Linda Florek v. Village of Mundelei ( 2011 )


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  •                               In the
    
    United States Court of Appeals
                   For the Seventh Circuit
    
    No. 10-3696
    
    L INDA F LOREK,
                                                      Plaintiff-Appellant,
                                      v.
    
    V ILLAGE OF M UNDELEIN , ILLINOIS, et al.,
    
                                                   Defendants-Appellees.
    
    
                 Appeal from the United States District Court
            for the Northern District of Illinois, Eastern Division.
             No. 05 cv 6402—Maria G. Valdez, Magistrate Judge.
    
    
    
           A RGUED JUNE 1, 2011—D ECIDED A UGUST 16, 2011
    
    
    
    
     Before F LAUM and S YKES, Circuit Judges, and C ONLEY,
    District Judge. Œ
      F LAUM, Circuit Judge. When police searched her apart-
    ment and placed her under arrest during a drug raid,
    Linda Florek suffered a heart attack. She subsequently
    
    
    
    Œ
      Hon. William M. Conley, Chief Judge of the Western District
    of Wisconsin, sitting by designation.
    2                                             No. 10-3696
    
    filed suit in federal court, naming as defendants the
    Village of Mundelein and several of its police officers.
    Donovan Hansen is the only such officer who remains
    in the case on appeal. Florek contends that police unrea-
    sonably seized her within the meaning of the Fourth
    Amendment by denying a request she made for baby
    aspirin and refusing to call an ambulance for her. She
    also maintains that police violated the Fourth Amend-
    ment’s proscription against unreasonable searches by
    not giving her sufficient time to answer the door when
    they knocked and announced their presence prior to
    entering her apartment. (After waiting 15 seconds, police
    used a battering ram to gain entry.) On appeal, Florek
    contests the summary judgment ruling that eliminated
    one of her claims, the directed verdict ruling that elimi-
    nated the Village from the case, and the in limine ruling
    that barred one of her experts. We affirm.
    
    
                         I. Background
      In the fall of 2004, Village of Mundelein police offi-
    cers using a confidential informant made two controlled
    buys of marijuana at or in front of an apartment located
    at 543 North Lake Street, in Mundelein. The apart-
    ment was the residence of Linda Florek. Her son resided
    there, too, and the person dealing drugs appears to
    have been one of the son’s friends. Based on the con-
    trolled buys, police obtained a search warrant for the
    apartment. In the late evening hours of December 7, 2004,
    several officers, led by then-Sergeant Donovan Hansen,
    set out to execute the warrant.
    No. 10-3696                                              3
    
       That night, Florek arrived home from work shortly
    after 10:00 P.M . and settled in for the evening. She
    changed into a T-shirt, retired to the living room, and
    lit a marijuana cigarette. The last component of her eve-
    ning’s activities was unfortunately timed, as illegality
    literally lingered in the air when police executed their
    search at 10:22 P.M . According to the defendants, the
    search commenced when one of the officers knocked on
    the door to Florek’s apartment and announced their
    presence, stating, “Police department, search warrant.”
    The officers then waited approximately 15 seconds
    before breaching the door with a battering ram. Florek
    disputes the contention that officers announced their
    presence; all she heard were at least four impacts on
    her door before officers entered the premises.
      As officers entered the apartment, Florek was standing
    in the middle of the living room. She was ordered to the
    ground and handcuffed. The apartment was redolent
    of marijuana and, when asked about the odor, Florek
    admitted that she threw a pouch of the substance
    behind the couch as the officers had arrived. She ex-
    plained that a physician had previously advised her
    that she should smoke marijuana to reduce her blood
    pressure. Regardless of the statement’s truth value, it
    only bolstered the probable cause police had to arrest
    her. See also Russell v. Harms, 
    397 F.3d 458
    , 466 (7th Cir.
    2005) (distinguishing Payton v. New York, 
    445 U.S. 573
    (1980), and holding that police executing a lawful search
    warrant may arrest a person inside the home, so long as
    the arrest is founded on probable cause). During the
    search, which lasted over an hour, Florek remained
    4                                             No. 10-3696
    
