandarino exited the Scion and approached the patrol vehicle to ask the location of the nearest restroom. The Deputy answered his question and Mr. Mandarino walked back towards the Scion and stood beside the vehicle while he used his cell phone. At 11:14 a.m., Dispatch responded that the driver's license was valid and that the VIN identified the owner of the Scion as Mark Potratz. Idaho State Police (ISP) Trooper Todd McDevitt was driving his patrol car in the area and had overheard SCSO dispatch's response that the license plates did not match the vehicle. Trooper McDevitt radioed Deputy Durflinger to ask if he would like assistance. The Deputy affirmed the request and Trooper McDevitt proceeded to the scene.

         Deputy Durflinger returned to the Scion to inquire of Mr. Mandarino regarding who owned the Scion. Mr. Mandarino stated the car belonged to his friend Stephen Potratz. Because the first names did not match and the license plates were incorrect, Deputy Durflinger inquired further of Mr. Mandarino who was unable to provide a reason for the discrepancies. At 11:17 a.m., the Deputy asked Mr. Mandarino to call Stephen for an explanation regarding the license plates.

         Trooper McDevitt arrived on scene at approximately 11:19 a.m. and proceeded to asked Mr. Mandarino if he had the vehicle's registration and about the incorrect license plates. The Trooper further inquired about Mr. Mandarino's travel route, timeline, and the owner of the vehicle. Mr. Mandarino stated that he had left Cle Elum, Washington, approximately 288 miles from his current location, at 8:00 a.m. that morning. Trooper McDevitt responded that it was impossible for him to have traveled that distance in that amount of time. Both officers thought Mr. Mandarino's responses to their inquiries were contradictory. (Dkt. 51-2 at ¶ 32.)

         Trooper McDevitt asked Mr. Mandarino to again look for the vehicle's registration and all three went over to the Scion. Mr. Mandarino reached through the passenger window into the lower glove box and located the registration, which the Deputy noted was the same place Mr. Mandarino had looked in before and stated he could not find the registration. At this time Trooper McDevitt also smelled marijuana coming from the vehicle. The officers noted Mr. Mandarino appeared to be blocking the officers' view inside the vehicle with his body while he retrieved the registration. (Dkt. 51-3 at ¶ 32) (Dkt. 51-4 at ¶ 25.) Trooper McDevitt inquired further of Mr. Mandarino regarding the vehicle's registration, owner, and incorrect plates as well as Mr. Mandarino's travel route.

         The officers conferred regarding their observations of Mr. Mandarino's behavior and conflicting statements, the inconsistencies with the vehicle's registration and license plates, and that they had both smelled marijuana. (Dkt. 51-3 at ¶ 19) (Dkt. 51-4 at ¶ 25.) At 11:27 a.m., Trooper McDevitt returned to his patrol car to run the driver's license and VIN through ISP Control while Deputy Durflinger asked Mr. Mandarino further follow up questions. ISP Control confirmed the license plates displayed on the Scion, 717564A Montana, belonged on a 1985 Mercedes that was registered to Mr. Mandarino of Whitefish, Montana and gave the correct license plate number for the Scion, 7C6954B Montana. ISP Control also notified the Trooper that Mr. Mandarino's license was suspended out of Washington for failure to appear on unpaid tickets.

         Between 11:36 a.m. and 11:38 a.m., Trooper McDevitt confronted Mr. Mandarino with the information that his license was suspended and that the license plates displayed on the Scion were registered to his 1985 Mercedes. Mr. Mandarino stated he had swapped the plates on the cars to take a trip to Seattle, Washington. Trooper McDevitt again inquired of Mr. Mandarino about his inconsistent statements concerning his time of travel. The officers stepped away and again conferred during which Mr. Mandarino approached the officers asking if he could drive back to Montana and to use the restroom. Mr. Mandarino also expressed confusion over his driver's license suspension stating he had paid a find in Montana that he believed resolved the issue and that he would clear things up with the Washington fine. Trooper McDevitt noticed Mr. Mandarino appeared to be very nervous. (Dkt. 51-3 at ¶ 29.) Deputy Durflinger also observed that Mr. Mandarino was increasingly nervous during the exchange but that he did not appear to be impaired or intoxicated. (Dkt. 51-4 at ¶ 37.)

