PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-1604

MAKIA SMITH,

Plaintiff - Appellant,

v.

BALTIMORE CITY POLICE DEPARTMENT; ANTHONY W. BATTS, in his official capacity as Commissioner of the Baltimore City Police Department; OFFICER NATHAN CHURCH, in both his official and individual capacity as an officer of the Baltimore City Police Department; OFFICER KENNETH CAMPBELL, in both his official and individual capacity as an officer of the Baltimore City Police Department,

Defendants – Appellees,

and

OFFICER WILLIAM PILKERTON, JR., in both his official and individual capacity as an officer of the Baltimore City Police Department; OFFICER NATHAN ULMER, in both his official and individual capacity as an officer of the Baltimore City Police Department,

Defendants.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:13-cv-01352-JFM)

Argued: September 20, 2016 Decided: October 27, 2016

Amended: November 1, 2016 Before KEENAN, FLOYD, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Keenan and Judge Floyd joined.

ARGUED: Lawrence S. Greenberg, GREENBERG LAW OFFICE, Baltimore, Maryland, for Appellant. Suzanne Sangree, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Zebulan P. Snyder, GREENBERG LAW OFFICE, Baltimore, Maryland, for Appellant. George Nilson, City Solicitor of Baltimore City, William R. Phelan, Chief Solicitor, Glenn Marrow, Chief of Police Legal Affairs Division, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

2 THACKER, Circuit Judge:

Makia Smith (“Smith” or “Appellant”) sued the

Baltimore City Police Department (“BCPD”) and several individual

officers pursuant to

and Maryland law. Smith

claimed two officers battered and unlawfully arrested her after

they saw her filming them as they arrested a juvenile. At

trial, the district court allowed defense counsel to elicit

testimony that Smith had been arrested three times before. The

jury ultimately returned a verdict in favor of the two officers

on all counts.

We fail to see how Smith’s prior arrests were relevant

to her claim for damages, which was the sole reason the district

court admitted them, and any probative value of those arrests

was far outweighed by prejudice to Smith. The admission of such

evidence was prohibited by Federal Rule of Evidence 404(b) and

was not harmless. Therefore, we reverse and remand for a new

trial.

I.

A.

Officer Nathan Church of the BCPD testified to the

following facts at the trial. On Friday, March 8, 2012, just as

high school students were being released from school, Officer

Church received a call for back-up to the 2800 block of Harford

Road in Baltimore. He arrived to find several juveniles running

3 through the streets and another officer, Talmadge Jackson,

attempting to arrest one of them. When Officer Church arrived,

the juvenile was giving Officer Jackson a struggle. Officer

Church and several other officers formed a “half-horseshoe”

barrier between the public and Officer Jackson to “keep other

juveniles from getting close to [Officer Jackson].” S.J.A. 7. 1

Meanwhile, Officer Church heard tires screeching and

turned to see multiple vehicles stopped on Harford Road. He

testified that traffic was stopped and/or moving extremely

slowly, and Smith’s car was “blocking all the traffic behind

her.” S.J.A. 10-11. Smith was standing outside of her car with

her phone up as if videotaping. Officer Church, over 50 feet

away from Smith, yelled, “Ma’am, pull your car to the side or

keep on going.”

. Smith replied, “I’m not going to

let you hurt that young boy. I ain’t moving -- I ain’t moving

[shit].”

Officer Church “quickstep[ped]” toward Appellant and

again told her to move, and she responded, “I’m not moving

[shit]. [Fuck] y’all.” S.J.A. 13-14. Officer Church moved

closer, told her this was a traffic stop, and asked for her

license. Smith “ran back into her car” and sat with her back

1 Citations to the “S.J.A.” refer to the Supplemental Joint Appendix filed by the parties in this appeal.

4 toward the passenger door, which Officer Church described as

“not normal[]” and indicative of someone “trying to flee from

the scene.”

. At that point, Officer Church

reached in the car and was trying to grab for her keys, but

Appellant began “kicking [him], throwing fists at [him], [and]

scratching [him].”

