                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 3 2005
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    DANIEL GUTIERREZ,

              Plaintiff - Appellant,

     v.                                               No. 04-2104
                                            (D.C. No. CIV-02-582 MCA/ACT)
    P. HACKETT, Albuquerque Police                      (D. N.M.)
    K-9 Officer;

              Defendant - Appellee,

    THOMAS GARDUNO, Albuquerque
    Police K-9 Sergeant; CITY OF
    ALBUQUERQUE, New
    Mexico,

              Defendants.


                            ORDER AND JUDGMENT          *




Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Daniel Gutierrez challenges the judgment entered on a jury verdict

in favor of defendant Hackett, an Albuquerque police officer. Mr. Gutierrez

claimed that Officer Hackett’s use of a police dog to arrest him constituted

excessive force in violation of the Fourth Amendment. He also named as

defendants Officer Hackett’s supervisor and the City of Albuquerque, but as a

consequence of the verdict in Officer Hackett’s favor, those claims did not go

forward. Mr. Gutierrez’s appeal is limited to issues pertaining to Officer Hackett.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                      Background

      “When reviewing a jury verdict, we review the record in favor of the

prevailing party, and give that party the benefit of all reasonable inferences to be

drawn from the evidence.”      Miller v. Eby Realty Group LLC , 396 F.3d 1105, 1108

(10th Cir. 2005) (quotation and citation omitted). Under this standard, the record

reveals the following facts.

      In the early morning hours of May 28, 1999, April LaPierre awoke to loud

shouting outside her home where she saw a man shouting and swearing while


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trying to break into her automobile, which was parked in the driveway outside her

bedroom window. She called the police. Several officers responded to a report

of a felony in progress, including Officer Hackett with his police dog. Using

their flashlights, the officers saw Mr. Gutierrez lying curled up on the

passenger-side front seat of Ms. LaPierre’s automobile, with his hands concealed

under his body. The officers yelled loudly at Mr. Gutierrez several times, rocked

the car, and pounded on the trunk lid, but he did not respond. Officer Hackett

shouted three warnings that he would deploy his police dog unless Mr. Gutierrez

came out of the car, but he still did not come out. Officer Hackett then sent the

dog into the car to “bite and hold” Mr. Gutierrez. After a scuffle with the dog, he

emerged, standing solidly on the sidewalk until he was forced to lie on the

ground. As soon as Officer Hackett could see Mr. Gutierrez’s hands, he called

off the dog. Although Mr. Gutierrez claimed he was intoxicated at the time, the

officers at the scene did not notice any signs of intoxication, nor did the officer

who interviewed him later at the police station.

      The officers believed Mr. Gutierrez could hear the shouted commands to

come out of the car but he chose to ignore them. Mr. Gutierrez kept his hands

hidden. An automobile provides numerous places to hide a weapon, thus making

a suspect in a car potentially dangerous. In addition, the officers were wary of




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Mr. Gutierrez’s continued and obvious refusal to acknowledge their presence,

despite the commotion they created to get his attention.

      Claiming that use of the police dog constituted excessive force,

Mr. Gutierrez filed suit under 42 U.S.C. § 1983. During the course of the

litigation in the district court, a magistrate judge entered an oral order setting

discovery deadlines, including November 15, 2002, as the cut-off for

Mr. Gutierrez’s expert witness reports. The written document memorializing the

oral order was due from the parties on September 22, 2002, but was not entered

on the district court docket until February 27, 2003, after the deadlines had

passed. Although Mr. Gutierrez identified his expert witness in pretrial reports,

he did not proffer his expert witness’ written report, pursuant to Fed. R. Civ. P.

26(a)(2)(B), until April 14, 2003, five months after the due date. As a sanction

for missing the deadline, the district court struck Mr. Gutierrez’s expert witness.

The district court also ruled inadmissible a videotape depicting an unrelated

police dog incident (the “Drameeco Kindle” videotape).

      The district court denied the parties’ cross motions for summary judgment,

ordered separate trials against Officer Hackett and the remaining defendants, and

held a jury trial on Mr. Gutierrez’s claims against Officer Hackett. Following the

jury verdict against him, Mr. Gutierrez filed a motion for judgment as a matter of

law, which was denied.