    handcuffed and was not allowed to change clothing.
    Florek’s son was similarly restrained and brought into
    the living room. The son was admonished by his mother
    for inviting law enforcement attention by associating
    with a drug dealer.
      Below (as on appeal), the chief dispute between the
    parties centered around whether police officers were
    unreasonable in responding to Florek’s medical needs.
    Everyone agrees that early on during the execution of
    the search warrant Florek asked if she could take some
    baby aspirin. She made the request because roughly
    two years earlier she had suffered a heart attack. The
    paramedics who responded at that time had (among
    other things) given her four baby aspirins. According to
    Florek, the request for baby aspirin was denied outright.
    She then told officers that she wanted an ambulance
    because she was experiencing chest pains and having
    a heart attack. In response, she was told that an am-
    bulance would be called if she still needed one after
    arriving at the police station.
      The defendants tell it differently. According to Hansen,
    Florek did indeed ask for baby aspirin. He denied
    the request, following the Village police department’s
    general orders which require physicians to administer
    medication. The relevant order also direct officers to
    summon paramedics in the event of an emergency.
    Hansen says he complied with the order, telling Florek
    in response to her request for aspirin that he would call
    for paramedics if she needed medical assistance. At
    that point, Florek responded, “This is bullshit,” but did
    No. 10-3696                                            5
    
    not request an ambulance or let officers know she was
    having chest pains. Hansen also says that Florek did not
    appear to be under any more distress than would
    have been expected under the circumstances. And al-
    though she complained of shortness of breath at one
    point, the problem was resolved when she com-
    plied with Hansen’s admonition that she slow down
    her breathing.
      The search was completed shortly after 11:30 P.M . At
    around that time, Florek was allowed to get dressed,
    and she and her son were transported to the Village’s
    police station. The transport vehicle was a Chevy
    cargo van equipped with interior partitions to separate
    prisoners. While being placed in the van, Florek says
    she pleaded, “Please don’t put me in that cage. I am
    having a heart attack. I am claustrophobic.” The defen-
    dants concede only that Florek protested the officers’
    choice of vehicle, telling her that she would be trans-
    ported in the vehicle despite her displeasure. The defen-
    dants say that it was only after being placed in the van
    that Florek informed officers of her chest pains. One of
    the police officers, who was also a paramedic, spoke
    with Florek while she was in the van. The officer
    relayed what he learned to Hansen, the vehicle’s driver.
    Hansen immediately radioed to have an ambulance
    meet them at the station. The rendezvous occurred
    within minutes.
      The night’s conclusion is subject to no real dispute.
    The paramedics treated Florek. Then, after admin-
    istering baby aspirin and nitroglycerine and running
    6                                                No. 10-3696
    
    an intravenous line, the paramedics took her to the hos-
    pital. Hansen learned shortly thereafter that Florek had
    suffered a heart attack. He dispatched two officers to
    the hospital to complete Florek’s processing, which con-
    sisted of fingerprinting and the posting of a recognizance
    bond. (Hansen directed the officers to consult with
    Florek’s treating physician to learn if there was a
    medical reason not to finish the processing.) Florek was
    charged with possessing less than 2.5 grams of mari-
    juana. She received supervision and paid a fine.
      In November 2005, Florek filed suit in federal court.
    The case was referred to a magistrate judge for all pur-
    poses. See 28 U.S.C. § 636(c). The Village, Hansen, and
    several police officers were named as defendants, but
    Hansen is the only officer who remains. Just as the appeal
    has brought into focus which parties are critical in the case,
    it has winnowed the once-numerous claims. The ones
    that matter for our purposes are Florek’s claims that
    (1) Hansen and the Village unreasonably seized her
    by denying her request for baby aspirin; (2) Hansen
    unreasonably seized her by refusing to call an ambu-
    lance when she first complained of chest pains; and
    (3) Hansen effected an unreasonable search when the
    officers he led failed properly to knock and announce
    their presence and did not wait a reasonable time before
    entering the apartment.
      Hansen and the Village moved for summary judgment.
    The magistrate judge denied summary judgment on
    Florek’s claim that Hansen unreasonably searched her
    apartment because of his team’s alleged failure to properly
    No. 10-3696                                               7
    
