Moriarty v. Board of County Commissioners (931 F. Supp. 2d 1142, 2013)

MEMORANDUM OPINION AND ORDER

PARKER, Senior District Judge.

In this MEMORANDUM OPINION AND ORDER (“Order”), the Court addresses three motions by Defendants, Board of County Commissioners for the County of Sandoval (“Board”), John Paul Trujillo, Tim Lucero, and Edd Morrison. First, the Court denies the OBJECTION TO PLAINTIFFS’ NOTICE OF SUPPLEMENTATION OF THEIR RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 113) (“Objection”), in which Defendants argue that the Court should refuse to consider an affidavit that Plaintiffs belatedly filed to authenticate a report by D.P. Van Blaricom, one of Plaintiffs’ proposed expert witnesses. Second, the Court grants in part the MOTION TO EXCLUDE TESTIMONY OF PROPOSED EXPERT VAN BLARICOM (Doc. No. 74) (“Motion to Exclude Van Blaricom”), in which Defendants argue that the Court should exclude certain opinions in Mr. Van Blaricom’s report. Third, the Court grants the MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ TITLE 42 U.S.C. § 1983 CLAIM BASED ON QUALIFIED IMMUNITY AND OTHER GROUNDS (Doc. No. 72) (“Motion for Summary Judgment”), in which Defendants contend that Plaintiff Theresa Moriarty “cannot satisfy all of the elements of a § 1983 state-created danger case,” and that even if she could, “she cannot establish the individual Defendants violated clearly established law,” or, as a result, that Defendant Board is vicariously liable. Motion for Summary Judgment at 2, 39-40. Finally, the Court remands Plaintiffs’ state-law claims to the Thirteenth Judicial District Court, County of Sandoval, New Mexico.

On January 10, 2013, the Court held a pretrial conference at which counsel presented arguments related to the Motion for Summary Judgment. At the pretrial conference, attorneys Cammie Nichols and Brendan Egan represented Plaintiffs, and attorney P. Scott Eaton represented Defendants. The Court also requested supplementary briefing, which was completed on January 28, 2013. In ruling on these motions, the Court has considered the record in this case, the parties’ arguments, and the relevant law.

BACKGROUND

This case arises out of an operation by the Sandoval County Sheriffs Office (“SCSO”) to apprehend an individual known as the “Cookie Bandit” who, for perhaps ten years, had been burglarizing cabins and eluding law enforcement in the Jemez Mountains area of Sandoval County, New Mexico. See Investigative Report by Lieutenant Keith Elder, Plaintiffs’ Exhibit 21 (Doc. No. 98-21) (“Elder Report”) at 1. Plaintiff Moriarty, a deputy with SCSO, and Sergeant Joe Harris, who both normally worked in schools, set out to gather information about and to capture the Cookie Bandit in the summer of 2009. See id. at 2; Deposition of Timothy Lucero, Defendants’ Exhibit D (Doc. No. 72-4) (“Lucero Depo. Part 1”) at 36-40. One night, Moriarty and Harris managed to apprehend and handcuff the Cookie Bandit, but the Cookie Bandit then somehow retrieved a gun, with which he fatally shot Harris. See Elder Report at 2.

A. Moriarty’s Law Enforcement Background and Work With SCSO

Moriarty was a police officer with the New York Police Department (“NYPD”) for twenty years, retiring in 2004. See Deposition of Theresa Moriarty, Defendants’ Exhibit B (Doc. No. 72-2) (“Moriarty Depo.”) at 31:21-22. Moriarty received the standard six months of NYPD Police Academy training before starting as a patrol officer. See id. at 62:2-4, 69:6-11, 77:3-10. For her first ten years at NYPD, Moriarty worked in mostly lower-crime areas of New York’s Harlem neighborhood. See id. at 69:12-17. Also, for five of those ten years Moriarty participated in the NYPD’s “Community Policing on Patrol” program, which entailed patrolling on foot and sometimes engaging with local school children. See id. at 70:5-7, 17-24; Deposition of Theresa Moriarty, Plaintiffs’ Exhibit 1 (Doc. No. 98-1) (“Supp. Moriarty Depo.”) at 42:2-9. In the second half of her NYPD career, Moriarty transferred to a desk job at Bronx Central Booking, where she mostly did “general office work, and typing, and administrative tasks” like ordering supplies. Moriarty Depo. at 71:10-72:5. However, while at Bronx Central Booking Moriarty still carried a weapon and occasionally worked overtime guarding prisoners. See id.

After retiring from the NYPD, Moriarty moved to New Mexico with her partner, Plaintiff Doug Garrabrant. See id. at 32:10-17. In the fall of 2006, Moriarty briefly worked as a school security guard (a position that did not require her to carry a gun or handcuffs). See id. at 38:2-23. However, she then met Sergeant Harris, who urged Moriarty to come out of retirement to work, as Harris did, as a school resource officer (“SRO”) at SCSO. See id. at 39-40; Supp. Moriarty Depo. at 41-42. Moriarty initially resisted this suggestion, but eventually changed her mind and decided to apply to SCSO because of Harris’ persistence and the way Harris described the SRO position. See Supp. Moriarty Depo. at 41-42. Harris told Moriarty that the job would be “good for [her].” Id. at 42:14-15. Harris described the job as a fun and community service-oriented role involving taking a dog to schools to interact with kids, as well as going to “community meetings and functions, handing out coloring books to the community, stuff like that.” Id. at 42:11-43:22.

With Harris’ encouragement, Moriarty met informally with Defendant John Paul Trujillo, who was then SCSO’s elected Sheriff, and Lt. Dean Alexander, who was then the supervisor of SROs at SCSO. See id. at 44:1-10; Deposition of Dean Alexander, Plaintiffs’ Exhibit 4 (Doc. No. 98-4) (“Alexander Depo.”) at 90-91. Soon after, Moriarty began the formal application process, which included interviews with Defendant Trujillo and Defendant Timothy Lucero, who was then SCSO’s Undersheriff. See Moriarty Supp. Depo. at 44:1-21. Moriarty recalls receiving verbal assurances from Trujillo and Alexander that she would almost exclusively work in the schools or school-related programs, even during the summer. See id. at 45:22-46:3; Moriarty Depo. at 30:20-31:6; Alexander Depo. at 42:18-22. However, Moriarty’s application certified that she could “respond appropriately in stressful situations,” “[p]erform[ ] a wide range of patrol duties, as assigned, to enforce various laws and ordinances” and “[w]ork[ ] from rotating shift patrol assignments.” Sandoval County Notice of Position, Plaintiffs’ Exhibit 2 (Doc. No. 98-2); see also Moriarty Depo. at 81:13-82:3. Moriarty also acknowledges that no one ever told her that she “would never have to do any other law enforcement duties.” Moriarty Depo. at 50:25-51:2. Near the start of Moriarty’s work with SCSO, she took the 120 hours of “waiver training” required of law enforcement officers from other jurisdictions seeking to work with the police in New Mexico. Id. at 86:8-24. While working at SCSO, Moriarty also attended a number of other training sessions for use of force and weapons. See id. at 86-95. In particular, just three weeks before the incident at issue, Moriarty attended a two-day training program on “use of force.” Id. at 90:12-17. A lieutenant at SCSO taught the program, part of which reviewed the importance of searching a handcuffed suspect for weapons. See id.; Deposition of Walter Chris Dameron, Defendants’ Exhibit C (Doc. No. 72-3) (“Dameron Depo.”) at 171-73.

