Cop's Prior Uses of Force Properly Admitted Under 404(b) In Civil Rights Prosecution

US v. Cowden: Cowden was an officer with the Hancock County (WV) Sheriff's Office. One night in January, 2015 he was on duty when a driver, Hamrick, was brought in after being arrested for DUI.  At the scene of the arrest Hamrick "resisted and engaged in a physical altercation" with another officer, but by the time he arrived at the station he was "loud" and had a "drunken demeanor" but was no longer "physically resisting." Nonetheless, Cowden said Hamrick was "not going to act that way with us, this is our house, play by our rules" and another officer called his mood "unusually hostile." Cowden "pulled Hamrick toward the elevator and threw him against the wall" then "pulled Hamrick's head away from the wall and slammed his head and face back into the wall." Cowden again said that this was "our house" and that Hamrick would "play by our rules" in a "tone of voice and use of force that indicated he was losing control." Cowden also punched Hamrick in the back of the head and threw him into the elevator. Hamrick received injuries that needed medical treatment to the tune of $3044. Hamrick was charged with deprivation of rights under the color of law and making a false statement. He was convicted on the first charge, but acquitted on the second. He was sentenced to 18 months in prison and ordered to pay restitution to Hamrick to pay his medical bill.

On appeal the Fourth Circuit affirmed Cowden's conviction. Cowden's primary argument on appeal was that the district court should not have allowed the jury to hear 404(b) evidence about two prior incidents where he used excessive force. The court disagreed, holding that the incidents were relevant to "Cowden's use of force in circumstances when Cowden or others were not actually threatened, but Cowden perceived that an individual was not showing adequate respect to law enforcement officers." That was particularly true because Cowden testified at trial that he "had not intended to punish Hamrick." Finally, while the evidence was "unquestionably . . . prejudicial" it also "provided information about Cowden's actions when dealing with individuals he perceived as manifesting resistance to law enforcement authority." The court also rejected Cowden's arguments that the Government had failed to show that he acted "willfully" in dealing with Hamrick and that he should not have been ordered to pay restitution.