Sunday, December 23, 2007
The Long Leg of the Law: Minnesota Court Finds Excessive Force Evidence inadmissible Against Police Officer Under Rule 404(b)
In Minnesota, a jury of six found police officer Donald Rasicot not guilty of misconduct and assault during the 2006 arrest of a drunken man in large part because the court refused to admit evidence that Rasicot previously lost a job with the Minnesota Police Department over complaints that he used excessive force. The judge also excluded evidence that Rasicot had previously been charged with second degree assault in connection with his police work, although that charge was later dropped. Both sides agreed that Jason Knutson was arrested by Rasicot for being drunk and disorderly at about 1 A.M. last August and that Knutson resisted being placed into a cell. Thereafter, working with two other officers, Rasicot used his foot to get Knutson into a cell, causing cuts to his face and scrapes to his head. The case boiled down to whether Rasicot properly "pushed" Knutson into the cell with his foot or improperly "kicked" him into the cell with excessive force.
As noted, Knutson attempted to prove his case through alleged prior bad acts by Rasicot, but the judge presumably found that these acts were inadmissible under Minnesota Rule of Evidence 404(a), which states that such evidence is inadmissible to prove that an individual has a propensity to act in a particular manner and that he acted in conformity with that propensity at the time in question. Thus, Knutson would not be able to introduce Rasicot's alleged use of excessive force in the past to prove that he had a propensity to use excessive force and that he acted in conformity with that propensity when he used excessive force by kicking Knuston into to cell.
On the other hand, Minnesota Rule of Evidence 404(b) states that evidence of other crimes, wrongs, or acts are admissible to prove, inter alia, a common plan or scheme or modus operandi by an individual. My research reveals that courts are split as to whether evidence of past police brutality is admissible as evidence of a common plan or scheme. In Carson v. Polley, 689 F.2d 562, 571-72 (5th Cir. 1982), the Fifth Circuit found that a court erred in refusing to admit a performance evaluation of a deputy accused of using excessive force. The Fifth Circuit noted that this evaluation stated that the deputy needed to work on controlling his temper and found that it was thus admissible under Rule 404(b) to prove intent or common plan or scheme. Conversely, in Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005), the Tenth Circuit found that previous claims filed against an officer for using excessive force were inadmissible under Rule 404(b) in the officer's trial for using excessive force under a modus operandi theory.
It seems to me that the Tenth Circuit's approach is correct. "Common plan or scheme" evidence is typically admissible in two circumstances. The first circumstance is when it can be used to show modus operandi or a signature crime. An example of this circumstance can be found in "Home Alone," where Joe Pesci and Daniel Stern are the "wet bandits," who clog kitchen sinks and leave the water running after every burglary. Unfortunately, however, there is nothing unique about police brutality in general. Furthermore, there didn't seem to be any allegations that Rasicot committed his alleged acts of brutality in a "special" manner.
The second circumstance is when several criminal acts for successive steps in a larger criminal enterprise. Thus, let's say that a defendant steals a gun, steal blueprints to a bank, and then robs the bank with the stolen gun. Evidence that the defendant stole the gun and the blueprints would be admissible in the defendant's prosecution for bank robbery because those acts were part of the larger criminal enterprise. No such "larger enterprise," however, exists in excessive force cases.