A month before the case goes to trial, a federal judge has denied an attempt to add an expert witness to a lawsuit against an Albemarle County police officer accused of targeting Black men for stops and intrusive searches.
The case, one of two filed a few years ago on behalf of four local Black residents, alleges that Officer Andrew Holmes targeted them for traffic stops and search warrants because of their race, violating their 14th Amendment rights to equal protection under the law.
According to the plaintiffs, Holmes made it a practice to stop and ticket three times as many Black people as white people, compared with all other officers on the force, and at a rate more than twice that of all officers who worked in the same sectors of the county as Holmes.
After being initially dismissed in March 2018, the lawsuit was revived in August 2019 when the 4th Circuit Court of Appeals reversed part of a lower court’s decision. Both the dismissal and appeal focused on the statistical date. At the time of dismissal, U.S. District Judge Norman K. Moon said did not prove “discriminatory effect” because it did not identify individuals “similarly situated” who were from a different race than the plaintiffs and who were not subjected to the same treatment.
Now, more than two years later, the case is set to begin a three-day trial on Jan. 10 in Charlottesville’s federal court. However, counsel for Holmes recently attempted to re-open discovery in order to add an expert witness who could analyze statistical data relevant to the case.
Holmes’ counsel Jim Guyunn described the case as a “rather novel process,” during a Wednesday virtual hearing and said that, given the 4th Circuit Court’s order, he did not realize the case had been remanded for re-trial.
“I didn’t realize that we would be confined basically trying to the same in case we tried before, given the fact the 4th Circuit, I think, at least that panel had changed the law, certainly as it pertains to this case,” he said.
Guyunn said he expected there to be a pre-trial scheduling order to be entered before the trial and, after that didn’t happen, he decided to try and file the motion to re-open discovery.
“I don’t have to tell you that it’s been a strange two years and it has included a lot of delays, and I just thought that there was a delay in a pre-trial order telling me to take care of it,” he said. “Naive, or whatever you want to call it, but didn’t realize that there wouldn’t be and that I would need to request for discovery, and for that, I apologize.”
Jeff Fogel, counsel for the plaintiffs, argued that Guyunn had plenty of time to request for the discovery to be re-opened following hearings in 2020.
“There was no excuse here for him to not have asked the court simply to extend the period of discovery and the trial date if that’s what he needed,” Fogel said. “Instead, he decided, ‘I don’t know what’s going on, so I’ll just do what I feel like doing,’ which is giving him an expert report at the last possible minute, which will affect the trial day.”
Though U.S. Magistrate Judge Joel C. Hoppe did not rule on the motion Wednesday, he did deny the request in an order issued Thursday.
“With trial scheduled to begin on January 10, 2022, defendant’s request is not timely. It comes more than a year after the period for limited discovery closed and more than nine months after the presiding District Judge’s admonishment,” Hoppe wrote. “Under these circumstances, I cannot find good cause, weighing defendant’s diligence and prejudice to plaintiffs, to grant defendant’s request.”
The expert witness for the defense presumably would have been used to examine the statistical evidence — referred to as a “comparator table” in court documents — which has been an issue of contention between the parties. Specifically, representatives for the county police have taken issue with whether a key data table represents citations that were issued during traffic stops and calls for service or those that were issued only during traffic stops.
Now, with less than a month until trial begins, the only pending motion is one on behalf of the plaintiffs seeking to consolidate two of the cases against Holmes into one. If Holmes’ opposes the motion he is directed to respond by Dec. 17.