Moriarty’s primary role as an SRO was described by Dean Alexander, the former SRO supervisor at SCSO, as involving “[i]nteract[ion] most of all with the students, the parents, the faculty and administration of the school ... providing] safety and security, but primarily as a mentor to the students ... to set a good example, show the kids that police officers aren’t the enemy, they’re your friends.... ” Alexander Depo. at 38:13-17; 86:12-22. SROs present a state-approved program to classes, and some, including Moriarty, participate in the “Kasey Says” in which officers take dogs to schools to encourage better behavior in students. See id. at 87:10-16, 90-91. The “Kasey Says” program was one of the reasons Moriarty was originally interested in working at SCSO. See Supp. Moriarty Depo. at 42:11-18. Moriarty and other SROs wore a “soft uniform” of police polo shirt, khakis, and a utility belt, rather than a patrol officer’s “hard uniform.” Alexander Depo. at 39:13-16. On an average day, Moriarty worked for about eight hours, beginning at a school crossing and then going to classes with her “Kasey Says” dog. See Moriarty Depo. at 49:13-20, 51:13-18. However, SROs including Moriarty also carried a gun and handcuffs, drove a marked police car, and took on regular patrol duties “a handful of times” when SCSO was short-handed. Supp. Moriarty Depo. at 46:1-8, 48-49. Over approximately a year and a half at SCSO, Moriarty took more than seventy-five reports of suspected criminal activity. See Affidavit of Walter Edwin Morrison, Jr., Defendants’ Exhibit O (Doc. No. 72-15) (“Morrison Aff.”) at ¶ 5. The reports were mostly of “bullying-type assault and battery” incidents, but also included allegations of crimes like burglaries, weapons possession, assaults and batteries, drugs and alcohol, domestic violence, and vandalism. Moriarty Depo. at 52-53.

After their first meeting, Moriarty and Harris became good friends “right away.” Id. at 125:2-4. Moriarty considered Harris both her partner and a “brother” to her, but he was also her supervisor at work, and as a veteran of the NYPD’s “paramilitary organization,” Moriarty was used to obeying commands from and taking questions to her supervisor, and would never “jump rank” to take concerns to someone else. Id. at 128:16-19, 135:9-17, 144:20-23. However, Moriarty trusted Harris and felt able to “share secrets ... with [him] and trust that that would be confidential,” including telling him if she had complaints about others at SCSO or any concerns about not wanting to do an assignment. Id. at 130:22-131:6.

B. The Cookie Bandit’s History, Known Dangerousness, and Investigations by SCSO

A persistent series of burglaries of cabins in the Jemez Mountains area began in around 1998. See Sandoval County Sheriffs Department Investigative Report (Supplemental Report), Plaintiffs’ Exhibit 21 (Doc. No. 98-21) (“SCSO Supp. Report”). Many of the burglaries fit a pattern, leading Jemez area residents and officials at SCSO to believe that a single culprit was responsible. See id.; Dameron Depo. at 16:5-19. In this pattern, the Cookie Bandit, as he came to be known, mainly stole food and similar non-saleable items. See Elder Report at 1. But SCSO also received a few reports of firearms being stolen from cabins, and a report of an incident in which the Cookie Bandit told a local couple who confronted him “to back off, he had a gun.” Deposition of Jason Benally, Plaintiffs’ Exhibit 5 (Doc. No. 98-5) (“Benally Depo.”) at 54:12-23; Sandoval County Sheriffs Office Supplemental Report by Edd Morrison, Plaintiffs’ Exhibit 23 (Doc. No. 98-23) (“Morrison Supp. Report”) at 2. SCSO also received a report in 1998 that a man brandished a pistol at a local fire chief. See Morrison Supp. Report at 2. This was early in the Cookie Bandit’s Jemez career, but those at SCSO and elsewhere generally thought that it was the Cookie Bandit who had brandished the pistol. See Deposition of Timothy Lucero, Plaintiffs’ Exhibit 16 (Doc. No. 98-16) (“Lucero Depo. Part 2”) at 135:4-13, 139:9-15, 145:20-24. Based on such reports, Defendants and others at SCSO believed that the Cookie Bandit was armed and dangerous. See Lucero Depo. Part 2 at 134-35, 153 6:11; Deposition of Edd Morrison, Plaintiffs’ Exhibit 20 (Doc. No. 98-20) (“Morrison Depo. Part 4”) at 21:18-20; Benally Depo. at 55. Also, after a team from SCSO, including Morrison, dismantled what they believed to be the Cookie Bandit’s campsite in 2008, the Cookie Bandit’s “entering cabins became more forceful and destructive,” causing much property damage. Morrison Supp. Report at 2.

In 2008, at Morrison’s suggestion, Trujillo gave a reserve deputy commission to Luke Dienlin, a hunter who was interested in tracking the Cookie Bandit. See Deposition of Edd Morrison, Plaintiffs’ Exhibit 17 (Doc. No. 98-17) (“Morrison Depo. Part 3”) at 39-40. That fall and winter, Dienlin hiked in the Jemez with a friend numerous times. See Deposition of Luke Dienlin, Plaintiffs’ Exhibit 7 (Doc. No. 98-7) (“Dienlin Depo.”) at 47-48. The pair thought they were close to the Cookie Bandit at times, but never caught up with him. See id. Morrison had warned Dienlin that the Cookie Bandit may be armed and dangerous, told Dienlin to be careful, and ensured that he had a bullet-proof vest and adequate weapons. See id. at 14, 20:12-14, 22:9-16. Dienlin and his Mend each carried multiple firearms when they went out to look for the Cookie Bandit. See id. at 19:3-8. Dienlin was wearing a bullet-proof vest when, in November 2008, he went out alone to track the Cookie Bandit. See id. at 62-63, 75. In the dark of the night, Dienlin took fire from someone with a .45 caliber gun. See id. at 67-75. A bullet hit Dienlin in the chest, injuring him despite the vest, and he began to cough up blood. See id. at 68:4-15. As a result, Dienlin turned back rather than pursue the shooter, whom he did not see. See id. at 68-72. However, based on the proximity of footprints Dienlin found to cabins and a former campsite of the Cookie Bandit, and on the “size, stride, and design” of shoe impressions he saw, Dienlin believed the shooter was the Cookie Bandit. Id. at 68-70; Incident Report for Assault/ Battery on Luke Dienlin, Plaintiffs’ Exhibit 32 (Doc. No. 98-32) (“SCSO Dienlin Report”) at 2. Dienlin did not immediately report the shooting because he thought that SCSO would then want to take away his commission. See Dienlin Depo. at 22:20-25. However, Dienlin did file a report with SCSO about five days after the incident. See SCSO Dienlin Report at 1. Lt. Jason Benally, who then held the lower rank of sergeant, suggested that someone “needed to go to the area [where Dienlin was shot] and try to secure the scene” and look for evidence, but Benally does not think that any investigation happened, nor was the state police notified. Benally Depo. at 63:17-64:24. Many at SCSO took a dismissive attitude toward Dienlin’s story, suspecting that Dienlin accidentally shot himself. See Lucero Depo. Part 2 at 115; Baron Aff. at ¶ 10.

