Filed: Oct. 27, 2016
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1604 MAKIA SMITH, Plaintiff - Appellant, v. BALTIMORE CITY POLICE DEPARTMENT; ANTHONY W. BATTS, in his official capacity as Commissioner of the Baltimore City Police Department; OFFICER NATHAN CHURCH, in both his official and individual capacity as an officer of the Baltimore City Police Department; OFFICER KENNETH CAMPBELL, in both his official and individual capacity as an officer of the Baltimore City Police Department, De
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1604 MAKIA SMITH, Plaintiff - Appellant, v. BALTIMORE CITY POLICE DEPARTMENT; ANTHONY W. BATTS, in his official capacity as Commissioner of the Baltimore City Police Department; OFFICER NATHAN CHURCH, in both his official and individual capacity as an officer of the Baltimore City Police Department; OFFICER KENNETH CAMPBELL, in both his official and individual capacity as an officer of the Baltimore City Police Department, Def..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1604
MAKIA SMITH,
Plaintiff - Appellant,
v.
BALTIMORE CITY POLICE DEPARTMENT; ANTHONY W. BATTS, in his
official capacity as Commissioner of the Baltimore City
Police Department; OFFICER NATHAN CHURCH, in both his
official and individual capacity as an officer of the
Baltimore City Police Department; OFFICER KENNETH CAMPBELL,
in both his official and individual capacity as an officer
of the Baltimore City Police Department,
Defendants – Appellees,
and
OFFICER WILLIAM PILKERTON, JR., in both his official and
individual capacity as an officer of the Baltimore City
Police Department; OFFICER NATHAN ULMER, in both his
official and individual capacity as an officer of the
Baltimore City Police Department,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-01352-JFM)
Argued: September 20, 2016 Decided: October 27, 2016
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Keenan and Judge Floyd joined.
ARGUED: Lawrence S. Greenberg, GREENBERG LAW OFFICE, Baltimore,
Maryland, for Appellant. Suzanne Sangree, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF:
Zebulan P. Snyder, GREENBERG LAW OFFICE, Baltimore, Maryland,
for Appellant. George Nilson, City Solicitor of Baltimore City,
William R. Phelan, Chief Solicitor, Glenn Marrow, Chief of
Police Legal Affairs Division, BALTIMORE CITY LAW DEPARTMENT,
Baltimore, Maryland, for Appellees.
2
THACKER, Circuit Judge:
Makia Smith (“Smith” or “Appellant”) sued the
Baltimore City Police Department (“BCPD”) and several individual
officers pursuant to 42 U.S.C. § 1983 and Maryland law. Smith
claimed two officers battered and unlawfully arrested her after
they saw her filming them as they arrested a juvenile. At
trial, the district court allowed defense counsel to elicit
testimony that Smith had been arrested three times before. The
jury ultimately returned a verdict in favor of the two officers
on all counts.
We fail to see how Smith’s prior arrests were relevant
to her claim for damages, which was the sole reason the district
court admitted them, and any probative value of those arrests
was far outweighed by prejudice to Smith. The admission of such
evidence was prohibited by Federal Rule of Evidence 404(b) and
was not harmless. Therefore, we reverse and remand for a new
trial.
I.
A.
Officer Nathan Church of the BCPD testified to the
following facts at the trial. On Friday, March 8, 2012, just as
high school students were being released from school, Officer
Church received a call for back-up to the 2800 block of Hartford
Road in Baltimore. He arrived to find several juveniles running
3
through the streets and another officer, Talmadge Jackson,
attempting to arrest one of them. When Officer Church arrived,
the juvenile was giving Officer Jackson a struggle. Officer
Church and several other officers formed a “half-horseshoe”
barrier between the public and Officer Jackson to “keep other
juveniles from getting close to [Officer Jackson].” S.J.A. 7. 1
Meanwhile, Officer Church heard tires screeching and
turned to see multiple vehicles stopped on Hartford Road. He
testified that traffic was stopped and/or moving extremely
slowly, and Smith’s car was “blocking all the traffic behind
her.” S.J.A. 10-11. Smith was standing outside of her car with
her phone up as if videotaping. Officer Church, over 50 feet
away from Smith, yelled, “Ma’am, pull your car to the side or
keep on going.” Id. at 11. Smith replied, “I’m not going to
let you hurt that young boy. I ain’t moving -- I ain’t moving
[shit].”
