CA7: In a § 1983 case, “Simply put, evidence of a prior arrest does not support a conclusion that the arrested person has in fact broken the law.”

Plaintiff sued the City of Chicago for a 2008 false arrest that the officers say never happened, and there was a defense verdict. Evidence of plaintiff’s prior arrests between 1983 and 1999 were irrelevant and prejudicial. An arrest doesn’t mean a person committed a crime. Nelson v. City of Chicago, 2016 U.S. App. LEXIS 959 (7th Cir. Jan. 20, 2016):

In her posttrial ruling, the judge added that the evidence of Nelson’s prior arrests was admissible to impeach his “character for truthful and law-abiding citizenship.” We don’t see how. First, a witness’s character for truthfulness may be impeached only by specific instances of prior conduct and only “if they are probative of the character for truthfulness or untruthfulness.” Fed. R. Evid. 608(b). Unlike a criminal conviction, an arrest is not, in itself, probative of the arrested person’s character for truthfulness. See Michelson v. United States, 335 U.S. 469, 482, 69 S. Ct. 213, 93 L. Ed. 168 (1948) (“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.”); cf. Fed. R. Evid. 609 (permitting impeachment by evidence that the witness has been convicted of a crime). If the specific conduct underlying the arrest is probative of the witness’s character for truthfulness, the conduct itself may be inquired into on cross-examination, subject to Rule 403 balancing for undue prejudice or some other ground for excluding the evidence. But the defense attorney did not seek permission to cross-examine Nelson about any specific conduct, nor are we given any reason to believe that any of his arrests were based on allegations of dishonest or untruthful conduct.

The judge’s “law-abiding citizenship” rationale for admitting this evidence is likewise flawed. Simply put, evidence of a prior arrest does not support a conclusion that the arrested person has in fact broken the law.

So it’s no surprise that the defendants have all but abandoned the impeachment rationale on appeal and argue instead that the arrest evidence was relevant to the issue of damages. Their theory is that Nelson’s history of arrests either mitigated his fear during the traffic stop (because being arrested was old hat for him) or augmented it (because his numerous encounters with the police suggest that some of his emotional injury might have been preexisting).²

2. It is unclear whether the damages “mitigation” theory offered by the defendants is viable given the rule that “[t]he tortfeasor takes his victim as he finds him. That is the ‘eggshell skull’ rule, which like most principles of the common law of torts is applicable to a constitutional tort case brought under 42 U.S.C. § 1983.” Richman v. Sheahan, 512 F.3d 876, 884 (7th Cir. 2008) (internal citations omitted).

We’ve cast doubt on this type of argument before. …