Prior to Dienlin’s time hunting the Cookie Bandit, Morrison had long been involved in putting together plans and small operations to try to apprehend the Cookie Bandit. See Morrison Depo. Part 4 at 109:16-21. Morrison often went up to the Jemez area and looked for the Cookie Bandit by “walking the trails, [going] up on a four-wheeler, riding a horse,” as well as staying in cabins overnight to see if the Cookie Bandit would break in. See id. at 108-109; Deposition of Edd Morrison, Defendants’ Exhibit F (Doc. No. 72-6) (“Morrison Depo. Part 1”) at 21:15-20. “Many other SCSO deputies spent time in the Jemez area investigating the Cookie Bandit as well,” including Lucero, who went with Morrison “and set up on cabins on several occasions.” Morrison Aff. at ¶ 8; Lucero Depo. Part 2 at 144:14-19. SCSO coordinated with the state police at least twice when SCSO deputies thought they had found the Cookie Bandit’s location and called on state SWAT teams to look inside cabins. See Lucero Depo. Part 2 at 152-155. The FBI was also involved in an SCSO operation in the Jemez to find a missing person who may have been out to get the Cookie Bandit and the corresponding bounty. See Dameron Depo. at 17; Morrison Depo. Part 1 at 22:12-23:16. The U.S. Forest Service, too, helped investigate the burglaries on certain occasions. See Morrison Depo. Part 3 at 23:17-24:13.

Not everyone thought SCSO was doing a good job of searching for the Cookie Bandit. Dean Alexander recalls talking with Morrison and Lucero many times about the case and telling them that their plans for pursuing the Cookie Bandit on ATVs, for example, or doing things “ad hoc” like “sit[ting] in a cabin and waiting]” for the Cookie Bandit, were inadequate. Alexander Depo. at 61-62, 70:12-21. Jason Benally also suggested sending “highly-trained, military-trained individuals” after the Cookie Bandit. Benally Depo. at 55:16-19. Benally recalls that many at SCSO questioned the wisdom of putting Moriarty and Harris on the assignment. See id. at 56:20-25. However, Benally felt that arguing with Morrison about this would be “fruitless” because of Morrison’s mindset and sense of ownership about the Cookie Bandit investigation. Id. at 56-57.

In 2008, as noted, Morrison and a large group of other SCSO deputies, as well as Dienlin, came across what they believed was the Cookie Bandit’s campsite. See Morrison Depo. Part 3 at 24-28. They found an array of items including “camouflage clothing[,] ... cooking utensilsf, a] cooler with spices and whatnot in it[, s]everal pairs of shoes of various sizes[,] ... a plastic bag containing some pharmaceutical mushrooms and some military documentation with the name of Tim Cobb on it.” Id. at 25:4-12. Morrison testified that they handled the pieces of evidence with gloves and later dusted them for fingerprints, but others remember seeing that items were pulled “barehanded” onto a tarp without being fingerprinted, then packaged up and taken out of the Jemez on ATVs. Dienlin Depo. at 118-19; Benally Depo. at 81:16-21. Jason Benally testified that the items were taken to a “garage/sally port area” at SCSO and left there for some time after being sorted into paper bags. Benally Depo. at 79:11-16, 81:16— 82:16.

On some occasions when SCSO deputies investigated possible Cookie Bandit break-ins, they reported that they could not recover any fingerprints other than those of the occupants, or that they did not even attempt to recover fingerprints because of the number of other people who had handled items at the scene in the interim. See Plaintiffs’ Exhibits 8-12 (Doc. Nos. 98-8-98-12) (reports by SCSO detectives of burglaries in Jemez area); Benally Depo. at 147:11-20. But Captain Michael Traxler, who was long involved in the Cookie Bandit investigation, says the case file shows that fingerprints were submitted to the state crime lab on at least a few occasions. See Affidavit of Michael Traxler, Defendants’ Exhibit H (Doc. No. 72-8) (“Traxler Aff.”) at ¶¶2-4. However, the lab could not match the prints with anyone in its database. See id. Detective Robert Baron, who had “developed a personal interest in solving the Cookie Bandit burglaries,” also saw reports in the ease file about DNA evidence being submitted to the state crime lab. Affidavit of Robert Baron, Defendants’ Exhibit I (Doc. No. 72-9) (“Baron Aff.”) at ¶¶4, 5. Again, this evidence resulted in no matches in the national DNA database. See id. Morrison also testified that while he believed the Cookie Bandit wore gloves when he broke in, he nonetheless thought that “there had to have been at least five fingerprints gathered over a course of 200-and-some-odd burglaries committed since 1998.” Morrison Depo. Part 1 at 35:1-10. According to Morrison, these prints were sent to the state crime lab, but as Captain Traxler also averred, no identification resulted. See Morrison Depo. Part 3 at 26-29.

In March 2009, an email from a Jemez resident who was upset about the ongoing Cookie Bandit burglaries prompted the state governor’s office to send a letter to Juan Vigil, the Sandoval County manager. Lucero Depo. Part 2 at 146-50. Vigil in turn forwarded the letter and email to Trujillo and Lucero. See id. Lucero’s response to Vigil described SCSO’s ongoing efforts to capture the Cookie Bandit, such as “implementing extra patrols ... [and] set[ting] up in cabins waiting for the suspect to commit a burglary.” Letter from Tim Lucero to Juan Vigil, Plaintiffs’ Exhibit 41 (Doe. No. 98-41) (“Lucero Letter”) at 2; see also Letter from Juan Vigil to Joanne S. Dalton, Plaintiffs’ Exhibit 42 (Doc. No. 98-42) (“Vigil Letter”) at 1. Lucero also noted that Moriarty and Harris, to whom he referred only as “two deputies,” had been assigned to the Jemez area “fulltime, which their main focus is the apprehension of the burglary suspect.” Lucero Letter at 2. Lucero wrote that “[t]he Sheriffs Office has no reports of violence by the suspect,” but Lucero also mentioned that one time the Cookie Bandit told residents who confronted him that he had a gun, though the residents could not see whether he actually had any weapon. Id. at 1. Lucero also indicated that when the Cookie Bandit mistakenly broke into an occupied cabin, he would usually “quickly disappear[] into the forest.” Id. Vigil adopted many of Lucero’s representations when Vigil responded to the concerned Jemez resident. See Vigil Letter.