Id.
Officer Church “quickstep[ped]” toward Appellant and
again told her to move, and she responded, “I’m not moving
[shit]. [Fuck] y’all.” S.J.A. 13-14. Officer Church moved
closer, told her this was a traffic stop, and asked for her
license. Smith “ran back into her car” and sat with her back
1
Citations to the “S.J.A.” refer to the Supplemental Joint
Appendix filed by the parties in this appeal.
4
toward the passenger door, which Officer Church described as
“not normal[]” and indicative of someone “trying to flee from
the scene.” Id. at 17-19. At that point, Officer Church
reached in the car and was trying to grab for her keys, but
Appellant began “kicking [him], throwing fists at [him], [and]
scratching [him].”
Id. at 19. At one point he was “being hit
with a[n] [unidentified] hard object.”
Id. He placed his right
arm on the vehicle and reached in the car with his left arm,
“just trying to grab her and pull her out of the car.”
Id. She
was “flailing” and Office Church was “keeping [his] face . . .
out of harm’s way.”
Id. at 22. Officer Church succeeded in
pulling Smith out of the car, but he did not know what he
grabbed onto, whether it was her hair or something else. He
handcuffed her and began to effect an arrest. Pictures of
Officer Church with visible red marks and scratch marks on his
arm and neck were admitted into evidence.
Smith’s version of the facts is quite different.
According to her, while she was driving with her two-year-old
daughter on Hartford Road, she saw Officer Jackson arresting the
juvenile and became concerned when she saw the officer’s “knee
pressed against his temple.” J.A. 94. 2 She got out of her
2
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
5
vehicle, took the keys out, and pulled her cell phone up as if
videoing what the officers were doing. Officer Church yelled,
“What are you doing?” and Smith replied, “I’m just trying to
make sure that you guys are not hurting that little boy and
trying to make sure that he’s okay.” Id. at 97.
At that point, Officer Church “started coming towards
the vehicle . . . [l]ike The Incredible Hulk, like Manny
Pacquiao . . . in an aggressive . . . manner,” and once he got
closer to the vehicle, he started running. J.A. 97. Smith
tried to get back in the car, but at that point, she could not
have driven anywhere because traffic was still stopped. Officer
Church came over to the car, “snatched the phone out of [her]
hand and he kicked it and he stomped it.” Id. at 99. He then
said, “You want to film things, B[itch], film this. I should
knock your teeth out.”
Id. Smith had one foot in the car and
tried to get her other foot in the car when Officer Church “took
both of his hands and dragged [her] out of the car” by her hair.
Id. She did not punch, scratch, or kick Officer Church before
he grabbed her hair because “that kind of thinking gets you
killed,” although she admitted to “flailing” to try and get
Officer Church off of her.
Id. at 101-02. Then she felt three
or four other people join in but could not really see them. She
felt someone hit her in the back of the head and then she “just
blacked out.”
Id. at 102. The next thing she remembered is
6
being slammed onto the car and then seeing her daughter crying.
Another officer, Officer Campbell, pulled her left arm back and
all the way up and said, “Did you have enough yet? Do you want
me to break it?” Id. at 103.
As they began to arrest her, Smith asked Officer
Church if she could call her mother to come get her baby.
Officer Church taunted, “No. Child Protective Services will be
here to get your daughter.” J.A. 105. Smith asked a bystander
if she could come get her daughter out of the car, and the
bystander did so. The officers put Smith in the patrol car, and
she began yelling out her mother’s phone number; another officer
finally gave the bystander her mother’s phone number.
Smith was taken away in the transport vehicle to a
central booking station. Because she was complaining of head
and neck pain, she was taken to a nearby hospital before
booking. She was eventually charged with second-degree assault
of Officer Church, resisting or interfering with arrest, failing
to display a license on demand, willfully disobeying a lawful
order of the police, and causing a vehicle to obstruct a free
vehicle passage of a roadway. On January 3, 2013, after nearly
a year of pre-trial release obligations, the charges against
Smith were dropped via a nolle prosequi disposition.
7
B.
