PAST-ACTS EVIDENCE IN EXCESSIVE FORCE
LITIGATION
JAMES STONE*
ABSTRACT
Myriad obstacles prevent victims of police violence from vindicating
civil claims against the officers who have harmed them and the cities which
have failed them. Though these plaintiffs face legal hurdles even getting into
court, this article explores an unusual evidentiary imbalance that occurs for
those few plaintiffs who do make it to trial. A confluence of constitutional
law, the Federal Rules of Evidence, and judge discretion allows juries to
hear highly prejudicial information about plaintiffs’ pasts—including drug
use and past criminal behavior—while omitting probative evidence of
officers’ past misconduct.
This article critiques how courts’ interpretations of the “objective
reasonableness” standard of Graham v. Connor, 490 U.S. 386 (1989),
paired with Rule 404(b) of the Federal Rules of Evidence, cause judges to
mistakenly hold certain officer misconduct evidence irrelevant and thus
inadmissible at trial. The article then discusses the comparative ease with
which many judges admit evidence of a plaintiff-victim’s past drug use,
criminal activity, encounters with police, and gang affiliation under
strained 404(b) arguments. After an analysis—and criticism—of these legal
arguments, this article advocates for multiple solutions. First, it discusses
how certain officer misconduct records may be relevant notwithstanding
obstacles posed by objective reasonableness jurisprudence. Then, it
suggests that judges, when applying Federal Rule of Evidence 403’s
balancing test to determine the admissibility of police misconduct records,
take a more nuanced account of the prejudice victims of police violence face
from skeptical juries and the inherent trust society places in law
enforcement. Third, the article proposes an amendment to Rule 404(b),
adopting a stricter balancing test for the admission of certain past-acts
evidence about plaintiffs in 42 U.S.C. § 1983 litigation alleging excessive
force.
*
Stanford Law School, Class of 2023. I owe a deep debt of gratitude to Professor David
Sklansky, under whose guidance I researched and wrote this piece. I owe further thanks to Erwin
Chemerinsky, Laurie Levenson, Steve Schleicher, Robert Weisberg, David Owens, Bobbi Bernstein,
Steve Clymer, Stephen Curran, Robert Quackenbush, Jonathan Abel, and George Fisher for their
invaluable comments and advice throughout the process of researching and writing this piece. Thank
you also to Taylor M. Kay, Thomas R. Farrell, and others at the Washington University Law Review for
their excellent editorial work on this piece.

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Finally, the article discusses how plaintiffs’ and officers’ pasts surface
in the context of impeachment. Extrinsic evidence of plaintiff-witnesses’
criminal records is easily admissible under Rule 609 of the Federal Rules
of Evidence; contrarily, a finding that a testifying officer has falsified
reports or fabricated evidence, reported by an independent civilian
complaint review board under a preponderance or clear and convincing
evidence standard of proof, is not. This article recommends various changes
to the rules of impeachment to level the playing field in the credibility
struggle between plaintiffs and defendants. The article suggests either
limiting the admissibility of testifying plaintiffs’ criminal records in
excessive force litigation, or, contrarily, extending Rule 609(a)(1)(B)—
which automatically admits evidence of criminal records for crimes that
involved dishonesty—to similar findings about a testifying officer by a
civilian complaint review board.

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TABLE OF CONTENTS

I. THE POLICE MISCONDUCT LEGAL LANDSCAPE ........................... 575
A. Structural Imbalances Unique to Cases Involving Officer
Misconduct.................................................................................. 578
1. Constitutional Barriers ............................................................... 578
2. Procedural Barriers and Credibility Contests ............................ 581
3. Cities’ Unique Protections .......................................................... 583
B. Changing Times ............................................................................ 584

II. EVIDENTIARY ISSUES AND PROPOSED SOLUTIONS ..................... 586
A. Discovery and Evidentiary Dissonance in Joint OfficerMunicipality Litigation ............................................................... 587
1. Police Misconduct Records and Reports .................................... 587
2. Trial Bifurcation ......................................................................... 588
B. Relevance ...................................................................................... 590
1. Evidence Implying an Officer’s State of Mind or Knowledge..... 590
2. Evidence of Things Unknown to an Officer ................................ 594
C. Rule 403: Balancing ..................................................................... 595
D. Rule 404: Past-Acts Evidence ...................................................... 596
1. Officers and Municipalities ......................................................... 598
2. Plaintiffs and Decedents ............................................................. 601
E. Impeachment Evidence ................................................................. 607

CONCLUSION .................................................................................. 610
INTRODUCTION
Imagine that a police officer responds to an anonymous call reporting a
suspicious vehicle parked on the street. The officer arrives to find a woman
and man sleeping in a van. He taps on the window and shines a flashlight
inside, startling the occupants awake. In the ensuing haze, the woman turns
the ignition and confusedly backs up the car at a snail’s pace of three miles
per hour. No one lies in the reversing car’s path, but the officer shoots
thirteen bullets at the driver anyway, killing her. At the officer’s trial, should
the jury learn that this driver was high at the time; that she had a criminal
record; that there was an illegally possessed firearm in the car; or that the
car was reported stolen, if the officer knew none of these things when he
opened fire?
Imagine another police officer, who, effecting an arrest, chases after a
fleeing teenage suspect. The teenager hops a fence and, running with his
back to the officer (who now stands and watches him through the fence),
clutches at his loose, baggy jeans to keep them from falling off. He is

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unarmed. The officer shoots him in the back, killing him. In subsequent civil
litigation, the officer claims he thought the boy was reaching for a gun when
he grabbed with both hands at his baggy jeans. In determining whether the
officer’s actions were reasonable, should the jury learn that the officer had
recently shot a different fleeing suspect in similar circumstances, making
the same dubious (and incorrect) judgment that the suspect was grabbing at
a gun and not trying to keep his pants from falling off?
No one should be defined by the worst thing they have done. Indeed,
“[i]n a very real sense a defendant starts his life afresh when he stands before
a jury.”1 Accordingly, the Federal Rules of Evidence erect certain careful
barriers to letting evidence of a party’s untoward past creep into trial.
Essentially, evidence of a party’s past cannot be used to besmirch their
character or convince a jury that, because they acted poorly in the past, they
likely acted poorly in the present case.2 Though a past bad act might have
some bearing on someone’s present acts, “[t]he natural and inevitable
tendency of the tribunal . . . is to give excessive weight to the vicious record
of crime . . . and either to allow it to bear too strongly on the present charge,
or to take the proof of it as justifying a condemnation irrespective of guilt
of the present charge.”3
However, so-called past-acts evidence is not barred altogether. Instead,
it comes into trial in two primary ways. The first is that someone’s past acts
can be admitted to prove something other than their propensity to act a
certain bad way. Rule 404(b) of the Federal Rules of Evidence thus allows
judges to admit evidence of one’s past if it goes toward something other
than propensity, including: “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”4 The second
way such evidence enters trials is that testifying witnesses may be
impeached with past-acts evidence showing that they are untruthful.5 Judges
face the difficult task of balancing this type of evidence’s probative value
for non-propensity purposes with its obvious potential to prejudice a jury.
But in civil litigation against officers for excessive force, a unique
confluence of constitutional law, evidence law, and judicial discretion has
created inequities in the admissibility of past-acts evidence. Inquiries into
defendant officers’ uses of force are increasingly narrowed to split-second
decision-making, such that evidence of their pasts is rarely admissible for
the purposes described above. Contrarily, highly prejudicial information
1.
2.
3.
4.
5.

People v. Zackowitz, 172 N.E. 466, 468 (N.Y. 1930).
FED. R. EVID. 404.
Zackowitz, 172 N.E. at 468 (quoting 1 JOHN HENRY WIGMORE, EVIDENCE § 194 (1923)).
FED. R. EVID. 404(b)(2).
See FED. R. EVID. 608, 609.

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about plaintiffs—including past drug use, criminal records or acts, gang
affiliation, and encounters with police—often makes it into trial under Rule
404(b), even when its relevance is attenuated. Accordingly, in the above
examples, the evidence of the dead driver’s past drug use and criminal
possession could be admissible,6 while the evidence of the second officer’s
past experiences with baggy jeans likely could not be used to show that a
reasonable officer with his experience should have known better than to fire
at the teenager’s back.
This article explores this imbalance and proposes various reforms of the
evidence rules. Part I explains the civil legal landscape for holding law
enforcement and cities accountable for an officer’s excessive force.7 Part I
continues by detailing the unique latticework of laws insulating law
enforcement officers and their city employers from civil liability, including
difficulties related to evidentiary discovery, Graham v. Connor’s “objective
reasonableness” standard, the doctrine of qualified immunity, and the many
ways in which the circumstances surrounding excessive force—that the
violence often occurs during an arrest, for example—create large credibility
hurdles for plaintiffs in subsequent litigation.
Part II discusses how past-acts evidence is treated differently for
defendant officers and plaintiffs and how to fix the resulting inequities in
what a jury hears.
First, I explain how the objective reasonableness standard of Graham v.
Connor—namely, its refusal to consider an officer’s ill intent—leads some
courts to exclude 404(b) evidence of officers’ past misconduct as irrelevant
when going toward the officer’s state of mind. I also show how certain
courts assume any misconduct evidence about an officer would be too
prejudicial to admit at trial. I critique this assumption, and conclude that
judges should be more attuned to the unique prejudices facing plaintiffs in
such litigation from the get-go when applying Federal Rule of Evidence
403’s balancing test to assess the possibility that the probative value of
evidence of an officer’s past misconduct might be substantially outweighed
by a danger of “unfair prejudice.”8 Furthermore, I suggest ways in which

6.
Indeed, this evidence was admitted in a recent case. See Opening Argument at 24:00–26:00,
State v. Hess, No. F17-00545-V (Tex. 292d Dist. Ct.—Dallas Feb. 3, 2020),
https://youtu.be/YLAwT4C2_d8 [https://perma.cc/MW7P-85F30].
7.
This article largely focuses on 42 U.S.C. § 1983 litigation, including Monell claims against
officers, but also discusses state tort claims available in excessive force litigation, including battery and
assault. And though this article occasionally discusses criminal cases, its exclusive focus is reforming
civil litigation because of the unique evidentiary issues present in those cases, and civil suits’ unique
capacity to spark reform. See infra notes 35–36 and accompanying text.
8.
FED. R. EVID. 403.

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certain 404(b) theories—especially “absence of mistake” and
“knowledge”—can be marshalled in support of admitting such evidence.
Second, I discuss how evidence of a plaintiff’s past creeps into these
cases under dubious Rule 404(b) theories. Most notably, judges often admit
evidence of a plaintiff’s past wrongdoing, even if unknown to the officer at
the time of the excessive force, on the theory that a plaintiff’s drug use, say,
or knowledge of past illegal activity and fear of being caught, made it more
likely that she acted erratically or violently during the police encounter. I
question the validity of this reasoning and propose an amendment adopting
a stricter balancing test for past-acts evidence concerning a plaintiff’s drug
use, criminal past (or present), encounters with police, or gang affiliation
that is unknown to the officer at the time of the alleged excessive force.
Third, I discuss the evidentiary rules concerning impeachment of
testifying witnesses. A witness’s criminal record is often admissible to
impeach their testimony. If a past felony involved lying, it is automatically
admissible—regardless of prejudicial effect—as a so-called crimen falsi.9
Other criminal records are easily admissible, though subject to certain light
restrictions. Because police misconduct litigation stems from encounters
with law enforcement, plaintiffs in these cases often have felony records
and can be compelled to testify in civil litigation. As a result, evidence of
plaintiffs’ criminal records is often forced into the open at trial, connoting
potentially devastating prejudicial effects beyond just damage to the
credibility of their testimony. On the other end, similar evidence casting a
pall on a testifying officer’s truthfulness—including independent
investigations by civilian complaint review boards finding, by
preponderance of the evidence or clear and convincing evidence, that the
officer fabricated evidence or falsified a police report—is not admissible
under the impeachment rules.10 At best, a lawyer may question the officer
about such past misconduct; but if the officer denies it, the lawyer is out of
luck because she cannot introduce the proof of the investigation’s findings.
To rectify this imbalance, I consider multiple avenues of reform. One
involves making a plaintiff’s criminal record less easily admissible as
impeachment evidence by using a stricter balancing test—a practice the
Federal Rules of Evidence already adopt for criminal defendants.11 I also
explore extending the so-called crimen falsi rule to reports by civilian
complaint review boards finding that an officer engaged in misconduct that
9.
FED. R. EVID. 609(a)(2) (“[F]or any crime regardless of the punishment, the evidence must
be admitted if the court can readily determine that establishing the elements of the crime required
proving—or the witness’s admitting—a dishonest act or false statement.”).
10.
FED. R. EVID. 608(b).
11.
FED. R. EVID. 609(a)(1)(B).