C. The First Weeks of Moriarty and Harris’ Cookie Bandit Operation

In the spring of 2009, Moriarty was expecting to spend her summer with the Bernalillo Parks and Recreation department. See Moriarty Depo. at 140:4-20. Moriarty had a tentative plan to run a program in which she would teach kids how to sew and make a large quilt with a law enforcement theme. See id. at 140:19-141:14. Then, “out of nowhere,” Harris came to Moriarty with the Cookie Bandit assignment. Id. at 140:8-11. Harris told Moriarty that the assignment came from Defendants — “that it was Captain Morrison’s idea” for Harris and Moriarty to go to the Jemez to investigate the Cookie Bandit. Id. at 148:l-5. Moriarty recalls Harris portraying the assignment to her as “a piece of cake, that there was nothing to be worried about, that [they] were going to get paid to go camping.” Id. at 142:10-13. Regardless, Moriarty “wasn’t all that excited” about the prospect of spending the summer camping and “didn’t like the idea [of going after the Cookie Bandit] from the get-go.” Id. at 143:10-12, 142:14-20. Moriarty thought the assignment “was odd, that it was something [she] had never done before.” Id. at 140:12-13. Harris, though, was enthusiastic about camping in the Jemez for the summer. See id. at 143:13-23. Moriarty says she agreed to go along both because Harris was her supervisor and, as her friend, Harris persuaded her that the assignment might be good. See id. at 143:10-18, 144:8-19. Moriarty expressed some doubts and discomfort about the assignment to her partner, Garrabrant, as well as to Harris’ wife and a few close friends. See id. at 145:5-146:6, 149-50; Deposition of Doug Garrabrant, Plaintiffs’ Exhibit 19 (Doc. No. 98-19) (“Garrabrant Depo.”) at 108:10-25. However, Moriarty never told these people or Harris, despite her close relationship with Harris, that she was scared about or felt totally unqualified for the assignment. See id. at 142:5-10, 145-47. Moriarty explains that she did not feel the need to say anything like this “[b]ecause [she] didn’t know [she] was unprepared and ... didn’t know who [they] were after.” Id. at 150:13-24; see also Garrabrant Depo. at 106:22-108:21.

After Harris came to Moriarty with the assignment, Moriarty met once with Morrison and Lucero about the assignment. See Moriarty Depo. at 152:11-155:11. Moriarty never spoke about the assignment with Trujillo. See id. at 152:19-21. Harris had met at least once previously with Morrison and Lucero about the assignment. See Morrison Depo. Part 3 at 15-17. Morrison testified that he told Harris everything that SCSO knew about the Cookie Bandit at that meeting, and that he told Moriarty the same at the meeting with her. See id. at 17-20. However, Moriarty remembers the meeting with Morrison and Lucero as being mostly “bantering about ... what [Moriarty and Harris] were going to say [about] why [they] were” in the Jemez. Moriarty Depo. at 154:13-23. Moriarty does not remember Morrison or Lucero telling her anything about past threats of violence by the Cookie Bandit. See id. at 155:16— 156:7. Rather, she says, Morrison and Lucero told Moriarty and Harris that they could take “[their] families and [their] dogs, it would make [the undercover operation] look more real.” Moriarty Depo. at 154:16-20. Morrison showed Moriarty a photo of the Cookie Bandit and told her that the Cookie Bandit had been burglarizing cabins in the Jemez for years, and that the break-ins were growing “increasingly more destructive.” Id. at 162:7-13. However, Moriarty says that at the meeting Morrison and Lucero “didn’t talk about any of the dangers involved, or any kind of Plan B or anything.” Id. at 154:15-23. As a result, Moriarty’s impression throughout the summer, based mainly on what Harris told her, was that the Cookie Bandit was “|j]ust a cooky [sic] old man that lived like a hermit in the woods, just an old nut, nothing to be afraid of.” Id. at 151:3-12.

Moriarty and Harris began going to the Jemez area toward the end of May 2009, after the school year ended. See id. at 153:8-14. They worked there on the Cookie Bandit investigation on a full-time basis through mid-July. See id. at 153:8-154:8. Moriarty took breaks twice, once to go to a wedding in Maine and once, in early July, to go with Harris to a conference for SROs in Baltimore. See id. at 153:15-25.

Because Moriarty and Harris were supposed to be undercover, they decided to pretend they were a brother and sister from New York. See id. at 148:21-149:9. The two spent the first weeks of the summer “hik[ing] up to the hot springs ... or go[ing] to the little dry goods store and ... buy[ing] things and chitchatting] with” locals to blend in and further their cover story. Id. at 180:14-181:10. Moriarty and Harris tried to gather information about the Cookie Bandit, but did so mostly by “[h]iking up certain roads [and] looking at places where he had been seen” rather than asking too many people about the Cookie Bandit, since Moriarty and Harris “didn’t want [the locals] to know that [Moriarty and Harris] were looking for [the Cookie Bandit] in particular, so [Moriarty and Harris would look like] just hanging-out tourists.” Id. at 180-82.

Throughout the summer, Moriarty and Harris were in plainclothes, not wearing their uniforms or displaying their badges, though some of the full-time residents in the area knew that Moriarty and Harris were undercover police officers. See Interview of Deputy Theresa Moriarty, Defendants’ Exhibit S (Doc. No. 108-4) (“Moriarty NMSP Interview Part 2”) at 10-12. In particular, Moriarty and Harris spent time with two elderly couples who lived in the area and had experience with the Cookie Bandit, to “see if [the couples] had spotted him recently or anything like that, or heard anything,” as well as “help[ing] [the couples] do things around the yard, ... making it look like [Moriarty and Harris] were just there to visit and help.” Id. at 182:11-183:2. One of the couples, the Hartys, had encountered the Cookie Bandit once, and reported to SCSO that he threatened them to “back off, he had a gun.” Benally Depo. at 54:18-21, Baron Aff. at 3 ¶ 10. The Hartys also told Moriarty and Harris about the incident. See Moriarty Depo. at 167:19-21. Moriarty remembers the Hartys saying that when they saw the Cookie Bandit, he “was acting very nervous and strange and putting his hands inside his jacket, and [the Hartys] were afraid that he might have a gun.” Id. at 168:5-8. But when Mrs. •Harty “came out with the camera, [the Cookie Bandit] ran,” and the Cookie Bandit never brandished a gun. Id. at 168:5-17.

Moriarty also had heard from Harris that there was a “possibility” that the Cookie Bandit “had pointed a gun at a forestry official,” but that it was not confirmed. Id. at 166:17-21. In conversations with Jemez residents, Moriarty had heard people say that they thought the Cookie Bandit was “a really bad dude.” See Interview of Deputy Theresa Moriarty by James Mowduk, Defendants’ Exhibit J (Doc. No. 72-10) (“Mowduk Interview Part 1”) at 12-15. But Moriarty assumed that people were afraid of the Cookie Bandit only because the residents were mostly elderly and worried about being at home when he broke in. See Moriarty Depo. at 1-18.