On May 8, 2013, Smith filed the instant action in the
District of Maryland against the BCPD; Anthony Batts,
Commissioner of the BCPD; Office Church; Officer Campbell; and
two other officers at the scene, William Pilkerton and Nathan
Ulmer (collectively, “Appellees”). The operative complaint,
amended on October 9, 2014, alleged 13 counts: excessive force,
deprivation of property without due process, and violations of
the First and Fourth Amendments under 42 U.S.C. § 1983;
violation of attendant rights under the state constitution;
Monell 3 claims against the city; and state law claims of
conversion, battery, false arrest, false imprisonment, and
intentional infliction of emotional distress. Smith claimed a
minimum of $1.5 million in damages for, inter alia, “emotional
trauma, humiliation, distress, bodily injury and damage to
personal property.” J.A. 37-38.
The original district court judge to whom the case was
assigned granted summary judgment to Officers Pilkerton and
Ulmer on some of the counts and determined the case should be
tried in two phases. First the jury would consider claims
against Officers Church and Campbell, and then, the Monell
claims against the city would proceed in a second phase if the
3 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
8
jury determined any constitutional harm had occurred. As a
result, at the trial underlying this appeal, only five claims
proceeded against Officer Church -- the First Amendment, Fourth
Amendment, excessive force, battery, and false arrest claims --
and two claims against Officer Campbell -- the excessive force
and battery claims.
Notably, on March 9, 2015, Smith filed a motion in
limine to exclude “all evidence or discussion of [Appellant’s]
prior arrests.” J.A. 81. Smith had been arrested three times:
for second degree assault in 2005, fleeing and eluding in 2006,
and second degree assault in 2010. 4 No convictions followed any
of Smith’s prior arrests. The district court granted the motion
on March 11, explaining, “There shall be no reference [at trial]
to [Appellant]’s prior arrests.” Id. at 86. On March 26, the
case was reassigned to a new district court judge and proceeded
to trial.
During the three-day trial in March 2015, the
following relevant exchanges occurred. First, at a bench
conference on March 25, directly before Smith’s mother testified
on her behalf, Appellees’ counsel said, “I expect plaintiff’s
counsel to elicit [testimony from Smith’s mother of] pain and
4
The motion also mentioned a fourth arrest, which was not
presented to the jury.
9
suffering after the event, [but] one of the Motions in Limine is
that we are not allowed to go into prior arrests. . . . [I]f
[plaintiff’s counsel] go[es] into it, I believe they opened the
door.” S.J.A. 79. The court explained to Smith’s counsel, “I
haven’t heard the testimony yet. But be forewarned. It makes
sense to me.” Id. at 80.
Smith’s mother then testified as follows:
Following the incident, . . . Makia cried
every day. She held onto [her daughter] and
continued to apologize to her for what had
happened. You know, she was, “I’m sorry. I
didn’t know that was going to happen. I’m
sorry.”
. . . .
She didn’t eat, and at night she would just
be up crying . . . in her room crying.
. . . .
Her eyes would practically close where she
just continued to cry and be depressed and
sad.
Id. at 83-84. Later that day, just before Smith testified,
Smith’s counsel reiterated at a bench conference that the prior
arrests should not come in. The district court explained,
I have tremendous respect for [the judge who
originally ruled on the motion in limine].
He has not heard the evidence. He didn’t
hear the mother give overemotional testimony
which was shaded with hearsay
. . . .
I am letting it in. I think it goes to
whether or not she really suffered pain and
10
suffering from this incident. So I’m
letting it in for that reason.
Id. at 87. The court added, “I think [the original judge] is
right, you don’t attack somebody’s credibility by an arrest and
not a conviction, but I’m letting it in.”
Id.
During Appellant’s testimony that same day, the
following exchange took place:
[SMITH]: Every time I see a officer now, I
immediately tense up. I remember once my
taillight was out and I got pulled over, I
was like extremely scared. Every time I see
anything that goes on on TV, I kind of get
upset because I really trusted in the
officers. I was raised to respect officers
and that they were people that should be
respected, and I kind of was let down.
BY [Smith’s counsel]:
Q. Had you ever had an interaction like this
with an officer before?
A. No.
Q. Not just the Baltimore City Police
Department, but anywhere?
A. No.
Q. What you just described, the problems you
had, do you still have those problems?
A. Most definitely.
J.A. 118 (emphasis supplied).
* * * *
Then, during cross-examination, the following
testimony occurred:
11
BY [BCPD’s counsel]:
Q. Ma’am, you said you were traumatized by
this event; is that correct?
