Martin A. Schwartz (NYLJ/Rick Kopstein)
Section 1983 plaintiffs frequently allege that they were wrongfully arrested and subjected to police use of excessive force. These claimants seek damages for violations of the Fourth Amendment right to be free from an unreasonable seizure by a government agent. The constitutionality of an arrest will depend on whether it was supported by probable cause. The constitutionality of police use of force to effectuate an arrest depends upon whether, under the totality of the circumstances facing the officer, the use of force was objectively reasonable. In other words, could a reasonable officer have employed the force claimed to be excessive.
A large percentage of §1983 plaintiffs who assert claims against police officers have had other encounters with law enforcement officers. The trial judge, therefore, may well have to decide whether the §1983 defense attorney may introduce evidence of the plaintiff’s arrest record.
It is well established that because an arrest is a mere charge or accusation, it is not probative of wrongdoing. It is an unfortunate part of life that large numbers of innocent people are arrested every day. Yet, rightly or wrongly, an arrest can impact on an individual’s reputation, and, on the rationale that “where there’s smoke there’s fire,” a jury may conclude that a person who has been arrested engaged in the criminal conduct underlying the arrest. When the plaintiff was arrested multiple times, the jury may view him as simply a “bad dude” who is not deserving of relief under §1983. It is thus not surprising that some §1983 defense attorneys fight hard to get evidence of the plaintiff’s arrest history before the jury, and that §1983 plaintiffs’ attorneys fight mightily to have the evidence excluded.
The U.S. Court of Appeals for the Fourth and Seventh Circuits recently held in §1983 actions alleging Fourth Amendment violations that a district court’s admission of evidence of the plaintiff’s prior arrests constituted reversible error, necessitating a new trial. Smith v. Baltimore City Police Department, 840 F. 3d 193 (4th Cir. 2016); Nelson v. City of Chicago, 810 F. 3d 1061 (7th Cir. 2016). Each of these opinions contains a valuable discussion of the admissibility issue. Nelson provides an extensive analysis of the admissibility of the evidence on the issues of credibility and damages, while the opinion in Smith focuses on the admissibility of the evidence on the issue of damages. The decisions will likely play a powerful role when these issue arise in future §1983 cases.
To set the stage for the discussion of Nelson and Smith, it will be helpful to keep in mind three key evidence rules:
• Federal Rule of Evidence 404(b), which provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” but this evidence may be admissible for another relevant purpose, such as intent, knowledge, motive, or identity.
• Federal Rule of Evidence 608(b), which allows a witness’s credibility to be impeached by inquiry into specific instances of conduct probative of character for truthfulness or untruthfulness.
• Federal Rule of Evidence 403, which authorizes a court to exclude relevant evidence if its probative value is substantially outweighed by the danger of, inter alia, unfair prejudice.
Let’s start with Nelson v. City of Chicago. The 2008 encounter between Larry Nelson and four Chicago police officers started with a traffic stop but escalated to the point of the officers threatening to shoot him, handcuffing him, and searching him and his minivan. About half an hour after the stop, the officers told Nelson that he was free to go. He was not given a traffic ticket or charged with violating any law. Nelson’s federal court §1983 complaint sought damages for allegedly unconstitutional police seizures.
Nelson had a lengthy arrest record, with nine arrests between 1983 and 1999 (eight were for misdemeanors and all nine charges were dropped), and one in 2005 (for which he was acquitted). The trial judge ruled that evidence of these arrests was admissible to impeach Nelson’s credibility and on the issue of his damages, on the theory that some of his damages from fear of the police may have stemmed from his earlier arrests.
Nelson testified on direct about his emotional distress during the traffic stop. He told the jury that when Officer Ruzak pointed a gun in his face he was “terrified, humiliated [and] feared for [his] life,” that he continued to “feel embarrassed, terrified,” and remained “mad at the police.”
On cross-examination, the defense attorney questioned Nelson about his prior arrests:
Q. And, sir, isn’t it true that you’ve actually been arrested in numerous cases?
A. I’ve been arrested before and never been found guilty of no crime.
Nelson did not claim that his 2008 encounter with the police made him generally more fearful of the police. The jury returned a verdict for the officers. On plaintiff’s appeal, the Seventh Circuit held that the trial court ruling allowing defense counsel to question Nelson about his “numerous” arrests was reversible error. The evidence was not admissible either to impeach or on the issue of plaintiff’s damages.