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involved dishonesty, including falsification of police reports, fabricating
evidence, and the like. This would make extrinsic evidence of such
misconduct automatically admissible to impeach a testifying officer in
police misconduct litigation.
*****
Civil litigation gives people harmed by law enforcement the opportunity
to get recompense for their injury. But beyond that, it helps hold cities,
police departments, and officers accountable for their actions, ensuring that
communities trust those tasked with keeping them safe. This article seeks to
identify and chip away at the complex intersections of law and bias that
confound attempts to reform law enforcement through litigation.
I. THE POLICE MISCONDUCT LEGAL LANDSCAPE
Though legal remedies exist for addressing police officers’ uses of
excessive force, obstacles impede holding those officers accountable. This
section begins by defining the terms “officer” and “misconduct” for
purposes of this article; then, it discusses the civil and criminal routes
available to address excessive force incidents, as well as the constitutional
and structural difficulties inherent in pursuing such cases. Finally, it
addresses the recent shift in public opinion about the police, concluding that,
even if opinions have changed, the protections benefitting officers have not
likely dissipated substantially.
This article limits its scope to police officers and prison guards who
engage in allegedly excessive force while on the job. “Misconduct” thus
refers to unjustified physical harms an on-duty officer inflicts on a citizen.
Most of the cases discussed in this article involve fatal shootings by officers,
but the article’s evidentiary conclusions are by no means restricted to cases
of deadly force. And though this article focuses on excessive force, its
observations and proposed reforms may also apply in part to other types of
police misconduct litigation, including that surrounding unlawful
detentions, illegal searches, and sexual assault.12
Both federal and state remedies exist for plaintiffs injured by an officer’s
use of excessive force. The federal civil remedy for incidents of excessive
force is found in 42 U.S.C. § 1983 (“§ 1983”). The statute gives plaintiffs a
cause of action against state officials who, acting “under color of” their
12.
For a discussion of the latter, see Fara Gold, Investigating and Prosecuting Sexual
Misconduct Committed by Law Enforcement: Federal Criminal Jurisdiction, CRIM. JUST. MAG., Winter
2021, at 10–15.

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authority, deprive them of any constitutional right.13 Section 1983 litigation
accommodates both compensatory and punitive damages.14 Successful
plaintiffs also collect attorney’s fees.15 Police use of force cases brought
under § 1983 revolve around Fourth Amendment violations,16 but the
general nature of the claim hinges on whether the defendant is an individual
officer or a municipality.
Section 1983 actions against individual officers are governed by the
“objective reasonableness” standard articulated in Graham v. Connor.17 The
“reasonableness” of an officer’s use of force “must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”18 In Graham, the Court noted that the “calculus of
reasonableness” must not ignore that “police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving.”19 Importantly, the Court also stressed that the
officer’s state of mind is irrelevant—that is, that the “objective” standard
means ignoring “underlying intent or motivation,” such that “[a]n officer’s
evil intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force.”20 Though an officer’s intentions are
irrelevant to the Fourth Amendment inquiry, they can inform punitive
damages.21
A city may also be found liable for the constitutional violations of its
officers in accordance with Monell v. Department of Social Services.22 Socalled Monell claims treat “[l]ocal governing bodies” as suable entities
under § 1983.23 However, local governments’ liability is limited in multiple
ways. First, municipalities are not held vicariously liable for the torts of
employees; instead, plaintiffs must allege independently tortious conduct on
the part of the local governing body which gave rise to a harmful incident.24
The two primary avenues for Monell liability are: identifying an
unconstitutional “police statement, ordinance, regulation, or decision
13.
42 U.S.C. § 1983. The evidentiary issues implicated in § 1983 litigation may also appear in
Bivens actions in which plaintiffs are able to bring Fourth Amendment claims against federal law
enforcement. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
14.
See Smith v. Wade, 461 U.S. 30, 35 (1983).
15.
42 U.S.C. § 1988.
16.
U.S. CONST. amend. IV; see also Brandon Garrett & Seth Stoughton, A Tactical Fourth
Amendment, 103 VA. L. REV. 211, 239–40 (2017).
17.
490 U.S. 386, 388 (1989).
18.
Id. at 396.
19.
Id. at 396–97.
20.
Id. at 397.
21.
See, e.g., Montoya v. Shelden, 898 F. Supp. 2d 1279, 1306 (D.N.M. 2012).
22.
436 U.S. 658 (1978).
23.
Id. at 690.
24.
Id.

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officially adopted and promulgated” by officials; or any “constitutional
deprivations visited pursuant to governmental ‘custom’ even though such a
custom has not received formal approval through the body’s official
decisionmaking [sic] channels.”25 Monell claims thus require: first, a
showing that an individual officer violated the plaintiff’s constitutional
rights; and second, that this violation stemmed from an unconstitutional
local governing custom or policy.
State tort law also provides a remedy in excessive force cases. Typical
cases allege assault and battery.26 State assault and battery claims against
officers usually require a type of negligence analysis; the inquiry involves
looking at the entire encounter between the officer and plaintiff and asking
whether the officer acted reasonably.27 This inquiry can be more expansive
than a Fourth Amendment objective reasonableness analysis, allowing for
the inclusion of evidence not necessarily relevant in § 1983 litigation.28
However, state tort law suffers multiple drawbacks when compared to its
federal alternative: attorney’s fees are not necessarily available for
successful plaintiffs, and states often cap tort damages awards.29
Accordingly, “[w]hile some Section 1983 plaintiffs also assert state tort
claims, Section 1983 is the primary vehicle for excessive force claims
against the police.”30
Though criminal penalties exist under both state and federal law for an
officer’s use of excessive force, actual prosecutions—let alone successful
ones—are rare.31 State laws often outline the standards governing police
uses of force, and the language echoes Fourth Amendment reasonableness
standards.32 The federal counterpart, 18 U.S.C. § 242, criminalizes
25.
Id.
26.
See, e.g., Trahan v. City of Oakland, 960 F.2d 152, 1992 WL 78090 (9th Cir. 1992); Clark
v. Martinez, 295 F.3d 809 (8th Cir. 2002); Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005).
27.
Garrett & Stoughton, supra note 16, at 241 (citing RESTATEMENT (SECOND) OF TORTS § 131
(AM. L. INST. 1965)).
28.
See id.; see also infra notes 108–18 and accompanying text.
29.
See Mitch Zamoff, Determining the Perspective of a Reasonable Police Officer: An
Evidence-Based Proposal, 65 VILL. L. REV. 585, 594 n.26 (2020).
30.
Id. at 594.
31.
Shaila Dewan, Few Police Officers Who Cause Deaths Are Charged or Convicted, N.Y.
TIMES (Sept. 24, 2020, 1:26 PM), https://www.nytimes.com/2020/09/24/us/police-killings-prosecutioncharges.html%20%5b [https:/perma.cc/6LH7-W7PM].
32.
See, e.g., CAL. PENAL CODE § 835a(b) (“Any peace officer . . . may use objectively
reasonable force to effect . . . [an] arrest, to prevent escape, or to overcome resistance.”); TEX. PENAL
CODE § 9.51(a) (“A peace officer . . . is justified in using force against another when and to the degree
the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or
search, or to prevent or assist in preventing escape after arrest.”). States adopt slightly higher standards
when an officer uses deadly force, often adopting language from Tennessee v. Garner, 471 U.S. 1 (1985).
See CAL. PENAL CODE § 835a(c)(1)(B) (providing that fleeing felons may be killed only if the officer
reasonably believes they pose an imminent threat of serious bodily harm to others); VT. STAT. ANN. tit.
20, § 2368(c)(1)(B) (same).

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“willfully” depriving someone of their constitutional rights.33 Fourth
Amendment standards involving excessive force are thus subsumed within
the criminal statute as well, with the addition of a willfulness mens rea
element.
This article focuses on civil litigation for three main reasons. First, by
holding cities and their officers financially accountable for wrongdoing,
civil cases have a capacity to motivate systemic change in ways that
criminal cases against individual officers do not.34 Second, injunctive relief
is available in civil litigation, allowing judges to fashion remedies to poor
policing practices.35 Finally, criminal statutes differ from civil ones enough
that evidentiary issues (and litigation strategies) may differ between civil
and criminal cases. This article thus narrows any proposed reforms to the
civil context. However, because some similar evidentiary issues do surface
in criminal cases in ways like those in the civil context, I do occasionally
discuss criminal cases in this piece.
A. Structural Imbalances Unique to Cases Involving Officer Misconduct
Significant hurdles prevent effective litigation against officers, including
substantive legal and constitutional barriers; procedural obstacles; and
broader imbalances between how the alleged perpetrators and victims in
such cases are viewed and treated. Understanding these barriers is essential
to understanding the steep odds facing plaintiffs seeking recompense after
officers have harmed them, as well as the evidentiary issues implicated in
the lucky cases that make it to trial.
1. Constitutional Barriers
Two constitutional doctrines impact the excessive force cases at issue in
this article. One concerns the Fourth Amendment, and the other is the
doctrine of qualified immunity.
33.
18 U.S.C. § 242.
34.
It is true that officers usually do not shoulder the financial burden of civil litigation because
cities indemnify them. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 885
(2014) (“police officers are virtually always indemnified”). However, the prospect of large damages can
motivate cities to pursue change in police departments. To the extent this disincentivizes healthier
policing practices, some scholars have also recommended treating police misconduct like medical
malpractice and restructuring civilian payouts so that officers are responsible for damages. Rashawn
Ray & Clark Neily, Police Reform, in A BETTER PATH FORWARD FOR CRIMINAL JUSTICE: A REPORT BY
THE BROOKINGS-AEI WORKING GROUP ON CRIMINAL JUSTICE REFORM 6, 9–10 (Rashawn Ray & Brent
Orrell
eds.,
2021),
https://www.brookings.edu/wp-content/uploads/2021/04/Better-PathForward_Brookings-AEI-report.pdf [https://perma.cc/V7JD-YE4B].
35.
See 42 U.S.C. § 1983. For an example of injunctive relief changing policing practices, see
Floyd v. City of New York, 959 F. Supp. 2d 540, 667 (S.D.N.Y. 2013).

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The Fourth Amendment’s “objective reasonableness” standard narrows
significantly the jury’s inquiry into an officer’s interaction with a plaintiff.
This narrowing occurs in two primary elements of police misconduct
litigation.
First, Graham precludes any analysis of an officer’s intentions or state
of mind when assessing whether her behavior was objectively reasonable.36
Some courts have extrapolated from this and refused to consider an
individual officer’s background or training when determining whether their
use of force was objectively reasonable and have instead simply “pretended
they were in the officers’ shoes and expressed their own views on whether
the Fourth Amendment allowed the officers to use deadly force.”37
Accordingly, lower courts typically avoid considering officer training in
§ 1983 actions, with some exceptions.38
Second, the Supreme Court has consistently implied that estimations of
Fourth Amendment reasonableness must heavily weigh an officer’s “splitsecond” decisions at the time of the alleged excessive force, perhaps to the
exclusion of broader inquiries into the officer’s escalatory behavior leading
up to the need to use it.39
In the context of civil suits, the Supreme Court’s qualified immunity
jurisprudence further limits officers’ liability. Qualified immunity doctrine
seeks to prevent “potentially disabling threats of liability” from impeding
governmental officials’ work.40 The doctrine offers officers a defense
against civil actions, rendering them immune from suit “insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”41 The inquiry is
comprised of two steps; the official’s conduct must violate the plaintiff’s
constitutional right, and that violation must be of a clearly established law.42
In Pearson v. Callahan, the Court held that a court need not follow these
steps in any particular order.43 Pearson “allow[s] lower courts not to decide
the first question—whether the [officer’s] conduct was unconstitutional—if
they could grant the motion [to dismiss under qualified immunity] on the
36.
Graham v. Connor, 490 U.S. 386, 397 (1989).
37.
Zamoff, supra note 29, at 616 (discussing Plumhoff v. Rickard, 572 U.S. 765 (2014)).
38.
See id. at 631–33.
39.
Id. at 619; see also Tennessee v. Garner, 471 U.S. 1, 23 (O’Connor, J., dissenting)
(highlighting “the difficult, split-second decisions police officers must make”); City & County of San
Francisco v. Sheehan, 575 U.S. 600, 612 (2015) (“The Constitution is not blind to ‘the fact that police
officers are often forced to make split-second judgments.’” (quoting Plumhoff, 572 U.S. at 775)).
40.
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
41.
Id. at 818.
42.
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
43.
Id. at 242 (overturning Saucier v. Katz, 533 U.S. 194 (2001), which required these steps be
proven sequentially).

