City of S. Miami v. DeSantis

CITY OF SOUTH MIAMI, et al., Plaintiffs, v. RON DESANTIS, et al., Defendants.

Case No. 19-cv-22927-BLOOM/Louis

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

December 3, 2020

OMNIBUS ORDER

THIS CAUSE is before the Court upon Defendants'¹ Daubert² Motion, ECF No. [109] ("Daubert Motion"), and their Motion in Limine to Exclude Third-Party Sources that are Hearsay, ECF No. [108] ("Motion in Limine"), (collectively, the "Motions"). Plaintiffs³ filed responses in opposition to both Motions, ECF Nos. [128] & [130], to which Defendants replied, ECF Nos. [134] & [133]. The Court has carefully considered the Motions, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, Defendants' Daubert Motion is granted in part and denied in part consistent with this Omnibus Order, and Defendants' Motion in Limine is denied.

I. BACKGROUND

On May 2, 2019, the Florida Legislature passed Senate Bill 168 ("SB 168"), which aimed to further the State of Florida's interest in "cooperat[ing] and assist[ing] the federal government in the enforcement of federal immigration laws within this state." Fla. Stat. § 908.101 (2019). On June 14, 2019, Governor DeSantis signed SB 168 into law, and it was enacted as Chapter 908 of the Florida Statutes. See Fla. Stat. ch. 908. Among other things, SB 168 prohibits implementing so-called "sanctuary policies," which are policies evincing certain jurisdictions' intent not to cooperate with Immigration and Customs Enforcement ("ICE"). The law also delineates specific immigration enforcement efforts with which local jurisdictions must comply.

Following its enactment, on July 16, 2019, Plaintiffs initiated this action against Defendants for declaratory and injunctive relief, challenging the constitutionality of numerous SB 168 provisions. See ECF No. [1] ("Complaint"); see also ECF No. [38] ("Amended Complaint"). Relevant to the instant Motions are Plaintiffs' claims that § 908.103⁴ and § 908.104(1)⁵ violate the Equal Protection Clause because "SB 168 was enacted with the intent and purpose to harm and discriminate against racial and national origin minorities, including Florida residents and visitors, on the basis of race, color, and national origin." ECF No. [38] ¶¶ 395, 411.

A. Defendants' Daubert Motion

Defendants first seek to exclude the allegedly inadmissible expert testimony of Plaintiffs' expert witness, Allan J. Lichtman, Ph.D. ("Dr. Lichtman"). Dr. Lichtman is a Distinguished Professor of History at American University with significant expertise on the topics of American history, political history, voting rights, quantitative methodology, civil rights, historical methodology, social science, racial animus, and race relations. See ECF No. [109-2]. Plaintiffs retained Dr. Lichtman to provide his expert opinions on whether SB 168 "was adopted with the intent of discriminating against minorities, or individuals perceived to belong to a minority population, on the basis of their perceived or actual national origin, race, and alienage, regardless of their possession of documentation." ECF No. [109-1] at 6 ("Report"). The Report opines on the discriminatory legislative intent that spurred SB 168's enactment—and the resulting discriminatory impact on minorities—based on his historical and statistical data analysis. See id.

In their Daubert Motion, Defendants argue that Dr. Lichtman's opinions are inadmissible because they are unhelpful legal conclusions and are founded upon irrelevant information. Defendants also assert that Dr. Lichtman's opinions are unreliable because they are not based on proper methodology; rather, they rely upon the legal factors used to establish discriminatory legislative intent, as set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). Finally, although Defendants do not challenge his qualifications as a whole, they contend that Dr. Lichtman lacks the qualifications necessary to opine on the impact of SB 168 on law enforcement practices or issues of criminology. Plaintiffs take the opposing position, arguing that Dr. Lichtman is highly qualified to testify on all issues raised, he offers valuable and helpful opinions that do not pervade the role of the trier of fact, and his opinions are methodologically sound and relevant to the issue of discriminatory legislative intent.

With regard to the considerations on discriminatory intent under Arlington Heights, the United States Supreme Court has explained that "[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266. Accordingly, the Court identified, "without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed." Id. at 268. The relevant factors include the following:

(1) "The impact of the official action whether it bears more heavily on one race than another may provide an important starting point." Id. at 266. "Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face." Id. "Absent a [stark] pattern . . . , impact alone is not determinative, and the Court must look to other evidence." Id. (footnotes omitted).

(2) "The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes." Id. at 267.

(3) "The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes." Id.

(4) "Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached." Id. (footnote omitted).

(5) "The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Id. at 268.

(6) "Adherence to a particular policy or practice, 'with full knowledge of the predictable effects of such adherence upon racial imbalance . . . is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn.'" Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 (1979) (citation omitted).

(7) Finally, "the availability of less discriminatory alternatives" may be a pertinent factor in assessing discriminatory intent. Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983), on reh'g, 727 F.2d 957 (11th Cir. 1984), aff'd, 472 U.S. 846 (1985).

B. Defendants' Motion in Limine

Defendants' Motion in Limine seeks to preclude Plaintiffs from relying on any third-party sources cited in the Amended Complaint or in Dr. Lichtman's Report. Defendants argue that, underFederal Rule of Evidence 802, these sources are inadmissible hearsay that do not fall into any hearsay exception. The Motion in Limine specifically lists a number of these challenged sources from Dr. Lichtman's Report and Plaintiffs' Amended Complaint, and briefly addresses why each item is inadmissible hearsay. However, Defendants note that the sources listed in the Motion in Limine are only some of the inadmissible sources that Plaintiffs have advanced in support of their claims, but that any other third-party sources should also be excluded for the same reasons.

Plaintiffs oppose the Motion in Limine, asserting that expert witnesses may properly base their opinions on inadmissible hearsay. See Fed. R. Evid. 703. Likewise, Plaintiffs address Defendants' individual objections concerning the admissibility of these third-party sources, and argue that all third-party sources relied upon either can be produced in an admissible form at trial or fall within a hearsay exception or exclusion.

* * *

The Court first addresses Defendants' Daubert Motion and Motion in Limine because the parties' pending cross-motions for summary judgment⁶ are, at least in part, dependent upon the disposition of these Motions. See Bouton v. Ocean Props., Ltd., No. 16-cv-80502, 2017 WL 4792488, at *7 (S.D. Fla. Oct. 23, 2017). As such, this Omnibus Order will first address Defendants' Daubert Motion to determine if Dr. Lichtman's opinions are admissible, and then turn to the issues of inadmissible hearsay in Defendants' Motion in Limine. The motions for summary judgment will be addressed in a separate order.

II. LEGAL STANDARD

A. Daubert Motions

Federal Rule of Evidence 702 governs the admissibility of expert testimony. When a party proffers the testimony of an expert under Rule 702, the party offering the expert testimony bears the burden of laying the proper foundation, and that party must demonstrate admissibility by a preponderance of the evidence. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). "The presumption is that expert testimony is admissible, so that once a proponent has made the requisite threshold showing, further disputes go to weight, not admissibility." Little v. Wash. Metro. Area Transit Auth., 249 F. Supp. 3d 394, 408 (D.D.C. 2017) (citing Daubert, 509 U.S. at 588).

To determine whether expert testimony or any report prepared by an expert may be admitted, the Court engages in a three-part inquiry, which includes whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to...