. At one point he was “being hit

with a[n] [unidentified] hard object.”

He placed his right

arm on the vehicle and reached in the car with his left arm,

“just trying to grab her and pull her out of the car.”

She

was “flailing” and Office Church was “keeping [his] face . . .

out of harm’s way.”

. Officer Church succeeded in

pulling Smith out of the car, but he did not know what he

grabbed onto, whether it was her hair or something else. He

handcuffed her and began to effect an arrest. Pictures of

Officer Church with visible red marks and scratch marks on his

arm and neck were admitted into evidence.

Smith’s version of the facts is quite different.

According to her, while she was driving with her two-year-old

daughter on Harford Road, she saw Officer Jackson arresting the

juvenile and became concerned when she saw the officer’s “knee

pressed against his temple.” J.A. 94. 2 She got out of her

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

5 vehicle, took the keys out, and pulled her cell phone up as if

videoing what the officers were doing. Officer Church yelled,

“What are you doing?” and Smith replied, “I’m just trying to

make sure that you guys are not hurting that little boy and

trying to make sure that he’s okay.”

.

At that point, Officer Church “started coming towards

the vehicle . . . [l]ike The Incredible Hulk, like Manny

Pacquiao . . . in an aggressive . . . manner,” and once he got

closer to the vehicle, he started running. J.A. 97. Smith

tried to get back in the car, but at that point, she could not

have driven anywhere because traffic was still stopped. Officer

Church came over to the car, “snatched the phone out of [her]

hand and he kicked it and he stomped it.”

. He then

said, “You want to film things, B[itch], film this. I should

knock your teeth out.”

Smith had one foot in the car and

tried to get her other foot in the car when Officer Church “took

both of his hands and dragged [her] out of the car” by her hair.

She did not punch, scratch, or kick Officer Church before

he grabbed her hair because “that kind of thinking gets you

killed,” although she admitted to “flailing” to try and get

Officer Church off of her.

. Then she felt three

or four other people join in but could not really see them. She

felt someone hit her in the back of the head and then she “just

blacked out.”

. The next thing she remembered is

6 being slammed onto the car and then seeing her daughter crying.

Another officer, Officer Campbell, pulled her left arm back and

all the way up and said, “Did you have enough yet? Do you want

me to break it?”

.

As they began to arrest her, Smith asked Officer

Church if she could call her mother to come get her baby.

Officer Church taunted, “No. Child Protective Services will be

here to get your daughter.” J.A. 105. Smith asked a bystander

if she could come get her daughter out of the car, and the

bystander did so. The officers put Smith in the patrol car, and

she began yelling out her mother’s phone number; another officer

finally gave the bystander her mother’s phone number.

Smith was taken away in the transport vehicle to a

central booking station. Because she was complaining of head

and neck pain, she was taken to a nearby hospital before

booking. She was eventually charged with second-degree assault

of Officer Church, resisting or interfering with arrest, failing

to display a license on demand, willfully disobeying a lawful

order of the police, and causing a vehicle to obstruct a free

vehicle passage of a roadway. On January 3, 2013, after nearly

a year of pre-trial release obligations, the charges against

Smith were dropped via a nolle prosequi disposition.

7 B.

On May 8, 2013, Smith filed the instant action in the

District of Maryland against the BCPD; Anthony Batts,

Commissioner of the BCPD; Office Church; Officer Campbell; and

two other officers at the scene, William Pilkerton and Nathan

Ulmer (collectively, “Appellees”). The operative complaint,

amended on October 9, 2014, alleged 13 counts: excessive force,

deprivation of property without due process, and violations of

the First and Fourth Amendments under

;

violation of attendant rights under the state constitution;

Monell 3 claims against the city; and state law claims of

conversion, battery, false arrest, false imprisonment, and

intentional infliction of emotional distress. Smith claimed a

minimum of $1.5 million in damages for, inter alia, “emotional

trauma, humiliation, distress, bodily injury and damage to

personal property.” J.A. 37-38.