         The Trooper informed Mr. Mandarino that they could not allow him to drive on the suspended license and with fictitious license plates to which Mr. Mandarino stated “Well, I have the other plates in the car if you want to come see them.” (Dkt. 57 at 7, ¶ 20.) The officers agreed and three individuals again returned to the Scion. At approximately 11:46 a.m., Mr. Mandarino opened the front passenger door of the Scion and reached behind the passenger seat to retrieve the correct license plates while the officers stood behind him. He then gave those license plates to Trooper McDevitt who confirmed that they appeared to be the license plates registered to the Scion. Trooper McDevitt placed the license plates back inside the vehicle through the open passenger door.

         At approximately 11:47 a.m., the Trooper asked Mr. Mandarino about the smell of marijuana coming from the Scion. (Dkt. 57 at ¶ 19.) Mr. Mandarino admitted to having a small amount of marijuana in the car and stated he had a medical marijuana card from Montana for anxiety but that he did not have it with him. (Dkt. 57 at ¶ 19.) Trooper McDevitt told Mr. Mandarino that Idaho does not recognize medical marijuana cards from other states. Shortly thereafter, at approximately 11:47:45 a.m., the Trooper asked Mr. Mandarino to step back from the Scion. (Dkt. 57 at ¶ 32.) Mr. Mandarino responded with a question. Trooper McDevitt again asked him to step away from the vehicle. Mr. Mandarino asked another question about cell service which the Trooper answered. Trooper McDevitt again ordered Mr. Mandarino to move away from the car. (Dkt. 57 at ¶ 32.) Instead of complying, at 11:48:07 a.m., Mr. Mandarino sat down in the passenger seat of the Scion. (Dkt. 57 at ¶ 33.) Trooper McDevitt told Mr. Mandarino to step out of the vehicle. Mr. Mandarino did not comply. Trooper McDevitt twice more ordered Mr. Mandarino out of the vehicle. Mr. Mandarino did not exit the vehicle.

         During this time, Trooper McDevitt asked Mr. Mandarino to produce the marijuana he had told the Trooper was in the vehicle at which point Mr. Mandarino opened the upper glove compartment in the Scion. (Dkt. 57 at ¶ 33) (Dkt. 61, Ex. A, Oct. 20, 2015 Depo. McDevitt at 24-26.)[2] Inside of the upper glove compartment both officers saw a small pill bottle and a semi-automatic pistol with a green frame.[3] Mr. Mandarino picked up the pill bottle and handed it to the Trooper who then passed it to Deputy Durflinger. Trooper McDevitt again ordered Mr. Mandarino to step out of the vehicle and stated: “You make any attempt to go towards that pistol and it will be the last thing that you do, okay?” (Dkt. 57 at ¶ 34, 35) (Dkt. 60 at ¶ 35.) The Trooper once again ordered Mr. Mandarino to exit the vehicle.

         Mr. Mandarino then reached for the pistol. Trooper McDevitt yelled “No” and lunged toward the pistol. Both men grabbed the pistol simultaneously and a struggle ensued. While the two struggled, Deputy Durflinger had his firearm drawn and pointed at Mr. Mandarino from behind Trooper McDevitt. During their struggle over the gun, Trooper McDevitt commanded Mr. Mandarino to let go of the pistol several times. Trooper McDevitt then pushed the pistol away from him using one hand and unholstered his service weapon using his other hand. Trooper McDevitt placed the muzzle of his weapon against Mr. Mandarino's chest and told him to let go of the pistol. The two continued to struggle until Trooper McDevitt fired his weapon into Mr. Mandarino's chest. Trooper McDevitt then secured the pistol, holstered his own weapon, and moved Mr. Mandarino from the Scion to the ground to begin first aid. Mr. Mandarino died from the shooting.

