Firearms Expert Can Be Censured By Peers

Paul Dougherty is a member of the Association of Firearm and Toolmark Examiners (AFTE). The AFTE is a private organization that exists to promote the integrity of expert testimony in the area of firearms forensics. Provisions in AFTE’s private code of ethics preclude, among other things, an expert making “unrepresentative, atypical, or unreliable” conclusions from evidentiary materials or “assisting litigants so as to create a false impression.”

Dougherty became involved in a civil case alleging that a trooper working for the State of Louisiana had improperly discharged his firearm. The expert on the other side of the case, Lucien Haag, became so incensed at Dougherty’s testimony, which he considered to be intellectually dishonest, that he filed a nine-page single-space letter with AFTE accusing Dougherty of unethical conduct.

Eventually, more than 60 percent of the general membership of AFTE voted to sustain the charges against Dougherty, and to impose a “censure” on him. Dougherty challenged the censure through a lawsuit in the California state court system.

The Court ruled in favor of AFTE. The Court found that there was a “common law requirement of fair procedure” that an organization such as AFTE owed to its members before imposing a censure. The Court found, though, that AFTE gave Dougherty more procedural rights than it was obligated to do. The Court concluded that “there can be no question that AFTE afforded Dougherty a high level of fair procedure. He had the chance to explain his theory no less than four times: In writing, to an ethics committee, then again, personally, in front of AFTE’s board, then again, in writing, in web postings before a general membership meeting, and yet again, in person in front of the entire membership at that meeting. In the process of these multiple layers of review, at least two procedural protocols were bent in Dougherty’s favor: (1) He got extra time to respond to the initial complaint; and (2) he got the chance, at the convention, to participate in voting on his own sanction.”

The Court found that “there is something very heartening about this case. A private organization whose purpose is to ensure the integrity of expert testimony actually had the gumption to censure a member whose testimony bordered on the ludicrous – roughly the equivalent of saying that a shotgun can shoot at a right angle. The organization painstakingly gave the errant member multiple opportunities to explain why his testimony wasn’t as bad as it looked, and ultimately, after about four years of internal due process, his peers censured him. In our opinion, they did not deserve a lawsuit, they deserve a medal.”

Dougherty v. Haag, 2008 WL 2878335 (Cal.App. 2008).

This article appears in the November 2008 issue