    knock and announce its presence. The magistrate judge
    noted that there were simply disputed facts about
    whether police knocked, announced, and then waited a
    reasonable time before entering. As to Florek’s claims
    that the defendants unreasonably seized her by not re-
    sponding reasonably to her medical needs, the magistrate
    judge considered the claims separately. On the aspirin-
    based claim, the magistrate judge granted summary
    judgment on qualified immunity grounds, reasoning
    that there was no clearly established right to over-the-
    counter drugs during an arrest. Granting judgment to
    the Village on that basis was not appropriate, see Owen
    v. City of Independence, Missouri, 
    445 U.S. 622
    , 638 (1980)
    (holding that a “municipality may not assert the good
    faith of its officers or agents as a defense to liability
    under § 1983”), but Florek has not raised the error. (And
    we shall see that the error was harmless, because there
    was no constitutional violation.) In any event, the magis-
    trate judge denied summary judgment on the ambulance-
    based claim. That claim proceeded to trial, along with
    the knock-and-announce claim.
      After the close of Florek’s case, the magistrate judge
    granted the Village’s motion for a directed verdict, rea-
    soning that Florek had not offered evidence sufficient
    to impute liability to the Village under Monell v. Dep’t
    of Soc. Servs. of the City of New York, 
    436 U.S. 658
     (1978).
    The jury considered only the two claims against Hansen;
    brief deliberations produced a verdict in Hansen’s fa-
    vor. Florek appeals.
    8                                               No. 10-3696
    
                          II. Discussion
      On appeal, Florek takes no issue with the jury’s verdict
    on the ambulance-based unreasonable seizure claim,
    but does challenge the magistrate judge’s grant of sum-
    mary judgment on the aspirin-based unreasonable sei-
    zure claim. She also maintains that the directed verdict
    in favor of the Village was improper, as was a decision
    by the magistrate judge to bar an expert witness’s testi-
    mony on the knock-and-announce claim. We take up,
    and find wanting, each argument in turn.
    
    
    A. Unreasonable Inattention to Medical Needs
      The Fourth Amendment to the United States Constitu-
    tion provides: “The right of the people to be secure in
    their persons, houses, papers, and effects, against unrea-
    sonable searches and seizures, shall not be violated . . . .”
    U.S. C ONST. amend. IV. We have held that an officer
    violates the prohibition on unreasonable seizures when,
    in the course of making an otherwise lawful arrest, he
    does not respond reasonably to an arrestee’s medical
    needs. Sides v. City of Champaign, 
    496 F.3d 820
    , 828 (7th
    Cir. 2007) (citing Graham v. Connor, 
    490 U.S. 386
    , 394-95
    (1989), and holding that the Fourth Amendment’s ban
    on unreasonable seizures applies to claims of unrea-
    sonable inattention to medical needs at the time of ar-
    rest). Not every constitutional violation will furnish a
    plaintiff with a basis for recovery, however. Qualified
    immunity will shield an officer from money damages
    unless a plaintiff establishes that the officer violated a
    right that was clearly established. Pearson v. Callahan, 555
    No. 10-3696                                               
    9 U.S. 223
    , 231 (2009). And because “[l]evel of generality
    is destiny” in law, see Thomas More Law Center v. Obama, ___
    F.3d ___, 
    2011 WL 2556039
    , at *27 (6th Cir. June 29,
    2011) (Sutton, J., concurring), it bears emphasizing
    that courts should not decide that a right is clearly estab-
    lished at a high level of abstraction: we look to “whether
    the violative nature of particular conduct is clearly estab-
    lished.” Ashcroft v. al-Kidd, 
    131 S. Ct. 2074
    , 2084 (2011)
    (emphasis added).
       In this case, the magistrate judge determined that the
    defendants enjoy qualified immunity with respect to
    Hansen’s denial of Florek’s request for baby aspirin.
    We review that determination de novo. Hill v. Cop-
    pleson, 
    627 F.3d 601
    , 605 (7th Cir. 2010). The analysis
    comprises two questions (Pearson teaches that we may
    take them up in any order; formerly we had to answer
    them in sequence. See Saucier v. Katz, 
    533 U.S. 194
    , 201
    (2001)). First, we ask whether the plaintiff’s allegations
    make out a deprivation of a constitutional right.
    Second, we ask whether that right was clearly estab-
    lished at the time of the defendant’s alleged misconduct.
    Ault v. Speicher, 
    634 F.3d 942
    , 945 (7th Cir. 2011). If
    the answer to either question is no, the officer is
    immune from suit. Here, the magistrate judge answered
    no to the second question. We answer no to the first
    question and hold that, as litigated by the parties, there
    was no genuine issue of material fact on the claim
    that police acted unreasonably by denying aspirin to
    Florek.
      We say “as litigated by the parties,” because everyone
    conceived of the case as having presented two discrete
    10                                                  No. 10-3696
    