         As a result of these events, the Plaintiffs filed the Complaint in this matter against Defendants Todd McDevitt, Adam Durflinger, and the Shoshone County Sheriff's Department. (Dkt. 1.)[4] The claims arise under 42 U.S.C. §§ 1983 and 1988 against the officers individually and the municipality alleging violations of Mr. Mandarino's civil rights under the Fourth and Fourteenth Amendments of the United States Constitution. (Dkt. 1.) Specifically, the right to Due Process, Equal Protection, and freedom from excessive and deadly force. The Defendants jointly filed the instant Motion for Summary Judgment seeking dismissal of all the claims raised in the Complaint and the Motion in Limine. (Dkt. 50, 51.)


         Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “material” if it affects the outcome of the litigation. An issue, before it may be considered “genuine, ” must be established by “sufficient evidence supporting the claimed factual dispute…to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)); see also British Motor Car Distrib. v. San Francisco Auto. Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).

         The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party's case and upon which the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any essential element, “there can be no ‘genuine issue of material fact, ' since a completely failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.[5]

         According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.

Id. at 374 (citation omitted).

         When applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).


         1. Motion in Limine

         Defendants seek to exclude the expert testimony of Susan M. Peters as irrelevant and unreliable. (Dkt. 50.) Plaintiffs counter that Ms. Peters' opinions are proper non-scientific expert testimony that is routinely admitted in excessive force cases. (Dkt. 55.)

         The Court may consider expert opinion testimony in ruling on a summary judgment motion so long as it contains facts that would be admissible at trial and the opinion is based on the expert's personal knowledge. In considering expert testimony, the Court has a “gatekeeping responsibility” to objectively screen such testimony to ensure that it “is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999). This obligation “applies not only to testimony based on ‘scientific knowledge, ' but also to testimony based on ‘technical' and ‘other specialized' knowledge.” United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (quoting Kumho Tire supra). Prior to considering proffered expert testimony, a trial court “must merely make a determination as to the proposed expert's qualifications.” Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994). A court is not to attempt to determine whether an expert's conclusions are correct, but rather examine only “the soundness of his methodology.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (“Daubert II”). On a motion for summary judgment, the Court does not weigh the persuasiveness or credibility of an expert but, instead, only determines whether there is a genuine issue for trial.

         A. Expert Qualifications

         Rule 702 requires that a testifying expert be “qualified as an expert by knowledge, skill, experience, training, or education.” Fed.R.Evid. 702.[6] Rule 702 “contemplates a broad conception of expert qualifications.” Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994) (emphasis added). Moreover, “the advisory committee notes emphasize that Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert.” Id.; see also Fed.R.Evid. 702 advisory committee's note (“In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.”). The Defendants do not, at least for purposes of this Motion, specifically challenge Ms. Peters' qualifications. (Dkt. 50, 62.) In order to satisfy its gatekeeping function, the Court has reviewed Ms. Peters' credentials and determined that, for purposes of this Motion, her training, knowledge, experience, and education qualify her as an expert on custodial interrogation, vehicle search, and police practices. (Dkt. 50-1, Prelim. Expert Report of Peters and Ex. A.)

         B. Relevant and Reliable

         In addition to being qualified, the “[e]xpert testimony [must] be both relevant and reliable.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (citations and quotations omitted). Relevancy “simply requires that the evidence...logically advance a material aspect of the party's case.” Id. at 463 (citation and marks omitted). Rule 702 allows admission of “scientific, technical, or other specialized knowledge” by a qualified expert if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. To be admissible, evidence must also be relevant under Rule 402 and its probative value must not be substantially outweighed by the danger of unfair prejudice under Rule 403.

         The reliability prong of Rule 702 requires that expert testimony be based on sound principles and methodology. The reasoning and methodology must be scientifically valid, and the court must assess whether it reasonably can be applied to the facts of the case. United States v. W.R. Grace, 455 F.Supp.2d 1148, 1152 (D. Mont. 2006). Reliability requires the court to assess “whether an expert's testimony has a ‘reliable basis in the knowledge and experience of the relevant discipline.'” Estate of Barabin, 740 F.3d at 4683 (quoting Kumho Tire, 526 U.S. at 149 (citations and alterations omitted)). The Supreme Court has suggested several factors that courts can use in determining reliability: (1) whether a theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or technique; and (4) ...

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