A. I think anybody would be.
Q. Okay. And you also testified that you
were brought up to have respect for police
and now you feel a little different; is that
correct?
A. I don’t feel that they shouldn’t be
respected. I feel like I was let down by
them.
Q. You also remember when I had an
opportunity to speak to you in my office, I
asked you, I said this wasn’t your first
rodeo, was it?
[Smith’s counsel]: Objection.
THE COURT: Let me tell you, it’s important
-- I think I know where [BCPD’s counsel] is
going, and I’m overruling the objection,
which is understandable.
If the plaintiff -- am I right, the rodeo
means arrest?
[BCPD’s counsel]: That’s correct, Your
Honor.
THE COURT: If the plaintiff was arrested and
the charges were dismissed, which is, I
think, what happened, you can’t use an
arrest, and it’s essential that you
understand that. You cannot use the mere
fact of an arrest to judge the plaintiff’s
credibility. That is absolutely essential.
Rightly or wrongly, having heard the
testimony, I think that since the plaintiff
says this has had such an effect on her that
the fact of the arrest may be relevant to
the amount of damages, if any, that she
suffered. So that I’m letting it in.
12
But please understand that you cannot
consider an arrest to judge the plaintiff’s
credibility. That’s absolutely against the
rules, and it’s a good rule, because they
haven’t -- you know, there hasn’t been a
trial. And there’s an objection to this,
and that’s understandable.
. . . .
[Smith’s counsel]: And in addition to the
prior ruling from [the original judge] that
you --
THE COURT: [He] made his ruling, but [he]
hadn’t heard the testimony.
[Smith’s counsel]: Okay.
. . . .
BY [BCPD’s counsel]:
Q. When you were in my office, I asked you,
I said this wasn’t your first rodeo, was it?
. . . .
[SMITH]: Yes, I have been arrested before.
Q. Right. And, matter of fact, when I asked
you how many times, you said, “Two. No, I
think three”; correct?
A. I think so.
J.A. 133-35.
* * * *
Appellees did not ask any further questions about the
prior arrests. But on redirect examination, Smith’s counsel
asked about the nature of the prior arrests. As to the first
(second degree assault), Smith explained the father of her child
sent his girlfriend “to beat [her] up,” and she merely defended
13
herself. J.A. 136. The second (fleeing and eluding) occurred
when an officer tried to her pull her over, and she kept driving
to pull into a lit area, rather than a dark area. The officer
arrested her, but when she explained herself, he apologized.
Finally, as to the third arrest (second degree assault), the
father of her child showed up in the middle of the night and
dragged her baby out of the house in her car seat, threw her out
into the grass, and “tousl[ed]” Appellant around, and again,
Appellant defended herself. Id.
The jury returned a verdict in favor of Officers
Church and Campbell on all counts on March 30, 2015. 5 Appellant
moved for a new trial, raising an unrelated issue, but her
request was denied. She then filed this appeal, raising only
one issue: whether the district court committed reversible error
in admitting evidence of Appellant’s prior arrests.
II.
We review the district court’s evidentiary decisions
for abuse of discretion. See United States v. Lighty, 616 F.3d
321, 351 (4th Cir. 2010). An abuse of discretion occurs only
5 The district court later entered judgment in favor of BCPD
and Batts pursuant to City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986) (holding that where no underlying constitutional
violation occurred, the city cannot be liable under Monell).
See Order, Smith v. Baltimore City Police Dep’t, No. 1:13-cv-
1352 (D. Md. June 17, 2015), ECF No. 165.
14
when the district court acts “arbitrarily or irrationally” in
admitting evidence. United States v. Benkahla, 530 F.3d 300,
309 (4th Cir. 2008) (internal quotation marks omitted). Such
evidentiary rulings are, however, “subject . . . to harmless
error review.” United States v. Johnson,
587 F.3d 625, 637 (4th
Cir. 2009). “Where error is founded on a violation of Rule
404(b), the test for harmlessness is whether we can say with
fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” United States v.
Madden,
38 F.3d 747, 753 (4th Cir. 1994) (internal quotation
marks omitted).
III.
This appeal turns on whether the fact that Smith was
arrested three times before -- with no evidence that her prior
arrests involved a struggle of any kind with police and with no
convictions stemming from the arrests -- makes it more or less
probable that she suffered emotional damages in the case at
hand, where the police allegedly cursed at her, beat her, and
threatened to turn her child over to Child Protective Services.