Moriarty and Harris kept their RVs parked at Fenton Lake for the summer. See id. at 184:16-18. Sometimes Moriarty and Harris spent the night in the mountains, sleeping in their RVs, and sometimes they drove home, depending on Harris’ preference. See id. at 184:16-185:3. At least once, Moriarty and Harris stayed up for part of the night in one of the RVs, watching for the Cookie Bandit with night vision goggles. See id. at 180:1-9. Another time, when Moriarty was on vacation, Harris and his father-in-law, who had a concealed-carry permit, stayed for part of a night in a cabin to see if the Cookie Bandit would break in. See id. at 229:4-8; Deposition of Tonia Harris, Plaintiffs’ Exhibit 18 (Doc. No. 98-18) (“Harris Depo. Part 2”) at 167:25-169:9.

At some point during the summer, Robert Baron, the SCSO detective who had previously investigated the Cookie Bandit burglaries, visited Moriarty and Harris at Fenton Lake. See Baron Aff. at ¶¶ 9-10; Moriarty Depo. at 151:13-152:10. Baron mainly spoke with Harris, taking him out on trails where the Cookie Bandit may have been spotted and briefing Harris on what Baron had learned about the Cookie Bandit. See Baron Aff. at ¶ 10. Baron avers that he told Harris everything that Baron had learned about the Cookie Bandit, “including the incident with the Hartys, the report by Luke Dienlin of being shot and the fact that many believed the report was suspicious, the fact that the burglaries had become more destructive, the fact that the Cookie Bandit had eluded capture for perhaps eight years, and [Baron’s] own belief that the burglar was armed, dangerous and would not submit to law enforcement orders.” Id. Though Moriarty was in the Jemez when Baron visited, she “didn’t really talk to Robert Baron” because Baron “went off with Joe.” Moriarty Depo. at 151:13-152:6. As a result, Moriarty did not hear anything that Baron said about the Cookie Bandit’s past threats and Baron’s impression of the Cookie Bandit’s dangerousness. See id. at 151:13-15.

D. The Bonwell Cabin Stakeout and Shooting

In early July, Moriarty and Harris discussed holding a cook-out in the Jemez as part of their operation. See id. at 163:11— 25. Moriarty and Harris planned to invite neighbors and buy groceries to stock a cabin with the aim of enticing the Cookie Bandit into breaking in when Moriarty and Harris were waiting for him. See id. at 230:24-231:9. At a party on July 12, 2009, Harris told Morrison of this plan, and that Harris felt that he and Moriarty “were getting closer and that they were being watched.” Morrison Depo. Part 4 at 81:10-22. During the same party, Harris’ wife heard Trujillo make a big display of telling Harris to “Take your wife. Take your kids. Take your dog----Keep having fun going up there,” encouraging Harris in a somewhat joking manner. Harris Depo. Part 2 at 152-55. Harris’ wife also recalled that from the way Harris described the cook-out plan to Morrison, Lucero, and Trujillo at the party, Harris made it clear that he intended to talk loudly with neighbors about the cook-out the day before it happened. See id. at 189-90. The “ruse” of the cook-out and stocking the cabin ahead of time was supposed to lure the Cookie Bandit into the cabin on Wednesday night, when Moriarty and Harris would be waiting for him and when the stakeout actually did take place. Id. Morrison spoke again with Harris several days later, telling Harris that Morrison “had talked [the cook-out plan] over with [Lucero] and that it look[ed] like it might work and [Morrison would] put together a plan and come up on Thursday [July 16, 2009] and see what [they] could do.” Id. at 83:2-7.

The planned July 16 cook-out never happened, since Moriarty and Harris carried out the operation at issue on July 15. See Moriarty Depo. at 231:3-17. Sometime before July 15, Harris told Moriarty that they would spend the night of July 15 in a cabin known as the Bonwell cabin. See id. at 139:6-12, 229:4-8. Moriarty and Harris had not stayed overnight in a cabin any other time during that summer. See id. at 139:13-15. Moriarty did not know why Harris decided to stay in a cabin on the night of July 15. See id. at 229:4-24. However, the day before the July 15 stakeout, Moriarty and Harris spoke with one of the Stones, who lived across from the Bonwell cabin. See Interview of Deputy Theresa Moriarty by James Mowduk, Defendants’ Exhibit S (Doc. No. 108-4) (“Mowduk Interview Part 3”) at 22-23. Harris told Moriarty that the Bonwell Cabin “was one of [the Cookie Bandit’s] most frequent cabins he broke into,” which made it a good choice for a stakeout. Moriarty Depo. at 232:3-10. The Stones knew that Moriarty and Harris were going to conduct the stakeout and allowed Moriarty and Harris to use their driveway to park their car. See Mowduk Interview Part 3 at 22-23. Moriarty thought the Stones also gave Harris the key they had to the Bonwell cabin. See id. at 23-24.

On July 15, Moriarty was at her home in Rio Rancho for part of the day and drove out to the Jemez with Harris in the afternoon. See Moriarty Depo. at 137-139. Moriarty was not feeling very well when they left, but when Moriarty expressed this to Harris, he made light of it, telling her to “ ‘shut [her] piehole.’ ” Id. at 137:15-20. In any case, Moriarty “felt better when [they] got up into the cooler mountains.” Id. at 138: 1-5. That night, Moriarty and Harris watched a movie with Harris’ wife and daughter in Harris’ RV at Fenton Lake. See id. at 185:4-9. Before the movie ended, Harris told Moriarty that they had to go start the stakeout. See id.; Deposition of Tonia Harris, Defendants’ Exhibit M (Doc. No. 72-13) (“Harris Depo. Part 1”) at 177:13-179:4.

As Moriarty and Harris were preparing to go to the cabin, which was at some distance from Fenton Lake, Moriarty realized that she had locked herself out of her RV. See Moriarty Depo. at 185-87, Harris Depo. Part 1 at 179:19-180:4. Moriarty had her service weapon (on which she had trained and qualified) and other equipment, including her handcuffs, cell phone and radio, in the RV. See Moriarty Depo. at 186:21-187:3; Harris Depo. Part 1 at 179:23-180:17. Moriarty said to Harris that “maybe we should just go another time,” but Harris wanted to continue with the plan. Moriarty Depo. at 186:8-12. Harris told Moriarty not to “worry about it,” that she could use his extra gun. Id. The two then left for the cabin. See Harris Depo. Part 1 at 181:5-12.

Once at the cabin, Moriarty and Harris did not turn on the lights, but Harris showed Moriarty around the cabin’s few rooms. See Moriarty Depo. at 187:4-21. Harris called SCSO’s dispatch center just after midnight on July 16, 2009 to provide his and Moriarty’s location and to report the fact that they were going to stake out the cabin for the Cookie Bandit. See New Mexico Supplemental Report, Plaintiffs’ Exhibit 22 (Doc. No. 98-22) (“NM Supp. Report”) at 3; SCSO Internal Investigative Report by Jason Benally, Plaintiffs’ Exhibit 27 (Doc. No. 98-27) (“SCSO Benally Report”) at 1-2. Next, Moriarty took off her shoes and lay down on the bed. See Moriarty Depo. at 187:6-188:21. Harris ate something in the kitchen, then crawled over Moriarty to the other side of the bed, where he fell asleep. See id. at 188:24-189:7. Moriarty and Harris dozed off and on for a couple of hours. See id. at 189.