The original district court judge to whom the case was

assigned granted summary judgment to Officers Pilkerton and

Ulmer on some of the counts and determined the case should be

tried in two phases. First the jury would consider claims

against Officers Church and Campbell, and then, the Monell

claims against the city would proceed in a second phase if the

3 Monell v. Dep’t of Soc. Servs.,

(1978).

8 jury determined any constitutional harm had occurred. As a

result, at the trial underlying this appeal, only five claims

proceeded against Officer Church -- the First Amendment, Fourth

Amendment, excessive force, battery, and false arrest claims --

and two claims against Officer Campbell -- the excessive force

and battery claims.

Notably, on March 9, 2015, Smith filed a motion in

limine to exclude “all evidence or discussion of [Appellant’s]

prior arrests.” J.A. 81. Smith had been arrested three times:

for second degree assault in 2005, fleeing and eluding in 2006,

and second degree assault in 2010. 4 No convictions followed any

of Smith’s prior arrests. The district court granted the motion

on March 11, explaining, “There shall be no reference [at trial]

to [Appellant]’s prior arrests.” Id. at 86. On March 26, the

case was reassigned to a new district court judge and proceeded

to trial.

During the three-day trial in March 2015, the

following relevant exchanges occurred. First, at a bench

conference on March 25, directly before Smith’s mother testified

on her behalf, Appellees’ counsel said, “I expect plaintiff’s

counsel to elicit [testimony from Smith’s mother of] pain and

4 The motion also mentioned a fourth arrest, which was not presented to the jury.

9 suffering after the event, [but] one of the Motions in Limine is

that we are not allowed to go into prior arrests. . . . [I]f

[plaintiff’s counsel] go[es] into it, I believe they opened the

door.” S.J.A. 79. The court explained to Smith’s counsel, “I

haven’t heard the testimony yet. But be forewarned. It makes

sense to me.” Id. at 80.

Smith’s mother then testified as follows:

Following the incident, . . . Makia cried every day. She held onto [her daughter] and continued to apologize to her for what had happened. You know, she was, “I’m sorry. I didn’t know that was going to happen. I’m sorry.”

. . . .

She didn’t eat, and at night she would just be up crying . . . in her room crying.

. . . .

Her eyes would practically close where she just continued to cry and be depressed and sad.

Id. at 83-84. Later that day, just before Smith testified,

Smith’s counsel reiterated at a bench conference that the prior

arrests should not come in. The district court explained,

I have tremendous respect for [the judge who originally ruled on the motion in limine]. He has not heard the evidence. He didn’t hear the mother give overemotional testimony which was shaded with hearsay . . . .

I am letting it in. I think it goes to whether or not she really suffered pain and

10 suffering from this incident. So I’m letting it in for that reason.

Id. at 87. The court added, “I think [the original judge] is

right, you don’t attack somebody’s credibility by an arrest and

not a conviction, but I’m letting it in.” Id.

During Appellant’s testimony that same day, the

following exchange took place:

[SMITH]: Every time I see a officer now, I immediately tense up. I remember once my taillight was out and I got pulled over, I was like extremely scared. Every time I see anything that goes on on TV, I kind of get upset because I really trusted in the officers. I was raised to respect officers and that they were people that should be respected, and I kind of was let down.

BY [Smith’s counsel]:

Q. Had you ever had an interaction like this with an officer before?

A. No.

Q. Not just the Baltimore City Police Department, but anywhere?

A. No.

Q. What you just described, the problems you had, do you still have those problems?

A. Most definitely.

J.A. 118 (emphasis supplied).