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       Mr. Gutierrez appeals, asserting that Officer Hackett’s use of a police dog

in these circumstances was constitutionally unreasonable as a matter of law. He

appeals the district court’s orders denying his motion for summary judgment and

his post-trial motion, both of which argued he was entitled to a judgment as a

matter of law. He also claims that the district court deprived him of a fair trial

by permitting Officer Hackett to testify about his subjective fears of violence, by

prohibiting or limiting testimony about alternatives involving less force than a

police dog, and by excluding his expert witness and the “Drameeco Kindle”

videotape.

                                 Excessive Force Claim

       By its verdict, the jury determined that Officer Hackett’s use of the police

dog was not unreasonable. Our review of a jury verdict “is limited to determining

whether the record – viewed in the light most favorable to the prevailing party –

contains substantial evidence to support the jury’s decision.”    Bangert Bros.

Constr. Co. v. Kiewit W. Co. , 310 F.3d 1278, 1292 (10th Cir. 2002) (quotation

omitted). “Substantial evidence is something less than the weight of the

evidence, and is defined as such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion, even if different conclusions also

might be supported by the evidence.”      Webco Indus., Inc. v. Thermatool Corp.   ,

278 F.3d 1120, 1128 (10th Cir. 2002) (quotation omitted).


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       A motion for judgment as a matter of law may be granted “only if the proof

is all one way or so overwhelmingly preponderant in favor of the movant as to

permit no other rational conclusion.”       Marquez v. City of Albuquerque   , 399 F.3d

1216, 1220 (10th Cir. 2005) (quotation omitted). In evaluating this question,

neither the district court nor this court may weigh the evidence, determine the

credibility of witnesses, or replace its assessment of the case for that of the jury.

Id.

       Claims that a law enforcement officer used excessive force during an arrest

are analyzed under a reasonableness standard.          Graham v. Connor , 490 U.S. 386,

395 (1989).   1
                   The test of reasonableness is based on the totality of the

circumstances, United States v. Banks , 540 U.S. 31, 36 (2003), considering such

factors as “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether the suspect is

actively resisting arrest or attempting to evade arrest by flight.”      Jiron v. City of

Lakewood , 392 F.3d 410, 414-15 (10th Cir. 2004). There is no requirement that

all of these criteria be satisfied before a use of force can be objectively

reasonable.       Cf. Hinton v. City of Elwood    , 997 F.2d 774, 781 (10th Cir. 1993)



1
      We need not decide if the use of the police dog constituted deadly force.
The parties do not argue that it did, so for the purposes of this order and
judgment, we assume that use of a police dog is not deadly force.     See Marquez ,
399 F.3d at 1220 n.1.

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(finding first two criteria not satisfied, but third strongly supported a finding that

the use of force was objectively reasonable).

       Mr. Gutierrez maintains that he was exhausted and intoxicated, asleep in an

automobile that seemed familiar to him. He contends that there was no evidence

that he had a weapon or that the situation presented anything other than an

unarmed man asleep in a car. Therefore, according to Mr. Gutierrez, instructing

the police dog to “bite and hold” him was constitutionally unreasonable as a

matter of law. He further argues that even if the initial contact with the dog was

reasonable, it was unreasonable as a matter of law for the dog to be commanded

to continue to “bite and hold” while he refused to emerge from the car.

       Mr. Gutierrez asks us to view the situation “with the 20/20 vision of

hindsight,” which we cannot do.     Graham , 490 U.S. at 396. Rather, “[a] court

assesses the reasonableness of an officer’s conduct from the perspective of a

reasonable officer on the scene, acknowledging that the officer may be forced to

make split-second judgments in certain difficult circumstances.”     Marquez , 399

F.3d at 1220 (quotation omitted). Moreover, “[i]f an officer reasonably, but

mistakenly, believed that a suspect was likely to fight back, . . . the officer would

be justified in using more force than in fact was needed.”    Saucier v. Katz , 533

U.S. 194, 205 (2001).




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       When viewed from the perspective of a reasonable officer on the scene, and

in the light most favorable to Officer Hackett, the situation presented a man who

had broken into an automobile in the middle of the night, who would not respond

to any of the officers’ repeated demands to emerge, and who kept his hands

hidden in such a manner as to conceal a weapon. As soon as he revealed his

hands to the officers, the police dog was called off. The jury determined that

under these circumstances, Officer Hackett did not use constitutionally

unreasonable force, and we determine that the record contains substantial

evidence to support the verdict.