At some point in the early hours of the morning, Harris touched Moriarty’s shoulder and said “He’s here,” because Harris had apparently heard someone start to break in. Id. at 190:16-19. Moriarty told Harris to “wait for [the Cookie Bandit] to get all the way in” before doing anything. Id. at 191:11-13. Once Moriarty and Harris heard that the Cookie Bandit was inside, they left the bedroom “with [their] guns drawn and [their] little flashlights on” to confront the burglar. Id. at 192:5-11. Moriarty and Harris said to the Cookie Bandit, “Police. Don’t move,” and “Turn around, put your hands behind your back.” Id. at 192:11-13. The Cookie Bandit did not comply, and instead attacked Moriarty and Harris. See id. at 192:14-19. Moriarty and Harris struggled for twenty to thirty minutes with the Cookie Bandit, exchanging fierce punches and kicks with him. See id. at 192-196. Finally, Moriarty and Harris managed to hold the Cookie Bandit down long enough for Moriarty to handcuff him. See id. at 196:24.

After Moriarty handcuffed the Cookie Bandit, Harris told Moriarty to “get the radio and call for backup,” and Moriarty got up to follow orders. Id. at 199:17-200:3. The Cookie Bandit continued struggling, forcing Harris to keep pushing him down. See id. at 197:3-9. However, Harris then got up too, leaving the Cookie Bandit on the floor. See id. at 201-03. Moriarty was turned away, but thinks Harris must have walked to his backpack, which held a John Doe arrest warrant. See id. at 202-04; SCSO Supp. Report at 3. When Harris was up, he and Moriarty briefly high-fived each other in congratulations. See Moriarty Depo. at 202:15-25; Interview of Deputy Theresa Moriarty by James Mowduk, Plaintiffs’ Exhibit 30 (Doc. No. 98-30) (“Mowduk Interview Part 2”) at 48. Moriarty had not patted down the Cookie Bandit after handcuffing him, because Harris had told her to get the radio. See Moriarty Depo. at 199:15— 200:3. Moriarty did not see Harris pat down the Cookie Bandit, either. See id. at 200:4-14.

Just after Moriarty called the SCSO dispatch center with her number and location, and as Harris turned around with the warrant in his hand, the Cookie Bandit began firing with a gun that he had somehow retrieved from his person or from where it had fallen out on the floor while he struggled with Moriarty and Harris. See Mowduk Interview Part 2 at 48-52; Moriarty Depo. at 208:21-209:4. The first two shots hit Harris, who cried out to Moriarty that he was hit and told her to shoot the Cookie Bandit. See Mowduk Interview Part 2 at 52-53; Moriarty Depo. at 205-06. Moriarty then stepped in front of Harris, trying to shoot the Cookie Bandit with the gun that Harris had loaned her. See id. Perhaps because of the loaned gun’s “extremely hard and unusual trigger pull,” as well as Moriarty’s unfamiliarity with the gun, she could not get the gun to fire. NM Supp. Report at 16; Moriarty Depo. at 205-207. The Cookie Bandit continued to shoot, but the final three bullets from his gun narrowly missed Moriarty. See id. Harris then took the gun from Moriarty and shot the Cookie Bandit, killing him. See Mowduk Interview Part 2 at 49.

Harris was bleeding profusely, so Moriarty tried to stanch the blood while also calling on the radio to get help. See id. at 58, 66. However, the radio worked only intermittently, and those on the receiving end in the dispatch office could not hear much of what Moriarty was saying. See id.; SCSO Benally Report at 2. Lt. Dameron, who was an on-duty Lieutenant Supervisor for the relevant hours, also heard Moriarty, noted the distress in her voice, and began responding. See Deposition of Walter Chris Dameron, Defendants’ Exhibit R (Doc. No. 108-3) (“Dameron Depo. Part 3”) at 82-85. Dameron quickly learned from the dispatcher that Harris had been shot. See Dameron Depo. Part 3 at 85-89. Dameron immediately ordered help to go out to Moriarty and Harris, though Moriarty apparently received no indication that this would happen. See id.; Mowduk Interview Part 2 at 58-59. Moriarty continued trying to call on the radio, but heard no response other than someone calling out Moriarty’s unit number. See Mowduk Interview Part 2 at 58. Moriarty could not use a phone because cellphone service in the area on SCSO’s new provider network was close to non-existent, and the cabin had no land line. See Benally Depo. at 136:13-137:8; Elder Report at 9; see also Interview of Lt. Chris Dameron, Plaintiffs’ Exhibit 37 (Doc. No. 98-37) (describing generally deplorable conditions for police communications in the Jemez).

At one point, Moriarty ran outside and turned all the cabin’s lights on, screaming for help and hoping that the neighbors would hear. See Mowduk Interview Part 2 at 58, 66. The SCSO deputy closest to the cabin was some fifty miles away. See Moriarty Depo. at 210:5-13. Lt. Dameron, who was on supervisory duty back near Albuquerque, had no idea that Moriarty and Harris were conducting the stake-out, much less where the cabin was, though he “knew it would take a good amount of time to get there.” Dameron Depo. at 82-85. Finally, assistance did arrive at the cabin. See Mowduk Interview Part 2 at 68. Harris was airlifted to the University of New Mexico Hospital in Albuquerque, but he died en route. See NMSP Report at 1, 5; at 4. Moriarty sustained injuries from the long fight with the Cookie Bandit before he was handcuffed, as well as severe trauma, forcing her to leave her job with SCSO. See Moriarty Depo. at 111-12.

Once the Cookie Bandit’s fingerprints were taken from his corpse, his true identity was discovered: he was Joseph Henry Burgess, a man wanted for a Canadian couple’s 1979 murder and a suspect in another double homicide in California. See Summary Judgment Response at 4.

DISCUSSION

A. Motion to Exclude Certain Opinions in the Van Blaricom Report

Defendants moved to exclude certain opinions in the report by Plaintiffs’ retained expert on police procedures, D.P. Van Blaricom (the “Van Blaricom Report”) on the basis that the opinions do not meet the standard of admissibility for expert opinions. See Motion to Exclude Van Blaricom at 1. Defendants also asked the Court to disregard the Van Blaricom Report entirely because when Plaintiffs originally filed the Van Blaricom Report, it was “not in an affidavit or sworn testimony,” and so “is inadmissible hearsay that is not competent evidence to rebut a motion for summary judgment.” REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ 42 U.S.C. § 1983 CLAIM AND STATE TORT CLAIMS (Doc. No. 108) (“Summary Judgment Reply”) at 4.

1. The Van Blaricom Report

Mr. Van Blaricom lives in Washington State and has a background in law enforcement and administration. Mr. Van Blaricom’s experience includes twenty-nine years with the police department in Bellevue, Washington, with eleven of those years spent as the Chief of Police. In Mr. Van Blaricom’s work with the Bellevue Police Department, he created numerous model programs and co-authored Washington’s Standards on Internal Discipline of Law Enforcement Agencies. Mr. Van Blaricom has also served on various committees to advise governing bodies on law enforcement matters. For the past twenty-six years, Mr. Van Blaricom has served as a police practices consultant in over 1,700 lawsuits alleging police liability around the country.