We think not, and indeed, the admission of that fact could
easily have tipped the scales in what the district court itself
called “a tough case” that boiled down to a classic he-said,
she-said dispute. J.A. 158.
15
A.
Federal Rule of Evidence 404(b) prohibits the
admission of “[e]vidence of a crime, wrong, or other act . . .
to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). Prior act evidence is
admissible, however, to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Fed. R. Evid. 404(b)(2).
We utilize a four-part test to assess admissibility of
prior-act evidence: “(1) the prior-act evidence must be relevant
to an issue other than character, such as intent; (2) it must be
necessary to prove an element of the [claim]; (3) it must be
reliable; and (4) its probative value must not be substantially
outweighed by its prejudicial nature.” United States v. Garcia-
Lagunas, --- F.3d ---, 2016 WL 4547206, at *9 (4th Cir. Sept. 1,
2016) (alteration and internal quotation marks omitted). In her
opening brief, Smith only questions the relevance and
prejudicial nature of the prior arrests, so we limit our
discussion to those two issues.
1.
Relevance
It is well established that “a witness, whether a
party or not, may not be asked questions as to irrelevant
16
matters on cross-examination for the purpose of . . .
discrediting [her].” United States v. Chase, 372 F.2d 453, 463
(4th Cir. 1967). Generally, “[r]elevant evidence is admissible”
unless otherwise prohibited by the Constitution, the Rules of
Evidence, statutes, or other rules prescribed by the Supreme
Court. Fed. R. Evid. 402. Evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be
without the evidence,” and “the fact is of consequence in
determining the action.” Fed. R. Evid. 401(a), (b).
Under 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.” Udemba
v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001) (citing Lewis v. Dist.
of Columbia,
793 F.2d 361, 363 (D.C. Cir. 1986)) (emphasis
supplied). But that evidence still must have “probative value
on the question of . . . damages” in the case at hand. Nelson
v. City of Chicago,
810 F.3d 1061, 1069 (7th Cir. 2016)
(internal quotation marks omitted).
In Nelson, the plaintiff, Larry Nelson, sued officers
and the City of Chicago pursuant to § 1983 when Chicago police
officers pulled him over, pointed a gun at him, threatened to
kill him, and searched his car for no apparent reason. See
Nelson, 810 F.3d at 1064. At trial, the district court allowed
defense counsel to introduce Nelson’s arrest record, which
17
included nine arrests between 1983 and 1999 and one in 2005.
See id. at 1066.
Nelson moved in limine to exclude the evidence of
prior arrests, but then he testified about his emotional
distress during the traffic stop, explaining, “I was terrified,
humiliated . . . I feared for my life.” Nelson, 810 F.3d at
1067. The court then granted defense counsel’s request to
introduce the prior arrest evidence, but explained it could only
come in for impeachment purposes and “on the theory that some of
[Nelson’s] fear of the police may have been attributable to his
earlier arrests.”
Id. at 1067-68. The district court gave no
limiting instruction, although it prohibited mention of the
evidence in closing argument. The jury returned a verdict in
favor of the police. See
id. at 1065-66.
The Seventh Circuit found reversible error. First, it
concluded the evidence was not relevant. The theories that his
arrest history “mitigated his fear during the traffic stop” or
“augmented it,” were “tenuous at best,” and the arrest history
had “miniscule probative value on the question of his damages.”
Nelson, 810 F.3d at 1068-69 (emphases in original) (internal
quotation marks omitted). Indeed, “the arrests were distant in
time,” and “Nelson carefully limited his claimed emotional
injury to the fear he felt during the 30 minutes of the traffic
stop itself.”
Id. at 1069; see also
id. (“Although [Nelson]
18
said he remained angry about the incident despite the passage of
time, he never claimed that the experience left him fearful of
the police more generally.”). The court also warned that
allowing such evidence in § 1983 cases “would seemingly permit
any civil-rights plaintiff’s criminal history to come in on the
issue of emotional-distress damages, no matter how tenuous a
connection the evidence has to the issue of damages or how
central a role emotional distress plays during the plaintiff’s
case.” Id. (quoting Barber v. City of Chicago,
725 F.3d 702,
715 (7th Cir. 2013)).