* * * *

Then, during cross-examination, the following

testimony occurred:

11 BY [BCPD’s counsel]:

Q. Ma’am, you said you were traumatized by this event; is that correct? A. I think anybody would be. Q. Okay. And you also testified that you were brought up to have respect for police and now you feel a little different; is that correct? A. I don’t feel that they shouldn’t be respected. I feel like I was let down by them. Q. You also remember when I had an opportunity to speak to you in my office, I asked you, I said this wasn’t your first rodeo, was it? [Smith’s counsel]: Objection. THE COURT: Let me tell you, it’s important -- I think I know where [BCPD’s counsel] is going, and I’m overruling the objection, which is understandable. If the plaintiff -- am I right, the rodeo means arrest? [BCPD’s counsel]: That’s correct, Your Honor. THE COURT: If the plaintiff was arrested and the charges were dismissed, which is, I think, what happened, you can’t use an arrest, and it’s essential that you understand that. You cannot use the mere fact of an arrest to judge the plaintiff’s credibility. That is absolutely essential. Rightly or wrongly, having heard the testimony, I think that since the plaintiff says this has had such an effect on her that the fact of the arrest may be relevant to the amount of damages, if any, that she suffered. So that I’m letting it in.

12 But please understand that you cannot consider an arrest to judge the plaintiff’s credibility. That’s absolutely against the rules, and it’s a good rule, because they haven’t -- you know, there hasn’t been a trial. And there’s an objection to this, and that’s understandable. . . . . [Smith’s counsel]: And in addition to the prior ruling from [the original judge] that you -- THE COURT: [He] made his ruling, but [he] hadn’t heard the testimony. [Smith’s counsel]: Okay. . . . . BY [BCPD’s counsel]: Q. When you were in my office, I asked you, I said this wasn’t your first rodeo, was it? . . . . [SMITH]: Yes, I have been arrested before. Q. Right. And, matter of fact, when I asked you how many times, you said, “Two. No, I think three”; correct? A. I think so.

J.A. 133-35.

* * * * Appellees did not ask any further questions about the

prior arrests. But on redirect examination, Smith’s counsel

asked about the nature of the prior arrests. As to the first

(second degree assault), Smith explained the father of her child

sent his girlfriend “to beat [her] up,” and she merely defended

13 herself. J.A. 136. The second (fleeing and eluding) occurred

when an officer tried to her pull her over, and she kept driving

to pull into a lit area, rather than a dark area. The officer

arrested her, but when she explained herself, he apologized.

Finally, as to the third arrest (second degree assault), the

father of her child showed up in the middle of the night and

dragged her baby out of the house in her car seat, threw her out

into the grass, and “tousl[ed]” Appellant around, and again,

Appellant defended herself. Id.

The jury returned a verdict in favor of Officers

Church and Campbell on all counts on March 30, 2015. 5 Appellant

moved for a new trial, raising an unrelated issue, but her

request was denied. She then filed this appeal, raising only

one issue: whether the district court committed reversible error

in admitting evidence of Appellant’s prior arrests.

II.

We review the district court’s evidentiary decisions

for abuse of discretion. See United States v. Lighty,

(4th Cir. 2010). An abuse of discretion occurs only

5 The district court later entered judgment in favor of BCPD and Batts pursuant to City of Los Angeles v. Heller,

(1986) (holding that where no underlying constitutional violation occurred, the city cannot be liable under Monell). See Order, Smith v. Baltimore City Police Dep’t, No. 1:13-cv- 1352 (D. Md. June 17, 2015), ECF No. 165.

14 when the district court acts “arbitrarily or irrationally” in

admitting evidence. United States v. Benkahla,

(4th Cir. 2008) (internal quotation marks omitted). Such

evidentiary rulings are, however, “subject . . . to harmless

error review.” United States v. Johnson,

(4th

Cir. 2009). “Where error is founded on a violation of Rule

404(b), the test for harmlessness is whether we can say with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” United States v.

Madden,

(4th Cir. 1994) (internal quotation

marks omitted).

III.

This appeal turns on whether the fact that Smith was

arrested three times before -- with no evidence that her prior

arrests involved a struggle of any kind with police and with no

convictions stemming from the arrests -- makes it more or less

probable that she suffered emotional damages in the case at

hand, where the police allegedly cursed at her, beat her, and

threatened to turn her child over to Child Protective Services.

We think not, and indeed, the admission of that fact could

easily have tipped the scales in what the district court itself

called “a tough case” that boiled down to a classic he-said,

she-said dispute. J.A. 158.