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ground that the right was not clearly established.”44 To be “clearly
established,” the right must be clear enough that “every reasonable official
would have understood that what he is doing violates that right.”45 In
determining whether a right was clearly established, courts must look to
whether a past court has found substantially similar conduct to have violated
the Constitution.46
The Court’s qualified immunity jurisprudence presents at least two
significant obstacles to excessive force litigation. The first is that, since
excessive force cases are often “fact-specific,” it is very difficult to find
precedent similar enough to convince a court the plaintiff’s right was clearly
established.47 Indeed, “nearly all of the Supreme Court’s qualified immunity
cases come out the same way – by finding immunity for the officials.”48 The
second obstacle is the combination of requiring specific precedent to clearly
establish rights with giving courts the ability to decide the “clearly
established” question before “ruling on [plaintiffs’] underlying
constitutional violation[s].”49 This “ha[s] created a vicious cycle” whereby
plaintiffs rely on precedent to establish their claims while courts “reduc[e]
the frequency with which [they] announce clearly established law.”50 In
effect, qualified immunity doctrine prevents the development of Fourth
Amendment doctrine and offers officials a strong defense in civil suits.51
Qualified immunity doctrine confers a final procedural advantage on law
enforcement officers. Even if a court rejects an officer’s defense of qualified
immunity, its decision denying immunity is immediately appealable in the
federal circuit courts.52 This ability “gives the defendant official a
significant procedural advantage” because the appeals process can “stay and

44.
Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 17 (2017).
45.
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012).
46.
See, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8–9 (2021) (per curiam) (comparing
facts between two cases involving officers kneeling on the plaintiff and finding no clearly established
law); City of Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021) (per curiam) (engaging in a similar detailed
factual comparison and finding no clearly established law).
47.
Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797,
1814 (2018); Marcus R. Nemeth, How Was That Reasonable? The Misguided Development of Qualified
Immunity and Excessive Force by Law Enforcement Officers, 60 B.C. L. REV. 989, 1011 (2019);
Schwartz, supra note 44, at 24.
48.
William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 82 (2018).
49.
Joanna C. Schwartz, supra note 47, at 1815.
50.
Id. at 1815–16.
51.
See Erwin Chemerinsky, Opinion, How the Supreme Court Protects Bad Cops, N.Y. TIMES
(Aug. 26, 2014), https://www.nytimes.com/2014/08/27/opinion/how-the-supreme-court-protects-badcops.html [https://perma.cc/CPQ6-JU9R].
52.
Mitchell v. Forsyth, 472 U.S. 511, 512 (1985).

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therefore delay [further] proceedings in the district court.”53 Beyond the
delay, the appeals process also adds “significant litigation costs on § 1983
plaintiffs.”54 Plaintiffs may thus be stuck fighting the qualified immunity
decision in the courts of appeals, unable to build the rest of their case against
the officer and, often, the municipality.
2. Procedural Barriers and Credibility Contests
Even absent the constitutional legal protections officers enjoy, plaintiffs
face broad statutory impediments to suing them. Most plaintiffs alleging
police misconduct in § 1983 claims were injured during an altercation with
police—during an arrest, responding to a disturbance call, and so on. This
often creates legal impediments to pursuing a claim in the first place, and,
once a plaintiff gets to court, can ensure that they face skeptical juries. If a
plaintiff can get to trial, the ensuing credibility contest between the parties
can be a stacked game.
The impediments to successful excessive force litigation may begin with
barriers to plaintiffs suing in the first place. In Heck v. Humphrey, the Court
held that a plaintiff was barred from suing under § 1983 if their suit revolved
around “harm caused by actions whose unlawfulness would render a
conviction or sentence invalid.”55 In other words, if someone is arrested for
a crime and, during the course of that arrest, is subject to excessive force,
they may be unable to sue under § 1983 if they are convicted or plead guilty
to the underlying offense for which they were being arrested.56 Such cases—
where the validity of the plaintiff’s conviction is impacted by the officer’s
actions—can appear when people are harmed by officers in an altercation,
the officer claims they resisted arrest, and they take a favorable plea bargain,
accepting guilt; as a result, they forfeit the ability to bring § 1983 claims
based on the incident.57
Officers can and do manufacture charges to cover up uses of force that
may have been excessive—a strong reason for ensuring that their credibility
be impeachable at trial. In some circumstances, after a questionable use of
force, an officer will invent so-called “cover charges” and arrest the would-

53.
MARTIN A. SCHWARZ, SECTION 1983 LITIGATION CLAIMS AND DEFENSES § 9A.16 (Aspen
Publishers 4th ed. Supp. 2022).
54.
Id.
55.
512 U.S. 477, 486 (1994).
56.
Id. at 486–87.
57.
Tamara F. Lawson, Essay, Powerless Against Police Brutality: A Felon’s Story, 25 ST.
THOMAS L. REV. 218, 233–34 (2013).

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be plaintiff for an offense like resisting arrest or assaulting an officer.58 This
may bar the injured citizen from suing the officer or department, and will
bog them down regardless, making a lawsuit less likely. A recent ProPublica
investigation of cover charges in Jefferson Parish, Louisiana, found that
African Americans were disproportionately affected.59 The article found
that cover charges are “likely to have an undue impact on Black people, who
are most likely to be victims of or witnesses to police abuse,” and who
“likely won’t have the resources to ‘defend themselves successfully, even if
innocent.’”60 The United States Department of Justice has uncovered this
practice as part of investigations of different cities’ police departments.61
The fact that this practice has been found in multiple cities suggests that
many officers are willing to falsify reports to avoid being held responsible
for using excessive force. In cover charge-related cases in which a plaintiff
makes it to court, success may depend on challenging the officer’s
truthfulness.
Even if a potential plaintiff’s suit is not categorically barred, excessive
force litigation is likely an afterthought if a plaintiff faces separate charges
stemming from the incident. A plaintiff’s top priority may be defending
criminal charges, and they may shy away from piling on lengthy civil
litigation.62 These hurdles mean that a large percentage of excessive force
incidents are never reported and vindicated via civil litigation.63
Once in court, plaintiffs may face skeptical juries because they “have a
history of criminal activity, and [are those] whose status in life per se lowers
their credibility in the eyes of those that might judge them.”64 As I discuss
below, the Federal Rules of Evidence may well cement some of these
imbalances by, among other things, allowing plaintiff witnesses’ criminal
records into trial, admitting evidence of a plaintiff’s drug use or gang

58.
Richard A. Webster, He Was Filming on His Phone. Then a Deputy Attacked Him and
Charged Him with Resisting Arrest, PROPUBLICA (Dec. 22, 2021, 7:00 AM),
https://www.propublica.org/article/he-was-filming-on-his-phone-then-a-deputy-attacked-him-andcharged-him-with-resisting-arrest [https://perma.cc/MMY3-642C].
59.
Id.
60.
Id.
61.
Id. (citing U.S. DEP’T OF JUST., INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT
(2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson
_police_department_report.pdf [https://perma.cc/W5JE-9VM4].
62.
Garrett & Stoughton, supra note 16, at 242 n.145.
63.
See Kenneth Adams, Measuring the Prevalence of Police Abuse of Force, in POLICE
VIOLENCE: UNDERSTANDING AND CONTROLLING POLICE ABUSE OF FORCE 52, 68–70 (William A.
Geller & Hans Toch eds., 1996).
64.
Gold, supra note 12, at 10. Professor Gold’s article discusses these credibility issues
primarily in the context of victims’ allegations of officers sexually abusing them, but the same factors
work against plaintiffs’ credibility in excessive force cases.

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affiliation, and preventing discovery or admission of evidence which might
cast doubt on the defendant officers’ credibility.
The “desire of jurors to give officers the benefit of the doubt” presents
another burden to overcome when alleging excessive force.65 Furthermore,
in fatal police incidents, the victim will go unheard, and “[i]t is all too easy
for the officer, in hindsight, to magnify the perceived threat to justify his or
her actions. When the officer is white, and the victim is a young man of
color, the reality of unconscious racism also matters as events are
interpreted.”66
3. Cities’ Unique Protections
Finally, there are unique obstacles to successfully suing municipalities
for the misconduct of their officers. Monell claims require plaintiffs to prove
that a municipal policy or custom was the cause of their injury (rather than,
say, a single errant officer),67 and this standard “is rarely met.”68 Because
Monell claims concern different theories of liability than claims against
individual officers, they often implicate different types of evidence and
legal theories. This in turn creates procedural hurdles that confound
plaintiffs.
Primary among these hurdles is trial bifurcation. Courts often bifurcate
trials in which both officers and cities are sued.69 The Supreme Court has
held that, in bifurcated cases, a jury finding that an individual officer did not
in fact violate the plaintiff’s rights can extinguish the subsequent Monell
claim on standing grounds.70 That decision has created a two-step order to
65.
Erwin Chemerinsky, Police Dodge Accountability for Deaths, ORANGE CNTY. REG. (Dec. 7,
2014), https://www.ocregister.com/2014/12/07/erwin-chemerinsky-police-dodge-accountability-fordeaths/ [https://perma.cc/RW72-W4WS]. A lack of diversity in jury pools often leads to mainly white
juries, who polls show trust police at much higher rates than African Americans. At trial, juries will thus
often skew toward supporting an officer’s side of a story. See Jonathan M. Warren, Hidden in Plain
View: Juries and The Implicit Credibility Given To Police Testimony, 11 DEPAUL J. FOR SOC. JUST. 1,
5 (2018) (discussing this trend); Ashish S. Joshi & Christine T. Kline, Lack of Jury Diversity: A National
Problem with Individual Consequences, AM. BAR ASS’N (2015), https://www.americanbar.org/groups
/litigation/committees/diversity-inclusion/articles/2015/lack-of-jury-diversity-national-problemindividual-consequences/ [https://perma.cc/69CB-QE8B].
66.
Chemerinsky, supra note 65.
67.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (rejecting the application of
respondeat superior principles to municipalities in § 1983 litigation and stressing the need to show that
the local government’s actions actually caused the harm).
68.
Chemerinsky, supra note 65.
69.
Matthew J. Cron, Arash Jahanian, Qusair Mohamedbhai & Siddhartha H. Rathod, Municipal
Liability: Strategies, Critiques, and a Pathway Toward Effective Enforcement of Civil Rights, 91
DENVER U. L. REV. 583, 605 (2014).
70.
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (finding the fact that a
city’s policy “might have authorized the use of constitutionally excessive force is quite beside the point”
when no such violation harmed the plaintiff).

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bifurcated claims against both officers and municipalities, in which the
plaintiff needs to first prove the officer’s liability before even having the
Monell claim available.71 Beyond the ordering issue, bifurcation’s
“result . . . is to make the task of proving municipal liability even more
onerous” because of “increased costs” associated with multiple trials,
“burdensome discovery,” and the inability “to place before the jury the
circumstances and atmosphere of the entire cause of action.”72 And even if
the trial is not bifurcated, claims against the city may be substantially
delayed if the individual officer’s qualified immunity defense is denied and
then appealed.73 Finally, beyond the difficulties litigating the claims,
plaintiffs often “have little economic incentive to bring Monell claims”
because they “cannot recover punitive damages” in such cases.74
Between the lack of incentive to bring Monell claims, the difficulty of
winning them, and the frequency of splitting up § 1983 litigation against
officers and cities such that a municipality’s allegedly harmful policies and
customs are never discovered or heard of in a court room,75 “civil rights
litigation is presently structured to avoid questions of policy and training if
at all possible, and focuses only on the case-by-case facts of a particular
encounter.”76 This inability to surface information about and hold cities
accountable for their policies means that “municipalities that fail to train,
supervise, or discipline their police forces have less incentive to implement
reforms, and are likely to continue their illegal practices.”77
B. Changing Times
The obstacles to successfully pursuing § 1983 claims against officers and
municipalities make it exceptionally difficult for plaintiffs to win such suits
and thus incentivize meaningful reform. In recent years, an increased public
outcry over fatal encounters with police has led to an increase in criminal
prosecution of officers. This article does not seek to quantify changes in
public opinion or case outcome. But it is important to question whether and
71.
Cron et al., supra note 69, at 605.
72.
Id. (quoting Est. of Owensby v. City of Cincinnati, 385 F. Supp. 2d 626, 666 (S.D. Ohio
2004)).
73.
See supra notes 53–55 and accompanying text (discussing interlocutory appeals of qualified
immunity denials).
74.
Cron et al., supra note 69, at 605.
75.
This assumes the plaintiff’s case either fails at the individual officer level or, after a success,
fizzles out via settlement with the city or otherwise is dropped due to the lack of incentive to continue
with significantly complex litigation.
76.
Garrett & Stoughton, supra note 16, at 239.
77.
Douglas L. Colbert, Bifurcation of Civil Rights Defendants: Undermining Monell in Police
Brutality Cases, 44 HASTINGS L.J. 499, 509 (1993).

