See also: ALCOHOL AND INTOXICATION–Relevance: Victim of Excessive Force
CHARACTER EVIDENCE–Alleged Victim’s Violent Character: Excessive Force Cases
CONVICTIONS–Relevance: Civil Cases; DISCRIMINATION
OTHER ACTS AND OCCURRENCES.

§ 1.  Defendant’s History of Using Excessive Force

Courts have demonstrated a reluctance to admit evidence of a defendant police officer’s past incidents of using allegedly excessive force, generally on the grounds that the prior incidents were too dissimilar,{footnote}Hynes v. Coughlin, 79 F.3d 285 (2d Cir. 1996) (evidence of prison guard’s treatment of fellow employee inadmissible in suit by prisoner for use of unreasonable force). Vukadinovich v. Zentz, 995 F.2d 750 (7th Cir. 1993) ( In a civil rights case brought against a city and certain police officers, evidence of other complaints against the city and one of the officers were held inadmissible because of dissimilarities of the circumstances); Morgan v. City of Marmaduke, Ark., 958 F.2d 207 (8th Cir. 1992) (police officer’s use of patrol car to stop motorcyclist three years before collision with plaintiff’s motorcycle).

See also Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994), cert. denied 115 S.Ct. 1692, 131 L.Ed.2d 556 (five previous incidents of alleged use of excessive force inadmissible to show "habit" of using excessive force); Hopson v. Fredericksen, 961 F.2d 1374 (8th Cir. 1992) (internal police records regarding prior complaints of abuse excuded where offered to show proclivity to use excessive force).

{/footnote} or due to concerns of unfair prejudice, confusion and waste of time.{footnote}Soller v. Moore, 84 F.3d 964 (7th Cir. 1996) (evidence of previous prior unrelated shooting by same defendant-police officer properly excluded).{/footnote}  Such evidence has sometimes been held sufficiently related to be admissible on the issue of notice to the municipality of an officer’s propensity for violence,{footnote}Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992).{/footnote} or to show a city’s policy of tolerance.{footnote}CHECK Foley v. City of Lowell, 948 F.2d 10 (1st Cir. 1991) (subsequent incident).{/footnote}

§ 2.  Offered in Defense of Charge of Assaulting or Murdering Police Officer

In a prosecution for assaulting a police officer, it was held improper to cross-examine the victim police officer as to past incidents of using allegedly excessive force, due to concerns of unfair prejudice, confusion and waste of time.{footnote}See People v. Cole, 654 P.2d 830, 833-34 (Colo. 1982) (in prosecution for assault on police officer, trial court improperly allowed detailed cross-examination and rebuttal testimony regarding the unrelated arrests and citizen complaints of use of excessive force).{/footnote}  In a prosecution for murdering two police officers where the defendant claimed self-defense, a prosecution witness who testified that the officers were not “aggressive” by nature could properly be impeached with a question about an incident in which one of the officers shot out a suspect’s tires and then asked the suspect, with gun drawn, "Do you want to meet your Maker?"{footnote}Baze v. Commonwealth, 1997 Ky. LEXIS 40 (dictum).{/footnote}

§ 3.  Evidence of Racial Prejudice

A prior, unrelated complaint of racism against a defendant police officer has been held inadmissible in the absence of evidence that excessive force was used, and any official findings or conclusions resulting from the complaint.{footnote}Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir. 1996).{/footnote}