Excessive Force,
Read Against the Standard

• Professor Gregory Gilbertson (Ret.): thirty-eight years across policing, the Army, the classroom, and investigative casework. Independent consultants are retained case-by-case where the record calls for a second discipline.
• Retained in more than 220 civil rights and criminal cases across 42 states and the District of Columbia; expert practice since 2014.
• Professor Gilbertson’s testimony has not been excluded at trial in any state or federal court.
• Retained by plaintiff’s counsel and by the defense alike, in civil and criminal matters.
• Fees are published: a $9,000 flat fee covering discovery review and the written expert report; the full schedule is on For Retaining Counsel.
• Attorney and law-firm inquiries only; conflicts are checked before any substantive discussion. (239) 571-1840.

Retained as a police use of force expert witness for plaintiffs, and as an excessive force expert witness in the defense of officers accused of excessive force.

Graham v. Connor, 490 U.S. 386 (1989) supplies the frame for every force question, and its practical effect is a limit on the review itself: the analysis is anchored to what the officer knew at the moment force was used, and never to what the record revealed afterward. The factors are unpacked at Graham v. Connor explained. Deadly force adds Tennessee v. Garner, 471 U.S. 1 (1985), set out at the deadly-force standard. Force involving a moving vehicle adds Scott v. Harris, 550 U.S. 372 (2007). Each is weighed on the totality of the facts and circumstances rather than on any single frame of video, a point developed at totality of the circumstances.

The standard sets the frame. It does not supply the three yardsticks a force analysis is actually decided on. The first is the agency's own written use-of-force policy and the general orders in force on the date of the incident, not the version published later. The second is the training the officer actually received, in the academy, in field training and in in-service, which is a question of records rather than of what a policy assumed. The third is generally accepted police practices, drawn from national model policies, POST commission expectations and academy and in-service curricula, which is what fills the space a written policy leaves open. Those layers are separated at policy, practice and training, and the third is defined at generally accepted police practices.

Applying those yardsticks to a record is what a police practices expert witness is retained to do. The opinion addresses police practices: what the officer did, what policy and training required, and where the two diverge. Whether the conduct violated the Fourth Amendment, and whether any violation was clearly established, are legal conclusions, and they remain counsel's.

Force questions do not divide by injury. They divide by the option used and by the type of encounter, because the governing policy, the training that applies and the accepted-practice yardstick are different for each one, and so is the record that proves them.

Deadly force turns on the shooting decision and the threat as it presented. Restraint cases turn on neck and prone restraint practices and on force applied to a person already controlled. Electronic-control devices, canine deployment and other less-lethal options each carry their own authorization, warning and reporting practices. Planned tactical and high-risk warrant operations are judged largely on the planning that preceded the entry. An encounter that dispatch identified as a behavioral-health crisis is measured against crisis-intervention practices from before the first officer arrived. How agencies structure the choice among options is treated at force options and decision models, and the obligations that attach before force is used are at what de-escalation standards require.

Officer-Involved Shootings. The deciding paper is the agency's deadly-force policy and the involved officer's training history, read against the use-of-force report and the administrative review of the shooting.

Chokeholds and Restraints. Here it is the restraint policy and the training behind it, read with the supplemental reports and the record of what was done once the person showed distress.

Tasers, Canine and Less-Lethal. Device-specific policy governs, and the deployment record proves it: device logs where they were produced, canine deployment records, and the warnings and aid the policy required.

SWAT and High-Risk Operations. The file that decides it is the operational plan, the briefing materials, and the threat assessment or risk matrix that justified a tactical response.

Mental-Health and Crisis Encounters. The CAD narrative and the radio traffic are read against each responding officer's crisis-intervention training record, and clinical questions belong to qualified mental-health experts.

Retaining counsel is responsible for the admissibility of any report and any testimony, and no expert takes that burden off counsel. What an expert can do is leave the record on challenges where counsel can read it instead of asserting it. Counsel can read the court's ruling in Alvarez v. King County on the homepage, in the words of the order rather than a characterization of them. What Rule 702 asks of a police practices witness is set out at Daubert and Rule 702.

The qualified fact, carrying its qualifier: Professor Gilbertson's testimony has not been excluded at trial in any state or federal court. What that does and does not mean is explained at what never excluded means. Testimony has been admitted in the state courts of Washington, Oregon, Kansas, Connecticut, Florida and Illinois, and in the U.S. District Courts for the Western District of Washington, the District of Arizona and the Western District of Louisiana.

Rule 702 also has a negative answer, and it is the one that keeps an opinion inside its discipline: where scientific, medical, technical or human factors evidence is involved, qualified experts in those disciplines are deferred to, on the record.

Case accounts as published by retaining counsel. Outcomes depend on their facts; no result is promised for any other matter.