15 A.

Federal Rule of Evidence 404(b) prohibits the

admission of “[e]vidence of a crime, wrong, or other act . . .

to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the

character.” Fed. R. Evid. 404(b)(1). Prior act evidence is

admissible, however, to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b)(2).

We utilize a four-part test to assess admissibility of

prior-act evidence: “(1) the prior-act evidence must be relevant

to an issue other than character, such as intent; (2) it must be

necessary to prove an element of the [claim]; (3) it must be

reliable; and (4) its probative value must not be substantially

outweighed by its prejudicial nature.” United States v. Garcia-

Lagunas, --- F.3d ---,

(4th Cir. Sept. 1,

2016) (alteration and internal quotation marks omitted). In her

opening brief, Smith only questions the relevance and

prejudicial nature of the prior arrests, so we limit our

discussion to those two issues.

1.

Relevance

It is well established that “a witness, whether a

party or not, may not be asked questions as to irrelevant

16 matters on cross-examination for the purpose of . . .

discrediting [her].” United States v. Chase,

(4th Cir. 1967). Generally, “[r]elevant evidence is admissible”

unless otherwise prohibited by the Constitution, the Rules of

Evidence, statutes, or other rules prescribed by the Supreme

Court. Fed. R. Evid. 402. Evidence is relevant if “it has any

tendency to make a fact more or less probable than it would be

without the evidence,” and “the fact is of consequence in

determining the action.” Fed. R. Evid. 401(a), (b).

Under Rule 404(b), “admission of evidence of other bad

acts to assist the jury in measuring the extent of damages is a

legitimate, non-character-based use of such evidence.” Udemba

v. Nicoli,

(1st Cir. 2001) (citing Lewis v. Dist.

of Columbia,

(D.C. Cir. 1986)) (emphasis

supplied). But that evidence still must have “probative value

on the question of . . . damages” in the case at hand. Nelson

v. City of Chicago,

(7th Cir. 2016)

(internal quotation marks omitted).

In Nelson, the plaintiff, Larry Nelson, sued officers

and the City of Chicago pursuant to § 1983 when Chicago police

officers pulled him over, pointed a gun at him, threatened to

kill him, and searched his car for no apparent reason. See

Nelson,

. At trial, the district court allowed

defense counsel to introduce Nelson’s arrest record, which

17 included nine arrests between 1983 and 1999 and one in 2005.

See

.

Nelson moved in limine to exclude the evidence of

prior arrests, but then he testified about his emotional

distress during the traffic stop, explaining, “I was terrified,

humiliated . . . I feared for my life.” Nelson,

. The court then granted defense counsel’s request to

introduce the prior arrest evidence, but explained it could only

come in for impeachment purposes and “on the theory that some of

[Nelson’s] fear of the police may have been attributable to his

earlier arrests.”

. The district court gave no

limiting instruction, although it prohibited mention of the

evidence in closing argument. The jury returned a verdict in

favor of the police. See

.

The Seventh Circuit found reversible error. First, it

concluded the evidence was not relevant. The theories that his

arrest history “mitigated his fear during the traffic stop” or

“augmented it,” were “tenuous at best,” and the arrest history

had “miniscule probative value on the question of his damages.”

Nelson,

(emphases in original) (internal

quotation marks omitted). Indeed, “the arrests were distant in

time,” and “Nelson carefully limited his claimed emotional

injury to the fear he felt during the 30 minutes of the traffic

stop itself.”

; see also

(“Although [Nelson]

18 said he remained angry about the incident despite the passage of

time, he never claimed that the experience left him fearful of

the police more generally.”). The court also warned that

allowing such evidence in § 1983 cases “would seemingly permit

any civil-rights plaintiff’s criminal history to come in on the

issue of emotional-distress damages, no matter how tenuous a

connection the evidence has to the issue of damages or how

central a role emotional distress plays during the plaintiff’s

case.” Id. (quoting Barber v. City of Chicago,

(7th Cir. 2013)).