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to what extent recent shifts in public opinion or case outcome might impact
some of the disadvantages plaintiffs face in such cases. For example, jurors
may distrust defendant officers’ testimony now in ways they would not have
a decade ago. Or jurors may be less likely to give officers the benefit of the
doubt.
In the past decade, an increasing number of highly publicized criminal
officer prosecutions have been successful.78 In 2021, Derek Chauvin was
found guilty of murdering George Floyd,79 and Kim Potter was convicted
of manslaughter after she allegedly mistook her gun for her taser and killed
Daunte Wright.80 To many, these convictions promise greater accountability
for officers who harm people on duty.81
However, beyond some high-profile convictions, “accountability for
officers who kill remains elusive and that the sheer numbers of people killed
in encounters with police have remained steady at an alarming level.”82
There is also some evidence to suggest that there has not been a meaningful
change in chances of success in civil litigation.83 Similarly, though many
states have experimented with reforming the law—including making police
misconduct records more accessible to the public and defunding the
police—few statutory reforms have tackled civil litigation itself.84 Doing so
could herald meaningful reform in police departments.85
78.
See Aya Elamroussi et al., Ex-Officer Kim Potter Wouldn’t Have Been Convicted in Daunte
Wright’s Fatal Shooting Years Ago, Legal Experts Say, CNN (Dec. 24, 2021, 6:33 AM),
https://www.cnn.com/2021/12/24/us/kim-potter-conviction-friday/index.html [https://perma.cc/RN4XW4QA].
79.
Laurel Wamsley, Derek Chauvin Found Guilty of George Floyd's Murder, NPR (April 20,
2021,
5:37
PM),
https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/
987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial
[https://perma.cc/H9DD-C4ZV].
80.
Vanessa Romo, Becky Sullivan & Joe Hernandez, Kim Potter Is Found Guilty of
Manslaughter in the Death of Daunte Wright, NPR (Dec. 23, 2021, 3:58 PM),
https://www.npr.org/2021/12/23/1066012247/kim-potter-trial-daunte-wright [https://perma.cc/39ZKKQMK].
81.
See, e.g., Charles M. Blow, Opinion, With the Chauvin Verdict, One Battle Is Won. The War
Continues, N.Y. TIMES (Apr. 21, 2021), https://www.nytimes.com/2021/04/21/opinion/derek-chauvinverdict-guilty.html [https://perma.cc/8QD6-5ACG]. But see Alan Dershowitz, Opinion, The Dangerous
Trend Behind Officer Kim Potter’s Conviction, THE HILL (Dec. 24, 2021),
https://thehill.com/opinion/judiciary/587236-the-dangerous-trend-behind-officer-kim-pottersconviction [https://perma.cc/WXP8-FRKQ].
82.
Tim Arango & Giulia Heyward, Despite Uproar over Floyd’s Death, the Number of Fatal
Encounters
with
Police
Hasn’t
Changed,
N.Y.
TIMES
(Dec.
24,
2021),
https://www.nytimes.com/2021/12/24/us/police-killings-accountability.html [https://perma.cc/XWY22U7H].
83.
See, e.g., Webster, supra note 58.
84.
Ram Subramanian & Leily Arzy, State Policing Reforms Since George Floyd’s Murder,
BRENNAN CTR. FOR JUST. (May 21, 2021), https://www.brennancenter.org/our-work/researchreports/state-policing-reforms-george-floyds-murder [https://perma.cc/3HTT-3U5Q].
85.
Cron et al., supra note 69, at 606–07.

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II. EVIDENTIARY ISSUES AND PROPOSED SOLUTIONS
Once in trial, plaintiffs’ and defendant officers’ pasts become a hotlylitigated point of contention. Plaintiffs seek information about an officer’s
past misconduct, while officers seek information about a plaintiff’s past runins with the law, drug use, and the like. This section discusses such disputes
by evidentiary topic—discovery, relevance, past-acts evidence, and
impeachment. Within each topic, I discuss the typical arguments for and
rulings on admissibility, and then I propose changes to the rules of evidence
(or their application) where advisable.
First, plaintiffs are often unable to even find officers’ misconduct records
via discovery, let alone seek their admission. This results both from the
confidentiality of certain records of officer misconduct and from oftensuccessful motions by the municipality to bifurcate a trial against it and an
offending officer. This article endorses recent efforts to make misconduct
records more easily available to the public—and thus more easily
discoverable.
Second, both plaintiffs and defendant officers frequently seek to
introduce past acts via FRE 404(b)—including evidence of a plaintiff’s drug
use or gang affiliation and evidence of a defendant’s record of
misconduct—with varying success. I recommend that certain types of
evidence about a plaintiff in a civil suit—namely, some past-acts evidence
and drug-use evidence—be subject to a stricter balancing test than that
found in FRE 403. I explore the possibility of rules expanding the ability to
introduce past officer misconduct records into trial as well via 404(b), but
ultimately conclude that a faithful application of the rule, paired with a
reasoned application of 403, arrives at a fair result.
Finally, the impeachment rules often allow the admission of strongly
prejudicial information about a plaintiff’s criminal record, while keeping
out the findings of official investigations into an officer’s misconduct,
including false police reports. This has the potential to exacerbate already
wide credibility differentials between plaintiffs and defendants. I explore
two possibilities to rectify this problem: limiting information admissible
about a plaintiff’s criminal record via Rules 608 and 609, and creating a
version of crimen falsi in § 1983 suits in which extrinsic evidence of any
internal affairs investigations finding reliable evidence of fabricating a
police report be automatically admissible as impeachment evidence against
a testifying officer.

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A. Discovery and Evidentiary Dissonance in Joint Officer-Municipality
Litigation
Before plaintiffs and defendants can fight over evidence’s admissibility,
they need to have discovered evidence to admit. Discovery is essential to
both the evolution of a civil case and, often, to public awareness about the
issues the case raises. For example, discovery in the civil litigation against
tobacco companies in the nineties brought to light “devastating”
information about the “companies’ many secrets,” including widespread
fraudulent practices; it is credited with helping shift public opinion about
smoking and leading toward the global settlement agreement that concluded
the litigation.86 Discovery can be equally promising in cases involving
police misconduct, especially when municipalities are involved.87 However,
the confidentiality of police misconduct records, trial bifurcation, and rapid
settlements with cities all impede effective discovery.
1. Police Misconduct Records and Reports
Records of police misconduct come in different forms. Police
departments have internal affairs teams that review and investigate civilian
complaints of officer misconduct.88 Police departments also have records of
performance evaluations and disciplinary write-ups.89 Outside police
departments, some cities have created independent review boards that
conduct their own investigations of officers following civilian complaints.90
The United States Department of Justice also occasionally conducts
investigations of police officers and departments.91
These records and investigations can be valuable evidence of
jurisdiction-wide unconstitutional police practices and an individual

86.
Nora Freeman Engstrom & Robert L. Rabin, Pursuing Public Health Through Litigation, 73
STAN. L. REV. 285, 304 (2021); see also id. at 360 n.381 (connecting discovery in the opioid litigation
with a shift in public opinion from blaming addicts to blaming opioid manufacturers).
87.
See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
88.
See,
e.g.,
Internal
Affairs
Division,
S.F.
POLICE,
https://www.sanfranciscopolice.org/internal-affairs-division
[https://perma.cc/3E49-Y27W]
(last
visited Sept. 4, 2022); Internal Affairs, SAN JOSE POLICE DEP’T, https://www.sjpd.org/aboutus/organization/office-of-the-chief-of-police/internal-affairs [https://perma.cc/GQY3-RM89] (last
visited Sept. 4, 2022).
89.
Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and
the Battle Splitting the Prosecution Team, 67 STAN. L. REV. 743, 745 (2015).
90.
See
About
CCRB,
NYC
CIVILIAN
COMPLAINT
REVIEW
BOARD,
https://www1.nyc.gov/site/ccrb/about/about.page [https://perma.cc/JMA5-TBSC] (last visited Sept. 4,
2022).
91.
See, e.g., U.S. DEP’T OF JUST., supra note 61.

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officer’s pattern of misconduct.92 States treat these records with varying
levels of confidentiality. Some jurisdictions make them “freely available,”
while others “make this information so confidential that not even the
prosecutor can access the files without a court order.”93
Cities and police departments might prefer that certain misconduct
records stay confidential.94 Especially in jurisdictions that make the
products of internal affairs and civilian review board investigations
inaccessible to the public, discovery is an essential tool to uncover patterns
of abuse in police departments and records of individual officers’ past acts.
I echo the work of multiple other scholars who argue that these records
ought to be made publicly available, as they can present valuable evidence
in trials against officers (as well as valuable impeachment evidence against
officers testifying in other trials).95
Cities also can and do use settlements to keep damning evidence under
wraps. Though this practice is probably not an issue addressable in the rules
of evidence, it is essential to understanding the importance of evidence in
municipalities’ possession in officer misconduct litigation. As an example,
the city of Chicago sought to avoid public disclosure of damning dashcam
footage of Laquan McDonald’s shooting via a settlement whose terms
required that the video “remain sealed until investigations are complete.”96
Potential state policies that would make such footage—as well as police
misconduct investigations—publicly accessible warrant further study.
2. Trial Bifurcation
Trial bifurcation causes serious evidentiary consequences regarding both
discovery and admissibility. Cities often successfully move to bifurcate the
trial and require plaintiffs to resolve claims against the individual officer
before any proceedings on the Monell claim.97 As a result, the discovery
process is often limited to the individual officer’s case as opposed to larger
92.
For the former, see Floyd, 959 F. Supp. 2d at 540; for the latter, see Lewis v. City of Albany
Police Dep’t, 547 F. Supp. 2d 191 (N.D.N.Y. 2008).
93.
Abel, supra note 89, at 745–46.
94.
Multiple practitioners with whom I spoke suggested that this was a common reason for cities
settling claims pre-discovery.
95.
See Abel, supra note 89, at 746; Rachel Moran, Contesting Police Credibility, 93 WASH. L.
REV. 1339 (2018).
96.
Timeline: The Shootings of Laquan McDonald, Ronald Johnson, CBS CHICAGO (Dec. 7,
2015,
11:56
AM),
https://chicago.cbslocal.com/2015/12/07/timeline-the-shootings-of-laquanmcdonald-ronald-johnson/ [https://perma.cc/VY72-9S7Y]; Jessica Glenza, Chicago Officials Delayed
Release of Laquan McDonald Shooting Video, GUARDIAN (Jan. 1, 2016, 1:35 PM),
https://www.theguardian.com/us-news/2016/jan/01/chicago-officials-delayed-release-laquanmcdonald-shooting-video [https://perma.cc/6E9B-WLPE].
97.
Cron et al., supra note 69, at 605.

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trends or practices within the department. And as discussed above, the case
is likely to dry up before litigating the Monell claim due to lack of incentives
to continue the case, even after successfully suing the individual officer. As
a result, discovery may never uncover valuable information about city
training, policies, and other officers’ misconduct.
Floyd v. City of New York presents a telling example of the value of
discovery in unearthing misconduct.98 In Floyd, plaintiffs who claimed to
have been subject to illegal Terry stops by New York City police officers
brought a class action against the city under § 1983.99 The plaintiffs asserted
individual claims of illegal stop-and-frisks, which they alleged stemmed
from broader policies and customs within the department.100 After finding
most—but not all—of the individual stops unconstitutional, Judge Shira
Scheindlin found that the city’s policies had violated the plaintiffs’ Fourth
and Fourteenth Amendment rights.101 Because the case was consolidated as
a class action, and because the claims against individual officers were not
siphoned off from the Monell claim, the parties were able to uncover
through discovery a wealth of damning evidence about city practices.102
Furthermore, because the plaintiffs sought injunctive relief, the finding of
Monell liability forced the city to make “immediate changes to the NYPD's
policies, a joint-remedial process to consider further reforms, and the
appointment of an independent monitor to oversee compliance with the
remedies ordered” in the case.103
Though Floyd took place in a class action context, the case offers
compelling evidence in favor of holding a unified trial against officers and
municipalities under § 1983 because otherwise, the trial (and discovery)
against the city will be unlikely to occur. Judges should accordingly look
skeptically at cities’ bifurcation motions and weigh countervailing
arguments far more heavily than many currently do.104 But most important
for the evidentiary purposes of this paper, eliminating trial bifurcation
allows for broader discovery, helping plaintiffs actually uncover the
misconduct records that could prove relevant in litigation.

98.
959 F. Supp. 2d 540 (S.D.N.Y. 2013).
99.
Id. at 556.
100. Id.
101. Id. at 558–62.
102. See generally id. at 589–607.
103. Id. at 667.
104. For strong arguments against bifurcating joint officer-municipality trials, see Colbert, supra
note 77, at 532.

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B. Relevance
The complex nature of excessive force law leads to disputes over the
relevance of common past-acts evidence both parties seek to admit. Rule
401 of the Federal Rules of Evidence defines relevant evidence as that
which “has any tendency to make a fact more or less probable than it would
be without the evidence.”105 Under Rule 402, irrelevant evidence is
inadmissible.106
In this section, I argue for an expansive view of relevance to
accommodate ambiguities in objective reasonableness jurisprudence. I also
argue in favor of an altered balancing test in civil litigation when
introducing certain evidence against a plaintiff—including drug evidence,
felony status, and gang affiliation—when its relevance is attenuated or
obscure.
1. Evidence Implying an Officer’s State of Mind or Knowledge
Graham v. Connor’s objective reasonableness standard rears its head
when assessing past-acts evidence related to an officer’s state of mind. The
intermingling of relevance and objective reasonableness makes for opaque
admissibility decisions. Ultimately, I argue that evidence of an officer’s past
experiences can often be relevant to what they knew at the time of an
incident of excessive force, and that courts may be too quick to assume the
evidence’s irrelevance.
Evidence suggesting an officer’s ill intentions or temper is inadmissible
to prove liability under the Graham standard. Phillips v. Irvin, a case from
the Southern District of Alabama, presents a telling example.107 There, a
plaintiff sought to introduce evidence of an officer’s past bad acts;108 he
made arguments under FRE 404(b) that past misconduct showed the
officer’s intent to hurt him, and sought to introduce extrinsic evidence of
other misconduct to impeach the officer when he claimed he did not “have
a temper.”109 The court rejected these attempts, stressing that the Graham
standard forbids considering an officer’s intent.110 On the impeachment
question, the officer’s temper was not “material” to the case for the same

105. FED. R. EVID. 401(a).
106. FED. R. EVID. 402.
107. No. 05-0131-WS-M, 2007 WL 2310038 (S.D. Ala. July 27, 2007).
108. Past bad acts evidence often implicates relevance issues; Rule 404(b) of the Federal Rules of
Evidence is discussed in greater depth below.
109. 2007 WL 2310038, at *2–3.
110. Id.