    unreasonable seizure claims: (1) whether police acted
    unreasonably by denying her request for baby aspirin,
    an issue which dropped out of the case at summary
    judgment; and (2) whether police acted unreasonably by
    refusing to call an ambulance, an issue which went to
    the jury and was resolved in Hansen’s favor. These con-
    tentions ought to have been presented to the jury as a
    single claim—namely, whether police violated Florek’s
    constitutional rights by failing to respond reasonably to
    her medical needs. After all, a claim is “the aggregate
    of operative facts which give rise to a right enforceable
    in the courts.” Original Ballet Russe v. Ballet Theater, 
    133 F.2d 187
    , 189 (2d Cir. 1943) (Swan, J.); see also Liberty
    Mutual Ins. Co. v. Wetzel, 
    424 U.S. 737
    , 743 & n.4 (1976)
    (intimating that a claim is a single legal theory “applied
    to only one set of facts” but not “attempt[ing] any defini-
    tive resolution of the meaning of what constitutes a
    claim for relief within the meaning of the [Federal]
    Rules”); Baltimore S.S. Co. v. Phillips, 
    274 U.S. 316
    , 321 (1927)
    (“A cause of action does not consist of facts, but of the
    unlawful violation of a right which the facts show.”). And
    because the reasonableness of a seizure depends on the
    totality of the circumstances, see Tennessee v. Garner, 
    471 U.S. 1
    , 8-9 (1985); Segura v. United States, 
    468 U.S. 796
    ,
    806 (1984), determining whether police responded rea-
    sonably to an arrestee’s medical needs demands the
    same inquiry. In that vein, Williams v. Rodriguez, 
    509 F.3d 392
    , 403 (7th Cir. 2007), distilled non-exclusive
    factors that courts might look to in evaluating whether
    a given police response was reasonable. Reasonableness
    in light of the totality of the circumstances remains
    No. 10-3696                                                11
    
    the constitutional touchstone in this realm. See Lopez v.
    City of Chicago, 
    464 F.3d 711
    , 718 (7th Cir. 2006).
      If one concludes, as we have little difficulty doing
    below, that police would have responded reasonably to
    Florek’s medical needs by calling paramedics (the basis
    of one “claim”)—regardless of whether she was allowed
    to take aspirin (the basis of another “claim”)—it carries
    the tacit acknowledgment that the “aggregate of opera-
    tive facts” presented one claim all along. Cf. also Gen.
    Acquisition, Inc. v. GenCorp., 
    23 F.3d 1022
    , 1029 (6th Cir.
    1994) (discussing Federal Rule of Civil Procedure 54(b)).
    Law enforcement addressing an arrestee’s medical needs
    will either procure treatment, provide treatment, or
    both. The circumstances should be considered together.
    However, because the parties and magistrate judge de-
    linked the issue of the treatment that Florek requested
    from the steps that officers took in response to her
    medical needs (and even on appeal Florek does not
    claim that this was error), we will do the same.1
    
