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Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 6, 2021

Eastern District of Wisconsin Deems Expert Testimony on "Weapons Effect" Admissible

Federal Rule of Evidence 702 provides 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.

So, should an expert be able to testify about the "weapons effect"? That was the question addressed by the United States District Court for the Eastern District of Wisconsin in its recent opinion in N.J. by Jacob v. Sonnabend, 2021 WL 1733394 (E.D.Wis. 2021).

In Sonnabend, the Neenah Joint School District dress code was amended for the 2020-2021 school year and now provides:

The Neenah Joint School District prioritizes a safe learning environment. It is important that your student dress not compromise the safety of our learning environment for any of our students or staff. If a student's attire creates a learning environment that is deemed unsafe for students or staff, the student may be asked to change the clothing that is creating a disruption to the safe learning environment. 

Thereafter, "[o]n February 12, 2020, N.J. wore a shirt with the inscription 'Smith & Wesson Firearms - Made in the USA Since 1852.' In addition to the inscription, which is apparently the logo of the Smith & Wesson company, the shirt also had a depiction of a revolver." Then, "[o]n February 19, 2020, A.L. wore a shirt with an image of a gun to school."

When these students were forced to not wear these shirts they brought (subsequently consolidated) actions, raising the issue of whether "high school administrators can constitutionally prohibit students from wearing shirts bearing images of guns while attending school."

In support of their motion for summary judgment, the defendants sough to rely on the opinion of Professor Brad J. Bushman regarding "weapons theory," "the theory that the mere presence of guns or images of guns increases aggression in people." The court deemed Professor Bushman's testimony admissible under Federal Rule of Evidence 702, concluding that

There is no dispute that Professor Bushman has the qualifications needed to offer expert testimony in the relevant field. As his resume shows, Professor Bushman has a Ph.D. in psychology. He testified in his deposition to over thirty years of research and study on the impact of violent media on aggressive behavior and the link between narcissism and aggression....He lists 232 peer review articles, seven books, and 26 book chapters he has authored or co-authored on his resume, many involving the impact of violent media on aggressive behavior.
Professor Bushman testified that his opinions were consistent with over 50 years of research on the weapons effect. According to his report, Professor Bushman published a comprehensive review of weapons effect studies, which included 151 effects from 78 independent studies involving 7,668 participants. His meta-analysis found that seeing weapons increased aggressive thoughts, hostile appraisals, and aggressive behavior by a significant degree. His report and deposition also describe a comprehensive review of 43 studies involving 5,230 participants that used images of weapons depicted in a non-threatening and non-violent manner (i.e., just a photo of a weapon not pointed at anyone). Those studies, according to Professor Bushman, have found a significant weapons effect, as well....It was on the basis of those studies and his own research that Professor Bushman opined that images of guns on shirts worn by students would impact learning outcomes and increase aggression and intergroup hostility.
As Plaintiffs point out, the weapons effect has also been the subject of criticism by other researchers....But a theory need not be universally accepted in order to be admissible in evidence. Professor Bushman's resume, deposition, and report provide sufficient evidence of his education, research, and experience as well as the methodologies used in the studies he reviewed to meet the requirements for admissibility set forth in Rule 702. "Because there are areas of expertise, such as the social sciences in which the research, theories and opinions cannot have the exactness of hard science methodologies, trial judges are given broad discretion to determine whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case."...In the exercise of that discretion here, I conclude that Professor Bushman's opinions are admissible.
The mere fact that Professor Bushman's opinions are admissible, of course, does not mean that they are true or that a neutral factfinder would find them credible at a trial. But given the deferential standard described above, that is not the question before the Court. The question is not whether this Court or a jury of laypeople would agree with Professor Bushman and adopt his view. The question is whether Defendants have a reasonable basis for concluding that the relatively minor restriction of students’ ability to express their views about firearms in the school setting furthers important pedagogical goals. Reducing student aggression, of course, is such a goal. Given the body of study described by Professor Bushman, the limitation imposed by Defendants was reasonable.



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