The court then decided the error was not harmless:

“The jury heard that Nelson had been arrested numerous times,

making him appear particularly unsympathetic. The trial turned

entirely on his credibility, so the harm caused by improperly

admitting this damaging evidence would naturally be

substantial.” Nelson,

. And even though

defense counsel only asked one question and elicited only the

fact of the prior arrests, the court explained, “[T]hat single

question was especially damning, referring to ‘numerous’ prior

arrests.”

Some decisions involving prior arrests allegedly

bearing on damages, however, have gone the other way. See,

e.g., Udemba,

(in § 1983 appeal, affirming

district court’s finding that evidence of subsequent arrest was

19 relevant to a contested issue in the case -- the extent of

damages attributable to emotional distress); Karnes v. Skrutski,

(3d Cir. 1995) (finding no abuse of discretion

in admitting evidence of prior arrest in § 1983 action where

plaintiff contended that the underlying incident diminished his

respect for police and, thus, caused him damage), abrogated on

other grounds as recognized in Curley v. Klem,

(3d

Cir. 2007); Montoya v. Sheldon,

(D.N.M. 2012) (allowing evidence of prior arrests in § 1983

action, explaining they “are relevant to the issue of

[plaintiff’s] emotional distress damages, because the amount of

times and the manner in which [plaintiff] had been arrested

. . . makes more or less probable the Defendants’ arrest

emotionally distressed him”).

Considering Smith’s argument “with meticulous regard

to the facts of [her] case,” United States v. Hernandez,

(4th Cir. 1992) (internal quotation marks

omitted), we find this case on par with Nelson, and we find the

reasoning of Nelson to be sound. Like Nelson, Smith did not

claim damages because she is now more fearful of police

generally; in fact, her testimony at trial was that she felt

“let down by them” but still thought they deserved respect.

J.A. 133. Rather, in her Amended Complaint she claims damages

for the allegedly unlawful arrest and use of excessive force

20 that occurred on March 8, 2012, and emotional damages stemming

from that encounter. See id. at 37 (claiming damages for

“emotional trauma, humiliation, distress . . . suffered from the

acts of the Defendants” (emphasis supplied)).

Appellees’ relevance argument also falls apart given

the backdrop of Smith’s testimony. First of all, on direct

examination, Smith clearly testified she had “[n]ever had an

interaction like this with an officer before.” J.A. 118

(emphasis supplied). Rather than try and disprove this

testimony, defense counsel pointedly asked Smith if this was her

“first rodeo,” J.A. 133, a question that Baltimore City Law

Department’s own appellate counsel admitted was “a very poor way

of asking her whether she had been arrested before,” Oral

Argument at 19:01, Smith v. Baltimore City Police Dep’t, No. 15-

1604 (4th Cir. Sept. 20, 2016), http://www.ca4.uscourts.gov/

oral-argument/listen-to-oral-arguments. This is a clear

indication that the evidence was being used to show character

and propensity, rather than to demonstrate the extent of her

damages.

Perhaps most damning to Appellees’ position, however,

is not what defense counsel said, but what he failed to say.

Appellees made no record of -- and the district court did not

inquire -- whether these prior arrests were of a similar nature

to the case at hand. “There is, after all, a material

21 difference between being arrested and being subjected to

excessive force in the course of that arrest.” Sanchez v. City

of Chicago,

(7th Cir. 2012). And by eliciting

the mere fact of Smith’s three prior arrests with no further

details, the jurors were permitted to fill in the gaps

themselves and let their imaginations run wild.

In sum, the district court did not determine whether

the three prior arrests involved conduct remotely similar to the

arrest in this case; Smith is claiming damages specifically for

the alleged conduct of the March 8, 2012 arrest; and defense

counsel’s questioning reveals the evidence was admitted for

purposes of credibility, propensity, and character of Smith.

Therefore, based on this record, the evidence was irrelevant to

damages, and the district court abused its discretion in

admitting it.

2.

Prejudice

Even if the prior arrests possessed a trace of

probative value, we find the risk of prejudice from the mention

of the prior arrests to be “enormous.” Nelson,

. For one thing, it is common sense that “evidence of prior

arrests . . . generally impugns character.”

And “[i]t’s

doubtful that the jury drew the distinction between an arrest

and a legal finding of wrongdoing[.]”