Mr. Van Blaricom makes numerous findings and assertions in his report. Defendants move the Court to exclude certain specific opinions in the Van Blaricom Report. See Van Blaricom Summary. The Court will only address those opinions that are relevant to Defendants’ Motion for Summary Judgment, namely:

(1) “There had been an excellent opportunity to positively identify [the Cookie Bandit], when his campsite was discovered in 2008 [because] a “considerable amount of (stolen) property was recovered,” which undoubtedly had trace evidence of the suspect’s latent prints thereon ... [and] even a single partial latent print would had [sic] been sufficient to identify suspect.” Doc. No. 85-1, ¶ 8h (emphasis in original).

(2) “Based upon my training, experience and a careful evaluation of the totality of circumstances in this matter, it is my considered professional opinion that SCSO Sheriff Trujillo, Undersheriff Lucero and Captain Morrison shockingly combined to place plaintiff at extreme risk.” Id. at ¶ 9.

(3) “Even a casual review of the foregoing standards of care [as provided in the National Law Enforcement Policy Center’s Model Policy on “Stakeouts”], when compared with the indisputable facts of this “stakeout,” reveals such a deliberate disregard of professional planning and execution as to be literally shocking.” Id. at ¶ 9g.

(4) “Sheriff Trujillo, Undersheriff Lucero and Captain Morrison knew or should have known of those blatant deficiencies in both their plan and plaintiffs qualification to participate therein but deliberately disregarded those facts with foreseeable results.” Id. at ¶ 9j.

(5) “The tragic outcome of this debacle was reasonably foreseeable and should come as no surprise to ANY reasonably experienced law enforcement officer and/or police practices expert.” Id. at ¶ lOf (emphasis in original).

2. The Court Will Not Exclude the Van Blaricom Report On The Basis That The Originally Filed Report Was Not Sworn

After Plaintiffs belatedly realized that they had not filed a sworn version of the Van Blaricom Report, Plaintiffs filed a NOTICE OF SUPPLEMENTATION OF PLAINTIFFS’ RESPONSE BRIEF IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Doc. No. Ill) (“Notice of Supplementation”). Plaintiffs attached an affidavit signed by Mr. Van Blaricom swearing that he prepared the Van Blaricom Report and its exhibits, and that the report and exhibits reflected “the truth to the best of [his] knowledge.” RULE 56(e) AFFIDAVIT OF PLAINTIFFS’ POLICE PROCEDURES EXPERT D.P. VAN BLARICOM (Doc. No. 111-1) (“Rule 56(e) Affidavit”). Defendants then filed their Objection, arguing that neither Plaintiffs’ Notice of Supplementation nor the Rule 56(e) Affidavit complies with relevant procedural rules, and that the Court should therefore consider neither document. And because without the accompaniment of the Rule 56(e) Affidavit the Van Blaricom Report would be unsworn hearsay, Defendants contend that the Court should not consider any part of the Van Blaricom Report, much less the opinions to which Defendants object.

Specifically, Defendants note that although Plaintiffs purported to file the Notice of Supplementation and Rule 56(e) Affidavit in accordance with Federal Rule of Civil Procedure 56(e), that rule “clearly contemplates that the party who desires to act under Rule 56(e) must move the Court for permission to make” such a filing, and opposing parties may then respond. Objection at 3. Also, Defendants argue that the Local Civil Rules of the United States District Court for the District of New Mexico (“Local Rules”) permit supplementation “only in the limited circumstance in which it is required to provide supplemental authority to the Court after the party’s brief has been filed.” Id. at 4 (citing D. N.M. L.R.-Civ. 7.8). Further, Defendants note that under the Local Rules “[s]urreplies are specifically disallowed, except with leave of the Court,” and that Plaintiffs did not obtain leave to file a sur-reply. Id. (citing D. N.M. L.R.-Civ. 7.4(b)). Finally, Defendants point out that the Local Rules require movants to determine whether a motion is opposed, and Plaintiffs did not contact Defendants about Defendants’ position on the Notice of Supplementation before filing it. See id. at 5 (citing D.N.M. L.R.-Civ. 7.1(a)). Defendants contend that Plaintiffs’ Notice of Supplementation is really a motion, and that because Plaintiffs did not make a good-faith request of Defendants before filing, the “filings should be stricken from the record.” Id.

Plaintiffs respond that their failure to submit a sworn version of the Van Blaricom Report was an “inadvertent error,” and that they “acted in good faith and accordance with Fed.R.Civ.P. 56(c) and (e)” when they filed the Notice of Supplementation and the Rule 56(e) Affidavit. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ OBJECTION TO PLAINTIFFS’ NOTICE OF SUPPLEMENTATION (Doc. No. 114) (“Response to Objection”) at 1. Plaintiffs’ Notice of Supplementation, including the Rule 56(e) Affidavit, aimed to address the problem caused by the unsworn Van Blaricom Report by demonstrating that Mr. Van Blaricom swears to his report’s contents. In response to Defendants’ argument that the Notice of Supplementation does not comply with Rule 56(e), Plaintiffs argue that the rule’s plain language does not require parties to request permission to file, and that courts have addressed Rule 56(e)’s requirements for filing a supplement “on an ad hoc basis.” Response to Objection at 4. As for Defendants’ arguments about Plaintiffs’ failure to comply with the Local Rules, Plaintiffs contend that the Notice of Supplementation is in no sense a “motion” or “surreply” and, accordingly, that Plaintiffs did not need to seek Defendants’ position on the Notice of Supplementation. Id. at 7.

The Court agrees with Plaintiffs. As Plaintiffs point out, the Notice of Supplementation and Rule 56(e) Affidavit acted as a “simple verification” of the Van Blaricom Report’s contents, and did not attempt to “supplement ] [Plaintiffs’] response with any substantive argument in support of D.P. Van Blaricom’s report or opinions” that called for a response from Defendants or hindered Defendants’ ability to make arguments about the Van Blaricom Report’s admissibility on the merits. Response to Objection at 2. Neither Rule 56(e)’s plain language nor the case law interpreting Rule 56(e) require Plaintiffs to request permission from the Court to file a document that corrects an essentially clerical mistake. The Court also does not construe Plaintiffs’ Notice of Supplementation as a motion requiring any additional actions under the Local Rules. Finally, the Court is not convinced by Defendants’ argument that they have been prejudiced because, since they believed that the originally unsworn Van Blaricom Report “was inadmissible ..., [Defendants did not need] to address the substantive deficiencies of the [Van Blaricom Report] in their [Summary Judgment] Reply.” Id. at 7. Defendants address the “substantive deficiencies” of the Van Blaricom Report at length in their Motion to Exclude Van Blaricom. The Court’s mere willingness to consider the Van Blaricom Report will in no way “result[ ] in a de facto determination that Van Blaricom’s opinions are substantively admissible,” as Defendants seem to fear. Id. Plaintiffs’ counsel is advised to be more cautious in ensuring that expert reports they file in the future are properly sworn and authenticated at the time of filing. However, because Defendants have had a full opportunity to air their concerns about the general admissibility of Mr. Van Blaricom’s opinions, and because Plaintiffs have not clearly failed to comply with the relevant rules of procedure, the Court finds no reason to refuse to consider the Van Blaricom Report at all, as Defendants suggest in the Summary Judgment Reply and request in the Objection. Therefore, the Objection will be denied.

