UNITED STATES OF AMERICA v. MARK COWDEN
US Court of Appeals for the Fourth Circuit, Keenan, Feb. 16, 2018,
Evidence – Prior Bad Acts – An officer’s prior excessive force complaints could be used against him to show that he acted consistently with his history of using force to punish those that he felt had disrespected law-enforcement

Facts:
In 2015, a West Virginia Trooper initiated a car. After the driver of the vehicle, Ryan Hamrick, failed a field sobriety test, the Trooper attempted to place Hamrick under arrest. Hamrick resisted and
engaged in a physical altercation with the Trooper. However, the Trooper was eventually able to place Hamrick under arrest. Hamrick received a “goose egg” on his forehead and had dried blood on his face, but was not actively bleeding.
Local law-enforcement responded to assist and transported Hamrick back to the Hancock County Sheriff’s Office (HCSO) for processing.
Cowden was a lieutenant with the HCSO and was working at the time that Hamrick was transported there. When he learned that Hamrick had resisted arrest, he stated that Hamrick was “not going to act that way with us, this is our house, play by our rules.”
Hamrick was handcuffed and was being escorted inside by Lt. Cowden as well as a sergeant and three officers, including the initial arresting officer. As Cowden and the sergeant were walking Hamrick in, Hamrick started to pull away from them.
In response, Cowden threw Hamrick against a wall. “While Hamrick was facing the wall, still in handcuffs and not resisting the officers, Cowden pulled Hamrick’s head away from the wall and slammed his head and face back into the wall. Cowden again stated that the HCSO was ‘our house,’ and that
Hamrick had to ‘play by our rules.'”
After slamming Hamrick’s face into the wall, Cowden moved Hamrick in front of the elevator and struck him in the back of the head with a closed fist. Although Cowden testified that he was responding to Hamrick’s attempt to “head-butt” him, the other officers present refuted that claim.
When the elevator doors opened, Cowden grabbed Hamrick by the throat, knocked him by the head into the corner of the elevator, and yelled at him about resisting law enforcement officers.
At this point, an officer intervened and stopped Cowden. Hamrick had sustained a gash above his left eye and a cut above his nose. He was bleeding from his nose and mouth, and there was blood on the floor and the walls of the elevator and the hallway.
Hamrick was transported for medical attention and processed.
Based on these events and the ensuing investigation, Cowden was criminally charged federally for Deprivation of Rights Under Color of Law and False Statement to Federal Investigators.
At trial, the government used two prior use-of-force complaints as evidence against Cowden.
In one, Cowden and two other officers responded to a report of a domestic disturbance. On that occasion, without warning or provocation, Cowden used the rim of his hat to hit the suspect in the nose, causing his nose to bleed. The County Sheriff later walked in and observed Cowden yelling at the suspect, forcing the suspect to the ground and wrestling with him “rather roughly.” The sheriff saw that Cowden was “in a rage” and pulled him away. Cowden insisted that the suspect had attempted to “headbutt” him. However, the other officers who were present during the incident did not corroborate Cowden’s version of the events.
In the other, Cowden was investigating an incident at a nightclub when a mouthy patron pointed a finger at him and told him that he needed to learn respect. Cowden shoved the patron into a car and punched him in the face. Cowden claimed that the patron threw a punch at him, but other officers present did not corroborate Cowden’s version of the events.
Cowden objected to introduction of these uses of force, but the trial judge allowed the jury to hear them.
The judge instructed the jury that it could not consider these prior uses of force to decide whether Cowden committed the acts charged. However, they could consider these uses of force “for other very limited purposes, such as to prove the defendant had the state of mind or the intent necessary to
commit the crime charged in the indictment, and to prove that the defendant did not commit the crime charged in the indictment by either accident or mistake.”
Cowden was subsequently convicted of Deprivation of Rights Under Color of Law and sentenced to 18 months imprisonment along with probation and restitution.
Cowden appealed, arguing that his prior uses of force should not have been allowed into evidence against him. He also argued that he should not have to pay restitution for all of Hamrick’s medical expenses, as Hamrick was partially injured before Cowden assaulted him.