                            Challenges to Testimonial Rulings

       Mr. Gutierrez asserts that the district court committed reversible error by

permitting the officers to testify about their perceptions of the situation,

particularly their fear that he had a weapon based on the fact that he kept his

hands out of view. Mr. Gutierrez argues that this testimony informed the jury of

the officers’ subjective fears of violence, in violation of the rule that “the

‘reasonableness’ inquiry in an excessive force case is an objective one.”      Graham ,

490 U.S. at 397.

       “The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene . . . .”   Id. at 396. We hold that

the challenged testimony was relevant and admissible to show the circumstances


                                              -8-
facing Officer Hackett at the scene. Accordingly, the district court did not abuse

its discretion in admitting this testimony.     See Marquez , 399 F.3d at 1222

(reviewing district court’s evidentiary rulings for abuse of discretion).

       Mr. Gutierrez also complains that the district court did not permit him to

introduce evidence of alternatives involving less force than use of a police dog.

Although he concedes that he was permitted to adduce some evidence on this

point, we need not decide whether he was given sufficient opportunity to do so,

because the district court did not abuse its discretion in excluding the evidence.

See id. at 1222 (holding no abuse of discretion in excluding testimony on least

intrusive amount of force). “[T]he Fourth Amendment does not require [police]

to use the least intrusive means in the course of a detention, only reasonable

ones.” Id. (quotation omitted). Accordingly, even if the jury found that Officer

Hackett used more force than necessary, it “could nonetheless find he acted

reasonably,” id.

                       Exclusion of Expert Witness and Videotape

       Finally, Mr. Gutierrez claims that the district court erred in excluding his

expert witness and the “Drameeco Kindle” videotape. He argues that he named

his expert early in the discovery phase, the expert’s report was filed more than six

months before trial, and Officer Hackett was not prejudiced by the delay in

providing the report because the expert had testified in a similar case brought


                                              -9-
against the City of Albuquerque. It is undisputed that the expert’s statement of

opinions was not filed until five months after the discovery deadline. The district

court ruled that Mr. Gutierrez would not be permitted to call his expert witness at

the trial against Officer Hackett because he had missed the deadline for filing the

expert’s report.

       Expert reports must “contain a complete statement of all opinions to be

expressed.” Fed. R. Civ. P. 26(a)(2)(B). “A party that without substantial

justification fails to disclose information required by Rule 26(a) . . . is not, unless

such failure is harmless, permitted to use as evidence at trial . . . any . . .

information not so disclosed.” Fed. R. Civ. P. 37(c)(1). The district court has

broad discretion to decide if a Rule 26(a) violation is justified or is harmless.

Jacobsen v. Deseret Book Co. , 287 F.3d 936, 953 (10th Cir. 2002). No explicit

findings on this issue are required, and the court should consider: (1) whether the

other party will be prejudiced, (2) the ability to cure any prejudice, (3) whether

allowing the evidence would disrupt the trial, and (4) the violator’s bad faith or

willfulness. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co.       , 170 F.3d

985, 993 (10th Cir. 1999).

       In this case, it is clear that the district court’s decision to exclude

Mr. Gutierrez’s expert due to the Rule 26(a) violation was based on the

appropriate considerations. The court explained that allowing the evidence would


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unfairly prejudice Officer Hackett, and rejected Mr. Gutierrez’s argument that the

expert’s opinion was already known to the defendants, because neither Officer

Hackett nor his attorney had participated in the earlier litigation. In addition, the

court found the expert’s testimony in the case against Officer Hackett (as

opposed to the claims against the City and the supervisor) to be of limited

relevance on the issue of individual liability. We have carefully reviewed the

ruling in the context of the record, and we find no abuse of discretion in

excluding Mr. Gutierrez’s expert witness.

      As for the ruling excluding the videotape, Mr. Gutierrez argues on appeal

that allowing the jury to view it would have demonstrated generally how a suspect

could be expected to react to being apprehended by a police dog, even though it

had nothing to do with the situation presented here. The district court sustained

the objection to the videotape on the ground that it was irrelevant to the case

before the jury. “Because a trial court has broad discretion to determine whether

evidence is relevant and to exclude irrelevant evidence, we review the district

court’s decision to exclude [the videotape] for an abuse of discretion.”

Garcia-Martinez v. City & County of Denver      , 392 F.3d 1187, 1193 (10th Cir.

2004) (quotation omitted). We hold that the district court did not abuse its




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discretion in excluding on relevancy grounds the videotape showing the use of a

police dog in a situation unrelated and dissimilar to the one before the jury.

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge




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