3. Standard for Admissibility of Expert Witness Testimony

Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony, states that:

[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Plaintiffs, as proponents of the expert, bear the burden of satisfying Rule 702 and establishing the testimony’s admissibility. See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (en banc). In applying Rule 702, a district court acts as a “gatekeeper” to ensure proffered testimony’s relevance and reliability. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The court fulfills its initial Rule 104 obligation by conducting a preliminary inquiry into an expert’s qualifications and admissibility of proffered evidence. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified ... or evidence is admissible.”).

The district court’s determination of an expert opinion’s admissibility involves a two-step analysis. First, the court must “determine whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.” Nacchio, 555 F.3d at 1241 (quoting Fed.R.Evid. 702). If the court finds that “the expert is sufficiently qualified, then ‘the court must determine whether the expert’s opinion is reliable by assessing the underlying reasoning and methodology.’ ” United States v. Avitia-Guillen, 680 F.3d 1253, 1256 (10th Cir.2012), cert. denied, — U.S.-, 133 S.Ct. 466, 184 L.Ed.2d 287 (2012) (quoting Nacchio, 555 F.3d at 1241).

Rule 702 grants the trial judge broad discretion in deciding reliability. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. In Daubert, the Supreme Court provided a non-exhaustive set of factors for the district court to consider in determining whether proposed expert testimony is based on reliable methods and principles: (1) whether the particular theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) known or potential rate of error; (4) existence and maintenance of standards controlling the technique’s operation; and (5) whether the technique is generally accepted in the relevant scientific or expert community. See 509 U.S. at 593-94, 113 S.Ct. 2786. But while a district court may consider Daubert’s factors when determining admissibil ity of expert testimony, “the test ... is flexible, and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire, 526 U.S. at 141-42, 119 S.Ct. 1167. In this light, the Court is also mindful that it should liberally admit expert evidence. See United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir.1995).

4. Application of Expert Witness Standard to Opinions in the Van Blaricom Report

Defendants do not contend that Mr. Van Blaricom is not “qualified as an expert by knowledge, skill, experience, training, or education,” and based on the Court’s review of Mr. Van Blaricom’s credentials, the Court agrees that Mr. Van Blaricom passes muster as an expert under the first step of the two-part test. Fed.R.Evid. 702. Therefore, the Court will immediately move to the test’s second part. Though Defendants and Plaintiffs both argue extensively in their briefing about various rationales for the Court to exclude or permit certain opinions in the Van Blaricom Report, the Court concludes that the five specific opinions listed above should be excluded because they simply do not meet Rule 702’s requirements that an expert’s opinions be “the product of reliable principles and methods” and that “the expert ... reliably applied [those reliable] principles and methods to the facts of the case.” Rather, the five opinions are either excessively speculative or attempt to provide legal conclusions, going so far as to track the state-created danger standard’s language in a way that would impermissibly usurp the jury’s role.

Although experts may extrapolate from the evidence, pure speculation is not permitted in expert testimony. See Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir.2000). This is because speculation, even by a good expert, is not a use of “reliable principles and methods.” See id.; Fed.R.Evid. 702. The Court agrees with Defendants that Mr. Van Blaricom’s speculation that the property that SCSO obtained from the Cookie Bandit’s campsite must have had at least a single latent print, and that such a print would have been enough to obtain the Cookie Bandit’s true identity from a national database, is this kind of unreliable, inadmissible speculation. See Motion to Exclude Van Blaricom at 12-13. The Court finds this to be true especially in light of considerable testimony about attempts by SCSO to take prints from Cookie Bandit crime scenes, and in light of the fact that the Cookie Bandit’s camp site was outdooi'S and subject to harsh and variable weather conditions. Supposing otherwise is simply speculation: there is certainly no guarantee, as Mr. Van Blaricom suggests there is, that a latent print could have been recovered and led to the earlier identification of the Cookie Bandit’s true name.

Similarly, the other four opinions by Mr. Van Blaricom that are at issue are not reliable in the sense required by Rule 702 and cases interpreting it, because as Defendants note, the opinions merely apply key words from the legal standards at issue in the case to Defendants’ actions. See Motion to Exclude Van Blaricom at 14-15. “The [Federal] Rules [of Evidence] do not ... allow an expert to offer testimony that merely tells the jury what result they should reach or testimony phrased in terms of “inadequately explored legal criteria.” United States v. Simpson, 7 F.3d 186, 188 (10th Cir.1993) (quoting Fed. R.Evid. 704 adv. comm. note). By the same token, “an expert may not state his or her opinion as to legal standards nor may he or she state legal conclusions drawn by applying the law to the facts.” Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1328 (10th Cir.1998) (citing AN. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir.1991)). When an expert attempts to provide the jury with legal terms of art and conclusions, without explaining those terms or giving the jury an opportunity to draw its own inferences, the expert’s testimony is not “helpful” to the jury in the manner required by Rule 704, because the testimony “provides the jury] with no independent means by which it can reach its own conclusion or give proper weight to the expert testimony.” Simpson, 7 F.3d at 188-89 (citing Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir.1987) (expert’s testimony was grounded in sufficient detail to allow jury to make independent judgment). An alternative objection to this kind of conclusory testimony couched in legalese is that it usurps the jury’s role as factfinder. See Simpson, 7 F.3d at 188 (citing Specht v. Jensen, 853 F.2d 805, 808 (10th Cir.1988) (en banc), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989) (expert would usurp jury’s role because his testimony would be to an “array of legal conclusions touching upon nearly every element of the plaintiffs burden of proof’)). Either way, the testimony is inadmissible.

Plaintiffs contend that the opinions in question would be helpful and would not usurp the jury’s role because Mr. Van Blarieom “will not testify as to whether the defense witnesses are credible, but rather whether the actions of Defendants conformed to standard police practices.” Van Blarieom Response at 20. However, the opinions at issue do far more than conclude that Defendants’ actions did not conform to standard practices. Rather, the opinions purport to tell the jury that Defendants “shockingly combined to place plaintiff at extreme risk,” behaved with “deliberate disregard” that was “literally shocking,” and “should have known” certain things that would have made the outcome of the Cookie Bandit operation “reasonably foreseeable.” Van Blarieom Report at ¶¶ 9-10. Contrary to Plaintiffs’ assertions, these statements and phrases comprise nothing if not legal conclusions, and also appear to be based on speculation not rooted in the undisputed facts of the case.

It is true, as Plaintiffs point out, that Mr. Van Blarieom is not a lawyer like the expert whose testimony providing legal conclusions the Tenth Circuit excluded in a 1988 case. See Van Blarieom Response at 19 (citing Specht, 853 F.2d 805). But despite his lack of formal legal training, Mr. Van Blaricom’s status at trial