    
    1
      The implication of the discussion above, however, is that
    summary judgment should have been denied on a single
    unreasonable inattention to medical needs claim, rather than
    just denied with respect to an ambulance-based claim. Had
    summary judgment been denied, Hansen’s refusal to pro-
    vide aspirin would have been but one fact for the jury to
    consider. How much and what type of evidence to present
    on the denial-of-aspirin issue was a matter that would have
    been within the sound discretion of the trial court. And in
    the event the existence of a critical fact would have been
                                                    (continued...)
    12                                               No. 10-3696
    
    Therefore, we ask only whether there was a genuine
    issue of material fact on Florek’s unreasonable seizure
    claim, assuming that officers called paramedics after
    having been alerted to her chest pains.
      With that caveat, summary judgment was proper in
    this case. The result is dictated by a straightforward
    application of the factors we highlighted in Williams.
    There, we identified four factors that courts might look
    to in evaluating whether an officer’s response to an
    arrestee’s medical needs was reasonable. The factors are
    (1) “notice of the arrestee’s medical need . . . whether
    by word . . . or through observation of the arrestee’s
    physical symptoms”; (2) “the seriousness of the medical
    need”; (3) “the scope of the requested treatment,” which
    is balanced against the seriousness of the medical need;
    and (4) police interests, a factor which “is wide-ranging
    in scope and can include administrative, penological,
    and investigatory concerns.” Williams, 509 F.3d at 403.
      One should not fixate on       factors, however: the intui-
    tive, organizing principle is   that police must do more to
    satisfy the reasonableness      inquiry when the medical
    condition they confront is       apparent and serious and
    
    
    
    1
       (...continued)
    dispositive in the case—such as a timely call to paramedics—
    a special verdict form could have been used to ensure the
    proper outcome. On these facts, however, Florek should not
    bemoan her loss at summary judgment. As explained below,
    if police did promptly summon paramedics, they acted rea-
    sonably in this case.
    No. 10-3696                                            13
    
    the interests of law enforcement in delaying treatment
    are low. That is not the situation here. As to the first
    factor, officers had knowledge of the request for baby
    aspirin, but did not know that Florek was experiencing
    chest pains, and her outward appearance did not put
    officers on notice of her medical condition. (Again, the
    way the parties presented the issue leads us to hold to
    one side Florek’s contention that she did tell officers
    she was experiencing chest pains and requested an am-
    bulance.) Although her breathing was rapid at one
    point, Hansen’s advice to take slower breaths appears
    to have been effective. Moreover, Florek was conversing
    at the scene, admonishing her son for his association
    with a drug dealer. In short, law enforcement were not
    on notice of a serious medical condition. The request
    for baby aspirin was minor in scope as treatments go,
    but the weight of this factor is substantially reduced by
    the fact that the medical need did not appear to be
    great. Our case law does not require police officers to
    alleviate all discomfort or distress associated with ar-
    rest. Sides, 496 F.3d at 828 (“[T]he Constitution does
    not require arrests to be conducted in comfort.”). As to
    the fourth factor we identified in Williams, police had
    a valid interest in denying the request for aspirin. Al-
    though the police appear to have quickly brought the
    arrest scene under control, they were executing a
    search warrant for illegal narcotics, and they had no way
    of knowing if a particular medication was in fact what
    it purported to be. (The same conclusion might not
    apply to an arrestee’s request to take prescription med-
    ication in accordance with the instructions on the bottle,
    14                                              No. 10-3696
    
