901 F.3d 772
7th Cir.2018Background
- In March 2014 Kasey Burton was followed and signaled to stop by Zion police for driving on a suspended license; she slowly drove home and stopped in her driveway.
- Officer Joseph Richardt — who had, in 2008, been found by the City to have used unnecessary force against Burton (he had handcuffed and tased her) and was later sued and the City settled — joined the 2014 stop and used a straight-arm takedown; Burton was handcuffed and alleged pain thereafter.
- Burton sued the City, Richardt, and Sergeant Arrington under 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment; at trial the district court excluded any evidence of the 2008 encounter on a motion in limine.
- The trial proceeded without the 2008 evidence; a jury returned a verdict for the defendants. Burton appealed the exclusion of the prior-incident evidence.
- The Seventh Circuit held the district court erred by applying an older four-factor propensity test (Vargas/Shackleford/Zapata) and excluding the evidence as impermissible 404(b) propensity evidence; the panel concluded the 2008 incident was admissible to show what Officer Richardt knew at the time, a relevant non-propensity purpose, and remanded for a Rule 403 probative/prejudice balancing on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior 2008 stop/use-of-force evidence | The 2008 taser incident was admissible to show why Burton behaved as she did (fear) and, critically, to show what Richardt knew—information a reasonable officer would consider when choosing force. | The 2008 incident is impermissible propensity evidence under Rule 404(b) and too remote/dissimilar to be relevant; any probative value is substantially outweighed by unfair prejudice. | Reversed: the district court misapplied the older four-part test; under Gomez the evidence could be admitted for a non-propensity purpose (Richardt’s knowledge) and must be subjected to a Rule 403 balancing on remand. |
| Relevance of plaintiff’s subjective state of mind | Burton argued her fear (based on 2008) explained her failure to stop and was relevant to reasonableness assessment. | Defendants argued officer-focused, objective standard makes plaintiff’s subjective fear irrelevant. | Court: Plaintiff’s subjective state is not itself relevant to Graham/Kingsley reasonableness; but evidence showing the officer knew of her prior tasering (and thus a reason for her behavior) is relevant to what the officer knew. |
| Proper test for other-act evidence | Use a relevance-focused, Rules-based approach (Gomez) identifying a non-propensity purpose and then Rule 403 balancing. | District court applied older four-part Vargas test (similarity/recency emphasis) to exclude evidence. | Held that Gomez governs; Vargas-style rigid similarity/recency analysis was misapplied and may not bar evidence when offered for a non-propensity purpose. |
| Rule 403 balancing and mitigation of prejudice | Burton: probative value is high because the jury questioned why she didn’t stop; potential prejudice can be mitigated by limiting instructions and careful presentation. | Defendants: prior bad-act evidence risks unfair prejudice and confusion, warranting exclusion. | Court: On remand district court must balance probative value against prejudice; exclusion was premature without proper Gomez-style analysis and Rule 403 weighing. |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (objective-reasonableness test for excessive force)
- Kingsley v. Hendrickson, 135 S. Ct. 2466 (reasonableness judged from officer’s perspective and what was known)
- Kisela v. Hughes, 138 S. Ct. 1148 (factors for assessing excessive force: severity, threat, resistance, flight)
- County of Los Angeles v. Mendez, 137 S. Ct. 1539 (excessive force evaluated based on officers’ information at the time)
- Gomez v. 763 F.3d 845 (7th Cir.) (rejecting rigid Vargas four-part test; requires a Rules-based relevance inquiry for other-act evidence and Rule 403 balancing)
- DeLuna v. City of Rockford, 447 F.3d 1008 (officer may consider suspect’s history when assessing reasonable force)