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reason.111 Courts throughout the country treat this type of evidence
similarly.112
State tort claims against officers which require proving mens rea
elements may not pose the same problem for plaintiffs. State assault and
battery tort claims, for example, often have intent elements; as a result, in
such cases a court is more likely to find evidence going toward an officer’s
intent to harm a plaintiff as relevant.113 Plaintiffs often combine § 1983
claims with state tort claims, and in cases where they differ as to intent
elements, courts are mixed as to whether to exclude them as failing Rule
403’s balancing test. In Trahan v. City of Oakland, the Ninth Circuit held
that an officer’s “prior acts of excessive use of force against minorities in
his duties as a police officer” were admissible for the plaintiff’s state tort
claims but not the § 1983 claim.114 In doing so, the court criticized (and
reversed) the district court’s exclusion of the evidence, believing it to have
“overestimated the potential for prejudice” and “undervalued the probative
value of the evidence.”115 However, other courts to consider this issue often
find past misconduct evidence to be unfairly prejudicial.116 Finally, since
evidence of ill intent is relevant for punitive damages, courts may bifurcate
the liability portion of a trial from damages as a way of avoiding any
prejudice.117
Evidence going toward an officer’s knowledge of the circumstances is
more likely to be relevant and shows how difficult it is to draw a clear line
when making admissibility decisions under Rules 401 and 402. A recent
Seventh Circuit case, Burton v. City of Zion, presents a useful example.118
In March 2014, the plaintiff, Kasey Burton, was driving with a suspended

111. Id. at *4.
112. See, e.g., Helfrich v. Lakeside Park Police Dep’t, 497 F. App’x 500, 508 (6th Cir. 2012)
(“[E]vidence tending to reveal Rodriguez’s subjective state of mind is irrelevant to Helfrich’s federal
excessive-force claim and therefore excludable under Rule 402.”); Moriconi v. Koester, 659 F. App’x
892, 895 (7th Cir. 2016); Palmer v. Nassan, 454 F. App’x 123, 126 (3d Cir. 2011); Trahan v. City of
Oakland, 960 F.2d 152, 1992 WL 78090, at *2 (9th Cir. 1992).
113. See Trahan, 1992 WL 78090, at *2; Tanberg v. Sholtis, 401 F.3d 1151, 1168 (10th Cir. 2005)
(stating that the subjective element of a state tort claim against an officer might permit admission of
intent-related evidence, but excluding evidence of prior acts as prejudicial); cf. Clark v. Martinez, 295
F.3d 809, 813–14 (8th Cir. 2002) (analyzing state battery elements and finding that they did not support
the type of intent evidence the plaintiff sought to introduce).
114. Trahan, 1992 WL 78090, at *1, *3.
115. Id. at *3.
116. Helfrich, 497 F. App’x at 508–09; Tanberg, 401 F.3d at 1168.
117. On the other hand, such bifurcation is not necessary; in cases where liability and the
possibility of punitive damages are decided together, such evidence can be admissible along with a
limiting instruction. See Helena v. City of San Francisco, No. C04-0260 CW, 2006 WL 1140953, at *7
(N.D. Cal. May 1, 2006).
118. 901 F.3d 772 (7th Cir. 2018).

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license.119 An officer drove up behind her and activated his squad car’s
emergency lights.120 But Burton did not pull over.121 Instead, she continued
to drive, obeying traffic laws, even when multiple other officers joined in
the pursuit.122 She eventually parked at her home and got out of the car.
Officer Joseph Richardt ran up and pulled her to the ground by “incorrectly
executing a ‘straight-arm take down’” and another officer knelt on Burton’s
back, injuring her while arresting her.123 The jury heard these facts,
including Burton’s refusal to stop the car when first signaled, and found for
the defendant officers.124
But the jury was not told that, six years prior, in 2008, the same Officer
Richardt had tased Kasey Burton during an altercation, and the city had
subsequently settled a federal lawsuit she brought against it.125 Burton drove
home so there would be witnesses in case the officers did anything to hurt
her.126 Officer Richardt knew who Burton was when he joined in her pursuit
in 2014.127 The district court excluded the evidence of Richardt’s having
tased Burton in 2008 on relevance grounds, stating that their first encounter
had occurred too far in the past and had involved different type of
altercation—tasing—and that Kasey Burton’s state of mind was irrelevant
to the excessive force inquiry.128
The Seventh Circuit rejected this analysis, stressing that “[a]lthough
neither Burton’s state of mind nor Richardt’s subjective intent were
relevant, Officer Richardt’s knowledge at the time certainly was.”129
Because Richardt knew “that Burton had previously been subjected to
excessive police force,” by himself no less, his “knowledge was . . . critical”
in considering why Burton did not stop her car.130 To the court, “[i]t surely
would have been a known fact and circumstance that a reasonable officer
would have put in the mix when assessing the level of force required to
subdue her.”131 The court noted that officers may “certainly” take a
“suspect’s history into account in deciding on a reasonable amount of force”
to use, and pointed out that “it would create an odd asymmetry to say that a
119. Id. at 775.
120. Id.
121. Id.
122. Id.
123. Id. at 775–76.
124. Id. at 776.
125. Id. at 775.
126. Id.
127. Id. at 780.
128. Id. at 777–78. The district court in part applied a four-part test involving evidence’s
admissibility under Rule 404(b), but for purposes of this section I focus on the relevance issues.
129. Id. at 780.
130. Id.
131. Id. at 781.

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police officer may consider a suspect’s prior bad acts when considering the
amount of force to use, but need not consider his own prior bad acts.”132
The court understood that an officer’s objectively reasonable act might
well be informed by an understanding of why or how a specific person is
acting. As an example, the court imagined a hypothetical in which Richardt
yelled at a suspect with her back to him to turn around and tased her when
she ignored his order, only to find out that she was deaf; would a reasonable
officer do the same the second time around if he recognized the same
woman?133 In these situations, the past bad acts evidence is admissible
because it is “used only to demonstrate that [the officer] knew about some
characteristic of the suspect that he should have considered before using the
level of force that he did.”134
But what if an officer’s experiences inform a more generalized
knowledge, either of how suspects perceive them or what their behaviors
indicate? Though obviously more attenuated than specific facts known
about past experiences with individual suspects, the Seventh Circuit’s
reasoning could conceivably support a broader inquiry.
Two examples illustrate the point. First, the New York Times recently ran
an exposé on a Pennsylvania state trooper named Jay Splain who has, during
his tenure in a “largely rural area[],” shot and killed four separate suspects,
two of whom were unarmed.135 This “extraordinary tally” is far from the
norm.136 Imagine an officer in a similar situation, called X. Say Officer X
pulled someone over in this rural part of Pennsylvania and, after identifying
himself, the suspect grew visibly nervous and started to drive away. Would
an objectively reasonable officer in X’s position connect the dots—that is,
that the suspect only got nervous after hearing his name—and could this in
turn alter the types of force that would be reasonably available to him?
Would objective reasonableness here require a different amount of force
than had there not been such an exposé? It could be impossible to confirm
that the suspect had read the article (say, if X shot and killed him as he fled),
but does this not have “any tendency” to make that fact more probable?137
As a second example, imagine Officer Y is chasing a suspect on foot.
The suspect climbs a fence, jumps to the ground, collects himself, and
continues running while pulling at the waistband of his baggy jeans.
132. Id.
133. Id. at 782–83.
134. Id. at 783.
135. Kim Barker et al., After 4 Killings, ‘Officer of the Year’ Is Still on the Job, N.Y. TIMES (Dec.
30, 2021), https://www.nytimes.com/2021/12/30/us/pennsylvania-trooper-jay-splain-investigation.html
[https://perma.cc/YYW3-UBRX].
136. Id.
137. FED. R. EVID. 401 (emphasis added).

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Officer Y immediately shoots him in the back, killing him. It turns out that
the suspect was unarmed and was trying to hold up his pants as he ran.
Imagine next that Officer Y has shot or chased other fleeing suspects in
similar situations and mistaken the same hand movement of holding up a
waistband for an effort to grab at a weapon. Should Officer Y’s accumulated
knowledge pass Rule 401’s relevance test? An officer in Fresno, California,
recently shot and killed a fleeing suspect; a video of the incident shows the
unarmed 16-year-old “holding up his baggy pants” as he runs.138 It does not
seem beyond the pale to imagine that, if there were past similar incidents
involving this tragic mistake, they could be relevant as informing what was
objectively reasonable for an officer with such accumulated experience to
do in that situation.
In determining evidence’s relevance, courts may too quickly draw the
line between specific incidents with the same plaintiff and other incidents
which might inform their knowledge of why someone is acting the way they
are acting. Courts should instead be open to a broad spectrum of relevance
when assessing the particular facts of each excessive force case.139
2. Evidence of Things Unknown to an Officer
Just as evidence of things known to an officer may be relevant in
excessive force cases, things unknown to the officer are irrelevant when
determining whether they acted reasonably. For example, if an officer
encounters a suspect holding a gun and shoots that suspect in a standoff, it
would be irrelevant in assessing that officer’s actions that, unbeknownst to
the officer, the suspect’s gun was unloaded and thus harmless.140 But
defendant officers and municipalities often successfully seek to admit
prejudicial evidence about a plaintiff—drug use, criminal record, or gang
affiliation, for example—that was completely unknown to the officer at the
time of a use of force. Though some justifications for admitting such

138. Liz Gonzalez, Fresno Leaders Speak Out on Video of Officer-Involved Shooting That Left
Teenager Dead, FOX26NEWS (Oct. 25, 2019), https://kmph.com/news/local/fresno-leaders-speak-outon-video-of-officer-involved-shooting-that-left-teenager-dead [https://perma.cc/SK6X-KKPN]. For a
similar case, see Oklahoma Police Captain Guilty of Manslaughter in Teen’s Death, CBSNEWS (Nov.
26, 2013, 7:45 PM), https://www.cbsnews.com/news/oklahoma-police-captain-guilty-of-manslaughterin-teens-death/ [https://perma.cc/QWN7-YUWS].
139. This is not to suggest that all such evidence would be admissible; proper application of Rule
403 may well preclude the evidence’s admission as too prejudicial. But acquaintance with the caselaw
shows that judges skew too far away from admissibility when determining both relevance and possible
prejudice of police misconduct evidence.
140. See Jones v. Sandusky Cnty., 96 F. Supp. 3d 711, 716–18 (N.D. Ohio, 2015) (refusing to
allow evidence that the decedent’s shotgun was unloaded, because the officer did not know it at the time
of the alleged excessive force).

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evidence may exist in certain circumstances,141 its admission should be a
rare exception and not the norm, as its relevance is often attenuated at best.
Because this issue surfaces most commonly in the context of character
evidence and impeachment, I reserve a complete discussion for below.
C. Rule 403: Balancing
Federal Rule of Evidence 403 provides the balancing test informing a
judge’s decision about whether to admit otherwise relevant evidence.142 The
judge may introduce any relevant evidence, but may also exclude it if its
probative value is substantially outweighed by, among other things, a
danger of unfair prejudice.
Two common evidentiary issues related to Rule 403 surface in the
excessive force context. The first involves evidence of an officer’s past
misconduct; the second, evidence of a plaintiff’s past behavior and criminal
record. In both situations, courts differ on how they apply Rule 403. Some
courts exclude evidence of officer misconduct on the assumption that it
would prejudice a jury significantly against the officer.143 Others brush off
such fears on the idea that “[a]ny prejudice the defendant may have
faced . . . could have been mitigated by appropriate jury instructions” and
on the “presum[ption] that juries follow the court’s instructions.”144
Evidence about a plaintiff’s gang affiliation or drug use receives similarly
varied treatment.145
Judges’ applications of Rule 403 should consider the possibility that
plaintiffs in excessive force cases suffer structural prejudices before
entering the courtroom. In other words, the scales are already tipped when
the judge is asked to apply the balancing test. As discussed above, officers

141. See infra Section II.D.2 (discussing common ostensible reasons police defendants seek to
introduce such evidence, including as a way of explaining why a plaintiff acted erratically during an
altercation with the officer).
142. The rule’s text reads: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
FED. R. EVID. 403.
143. See, e.g., Tanberg v. Sholtis, 401 F.3d 1151, 1167–70 (10th Cir. 2005); Lund v. Henderson,
807 F.3d 6, 11–12 (1st Cir. 2015).
144. Burton v. City of Zion, 901 F.3d 772, 784 (7th Cir. 2018); see also Trahan v. City of Oakland,
960 F.2d 152, 1992 WL 78090, at *3 (9th Cir. 1992).
145. Compare Casares v. Bernal, 790 F. Supp. 2d 769, 786 (N.D. Ill. 2011) (admitting drug use
evidence on the grounds that “although it is true as Plaintiffs say that Day’s evidence could ‘paint the
Plaintiffs in a bad light,’ that prejudicial impact is substantially outweighed by its probative value”),
with Estate of Diaz v. City of Anaheim, 840 F.3d 592, 602–03 (2016) (finding the district court abused
its discretion by “refusing to bifurcate the compensatory damages phase (thereby allowing in this unduly
prejudicial evidence of drugs and gangs)”).