    as the containers for prescriptions describe the proper
    appearance of the pill and the symptoms that trigger
    their use.)
      Finally, and although we did not explicitly say as
    much in Williams or in Sides, the Fourth Amendment
    reasonableness inquiry necessarily takes into account
    the sufficiency of the steps that officers did take. “Just
    as the Fourth Amendment does not require a police
    officer to use the least intrusive method of arrest,
    neither does it require an officer to provide what
    hindsight reveals to be the most effective medical care
    for an arrested suspect.” Tatum v. City and County of
    San Francisco, 
    441 F.3d 1090
    , 1098 (9th Cir. 2006) (citations
    omitted); see also Jackson v. Kotter, 
    541 F.3d 688
    , 697 (7th
    Cir. 2008) (the Constitution is not a medical code re-
    quiring officers to administer or allow specific treat-
    ments); Forbes v. Edgar, 
    112 F.3d 262
    , 267 (7th Cir. 1997)
    (contrasting a reasonable response with a plaintiff’s
    preferred response, in the context of an Eighth Amend-
    ment claim). Here, we have assumed that an ambulance
    was called promptly after officers were notified that
    Florek was experiencing chest pains and wanted an
    ambulance. That action will typically qualify as reason-
    able. See Tatum, 441 F.3d at 1099 (police acted reasonably
    when they promptly summoned necessary medical assis-
    tance, even if they did not administer CPR); see also
    Sallenger v. City of Springfield, Illinois, 
    630 F.3d 499
    , 504
    (7th Cir. 2010) (police acted reasonably when they
    promptly summoned necessary medical assistance and
    administered CPR).
    No. 10-3696                                                  15
    
      Florek points to no case where a court has held that
    police acted unreasonably when they summoned emer-
    gency medical personnel instead of supplying non-pre-
    scription medication to an arrestee, nor has she pointed
    to other authority that might help her in making the
    argument. We located no helpful authority on her
    behalf, and a straightforward application of our prece-
    dent militates against her position. Thus, summary judg-
    ment on the merits was appropriate as to Hansen, and
    that means that judgment for the Village was proper as
    well. Sallenger, 630 F.3d at 505 (Monell liability cannot be
    imposed where there is no underlying constitutional
    violation).
    
    
    B. The Village’s Motion for Directed Verdict
      We review de novo the magistrate judge’s decision to
    grant the Village’s motion for a directed verdict—which
    the Federal Rules of Civil Procedure refer to as judg-
    ment as a matter of law. Freeman v. Madison Metro. Sch.
    Dist., 
    231 F.3d 374
    , 379 (7th Cir. 2000); Fed. R. Civ. P. 50(a).
    “To avoid a directed verdict, the plaintiff must do more
    than argue that the jury might have disbelieved all of the
    defendant’s witnesses. Rather, the plaintiff must offer
    substantial affirmative evidence to support her argu-
    ment.” Heft v. Moore, 
    351 F.3d 278
    , 284 (7th Cir. 2003).
       At the close of Florek’s case, the magistrate judge
    granted the Village’s motion for a directed verdict, rea-
    soning that the aspirin issue was no longer part of the
    litigation and that Florek had not presented evidence
    linking a municipal policy or custom to any constitutional
    16                                              No. 10-3696
    
    violation. On appeal, Florek concedes that a directed
    verdict was proper as to all but the claim related to
    aspirin. Having determined above that summary
    judgment was appropriate on the denial of aspirin
    issue, there remains no possible grounds for error.
    