It will be recalled that Federal Rule of Evidence 608(b) authorizes a witness’s credibility to be attacked by inquiry of specific instances of conduct probative of the witness’s character for truthfulness. (Rule 608(b)’s authorization to introduce evidence of specific conduct to impeach is subject to Rule 403.) The circuit court in Nelson forcefully rejected the district court’s ruling that Nelson’s arrests were probative of his character for truthfulness. Unlike a conviction, which may be a proper basis for impeachment, Federal Rule of Evidence 609, “an arrest is not, in itself probative of the arrested person’s character for truthfulness.” Nelson, 810 F. 3d at 1068, quoting Michelson v. United States, 335 U.S. 467, 482 (1948) (“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.”). As the circuit court in Nelson recognized, a witness may be subject to impeachment not only by conviction, but also under Rule 608(b) on the basis of the conduct underlying an arrest if that conduct is probative of the witness’s character for truthfulness, again subject to Rule 403. But defendants’ counsel did not seek to cross-examine Nelson about any specific conduct. In fact there was nothing in the record to even indicate that any of Nelson’s “arrests were based on allegations of dishonest or untruthful conduct.” 810 F. 3d at 1068.
The circuit court’s decision in Nelson persuasively demolished the notion that an arrest may be probative of a witness’s character for truthfulness. But this doesn’t mean that an arrest may never be the proper subject of impeachment on some other basis. The circuit court in Nelson acknowledged agreement with the district court that if Nelson testified that he “never had any encounter with the police before,” the defense should be able to introduce evidence of his prior arrests to specifically contradict his testimony. 810 F. 3d at 1066, 1068. And, a witness’s prior arrests may show the witness’s bias which, depending on the circumstances, might be a pro- or anti-police bias. See Barber v. City of Chicago, 725 F. 3d 702, 711 (7th Cir. 2013) (“In some circumstances it might be proper to impeach a witness with … a prior arrest … to establish the witness’s bias.”) (citing United States v. Spencer, 25 F. 3d 1105, 1109 (D.C. Cir. 1994); Montoya v. Sheldon, 898 F. Supp. 1259, 1274-75 (D.N.M. 2012)). A series of arrests might make a person biased against the police. On the other hand, an arrestee who struck a favorable deal to resolve an outstanding charge may arguably have a pro-police bias.
That brings us to the tougher issue, the admissibility of Nelson’s arrests on the issues of damages. There are decisions holding that a §1983 plaintiff’s arrest record is relevant on his claim for emotional distress damages on the theory that his alleged anxiety and fears of the police may be at least partly attributable to his prior arrests. See, e.g., Udemba v. Nicoli, 237 F. 3d 8, 14 (1st Cir. 2001). Further, a person “hardened” by prior arrests may be less emotionally distressed than someone who has been falsely arrested only once. Montoya v. Sheldon, 898 F. Supp. 2d 1259, 1272-74 (D.N.M. 2012). These rationales supported the argument of the defendants in Nelson, namely, that “Nelson’s history of arrests either mitigated his fear during the traffic stop (because being arrested was old hat for him) or augmented it (because his numerous encounters with the police suggest that some of his emotional injury might have been pre-existing.” 810 F. 3d at 1068 (footnote omitted).
The Seventh Circuit rejected this argument, in general, because routine admission of plaintiff’s prior arrests can greatly unfairly prejudice civil rights plaintiffs and, more specifically, because Nelson claimed emotional distress damages for his fear and distress during the traffic stop and not because he more generally feared the police. Given Nelson’s careful limitation of his claim for emotional distress damages, his arrest record had “miniscule probative value” and “enormous” risk of causing unfair prejudice. The court’s reasoning is worth quoting:
It’s doubtful that the jury drew the distinction between an arrest and a legal finding of wrongdoing: where there’s smoke, there’s fire. Even assuming the jury accounted for this distinction, evidence of [Nelson's numerous prior arrests impugned his] character. And in a false-arrest case, the prejudice is even greater because it invites the jury to draw a propensity inference, forbidden by Rule 404(b), that the plaintiff is a serial lawbreaker and general troublemaker and the police must have had probable cause to arrest him. 810 F.3d at 1069 (citation and footnote omitted).