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benefit from societal trust, and plaintiffs in these cases often face the
opposite problem.
For example, a judge might find evidence of a plaintiff’s past drug use
somewhat relevant and somewhat prejudicial. But when considering
whether that prejudice would be both unfair and outweigh the evidence’s
probative value, a judge should consider the natural skepticism with which
a jury may well view that plaintiff if she was injured during an arrest or
other altercation with law enforcement. Similarly, a judge might consider
the possibility that a jury might default toward siding with an officer when
considering what amount of prejudice is unfair.146
D. Rule 404: Past-Acts Evidence
The Federal Rules of Evidence prohibit certain uses of character
evidence at trial. Rule 404(a) states that “[e]vidence of a person’s character
or character trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.” The rule is
understandable; no defendant would want every nasty thing they had ever
done being admitted into the trial to prove that they had done the different,
nasty thing of which they were presently accused.
But evidence that could conceivably have the same untoward effect is
often introduced for a different purpose than showing a party’s propensity
to act a certain way. If the evidence is introduced for one such different
reason, it may be admissible under Rule 404(b).147 Rule 404(b) discusses
the introduction of evidence “of any other crime, wrong, or act” of a party.148
The rule prohibits such evidence’s use “to prove a person’s character” for
propensity purposes.149 However, it permits the introduction of past acts
evidence “for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of

146. As Steve Schleicher, one of the prosecutors in the Derek Chauvin case put it,
If you take a look at the bystanders in this case, after seeing a man murdered right in front of
them, right in front of their eyes, their instinct was to call the police. Now, can you imagine any
other group or organization that you could see its members commit this act in front of you, and
afterward your first reaction would be to reach out to members of that same group and ask for
help? . . . [T]hat’s the way we’re wired, we trust the police, we believe the police, we want to
believe the police.
PBS NewsHour, Chauvin’s Prosecutors Reflect on the Lessons from the Trial, YOUTUBE (Apr. 29,
2021), https://www.youtube.com/watch?v=xMpMoZLF5vk&ab_channel=PBSNewsHour [https://
perma.cc/3CX4-WLZK].
147. In cases in which the evidence might still bear the risk that a jury could use it for propensity
purposes, courts will issue a limiting instruction.
148. FED. R. EVID. 404(b)(1).
149. Id.

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accident.”150 In Burton v. City of Zion, for example, Officer Richardt’s
tasing of Ms. Burton six years prior constituted past-acts evidence; it was
used to prove his knowledge of why she would act the way she did, rather
than the idea that he was prone to hurting people.151 Finally, if evidence
properly fits into 404(b), it still must pass 403’s balancing test.
Rule 404 is not without exceptions. Rules 412–15 make exceptions to
character evidence rules in cases of sexual assault and child molestation.
Rule 412, which pertains in cases alleging sexual misconduct, makes
evidence of a victim’s “sexual predisposition” or evidence used “to prove
that a victim engages in other sexual behavior” inadmissible.152 In civil
cases, the rules make an exception with a kind of reversed Rule 403
balancing test, admitting such evidence “if its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any
party.”153 Rules 413–15 allow admitting evidence of a defendant’s past acts
of sexual assault or child molestation—even for propensity purposes—in
cases alleging similar behavior. Advocates for these exceptions argued that
they helped combat unique issues of both prejudicial imbalances—“victim
blaming”—and uniquely strong propensity; a past instance of child
molestation, for example, might more strongly imply the propensity to do
so again than a past instance of violence for a defendant accused of a present
violent crime.154 But these are the only exceptions in the Federal Rules, and
Rule 404(b) governs the introduction of past-acts evidence in all other
circumstances.155
In § 1983 litigation against officers and municipalities, parties often seek
to introduce evidence through Rule 404(b) of an officer’s past misconduct
or a plaintiff’s checkered history, including drug use, gang affiliation, or
past felonies. Sometimes, these Rule 404(b) arguments fail on relevance
grounds—for instance, adequate Rule 404(b) evidence going to an officer’s
intent will be irrelevant under the Graham standard, as discussed above.
This keeps much evidence about an officer’s past out of the proceedings,
while evidence about plaintiffs’ past acts—which can be more easily
cabined within Rule 404(b)’s standards—gets in. The most common—and
150. FED. R. EVID. 404(b)(2).
151. 901 F.3d 772, 777–78 (7th Cir. 2018).
152. FED. R. EVID. 412(a).
153. FED. R. EVID. 412(b)(2).
154. Joseph A. Aluise, Evidence of Prior Sexual Misconduct in Sexual Assault and Child
Molestation Proceedings: Did Congress Err in Passing Federal Rules of Evidence 413, 414, and 415?,
14 J.L. & POL. 153, 163 (1998).
155. California and Alaska each have extended their equivalents of Rules 413, 414, and 415 to
cases involving domestic abuse and, in California’s case, elder abuse. CAL. EVID. CODE § 1109; ALASKA
R. EVID. 404(b)(4); see also Pamela Vartabedian, The Need to Hold Batterers Accountable: Admitting
Prior Acts of Abuse in Cases of Domestic Violence, 47 SANTA CLARA L. REV. 157, 167 (2007).

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potentially prejudicial—type of evidence in this regard goes to a plaintiff’s
motive or behavior during the officer encounter. For example, a plaintiff’s
knowledge of her felony record or possession of a weapon might make it
more likely that she acted a certain way during a police encounter. As I
discuss below, these arguments help secure the admission of highly
prejudicial information about a plaintiff with somewhat limited probative
value.
After a brief discussion of successful Rule 404(b) evidence related to
officers and municipalities, I focus on the admissibility of past-acts
evidence concerning plaintiffs. I conclude that, for officers in § 1983
litigation, past-acts evidence should face normal Rule 404(b) analysis with
two caveats: first, judges should accord greater leeway to “knowledge” and
“absence of mistake” justifications to accommodate situations discussed in
the “relevance” section above; and second, when § 1983 actions are paired
with state tort claims for which an officer’s intent is at issue, courts should
admit the past-acts evidence with limiting instructions. When trying officers
and municipalities together, I advocate a similar use of limiting instructions
rather than trial bifurcation. Finally, I advocate that the Federal Rules adopt
a narrower balancing test for certain past acts evidence against plaintiffs,
including drug use, criminal record or illegal activity, and gang affiliation.
1. Officers and Municipalities
An officer’s misconduct records can prove admissible under Rule 404(b)
in different ways, depending on the defendant. As discussed above, the
confluence of constitutional law and fear of undue prejudice keeps most of
such evidence out of trials against individual officers. Any past-acts
evidence going to an officer’s intent or motive, for example, will likely be
irrelevant and inadmissible in § 1983 litigation due to the objective
reasonableness standard and Rule 402.156
However, other Rule 404(b) arguments can be successful. I focus on two
similar ones: knowledge and absence of mistake.157 As Burton v. City of
Zion shows, past acts evidence can be admissible when going toward an
officer’s knowledge.158 Absence of mistake can constitute an offshoot of
that idea. For example, in Eldridge v. City of Warren, an officer tased Ralph
Eldridge, a diabetic who was going through a hypoglycemic episode.159
Eldridge sought to introduce video evidence of the same officer tasing
156.
157.
158.
159.

See supra notes 108–13 and accompanying text.
FED. R. EVID. 404(b).
Burton v. City of Zion, 901 F.3d 772, 784 (7th Cir. 2018).
655 F. App’x 345, 346 (6th Cir. 2016).

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someone in custody who did not comply with the officer’s demands under
an absence of mistake theory.160 The court rejected this argument, but in
doing so, made a helpful distinction. The court could not see how the
evidence went toward an absence of mistake in the officer’s using force
against Eldridge.161 The court stressed that the officer had “intentionally”
tased him, and thus the tasing was not a mistake.162 However, the court was
open to a different absence of mistake theory in other cases. The court noted
that the officers relied “on the defense of mistake . . . that they lacked
knowledge of Eldridge's medical condition when they used force against
him.”163 The court then distinguished the past taser incident as not involving
someone with a medical condition.164
The definition of the “mistake” can thus test the applicability of Rule
404(b)’s absence of mistake category. In the hypothetical alluded to above
involving an officer shooting an unarmed person grabbing at their jeans, the
past similar shooting (or other encounter with someone grabbing at the waist
of similarly loose jeans) could help disprove an officer’s defense that he
mistakenly believed the decedent to be armed. This use of past-acts
evidence appears frequently in criminal cases, helping disprove defendants’
claims that they did not know about, or were mistaken about, some element
of their behavior.165
An officer’s past acts can also help prove identity when the officer denies
that he was the person who used force on the plaintiff. In Lewis v. City of
Albany Police Department, for example, an officer claimed he was not the
offender; the court allowed the plaintiff to introduce past misconduct
records of him having inflicted “strikingly similar” injuries on other African
Americans in past incidents as a way of demonstrating the likelihood that
he had been the culprit this time around.166 Though the opportunities for
these Rule 404(b) arguments may be rare, they do provide a potential avenue
for such evidence’s admissibility.

160. Id. at 347.
161. Id. at 348–49.
162. Id. at 349.
163. Id.
164. Id.
165. See, e.g., United States v. Jernigan, 341 F.3d 1273, 1281 (11th Cir. 2003) (upholding
admission of defendant’s past conviction for possession of firearm to prove that “his possession at the
subsequent time [wa]s not mistaken or accidental”); United States v. Harris, 185 F.3d 999, 1004–05 (9th
Cir. 1999) (upholding admission of defendant’s past, knowing fraud involving partnership funds to
disprove notion that he made “unfortunate but innocent mistakes” regarding subsequent financial fraud);
United States v. Robles-Vertiz, 155 F.3d 725, 730 (5th Cir. 1998) (upholding admission of past
conviction for smuggling aliens to disprove defendant’s argument in subsequent smuggling case that he
believed the person he smuggled to be a United States citizen).
166. 547 F. Supp. 2d 191, 200 (N.D.N.Y. 2008).

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Officers’ misconduct records prove more easily relevant and less
prejudicial when admitted for Monell claims against municipalities. When
the theory of Monell liability involves a city knowing of officers violating
people’s rights and turning a blind eye or failing to train them after learning
of a pattern of abuse, the evidence of official records of those officers’ acts
is relevant and often admissible.167 Because the evidence is admissible
against the city but may not fit cleanly into a Rule 404(b) theory against the
individual officer involved, courts may face the question of whether to
admit the evidence with a limiting instruction, keep it out entirely, or
bifurcate the trial.168 In these cases, for the reasons given earlier (that
bifurcating trials impedes discovery, slows—or ends—proceedings, may
well prove more costly on the judiciary, and separates out a plaintiff’s one
harm into individual myopic instances rather than considering the case as a
whole), courts should err on the side of limiting instructions.169
The Federal Rules of Evidence need not change as to officer misconduct
records; to move toward more just results in § 1983 cases against officers,
rather, judges should apply broader views of relevance, be more cognizant
of the benefits of trying excessive force cases against officers and
municipalities together, and weigh the public’s default trust of the police—
and possible distrust of a plaintiff—when making Rule 403-type judgments
about undue prejudice. Such a result could help strike the balance between
excluding highly prejudicial evidence while somewhat cutting through the
latticework of protections insulating officers and cities from liability for
harmful policing practices. In the case of past-acts evidence against
plaintiffs, however, I recommend a different approach.

167. See, e.g., Rauda v. City of Los Angeles, No. CV08-3128-CAS (PJW), 2010 WL 11549632
(C.D. Cal. Feb 22, 2010); Daniels v. Loizzo, 178 F.R.D. 46 (S.D.N.Y. 1998).
168. See Daniels, 178 F.R.D. at 48 (holding that, in a bifurcated trial, officer misconduct records
could come in against the city but not against the officer); Trahan v. City of Oakland, 960 F.2d 152,
1992 WL 78090, at *3 (9th Cir. 1992) (allowing evidence of past misconduct in against an officer on
some claims but not others, and using a limiting instruction); Helena v. City of San Francisco, No. C040260 CW, 2006 WL 1140953, at *7 (N.D. Cal. May 1, 2006).
169. Additionally, some courts have simply argued that juries can be trusted to follow their
instructions. See Helena, 2006 WL 1140953, at *7 (making this argument to allow evidence to be
considered against an officer on state tort claims but not § 1983 claims). For cases with multiple
defendants—a city and an officer, for example—or multiple separate claims—state and federal torts—
this faith may be fair, since jurors deliberating would benefit from distinct situations in which to apply
the evidence. When evidence is admissible for some reasons but not others on the same claim, against
the same defendant, this argument seems weaker. For example, if evidence of a plaintiff’s drug use were
admissible to prove they acted erratically that day, but not that they were a drug addict who should not
be trusted or was otherwise deserving of punishment, a juror holding the latter biases may struggle to
keep them from infiltrating a more limited application of the evidence.