The court then decided the error was not harmless:
“The jury heard that Nelson had been arrested numerous times,
making him appear particularly unsympathetic. The trial turned
entirely on his credibility, so the harm caused by improperly
admitting this damaging evidence would naturally be
substantial.” Nelson, 810 F.3d at 1070. And even though
defense counsel only asked one question and elicited only the
fact of the prior arrests, the court explained, “[T]hat single
question was especially damning, referring to ‘numerous’ prior
arrests.”
Id.
Some decisions involving prior arrests allegedly
bearing on damages, however, have gone the other way. See,
e.g.,
Udemba, 237 F.3d at 15 (in § 1983 appeal, affirming
district court’s finding that evidence of subsequent arrest was
19
relevant to a contested issue in the case -- the extent of
damages attributable to emotional distress); Karnes v. Skrutski,
62 F.3d 485, 500 (3d Cir. 1995) (finding no abuse of discretion
in admitting evidence of prior arrest in § 1983 action where
plaintiff contended that the underlying incident diminished his
respect for police and, thus, caused him damage), abrogated on
other grounds as recognized in Curley v. Klem,
499 F.3d 199 (3d
Cir. 2007); Montoya v. Sheldon, 898 F. Supp. 2d 1259, 1273
(D.N.M. 2012) (allowing evidence of prior arrests in § 1983
action, explaining they “are relevant to the issue of
[plaintiff’s] emotional distress damages, because the amount of
times and the manner in which [plaintiff] had been arrested
. . . makes more or less probable the Defendants’ arrest
emotionally distressed him”).
Considering Smith’s argument “with meticulous regard
to the facts of [her] case,” United States v. Hernandez, 975
F.2d 1035, 1040 (4th Cir. 1992) (internal quotation marks
omitted), we find this case on par with Nelson, and we find the
reasoning of Nelson to be sound. Like Nelson, Smith did not
claim damages because she is now more fearful of police
generally; in fact, her testimony at trial was that she felt
“let down by them” but still thought they deserved respect.
J.A. 133. Rather, in her Amended Complaint she claims damages
for the allegedly unlawful arrest and use of excessive force
20
that occurred on March 8, 2012, and emotional damages stemming
from that encounter. See id. at 37 (claiming damages for
“emotional trauma, humiliation, distress . . . suffered from the
acts of the Defendants” (emphasis supplied)).
Appellees’ relevance argument also falls apart given
the backdrop of Smith’s testimony. First of all, on direct
examination, Smith clearly testified she had “[n]ever had an
interaction like this with an officer before.” J.A. 118
(emphasis supplied). Rather than try and disprove this
testimony, defense counsel pointedly asked Smith if this was her
“first rodeo,” J.A. 133, a question that Baltimore City Law
Department’s own appellate counsel admitted was “a very poor way
of asking her whether she had been arrested before,” Oral
Argument at 19:01, Smith v. Baltimore City Police Dep’t, No. 15-
1604 (4th Cir. Sept. 20, 2016), http://www.ca4.uscourts.gov/
oral-argument/listen-to-oral-arguments. This is a clear
indication that the evidence was being used to show character
and propensity, rather than to demonstrate the extent of her
damages.
Perhaps most damning to Appellees’ position, however,
is not what defense counsel said, but what he failed to say.
Appellees made no record of -- and the district court did not
inquire -- whether these prior arrests were of a similar nature
to the case at hand. “There is, after all, a material
21
difference between being arrested and being subjected to
excessive force in the course of that arrest.” Sanchez v. City
of Chicago, 700 F.3d 919, 931 (7th Cir. 2012). And by eliciting
the mere fact of Smith’s three prior arrests with no further
details, the jurors were permitted to fill in the gaps
themselves and let their imaginations run wild.
In sum, the district court did not determine whether
the three prior arrests involved conduct remotely similar to the
arrest in this case; Smith is claiming damages specifically for
the alleged conduct of the March 8, 2012 arrest; and defense
counsel’s questioning reveals the evidence was admitted for
purposes of credibility, propensity, and character of Smith.
Therefore, based on this record, the evidence was irrelevant to
damages, and the district court abused its discretion in
admitting it.
2.
Prejudice
Even if the prior arrests possessed a trace of
probative value, we find the risk of prejudice from the mention
of the prior arrests to be “enormous.” Nelson, 810 F.3d at
1069. For one thing, it is common sense that “evidence of prior
arrests . . . generally impugns character.”