    
    C. Rulings on Expert Testimony
      Finally, Florek maintains that the magistrate judge
    erred by barring expert testimony on whether police
    acted unreasonably by waiting 15 seconds, after knocking
    and announcing their presence, before ramming open
    the door to her apartment. (She also contends that it
    was error to bar expert testimony on the denial of
    aspirin issue, but the issue was properly out of the case,
    and so we need say no more.) The testimony in question
    would have been offered by police expert Dennis
    Waller. Waller would have testified that, given the late
    hour at which the search was executed, “no rational,
    experienced officer would/could reasonably expect a
    response and voluntary compliance within fifteen sec-
    onds” of knocking and announcing his presence. The
    defendants’ motion in limine maintained that the
    subject matter of Waller’s testimony was adequately
    comprehensible by laypeople and therefore not
    properly admissible as expert testimony. The magistrate
    judge agreed.
      We review de novo whether the magistrate judge
    “applied the appropriate legal standard in making its
    decision to admit or exclude expert testimony, and we
    review for abuse of discretion the . . . choice of factors to
    No. 10-3696                                              17
    
    include within that framework and . . . ultimate conclu-
    sions regarding the admissibility of expert testimony.”
    Happel v. Walmart Stores, Inc., 
    602 F.3d 820
    , 824-25 (7th
    Cir. 2010). Where the court below abuses its discretion
    by keeping out evidence that ought to have been
    admitted, a new trial will not be granted unless the omis-
    sion of such evidence violated the party’s “substantial
    rights.” Naeem v. McKesson Drug Co., 
    444 F.3d 593
    , 608-09
    (7th Cir. 2006); Fed. R. Civ. P. 61 (“At every stage of the
    proceeding, the court must disregard all errors and de-
    fects that do not affect any party’s substantial rights.”).
    In order for expert testimony to be admissible, it must
    satisfy the Federal Rule of Evidence’s threshold require-
    ment that “specialized knowledge . . . assist the trier of
    fact . . . to determine a fact in issue.” Fed. R. Evid. 702.
    Once the threshold showing is made, experts may
    provide assistance on a very great deal: an opinion is
    not objectionable merely because “it embraces an
    ultimate issue to be decided by the trier of fact.” Fed. R.
    Evid. 704(a). Thus, there would be no problem with
    Waller’s ultimate determination that police acted unrea-
    sonably. The question is whether the basis of that deter-
    mination—how long it takes for people to respond to
    law enforcement’s knock at the door—was beyond the
    ken of the average layperson. See 4 Jack B. Weinstein &
    Margaret A. Berger, W EINSTEIN ’S F EDERAL E VIDENCE
    ¶ 702.03[1], at 702-34 (Matthew Bender 2d ed. 2011).
      Florek’s brief does not cite case law on when expert
    testimony will help a jury determine whether police
    conduct is reasonable. The case of Kopf v. Skyrm, 
    993 F.2d 374
     (4th Cir. 1993), proves instructive. In Kopf, the Fourth
    18                                                No. 10-3696
    
    Circuit held that a district court abused its discretion in
    excluding expert testimony about whether it was reason-
    able for police to use a canine officer (and its canines) in
    bringing a suspect to heel. The court noted that whether
    force is excessive depends on the “objective reasonable-
    ness” of the force used, a fact question. Yet, “any ‘objective’
    test implies the existence of a standard of conduct, and,
    where the standard is . . . defined by . . . the specific—
    a reasonable officer—it is more likely that Rule 702’s line
    between common and specialized knowledge has been
    crossed.” Id. at 378. In the context of the case, which
    related to when police officers will find it necessary to
    use police dogs and certain specialized devices in
    gaining control over a suspect, the court ruled that the
    line had been crossed. However, the court noted that
    expert testimony might not be helpful in other situations,
    such as where police used their bare hands in making
    an arrest, the “most primitive form” of force. Id. at 379.
    In other words, expert testimony is more likely to
    satisfy Federal Rule of Evidence 702’s requirement that
    it “assist the trier of fact to understand the evidence
    or determine a fact in issue” when something peculiar
    about law enforcement (e.g., the tools they use or the
    circumstances they face) informs the issues to be
    decided by the finder of fact. See United States v. Shedlock,
    
