Ninth Circuit Recognizes “Suicide By Cop” Forensic Psychiatrist Expert Testimony

In civil rights excessive force action involving death during confrontation with police, circuit affirms trial court’s consideration of Daubert factors permitting forensic psychiatrist testimony that the victim’s actions were consistent with an attempt to commit suicide by cop, in Boyd v. City and County of San Francisco, 576 F.3d 938 (9th Cir. Aug. 7, 2009) (No. 07-16993)

The Daubert factors and FRE 702 standards govern the admissibility of expert testimony. Generally, the proponent must meet its burden to show the “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” FRE 702. The Ninth Circuit recently applied these standards in considering the admissibility of the expert testimony for a “suicide by cop” theory.

In the case, after two unsuccessful kidnappings, and a high-speed chase involving an exchange of fire, Cammerin Boyd was surrounded and ordered out of his vehicle. When he failed to comply and was seen reaching back into the vehicle, a police officer shot him fatally. Cammerin’s mother and daughters brought a civil rights excessive force action against the city, county and police officers following the death of Cammerin during the confrontation with police.

The plaintiff moved to exclude the forensic psychiatrist expert testimony of Dr. Emily Keram, who opined that “her analysis of the circumstances surrounding Cammerin’s death led her to conclude that he [Cammerin] had been attempting to commit ‘suicide by cop,’ and had purposefully drawn police fire to accomplish this result.” Boyd, 576 F.3d at 943. The trial court held a “lengthy” hearing on the reliability of the expert testimony. Dr. Keram testified at the hearing. The trial court considered the four non-exclusive and flexible factors concerning the reliability of the proposed expert testimony, including:

“(a) whether the theory or technique can and has been tested; (b) whether the theory or technique has been subjected to peer review and publication; (c) the known or potential rate of error for the technique; and (d) the theory or technique’s general degree of acceptance in the relevant scientific community.”
Boyd, 576 F.3d at 945 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993)).

Initially, the trial court expressed she was initially “skeptical of this whole subject[, a]nd in particular, its application to this case.’” After the Daubert hearing, she concluded the expert testimony was relevant and reliable and therefore admissible. After a six-week trial, the jury returned a verdict for the defendants. On appeal, the plaintiff challenged the admission of the expert testimony.

The Ninth Circuit found no abuse of discretion by the trial court in admitting the forensic psychiatrist testimony concerning the “suicide by cop” theory. On the first testing factor, the trial court recognized that it was not possible to test the suicide by cop theory. However, the theory was supported by studies that:

“analyzed the methods used in the field of psychiatric forensics for attempting to reconstruct an individual’s state of mind after the fact, based on evidence of his actions and his surrounding circumstances. Dr. Keram testified that the studies performed under this method were extremely strict in their requirements, to guard against the registering of false positives. Dr. Keram was careful to tie her conclusions in this case to the literature on suicide by cop, noting recognized factors or connections supporting her opinion.”
Boyd, 576 F.3d at 945-46.

On the second peer-review factor, the there were “approximately ten peer-reviewed articles and four non-peer-reviewed publications on the subject.” Boyd, 576 F.3d at 946 (footnote omitted).

On the third factor concerning the rate of error for the theory, the trial court took note that the “selection criteria used in the relevant studies erred heavily on the side of exclusion, designating situations as an example of suicide by cop only if they met a very high bar.” Boyd, 576 F.3d at 946.

On the fourth general acceptance factor trial “court noted that the theory appeared to be generally accepted in the relevant professional community, with a high number of publications written in support of the theory and no contrary articles or studies.”

The circuit noted the plaintiff was unable to challenge the validity of the theory and offered “no alternative, more reliable methods, nor their own expert to rebut Dr. Keram’s conclusions.” Boyd, 576 F.3d at 946. It was unpersuasive to merely argue that a different opinion could have been reached based on the evidence presented. In sum, the Ninth Circuit concluded:

“In this case, the district court was satisfied that Dr. Keram’s testimony regarding suicide by cop “pass[ed] muster.” Based on our review, we agree, and conclude that the district court did not abuse its discretion in admitting Dr. Keram’s testimony.”
Boyd, 576 F.3d at 946.

The Ninth Circuit noted that two other circuits had “made reference to the suicide by cop theory”:

  • Fifth Circuit: Hainze v. Richards, 207 F.3d 795, 797 n.1 (5th Cir. 2000) (“‘Suicide by cop’ refers to an instance in which a person attempts to commit suicide by provoking the police to use deadly force.”)
  • Seventh Circuit: Plakas v. Drinksi, 19 F.3d 1143, 1146 (7th Cir. 1994) (“Drinski was faced with a man who had, minutes before, attacked a police officer with a dangerous weapon, had refused several entreaties to disarm, had told the officer that one of the two would die that night, and then had moved toward the officer while raising his weapon to strike. Shooting a man who has told you, in effect, that he is going to use deadly force against you and then moves toward you as if to do so is unquestionably an act of self-defense even if, as Plakas's expert maintains, the man is attempting ‘suicide by police.’”)
Boyd, 576 F.3d at 946 n.5.

The Boyd case is noteworthy not simply for acknowledging the “suicide by cop” expert testimony, but also for the manner in which the trial court and circuit affirmed its admission. While the trial court was preliminarily skeptical of the proffered expert testimony, the framework under the FRE 702 and Daubert factors ultimately underscored the reliability of the expert testimony.

Federal Rules of Evidence