Dan Davies v. Karlen Benbenek, et al
Filing
Filed opinion of the court by Judge Manion. AFFIRMED. Diane P. Wood, Chief Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6781629-1] [6781629] [14-2558]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2558
DAN DAVIES,
Plaintiff‐Appellant,
v.
KARLEN BENBENEK, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CV 0045 — Joan B. Gottschall, Judge.
____________________
ARGUED DECEMBER 3, 2015 — DECIDED SEPTEMBER 12, 2016
____________________
Before WOOD, MANION, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Plaintiff Dan Davies sued Chicago
police officer Karlen Benbenek for using excessive force when
responding to a domestic disturbance at Davies’ home in the
summer of 2010. A trial was held and the jury found for Of‐
ficer Benbenek. On appeal Davies challenges several of the
district court’s evidentiary rulings, but his arguments are
without merit. Because the evidence challenged by Davies
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was used for a permissible purpose and was not unduly prej‐
udicial, we affirm the district court’s entry of judgment for
Officer Benbenek.
I. BACKGROUND
On June 24, 2010, Dan Davies and his then‐girlfriend Lu‐
cille Whitehead got into a physical altercation in Davies’ bed‐
room. Whitehead managed to call 911 and reported that she
and Davies had gotten into an argument and that he had
“pulled a gun” on her. Several Chicago police officers, includ‐
ing Officer Karlen Benbenek, responded to the call. The offic‐
ers kicked down the door to Davies’ home because no one an‐
swered after they knocked and announced their presence.
When the officers entered they encountered Davies, who is
paralyzed from the waist down, sitting in his wheelchair.1 Da‐
vies’ nephew was also there.
According to the police, Davies was very angry with them
for being in his house. He used profanity, yelled at them, told
them to get out, and talked about suing them. The officers
proceeded to search the house and discovered illegal items in
Davies’ bedroom. Davies asked the police if his nephew could
“take the rap” for the items, but the police declined the re‐
quest. Davies then became increasingly agitated and again
threatened to sue the officers and told them he had “sued be‐
fore.” He also spat on Officer Benbenek and made a foul com‐
ment about a tongue‐piercing she had at the time. When Of‐
ficer Benbenek told Davies he would be charged for spitting
on her, Davies threw himself from his wheelchair onto the
1 Davies has been a paraplegic since 1992.
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floor, where he continued telling the officers that he would
sue.
Davies paints a markedly different picture of his encoun‐
ter with Officer Benbenek. He testified that, once he com‐
mented on her tongue‐piercing, she grabbed him by the hair
and punched him in the face multiple times, and that he later
“w[o]ke up” on the floor choking on his own blood.
After Davies ended up on the ground, the officers called
for an ambulance and Davies was taken to the hospital. The
attending physician testified that Davies had sustained a frac‐
tured femur that was consistent with a fall. He also testified
that Davies had severe osteoporosis which made his bones
more susceptible to breaking through minor trauma.
Davies subsequently brought this civil action against Of‐
ficer Benbenek under 42 U.S.C. § 1983, alleging that she used
excessive force during the disputed encounter of June 24,
2010. Before trial, the parties filed motions in limine seeking a
ruling on whether Officer Benbenek could offer testimony
that Davies, in the course of threatening to sue the responding
officers, told them that he had sued before. The defense also
sought to present testimony that certain unidentified “items”
were recovered from Davies’ home, and that Davies was dis‐
traught when the police declined his request to pin possession
of the items on his nephew. Over Davies’ objection, the court
ultimately admitted the proposed testimony at trial. The ad‐
mitted testimony was not offered to prove that Davies had a
prior history of litigation, nor did it include any description
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of the items found in Davies’ home.2 Following trial the jury
rendered a verdict for Officer Benbenek, and the district court
entered judgment accordingly.
II. DISCUSSION
Davies’ appeal focuses on the district court’s evidentiary
rulings. He argues that the district court erred by allowing the
responding officers to testify (1) that he told them he had sued
before, and (2) that he became upset when they refused to
hold his nephew responsible for the items that were discov‐
ered in his home. Davies contends that this testimony should
have been excluded as impermissible character evidence un‐
der Federal Rule of Evidence 404(b), and as unfairly prejudi‐
cial under Federal Rule of Evidence 403.
We review the district court’s evidentiary rulings for
abuse of discretion and will reverse only if “no reasonable
person could take the view adopted by the trial court.” United
States v. Causey, 748 F.3d 310, 315–16 (7th Cir. 2014) (internal
marks omitted). Under Rule 404(b), evidence of a crime,
wrong, or other act is not admissible to prove a person’s char‐
acter or propensity to act a certain way. Fed. R. Evid.
404(b)(1). Such evidence may be admissible, however, for an‐
other purpose, such as proving motive, opportunity, or intent.
