Stacy Drayton v. Stephen Scallon, 685 F. App'x 557

On July 15, 2011, Stacy Drayton was arrested after driving the wrong way in a vehicle he lacked permission to drive; he alleged officers used excessive force from the stop through booking.
Drayton claimed he was repeatedly hit and kicked; officers denied any hitting or kicking.
Booking and investigator photographs taken the evening of arrest showed no visible injuries to head, face, arms, or torso; a nurse practitioner later noted a slight bump on the head and potential head injury and recorded Drayton’s report of crack cocaine use and schizophrenia (unmedicated).
Drayton’s trial testimony conflicted with prior statements to the investigator and nurse and with his deposition; officers introduced evidence of his extensive criminal history, including felony convictions.
The jury found for the officers; Drayton appealed, challenging admission of evidence of schizophrenia, prior crack-cocaine use, his rap sheet, and allegedly inflammatory statements by officers’ counsel.
The Ninth Circuit reviewed unpreserved issues for plain error and affirmed the district court’s judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of schizophrenia diagnosis	Diagnosis was prejudicial and irrelevant absent showing it affected perception; should be excluded under Rule 403	Diagnosis was probative of credibility and perception	District court erred to admit diagnosis without link to perception, but error was harmless under plain-error review; affirm
Admission of rap sheet (arrests/misdemeanors)	Rap sheet improperly presented and prejudicial; arrests and misdemeanors inadmissible	Felony convictions were admissible for impeachment; rap sheet supplemented criminal history	Admission of rap sheet was error (rap sheets improper and arrests/misdemeanors inadmissible), but error was harmless given admissible felony evidence; affirm
Admission of prior drug use evidence	Prior drug use (crack) irrelevant or more prejudicial than probative	Drug use that night and prior use went to credibility and perception; Drayton volunteered some of it	Admission proper; drug use was at issue and its admission was not plain error; affirm
Counsel’s allegedly inflammatory remarks	Isolated references (felonies, mental illness) were inflammatory and prejudicial enough to require reversal	Remarks were isolated, relevant to credibility, not pervasive, and jury was instructed that arguments are not evidence	No plain error; remarks were isolated, relevant, and not so prejudicial to undermine fairness; affirm

Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011) (illness relevant only if it bears on witness’s ability to perceive events)
Beachy v. Boise Cascade Corp., 191 F.3d 1010 (9th Cir. 1999) (harmless-error standard where jury likely would reach same result)
Williams v. Union Pac. R.R., 286 F.2d 50 (9th Cir. 1960) (preservation and review of evidentiary objections)
Hemmings v. Tidyman’s Inc., 285 F.3d 1174 (9th Cir. 2002) (plain-error review of attorney misconduct absent contemporaneous objection)
Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136 (9th Cir. 2001) (plain error requires showing proceedings’ fundamental fairness is in serious question)
United States v. Barry, 814 F.2d 1400 (9th Cir. 1987) (rap sheets not admissible as proof of convictions)
Nelson v. City of Chicago, 810 F.3d 1061 (7th Cir. 2016) (arrest records generally inadmissible)
Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000) (presumption that jury follows court’s instruction that counsel argument is not evidence)