22 Of course, prejudice may be mitigated by “carefully

framed” limiting instructions regarding “proper consideration of

[the] evidence.” United States v. Lespier,

(4th Cir. 2013); see also Sanchez,

(assuming

error occurred with admission of statement that § 1983 plaintiff

had been arrested “several” times in the past, finding no harm

where court “gave a limiting instruction admonishing the jury

that it was to consider this evidence only insofar as it shed

light on the extent of any emotional harm he experienced”). But

assuming limiting instructions in this type of case are even

effective, 6 here, we cannot say the instructions were carefully

framed or sufficiently explained how the jury should have

properly considered the evidence. Rather, they afforded “meager

protection” at best. United States v. Johnson,

(4th Cir. 2010).

The court gave the following instructions to the jury

during Smith’s testimony:

If the plaintiff was arrested and the charges were dismissed, which is, I think, what happened, you can’t use an arrest, and it’s essential that you understand that.

6 Cf. United States v. Jones,

(7th Cir. 2006) (Easterbrook, J., concurring) (“Telling juries not to infer from the defendant’s criminal record that someone who violated the law once is likely to do so again is like telling jurors to ignore the pink rhinoceros that just sauntered into the courtroom.”).

23 You cannot use the mere fact of an arrest to judge the plaintiff’s credibility. That is absolutely essential.

Rightly or wrongly, having heard the testimony, I think that since the plaintiff says this has had such an effect on her that the fact of the arrest may be relevant to the amount of damages, if any, that she suffered. So that I’m letting it in.

But please understand that you cannot consider an arrest to judge the plaintiff’s credibility. That’s absolutely against the rules, and it’s a good rule, because they haven’t -- you know, there hasn’t been a trial.

J.A. 134-35. 7 This was the universe of the instruction, since

the district court did not give a limiting instruction in the

jury charge before deliberations. The court mentioned only

credibility and nothing about “character,” which is also

forbidden use of the evidence and is listed in the text of Rule

404(b) itself, or “propensity to break the law,” which is

prohibited under our case law, and which became a central issue

in this trial. United States v. Young,

(4th

Cir. 2001). And while the court instructed the jury to consider

the testimony on the issue of damages, it did not confine the

7 Appellees claim Smith did not properly object to the limiting instruction. However, directly after the district court gave the instructions above, Smith’s counsel noted his “continuing objection,” to which the district court responded, “Oh, you have an absolutely continuing objection.” J.A. 134. We find this sufficient to preserve the argument for our review.

24 jury’s consideration to that issue. Thus, prejudice in this

case far outweighed any perceived probative value of the three

arrests.

B.

Having found error, we must now consider whether it is

harmless, i.e., “whether we can say with fair assurance, after

pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error.” United States v. Madden,

(4th Cir. 1994) (internal quotation marks omitted).

We cannot say with fair assurance the judgment was not

substantially swayed by the admission of Smith’s prior arrests.

Smith’s and Officer Church’s accounts of their interaction were

extremely different. The main issues in the case

-- who assaulted whom, whether probable cause to arrest existed,

whether the force used by Officer Church was justified -- hinged

on which witness the jury believed, making the trial a classic

he-said, she-said dispute. The district court itself admitted

this was a “tough case.” J.A. 158. Thus, the jury’s view of

Smith’s credibility and character was necessarily central to its

verdict.

Once the jury heard the evidence, it is reasonable

that they assumed “where there’s smoke, there’s fire.” Nelson,

. And again, the limiting instructions in this

25 case failed to mitigate the prejudice naturally flowing from

this questioning. Cf. Barber,

(“At some point

judicial presumptions must give way to commonsense, and the

formulaic recitation of a pro forma limiting instruction may not

suffice to cure an error as it may fail to instruct the jury

meaningfully as to what it legitimately may do with the

evidence.”). Therefore, the error in this case was not

harmless and requires reversal.

IV.

For the foregoing reasons, we reverse the judgment

below and remand for a new trial.

REVERSED AND REMANDED

26