Given this reasoning by the circuit court it is hardly surprising that it found that the erroneous admission of Nelson’s arrests was not harmless error.
The Fourth Circuit in Smith v. Baltimore City, relying heavily upon Nelson, also held that the trial court committed reversible error in allowing the defense to introduce evidence of plaintiff’s prior arrests. Makia Smith alleged in her federal court §1983 complaint that in March 2012, after the police saw her using her cell phone to videotape the arrest of a juvenile, they unlawfully arrested and physically and verbally abused her, and threatened to turn her child over to Child Protective Services. Like Larry Nelson, Smith carefully limited her claim for emotional distress damages to her March 2012 encounter with the police, not because she was now more fearful of the police generally. Here is part of her testimony on direct:
Every time I see [an] officer now, I immediately tense up … . I was raised to respect officers and that they were people who should be respected, and I kind of was let down.”
Q. Had you ever had an interaction like this with an officer before?
Q. Not just the Baltimore City Police Department, but anywhere?
The trial judge allowed the defense attorney to question plaintiff about her three prior arrests, and instructed the jury that while it “cannot use the mere fact of an arrest to judge the plaintiff’s credibility,” it “may be relevant to the amount of damages, if any, that she suffered.” While the instruction not to consider plaintiff’s arrests on the issue of credibility was correct, the trial judge did not confine the jury’s consideration of the prior arrests to damages, and failed to instruct the jury not to consider the arrests for the purpose of assessing plaintiff’s character, an inference forbidden by Rule 404(b). Smith, 840 F. 3d at 204.
Here is part of the defense counsel’s cross-examination of the plaintiff:
Q. Ma’am you said you were traumatized by this event; is that correct?
A. I think anybody would be … .
Q. When you were in my office, I asked you, I said this wasn’t your first rodeo was it?
A. Yes, I have been arrested before.
Q. [W]hen I asked you how many times, you said … . “three,” correct?
A. I think so.
Employing the same type of careful analysis as the Seventh Circuit in Nelson, the Fourth Circuit held that the district court committed reversible error in allowing defendants to question Ms. Smith about her prior arrests on the issue of damages. The circuit court acknowledged that “[u]nder Rule 404(b) ‘admission of evidence of other bad acts to assist the jury in measuring the extent of damages is a legitimate, non-character based use of such evidence.’” 849 F. 3d at 201 (citations omitted). But in this case, as in Nelson, Smith very carefully limited her claimed damages to her 2012 encounter with the police, and not because she now feels more fearful of the police generally. Defense counsel’s crudely asking Smith whether this was her “first rodeo” as a way of asking whether she had been arrested before was “a clear indication that the evidence was [improperly] being used to show character and propensity, rather than to demonstrate the extent of her damages.” 840 F. 3d at 203. As in Nelson, the error was prejudicial, necessitating a new trial.
The lesson from Nelson and Smith is clear: The plaintiff’s decision to limit emotional distress damages to the particular encounter with the police as opposed to fear of the police generally will likely go a long way in ensuring exclusion of evidence of her arrest record. Compare Udemba v. Nicoli, 227 F. 3d 8, 14 (1st Cir. 2001) (district court did not err in allowing defense counsel to inquire about plaintiff’s subsequent arrest because plaintiff did not limit his testimony concerning his mental anguish to a “closed period of emotional distress”).
There may be other circumstances in which evidence of a §1983 plaintiff’s prior arrests may be admissible. We have already referred to the claimant who “opened the door” by testifying that he had never before been arrested, in which case his arrest record would come in as rebuttal evidence. Also, if a §1983 excessive force claimant testifies that he did not know that the defendant was a police officer, the fact that he was previously arrested may make this assertion less credible. Lewis v. District of Columbia, 793 F. 2d 361, 363 (D.C. Cir. 1986).
Nelson and Smith further an overarching goal of the law of evidence that judicial controversies be decided on the basis of what transpired on the occasion in question rather than on the basis of a party’s character or past conduct or, as in the case of arrest records, past accusations. This goal is no less vital in §1983 actions against the police than in other types of judicial proceedings.