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2. Plaintiffs and Decedents
Plaintiffs face myriad obstacles to vindicating § 1983 claims against
officers and municipalities. Past acts evidence contributes to these
obstacles. While the Graham standard keeps out much past misconduct by
officers—even when seemingly relevant—courts often allow equally or
more prejudicial information about plaintiffs on tenuous relevance grounds.
This imbalance further tips the scales unfairly against plaintiffs, who often
face credibility hurdles to begin with when pitted against established
governmental parties.
I begin by discussing common past-acts evidence that officer and city
defendants seek to introduce against plaintiffs via Rule 404(b) in excessive
force litigation. I focus on two common Rule 404(b) arguments: plan or
intent when a “suicide by cop” theory is pursued, and motive when a
plaintiff’s behavior is unclear or disputed. Then, I use the 2021 case
involving the fatal shooting of Genevive Dawes to discuss this evidence’s
prejudicial effect. Finally, I discuss alternative approaches to treating
plaintiffs’ past acts, concluding that a version of Rule 412’s balancing test
constitutes a more just treatment of this evidence.
Plaintiffs face at least four different species of past-acts evidence that
threaten undue prejudice: past drug use, felony record or past criminal acts,
past encounters with police, and gang affiliation.
Defendant officers often seek to introduce these types of past-acts
evidence to demonstrate intent, motive, or plan.170 Typically, defendants
argue that this information helps explain a plaintiff’s erratic behavior during
the arrest or helps prove that the plaintiff acted during the encounter in the
way the police claim.171 Though evidence of gang affiliation is often
excluded on fears of unfair prejudice,172 evidence of drug use and criminal
record more easily finds its way into trial.173

170. FED. R. EVID. 404(b); see Boyd v. City & County of San Francisco, 576 F.3d 938, 946–47
(9th Cir. 2009).
171. See, e.g., Rendon v. City of Indio, No. EDCV 13-00667-VAP (OPx), 2014 WL 12965995,
at *3 (C.D. Cal. 2014) (“[E]vidence that Decedent had drugs in his system does lend support to Franco's
observation that Decedent’s behavior ‘was impulsive, irrational, and demonstrated poor judgment.’”);
Boyd, 576 F.3d at 944 (stating that drug evidence was relevant to proving the plaintiff’s alleged erratic
behavior during arrest); Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir. 1979); Casares v. Bernal,
790 F. Supp. 2d 769, 785–86 (N.D. Ill. 2011) (allowing intoxication evidence from the day of the alleged
excessive force on the theory that it could help prove the plaintiff’s “memory impairment” during
testimony, and that it would make it more likely that the plaintiff acted as officers said he did).
172. See Valtierra v. City of Los Angeles, 99 F. Supp. 3d 1190, 1195 (C.D. Cal. 2015); Ramos v.
Trifone, Civ. No. 11CV00679(SALM), 2015 WL 6509114, at *6–7 (D. Conn. Oct. 28, 2015).
173. Boyd, 576 F.3d at 943–44 (upholding the admission of the plaintiff’s criminal history,
including “kidnapping attempts,” testimony regarding prior arrest, and evidence of drugs in his system

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These types of evidence are all highly prejudicial. Studies show that
people view those addicted to drugs as “more dangerous and fear evoking”
than others, and that intoxication is viewed as “a ‘causal agent’ in
‘violence.’”174 Courts also occasionally recognize that drug use evidence is
“highly prejudicial.”175 Evidence of a criminal record or past encounters
with the police can create similarly strong stigma: it can keep people from
getting jobs,176 foreclose other societal benefits,177 and generally cast a pall
over a plaintiff’s legitimacy in the eyes of a jury. Evidence of gang
affiliation “has the potential to be particularly prejudicial” in a courtroom.178
The introduction of this evidence can also leverage and contribute to
ingrained racist prejudices. As Erin Aubry Kaplan writes of the trial of
Derek Chauvin:
Character assassination is fundamental to structural racism; it
precedes it. Chauvin’s lawyers are going to argue technicalities, that
Floyd was killed by cardiac arrest, that he was in bad health and used
drugs . . . . Everyone is entitled to a defense. But really, what the
defense is arguing is that Floyd died because he didn’t deserve to live.
He was a big Black man, sporadically employed and, yes, a drug user.
He had prior encounters with police (significantly, details of one of
those encounters will be allowed into evidence). In short, he was
marginal. That he would die young and badly was just a matter of
time and circumstances, in any case not a reason to send a white man
to prison, especially a police officer.179
This evidence can combine to produce the impression in a juror that the
plaintiff is somehow lesser because of the circumstances they faced at the
time of their encounter with police.
at the time he was shot and killed by police); Casares, 790 F. Supp. 2d at 785–86 (allowing intoxication
evidence from the day of the alleged excessive force).
174. Michael Davis, Addiction, Criminalization, and Character Evidence, 96 TEX. L. REV. 619,
635 n.94 (2018) (citations omitted).
175. Donastorg v. City of Ontario, No. EDCV 18-992JGB (SPx), 2021 WL 4051170, at *3 (C.D.
Cal. June 4, 2021).
176. Amanda Johnson, Challenging Criminal Records in Hiring Under the Americans with
Disabilities Act, 48 COLUM. HUM. RTS. L. REV. 211, 217–18 (2017).
177. Tarra Simmons, Transcending the Stigma of a Criminal Record: A Proposal to Reform State
Bar Character and Fitness Evaluations, 128 YALE L.J.F. 759, 764 (2019).
178. Est. of Diaz v. City of Anaheim, 840 F.3d 592, 602 (9th Cir. 2016) (first citing Kennedy v.
Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004); and then United States v. Takahashi, 205 F.3d 1161, 1165
(9th Cir. 2000)).
179. Erin Aubry Kaplan, Opinion, Derek Chauvin Is in the Courtroom, but the Character of Black
People Is on Trial in Minneapolis, L.A. TIMES (April 24, 2021, 3:00 AM),
https://www.latimes.com/opinion/story/2021-04-04/derek-chauvin-trial-george-floyd-murder
[https://perma.cc/V8VJ-Q5G9].

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Evidence of this sort is not only highly prejudicial; it is often of limited
relevance in excessive force inquiries. First, under the objective
reasonableness standard, evidence of things unknown to an officer is
broadly irrelevant; the Ninth Circuit has explained that “[w]e cannot
consider evidence of which the officers were unaware—the prohibition
against evaluating officers’ actions ‘with the 20/20 vision of hindsight’ cuts
both ways.”180 As the Court of Special Appeals of Maryland discussed:
We fail to understand how information—fully unknown to [officer]
Jackson at the time of the incident, and in no way considered by
Jackson at any point—is in any way relevant in the instant case.
Evidence suggesting that [the decedent] Espina did, in fact, resist
arrest is certainly relevant. Indeed, Jackson testified that Espina
resisted arrest. Evidence suggesting ‘possible’ reasons for resistance,
however, was not relevant.181
Because the objective reasonableness inquiry is focused on the officer,
evidence of a plaintiff’s criminal history “may be relevant” but only
“provided that the officers were aware of such information at the time of
incident,”182 or in rare circumstances in which the plaintiff’s motive or intent
is at issue.183
In the latter circumstances, a plaintiff’s intoxication or criminal record
might help support an officer’s account that they acted erratically or
aggressively. As an example: if an officer claims the plaintiff attacked him
and the plaintiff (or his estate) disputes that notion, the officer might be able
to argue that the plaintiff was motivated to attack him by fears of being
found with an illegal handgun, or made more aggressive—and thus likely
to attack the officer—due to the presence of meth in his system, even if these
things were unknown to the officer.184 But this evidence is usually not going
to be the only way of proving such things. First, many officers are required

180. Glenn v. Wash. Cnty., 673 F.3d 864, 873 n.8 (9th Cir. 2011) (citing Graham v. Connor, 490
U.S. 386, 396 (1989)).
181. Espina v. Prince George’s Cnty., 82 A.3d 1240, 1263 (Md. Ct. Spec. App. 2013), aff’d sub
nom. Espina v. Jackson, 112 A.3d 442 (Md. 2015) (excluding evidence of the decedent’s immigration
status and possession of a knife because the officer did not know about either at the time of the excessive
force).
182. Valtierra v. City of Los Angeles, 99 F. Supp. 3d 1190, 1193 (C.D. Cal. 2015) (emphasis
added).
183. Est. of Tindle v. Mateu, No. 18-cv-05755-YGR, 2020 WL 5760287, at *11 (N.D. Cal. Sept.
28, 2020) (refusing to admit evidence that the decedent possessed and shot a gun before the officer
arrived on the scene, since the officer did not know this at the time he used force).
184. See Est. of Robinson ex rel. Irwin v. City of Madison, No. 15-cv-502-jdp, 2017 WL 564682,
at *14 (W.D. Wis. Feb. 13, 2017) (allowing intoxication evidence because it might make more likely
the officer’s account of how the decedent behaved in a stairwell with no other witnesses).

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to wear body cameras.185 Footage from the incident would thus help show
exactly what the plaintiff or decedent did in the encounter.186 And second,
officers usually do not encounter a plaintiff alone; there are other officers
and witnesses. In many situations, this highly prejudicial information about
a plaintiff will thus be cumulative.
A recent criminal case in Texas presents a useful example of how this
type of evidence can be used against plaintiffs in excessive force cases.187
On January 18, 2017, officers Christopher Hess and Jason Kimpel were
called to an apartment complex after an anonymous 911 call reporting a
“suspicious person” in a vehicle.188 Kimpel and Hess, along with other
officers, arrived on the scene, approached a black Dodge Journey parked
outside, and shined flashlights into the windows.189 Genevive Dawes and
her boyfriend Virgilio Rosales were “clearly asleep.”190 The officers’ voices
woke Dawes, who turned on her car’s ignition and started slowly backing
up; after an officer blocked her with his car, she maneuvered the car slightly
and began reversing again.191 No one was in her path,192 and she reached a
speed of between three and five miles per hour.193 At that moment, Hess and
Kimpel fired “at least 13 shots through the passenger window, striking
Dawes in the neck, right tricep, left arm, upper left chest, and right
forearm.”194 She died at the hospital.195
Hess faced aggravated assault charges. During the trial, over the state’s
objection, past-acts evidence about Dawes made its way into the trial; the
judge allowed in evidence that Dawes and Rosales had a stolen gun in the
185. See Mitch Zamoff, Assessing the Impact of Police Body Camera Evidence on the Litigation
of Excessive Force Cases, 54 GA. L. REV. 1, 12 (2019) (discussing body cameras’ prevalence in major
cities’ police departments).
186. See Est. of Tindle, 2020 WL 5760287, at *12 (“Sgt. Mateu’s body camera captured the entire
incident for purposes relevant to [the dispute about how both parties acted at the scene.]”).
187. Though I use a criminal case as an example, the evidence was used to support the officer’s
defense of objectively reasonable action and does not differ from the inquiry in a § 1983 case. Indeed,
§ 1983 litigation is currently proceeding against the same officers.
188. Dawes v. City of Dallas, No. 17-CV-1424-X-BK, 2021 WL 1200229, at *1 (N.D. Tex. Mar.
12, 2021).
189. Id.
190. Id.
191. Id.
192. Id.
193. Genevive Dawes Case: Questions over Dallas Officer’s Account of Mother’s Shooting Death,
CBS NEWS (June 26, 2017, 6:31 PM), https://www.cbsnews.com/news/genevive-dawes-case-questionsover-dallas-officers-account-of-mothers-shooting-death/ [https://perma.cc/YM2M-Z65B] (around five
miles per hour); David Goins, Jury Finds Former Dallas Officer Not Guilty of Aggravated Assault,
WFAA (Feb. 11, 2020, 12:22 PM), https://www.wfaa.com/article/news/crime/day-5-trial-former-dallaspolice-officer-shot-12-times-car-killing-woman/287-57a02ffa-3ec3-40ce-be6b-e9a1a2db636d
[https://perma.cc/P2VQ-D38V ] (3.1 miles per hour).
194. Dawes, 2021 WL 1200229, at *1.
195. Id.

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car, that they had meth and heroin in their systems, and that the car had been
reported stolen.196 The state’s and defendant’s motions in limine treaded the
ground discussed above. The defendants stressed that the “evidence shows
Ms. Dawes’s state of mind was, ‘I’m not going to jail today,’” which
provided “the motive for her decisions to try to flee” by car.197 They stressed
that the evidence went toward “motive.”198 The state stressed that such
information was unknown to Officer Hess at the time of the shooting and
that there was no “ambiguity about Dawes’s conduct . . . [t]he whole thing
is on video.”199 The state explained that “[b]ecause there’s no dispute about
what Dawes did, there’s no reason to speculate about why she did it.”200 The
judge sided with the defendant.
In opening arguments, the defense counsel referred to Dawes’s drug use
three times in under two minutes, calling her decision to turn on the car
“drug-induced.”201 In closing statements, the defense discussed Dawes and
Rosales’s possession of a stolen gun and car, saying, “What does that tell
you about the lengths they will go?”202 Hess was acquitted.203
Without cabining judges’ discretion in similar situations, evidence like
this bearing strained—if any—relevance to the reasonableness of an
officer’s use of force will find its way into trials. Given plaintiffs’ hurdles
in even getting to the courtroom in § 1983 litigation and the default
credibility afforded officers, this evidence can easily work unfair prejudice
if not checked.

