Paintball Dangers Not an Issue for Excessive Force

(CN) - Experts cannot testify that a paintball gun is "capable of causing severe injury" in a civil trial against two cops who shot a child on Halloween after allegedly mistaking a paintball gun for an actual firearm, a federal judge ruled.

Bianca Jordan, on behalf of Delbert Van Allen, a minor, sued two Chicago police officers for use of excessive force, unreasonable search and seizure, and assault and battery.

The officers wanted an expert to testify about the dangers of paintball guns to show what went through their minds when Delbert allegedly pointed it at them on Halloween night in 2008 from his grandmother's home on the South Side of Chicago.

Jordan's complaint, which does not mention a paintball gun, says Officers Thomas O'Shaughnessy and Christopher Rigan got out of their car, chased Delbert on foot, "fired their service weapons and shot Delbert three times, including in his back, without legal justification."

O'Shaughnessy testified, however, that he though Delbert was pointing a black-and-silver paintball handgun at him. The officers allegedly learned after the shooting that Delbert was carrying a paintball gun.

Jordan said it would confuse the jury if the officers' expert, Richard Ernest, testified that a paintball gun is "capable of causing severe injury."

In a Jan. 27 decision, U.S. District Judge Amy St. Eve barred Ernest's testimony about the paintball gun's capabilities, but she said he can submit photos of the gun and use a mannequin at trial to visually demonstrate paintball bullet trajectories.

"Whether or not the paintball gun at issue is capable of causing serious injury is irrelevant to what Officer O'Shaughnessy thought at or around the time of the shooting because he did not believe, at that time, that Van Allen had a paintball gun on his person," St. Eve wrote.

Ernest's expert report said that the paintball pistol is "capable of causing severe injury (evisceration of the eye if fired at close range), and it is very similar visually in design to several well known actual firearms which are favored in the criminal community ... including the Ingram MAC, Uzi, Intratec Tech 0, Claridge Hi-Tec and Calico pistols."

St. Eve dismissed this conclusion, finding that "Mr. Ernest does not explain any basis for his opinion." Citing 7th Circuit precedent, she noted that "an expert's opinion that lacks proper substantiation is worthless."

"Nowhere in Mr. Ernest's resume or report does he point to any experience working with paintball guns as opposed to actual firearms," St. Eve wrote. "Moreover, even if Mr. Ernest has experience assessing the dangerousness of paintball guns, he has failed to explain how that experience compels his conclusion that paintball guns can cause severe injury."

Ernest's report also contained several photographs of a mannequin, which show that Delbert's "right arm was pointed back (or rearwards) toward Officer O'Shaughnessy at the instant that Officer O'Shaughnessy fired one of his shots at Van Allen."

The expert can show Delbert's alleged arm and body positioning with a mannequin. "Plaintiff is free to explore her concerns with the scale of the mannequin and the inconsistencies between the positioning of the mannequin and Officer O'Shaughnessy's testimony during cross-examination," the 19-page decision states. "These issues go to the weight of Mr. Ernest's testimony."

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