Id. And “[i]t’s
doubtful that the jury drew the distinction between an arrest
and a legal finding of wrongdoing[.]”
Id.
22
Of course, prejudice may be mitigated by “carefully
framed” limiting instructions regarding “proper consideration of
[the] evidence.” United States v. Lespier,
725 F.3d 437, 448
(4th Cir. 2013); see also
Sanchez, 700 F.3d at 932 (assuming
error occurred with admission of statement that § 1983 plaintiff
had been arrested “several” times in the past, finding no harm
where court “gave a limiting instruction admonishing the jury
that it was to consider this evidence only insofar as it shed
light on the extent of any emotional harm he experienced”). But
assuming limiting instructions in this type of case are even
effective, 6 here, we cannot say the instructions were carefully
framed or sufficiently explained how the jury should have
properly considered the evidence. Rather, they afforded “meager
protection” at best. United States v. Johnson,
617 F.3d 286,
297 (4th Cir. 2010).
The court gave the following instructions to the jury
during Smith’s testimony:
If the plaintiff was arrested and the
charges were dismissed, which is, I think,
what happened, you can’t use an arrest, and
it’s essential that you understand that.
6 Cf. United States v. Jones, 455 F.3d 800, 811 (7th Cir.
2006) (Easterbrook, J., concurring) (“Telling juries not to
infer from the defendant’s criminal record that someone who
violated the law once is likely to do so again is like telling
jurors to ignore the pink rhinoceros that just sauntered into
the courtroom.”).
23
You cannot use the mere fact of an arrest to
judge the plaintiff’s credibility. That is
absolutely essential.
Rightly or wrongly, having heard the
testimony, I think that since the plaintiff
says this has had such an effect on her that
the fact of the arrest may be relevant to
the amount of damages, if any, that she
suffered. So that I’m letting it in.
But please understand that you cannot
consider an arrest to judge the plaintiff’s
credibility. That’s absolutely against the
rules, and it’s a good rule, because they
haven’t -- you know, there hasn’t been a
trial.
J.A. 134-35. 7 This was the universe of the instruction, since
the district court did not give a limiting instruction in the
jury charge before deliberations. The court mentioned only
credibility and nothing about “character,” which is also
forbidden use of the evidence and is listed in the text of Rule
404(b) itself, or “propensity to break the law,” which is
prohibited under our case law, and which became a central issue
in this trial. United States v. Young, 248 F.3d 260, 271 (4th
Cir. 2001). And while the court instructed the jury to consider
the testimony on the issue of damages, it did not confine the
7
Appellees claim Smith did not properly object to the
limiting instruction. However, directly after the district
court gave the instructions above, Smith’s counsel noted his
“continuing objection,” to which the district court responded,
“Oh, you have an absolutely continuing objection.” J.A. 134.
We find this sufficient to preserve the argument for our review.
24
jury’s consideration to that issue. Thus, prejudice in this
case far outweighed any perceived probative value of the three
arrests.
B.
Having found error, we must now consider whether it is
harmless, i.e., “whether we can say with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” United States v. Madden, 38 F.3d 747, 753
(4th Cir. 1994) (internal quotation marks omitted).
We cannot say with fair assurance the judgment was not
substantially swayed by the admission of Smith’s prior arrests.
Smith’s and Officer Church’s accounts of their interaction were
extremely different. The main issues in the case
-- who assaulted whom, whether probable cause to arrest existed,
whether the force used by Officer Church was justified -- hinged
on which witness the jury believed, making the trial a classic
he-said, she-said dispute. The district court itself admitted
this was a “tough case.” J.A. 158. Thus, the jury’s view of
Smith’s credibility and character was necessarily central to its
verdict.
Once the jury heard the evidence, it is reasonable
that they assumed “where there’s smoke, there’s fire.” Nelson,
810 F.3d at 1069. And again, the limiting instructions in this
25
case failed to mitigate the prejudice naturally flowing from
this questioning. Cf. Barber, 725 F.3d at 717 (“At some point
judicial presumptions must give way to commonsense, and the
formulaic recitation of a pro forma limiting instruction may not
suffice to cure an error as it may fail to instruct the jury
meaningfully as to what it legitimately may do with the
evidence.”). Therefore, the error in this case was not
harmless and requires reversal.
IV.
For the foregoing reasons, we reverse the judgment
below and remand for a new trial.
REVERSED AND REMANDED
26