196. Opening Argument at 24:00–26:00, State v. Hess, No. F17-00545-V (Tex. 292d Dist. Ct.—
Dallas Feb. 3, 2020), https://www.youtube.com/watch?v=YLAwT4C2_d8 [https://perma.cc/GSR5MFRC] (last visited Sept. 4, 2022); Closing Argument at 19:30, Hess, No. F17-00545-V,
https://youtu.be/SJSFoWy0ieg [https://perma.cc/SKT2-C8M3] (last visited Sept. 4, 2022).
197. Defendant’s Brief on Admissibility of Certain Evidence at 2, Hess, No. F17-00545-V.
198. Id. at 4.
199. State’s Response to Defendant’s Brief on Admissibility of Certain Evidence at 2, Hess, No.
F17-00545-V.
200. Id. at 3 (emphasis in original).
201. Opening Argument at 25:30–:45, 26:30, 27:08, Hess, No. F17-00545-V,
https://www.youtube.com/watch?v=YLAwT4C2_d8 [https://perma.cc/GSR5-MFRC] (last visited Sept.
4, 2022).
202. Closing Argument at 19:30, Hess, No. F17-00545-V, https://youtu.be/SJSFoWy0ieg
[https://perma.cc/SKT2-C8M3] (last visited Sept. 4, 2022).
203. By David D. Kirkpatrick, Steve Eder, Kim Barker & Julie Tate, Why Many Police Traffic
Stops Turn Deadly, N.Y. TIMES (Oct. 31, 2021), https://www.nytimes.com/2021/10/31/us/police-trafficstops-killings.html [https://perma.cc/3NZ2-TE27].

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Because of this, I propose a change in the Rules of Evidence similar to
the balancing test in Rule 412. That rule allows information about a sexual
assault victim’s past sexual behavior to come in at trial in civil cases only
“if its probative value substantially outweighs the danger of harm to any
victim and of unfair prejudice to any party.”204 The reversed balancing test
thus precludes most prejudicial bad acts evidence from trial unless it is
uniquely relevant. The Advisory Committee Notes on the current version of
Rule 412 explain that the rule “aims to safeguard the alleged victim
against . . . embarrassment and sexual stereotyping . . . and the infusion of
sexual innuendo into the factfinding process.”205
These concerns are echoed to some extent in excessive force litigation.
As discussed, plaintiffs face stereotyping associated with drug use, criminal
history, and gang affiliation that surfaces uniquely in police misconduct
litigation. Furthermore, evidence of a plaintiff’s past acts is usually of
cumulative or no probative value in assessing the officer’s actions, assuming
the evidence was not known to the officer. The strong potential for
prejudice, lack of probative value, and already-stacked deck against such
plaintiffs justify applying a narrowed balancing test to highly prejudicial
bad-acts evidence.
I propose that the Federal Rule of Evidence 404(b) be amended to
include a section that adopts a balancing test in between Rules 412 and 403
in civil cases alleging excessive force by a law enforcement officer. The
amended rule could state:
If unknown by the law enforcement officer at the time of alleged
excessive force, the court may admit evidence of a plaintiff’s past
drug use, intoxication at the time of the incident, criminal record or
criminal activity, or gang affiliation only if the evidence’s probative
value outweighs the potential for undue prejudice or needlessly
presenting cumulative evidence.
Because such evidence could potentially be relevant and useful, a
complete bar on its admission would seem unwise. But the rule proposed
here could help keep prejudicial evidence out of civil trials unless it was
relevant enough to the case that it did not run the risk of further preventing
a plaintiff’s fair hearing of her claim. It is easy to imagine a civil analogue
to Ms. Dawes’s case ending differently under such a rule.

204.
205.

FED. R. EVID. 412(b)(2).
FED. R. EVID. 412 advisory committee’s note to 1994 amendments.

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E. Impeachment Evidence
The evidentiary rules governing impeachment present another
opportunity to rectify imbalances inherent in civil litigation against officers.
After defining the rules and their application in police misconduct litigation,
I discuss other scholars’ proposals in this area and propose that the rules
change in either of two ways: restricting the admissibility of a plaintiff’s
criminal record as impeachment evidence in civil excessive force cases, or
applying a type of crimen falsi rule mandating the admission of certain,
reliable reported findings of a police officer’s falsification of records or
tampering with evidence.
Federal Rules of Evidence 608 and 609 govern witness impeachment.
Rule 608 discusses how a witness’s credibility “may be attacked” by
testimony about their character for truthfulness or its opposite. Rule 608(b)
prohibits the use of extrinsic evidence—“prov[ing] specific instances of a
witness’s conduct”—in order to attack a witness’s truthfulness, but allows
counsel to cross-examine a party about specific past acts if they “are
probative of the character for truthfulness or untruthfulness” of the witness
or another witness. As an example: imagine Officer Z is testifying about
what occurred when he used excessive force. Plaintiff’s counsel can attack
his credibility by asking him: “is it true that, three years ago, you fabricated
details when filling out a police report?” If Officer Z says “nope,” plaintiff’s
counsel cannot introduce the factual underpinnings—“extrinsic
evidence”—underpinning the question. Officer Z’s denial goes uncontested.
Rule 609 gives an exception to 608(b)’s rule: a testifying witness’s
criminal record—including extrinsic evidence thereof—can, and in some
cases must, be admitted. Evidence of any crime punishable in the
jurisdiction by imprisonment for more than one year “must be admitted,
subject to Rule 403, in a civil case or in a criminal case in which the witness
is not a defendant.”206 The rule thus removes a judge’s discretion in
requiring the admission of such evidence if the judge determines it passes
Rule 403’s balancing test. “Rule 609(a)(1) presumes that all felonies are at
least somewhat probative of a witness’s propensity to testify truthfully.”207
Accordingly, evidence of a witness’s past crimes, including (but not limited
to) burglary,208 bank robbery,209 drug possession,210 and murder,211 can be
admissible to impeach a testifying witness.
206.
207.
208.
209.
210.
211.

FED. R. EVID. 609(a)(1)(A) (emphasis added).
United States v. Estrada, 430 F.3d 606, 617 (2d Cir. 2005) (Sotomayor, J.).
United States v. Cueto, 506 F. Supp. 9, 14–15 (W.D. Okla. 1979).
United States v. Oaxaca, 569 F.2d 518, 526–27 (9th Cir. 1978).
United States v. Hernandez, 106 F.3d 737 (7th Cir. 1997).
See Lawson, supra note 57, at 240–41.

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The rule does not end there. Rule 609(a)(2) states that if a witness has a
criminal conviction for “any crime regardless of punishment” that “required
proving—or the witness’s admitting—a dishonest act or false statement,”212
the evidence must be admitted regardless of its prejudicial effect. A jury
thus hears evidence of every so-called crimen falsi for which a witness—
including a testifying plaintiff or defendant—has been convicted.213 Which
offenses count as crimen falsi varies by jurisdiction,214 but the Advisory
Committee explained that it primarily “mean[t] crimes such as perjury or
subordination of perjury, false statement, criminal fraud, embezzlement or
false pretense,” and other offenses involving deceit.215
While criminal defendants can avoid the introduction of this
impeachment evidence by invoking the Fifth Amendment right against selfincrimination and refusing to testify, civil litigants can be forced to testify;
thus, in their typical application to excessive force litigation, Rules 608 and
609 allow for, or mandate, the admission of a plaintiff’s criminal record.216
On the other hand, findings by an officer’s police department or an
independent city or state investigatory body that he has falsified police
reports or manufactured evidence—behaviors that, if criminally sanctioned,
would easily constitute crimen falsi—are inadmissible.217
Rule 609 has garnered broad controversy.218 There is a “growing chorus
of scholars advocating for complete or near-abolition of Rule 609(a) as
applied to criminal defendants.”219 But the rule’s prejudicial effects also
cause harm in civil litigation. Rule 609’s application in § 1983 excessive
force litigation has led one scholar to recommend prohibiting the admission
of a testifying plaintiff’s criminal record unless the crimes constituted
crimen falsi.220 This response is reasonable. As discussed, a plaintiff’s prior
convictions can prove highly prejudicial, perhaps especially when pitted
212. FED. R. EVID. 609(a)(2).
213. FED. R. EVID. 609 advisory committee’s note to 1972 proposed rules.
214. Judges have held all sorts of crimes to constitute crimen falsi. See, e.g., Williams v. United
States, 337 A.2d 772 (D.C. 1975) (possessing firearm without a license); Rogers v. State, 558 S.W.3d
833, 841 (Ark. 2018) (all theft); Zukowski v. Dunton, 650 F.2d 30, 34 (4th Cir. 1981) (willful failure to
provide information for income tax purposes).
215. FED. R. EVID. 609 advisory committee’s note to 1972 proposed rules.
216. See Lawson, supra note 57, at 220.
217. Though plaintiff’s counsel could ask the officer about them, extrinsic proof would be
inadmissible under Rule 608.
218. See, e.g., Jeffrey Bellin, The Evidence Rules That Convict the Innocent, 106 CORNELL L.
REV. 305, 313 n.42 (2021); Ric Simmons, An Empirical Study of Rule 609 and Suggestions for Practical
Reform, 59 B.C. L. REV. 993, 1025 (2018); Anna Roberts, Impeachment by Unreliable Conviction, 55
B.C. L. REV. 563 (2014); Aviva Orenstein, Honoring Margaret Berger with a Sensible Idea - Insisting
That Judges Employ a Balancing Test Before Admitting the Accused’s Convictions Under Federal Rule
of Evidence 609(a)(2), 75 BROOK. L. REV. 1291 (2010).
219. Moran, supra note 95, at 1391.
220. Lawson, supra note 57, at 241–42.

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against the institution of law enforcement. Furthermore, the impeachment
value of such evidence is controversial at best,221 and for such crimes (i.e.,
non-crimen falsi crimes), judges are again tasked with employing a
balancing test; some scholarship has suggested that judges do not properly
apply that balancing test when admitting this impeachment evidence.222
Another approach, instead of a wholesale exclusion of such evidence,
would be to subject plaintiff-witness-specific criminal records to a stricter
balancing test before admitting them for impeachment purposes. Rule
609(a)(1)(A) could be amended to state that in civil cases, evidence of a
plaintiff-witness’s criminal acts that were punishable by more than a year in
prison are only admissible if their probative value outweighs the prejudicial
effect to that plaintiff.223 Though I side with the scholars advocating a
wholesale rejection of the rule, broader political concerns might dictate
adopting this narrower attempt to address the problem.
On the officer-defendant side, similar concerns may support expanding
Rule 609(a)(2) to allow evidence of official findings that an officer has
committed an act in the course of his duties that involved deceit. This could
include findings by an official review board that the officer effected a false
arrest, falsified a report, or fabricated or tampered with evidence. If the
records were reliable, they would be automatically admissible as crimen
falsi under this imagined expansion of the rule. Reliable reports could mean
those garnered by city review boards whose sustaining of a civilian’s
complaint must be found by a preponderance of the evidence, or by clear
and convincing evidence. Cities’ complaint review boards usually use one
of those two standards.224 Any hearsay objections to such evidence would
arguably be covered under Rule 803(8)(a)(iii), which exempts the findings
of a legally authorized investigation from hearsay exclusion in civil cases.
Any of these proposed approaches would help to alleviate the burdens
facing plaintiffs in litigating excessive force cases. If the rules kept out more
of a plaintiff’s criminal past, it might incentivize more people to bring such
suits and hold officers and cities accountable; if the rules allowed admitting
of extrinsic impeachment evidence of misconduct records related to an
officer’s deceitful practices on the job, it would both incentivize better
221. Richard D. Friedman, Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and
a Proposed Overhaul, 38 UCLA L. REV. 637, 638 (1991).
222. See Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics
of Rule 609, 15 CARDOZO L. REV. 2295, 2322–24 (1994).
223. This balancing test is already applied in Rule 609 to criminal defendants. FED. R. EVID.
609(a)(2).
224. See, e.g., CITY OF BERKELEY, CAL., CHARTER art. XVIII, § 125(18)(c) (2021)
(preponderance of the evidence); CITY OF TEANECK, N.J., CODE art. XXXII § 2-166(a)(5) (clear and
convincing evidence).

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behavior on the job and cut against the credibility imbalance between the
parties in excessive force litigation.
CONCLUSION
The significant procedural hurdles plaintiffs face to bringing litigation
against officers and cities under 18 U.S.C. § 1983, paired with the prejudice
they face in trial, works injustices at multiple levels. For the victim of police
violence, it forecloses recompense for a harm inflicted by an agent of the
state. For the broader society, the lack of an effective mechanism for holding
officers and cities accountable impedes the improvement of policing
practices by disincentivizing better behavior and training.
Confronting the inequities in how the law and its stewards treat past-acts
evidence in excessive force litigation is an important step in achieving
justice for victims of police violence.
Accordingly, incorporating a nuanced understanding of the imbalances
inherent in § 1983 litigation should be essential to any judge’s application
of Rule 403’s balancing test concerning past-acts evidence against both
officers and victims. A narrower balancing test should make it more difficult
to admit highly prejudicial evidence of a plaintiff’s past at trial. And the
impeachment rules should either reduce the use of criminal records
information to impeach a plaintiff witness or consider independent review
boards’ substantiations of citizens’ claims that an officer fabricated
evidence or falsified a police report as crimen falsi equivalents, admissible
for impeachment.
The Federal Rules of Evidence constitute a promising, subtle avenue of
reform for holding law enforcement accountable. To ensure a better law
enforcement future, we should think differently about how we handle
evidence of its officers’ and victims’ pasts.