    62 F.3d 214
    , 219 (8th Cir. 1995). Of course, that does not
    mean that expert testimony can war with the pertinent
    legal standards at play. Cf. Whren v. United States, 
    517 U.S. 806
    , 815 (1996) (noting that certain police practices
    “vary from place to place and from time to time” and
    rejecting the view that constitutional protections are “so
    variable”). And when the testimony is about a matter of
    No. 10-3696                                                19
    
    everyday experience, expert testimony is less likely to be
    admissible. United States v. Hanna, 
    293 F.3d 1080
    , 1085-86
    (9th Cir. 2002) (testimony of Secret Service agents on
    whether a reasonable person in the defendant’s position
    would foresee that communications would be perceived
    as threatening the President was not beyond the under-
    standing of the average layperson); Beck v. City of Pitts-
    burgh, 
    89 F.3d 966
    , 975-76 (3d Cir. 1996).
      Measuring Waller’s testimony against these standards,
    there can be no doubt that the magistrate judge
    properly exercised her discretion in barring Waller’s
    testimony. The knock-and-announce rule about which
    Waller would have opined is a factor to be considered
    when evaluating the reasonableness of a search. See
    Wilson v. Arkansas, 
    514 U.S. 927
    , 934 (1995). Informed
    by principles of English common law, id. at 932-33, the
    Court in Wilson held that the Fourth Amendment gen-
    erally requires police, before forcibly entering someone’s
    home, to seek voluntary compliance with a lawful war-
    rant by knocking and announcing their presence, id. at
    934. Despite the general rule, the Court noted that
    law enforcement interests may militate in favor of dis-
    pensing with it in certain circumstances. The Court high-
    lighted concerns over destruction of evidence and
    danger faced by police officers in particular, but other-
    wise left it to lower courts to develop the law in this
    realm. Id. at 936-37.2
    
    
    
    2
      Generally, we have refused to turn the knock-and-announce
    rule “into a constitutional stop-watch where a fraction of a
                                                    (continued...)
    20                                                   No. 10-3696
    
      Plainly, the concerns highlighted by the Court will
    inform the determination about whether law enforce-
    ment have waited a reasonable time before gaining
    entry to a residence by force. It is self-evident that expert
    testimony may be useful on those subjects. How long
    does it take to dispose of drugs? What sorts of prob-
    lems do law enforcement encounter the longer they wait
    before entering a residence? These are questions whose
    answers cannot be furnished by everyday experience.
    Waller’s testimony, on the other hand, did not ap-
    proach Rule 702 territory. It appears that Waller’s chief
    contribution was going to be his belief that, given the
    late hour, it would have been unreasonable to expect
    voluntary compliance with a knock at the door in
    15 seconds. Florek does not explain why expert testi-
    mony on this subject would be useful to the jury, instead
    seeming to contend that expert testimony is always
    necessary where “constitutional freedoms and guarantees
    are concerned” and police practices are at issue. That
    position is untenable; everyday experience teaches
    
    
    
    2
      (...continued)
    second assumes controlling significance.” United States v.
    Espinoza, 
    256 F.3d 718
    , 722 (7th Cir. 2001). What is reasonable
    must be determined “under the particular factual situation
    presented.” Id.; see also United States v. Jones, 
    208 F.3d 603
    , 610
    (7th Cir. 2000) (upholding district court’s determination that
    5 to 13 seconds was reasonable where police had concerns
    that a suspect was armed and also “a lengthy period of time
    would give the defendant an opportunity to destroy the drug
    evidence”).
    No. 10-3696                                         21
    
    people how long it takes to walk from room to room.
    The magistrate judge did not abuse her discretion in
    barring the testimony, nor did she do so by keeping
    out Waller’s testimony that a reasonable police officer
    would call an ambulance if confronted with an arrestee
    known to be experiencing heart attack symptoms.
    
    
                       III. Conclusion
      For the reasons set forth above, the judgment of the
    district court is A FFIRMED.
    
    
    
    
                            8-16-11