Fed. R. Evid. 404(b)(2). Under Rule 403, the district court is
allowed to exclude evidence whose probative value is sub‐
stantially outweighed by a danger of unfair prejudice. Fed. R.
2 The responding officers also testified at trial that Davies told them
he had “won” an earlier lawsuit and “made money” that way, but the dis‐
trict court struck that testimony on grounds that it referenced the result of
Davies’ alleged earlier litigation.
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Evid. 403. Evidence is unfairly prejudicial “only if it will in‐
duce the jury to decide the case on an improper basis, com‐
monly an emotional one, rather than on the evidence pre‐
sented.” United States v. Bogan, 267 F.3d 614, 623 (7th Cir. 2001)
(internal marks omitted). We give “special deference” to the
district court’s admission of evidence under Rule 403. United
States v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008) (internal
marks omitted).
A. Testimony that Davies said he had sued before
Davies argues that the responding officers’ testimony that
he told them he had “sued before” was inadmissible under
Rule 404(b) because it constituted other‐act evidence that was
used to tarnish his character. He also argues that the testi‐
mony should have been excluded under Rule 403 because it
resulted in severe prejudice with no corresponding probative
value. Neither argument has merit.
First, Rule 404(b) does not apply here because the chal‐
lenged testimony is not other‐act evidence that was used to
prove Davies’ character. The responding officers testified
only that Davies said he had sued before, not that he did sue
before. In doing so, the officers simply related what was said
and done in the critical moments surrounding Officer
Benbenek’s alleged use of excessive force. Davies’ words and
actions at that time are central to the disputed circumstances
underlying his claim of excessive force; they are not “other
acts” used to establish a propensity inference in violation of
Rule 404(b). See Agushi v. Duerr, 196 F.3d 754, 761 (7th Cir.
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1999) (party’s statement made days before alleged use of ex‐
cessive force was nonetheless “part and parcel of the case at
hand and thus [] not covered by Rule 404(b)”).3
Davies has not made the required showing under Rule 403
either. Davies’ comments to the responding officers are highly
probative in evaluating the disputed encounter with Officer
Benbenek that lies at the heart of his claim for excessive force.
On the other side of the scale, there is nothing “inherently
emotional or incendiary” about the officers’ testimony that
Davies said he had previously sued, see United States v. Strong,
485 F.3d 985, 991 (7th Cir. 2007), nor has Davies explained
how the testimony would otherwise induce a jury to decide
the case on an improper basis. Accordingly, the district court
did not abuse its discretion in concluding that the probative
value of this testimony was not substantially outweighed by
the danger of unfair prejudice.4
3 Even if the testimony that Davies said he had sued before were con‐
strued as other‐act evidence, it still would not run afoul of Rule 404(b),
since there is no indication that it was used for an improper propensity
inference. Davies asserts that the testimony was used to show that he had
a propensity to file frivolous lawsuits. But the mere suggestion that Davies
may have “sued before” says nothing about the merits of the supposed
earlier litigation; in recounting Davies’ remarks at the scene, the officers
did not attest that Davies had filed any previous lawsuits at all, let alone
frivolous ones.
4 Davies argues that he was further prejudiced by the officers’ testi‐
mony that he said he had won an earlier lawsuit and made money that
way, but that testimony was stricken, and in any event the suggestion that
Davies had previously filed a successful lawsuit is hardly prejudicial.
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B. Testimony that certain items were found by the police
Davies next argues that the district court erred by permit‐
ting the police to testify that they found certain items in his
home, and that he became increasingly frantic when they re‐
fused his request to hold his nephew accountable for the
items. We reject Davies’ argument that this testimony should
have been excluded under Rules 404(b) and 403.
Once again, the challenged testimony is not evidence of
other acts within the parameters of Rule 404(b). The testimony
centers on Davies’ interactions with the responding officers
just before his contested exchange with Officer Benbenek. Be‐
cause Davies’ remarks to the police at that time are an integral
part of the facts and circumstances forming the basis of his
case, Rule 404(b) does not apply. See Agushi, 196 F.3d at 761.
Turning to Rule 403’s balancing test, the items‐testimony
was clearly relevant to the pivotal question of how Davies ul‐
timately ended up on the floor (Davies’ escalating agitation
when confronted with the items makes it more likely that he
threw himself from his wheelchair in the heat of the moment),
while any resulting prejudice was mitigated by the fact that
the items were not described to the jury in any way. The dis‐
trict court did not abuse its broad discretion in admitting this
testimony at trial.
III. CONCLUSION
The district court’s evidentiary rulings were not an abuse
of discretion. The challenged testimony was not impermissi‐
ble character evidence under Rule 404(b), nor was it unduly
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prejudicial under Rule 403. Finding no error, we do not ad‐
dress Officer Benbenek’s alternative argument that any error
was harmless.
AFFIRMED.
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