Held: The Fourth Circuit held that the prior excessive force complaints were properly used against Cowden and that he would have to pay the full restitution as ordered.

Evidence – Bad Character – Under Federal Rules, evidence of a person’s bad character can’t be used to prove that they committed a bad act

Evidence – Prior Bad Acts – Evidence of prior bad acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Evidence – Prior Bad Acts – To avoid the likelihood that a jury will convict a defendant based on his character instead of the facts of the case, evidence of prior bad acts can only be introduced if:
(1) The evidence is relevant to an issue, such as an element of the crime, and not just to show that the defendant is a bad person
(2) The act must be “necessary” in that it helps prove an essential claim or element of the offense
(3) The evidence must be reliable
And (4) the evidence’s worth as proof must not be substantially outweighed by confusion or unfair prejudice

Prior Bad Acts – Relevance – The more closely related a prior bad act is to the issue at hand, the more “relevant” it will be considered

From the Case: Relevance – Both of Cowden’s prior uses of force “were relevant to Cowden’s use of excessive 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.” “In light of these similar circumstances, the evidence of the prior incidents demonstrated more than Cowden’s general propensity for violence. Instead, the evidence was probative of Cowden’s state of mind at the time he used excessive force, namely, of his intent to punish Hamrick for earlier defying the directions of law enforcement officers.”

Prior Bad Acts – Necessity – Evidence of a prior bad act is considered “necessary” at trial if it goes to prove an important or essential part of the case

From the Case: Cowden testified at trial that he had not intended to punish Hamrick. Instead, Cowden maintained that he had reacted in response to the threat Hamrick posed to him and to the other law enforcement officers. To contradict this, Cowden’s prior uses of force under similar situations were considered “necessary.”

Prior Bad Acts – Reliability – Evidence is considered “reliable” unless it “could not be believed by a rational and properly instructed juror.”

From the Case: Even though witnesses present at Cowden’s prior two uses of excessive force told slightly different stories, the evidence presented was considered sufficiently reliable to use at trial

Note: The Fourth Circuit did not consider whether or not the allegations of excessive force were “sustained” after internal investigation. It merely considered whether the evidence presented as a whole was “reliable.”

Prior Bad Acts – Unfair Prejudice – Prior bad acts will not be allowed into evidence if the necessity is outweighed by the danger of confusion or unfair prejudice.

From the Case: Although the “bad act” evidence unquestionably was prejudicial to Cowden, this evidence also provided significant information about Cowden’s actions when dealing with individuals he perceived as manifesting resistance to law enforcement authority. Balancing these factors, we conclude that any possible unfair prejudice did not “substantially outweigh” the probative value of this evidence.

Deprivation of Rights Under Color of Law – This crime has been committed where a government official has:
(1) willfully
(2) deprived another individual of a constitutional right
(3) while acting under color of law

Deprivation of Rights Under Color of Law – Excessive force is a violation of the Fourth Amendment and qualifies as “depriving another individual of a constitutional right.”

Deprivation of Rights Under Color of Law – To satisfy the element of “willful” conduct, the government must prove that a government official acted “with the particular purpose of violating a protected right made definite by the rule of law or recklessly disregarded the risk that he would do so.”

Deprivation of Rights Under Color of Law – Excessive force can be considered “willful” when force used is not reasonably related to a “legitimate, nonpunitive governmental objective.”

From the Case: “At the time Cowden repeatedly used physical force against Hamrick, Hamrick was fully restrained in handcuffs in the presence of six other law enforcement officers. Despite Hamrick’s loud and intoxicated demeanor, he was not offering significant resistance or otherwise acting in a threatening manner. Nonetheless, Cowden grabbed Hamrick by the throat, slammed his face into the wall, and punched Hamrick in the back of the head. While engaging in these acts of gratuitous force, Cowden repeated that the HCSO was “our house” and that Hamrick had to “play by our rules,” statements Cowden earlier had made in anticipation of Hamrick’s arrival at the HCSO station. And, notably, several of Cowden’s fellow officers who witnessed these events testified that Cowden’s actions were neither justified nor reasonable. From this evidence, the jury could conclude that Cowden, while acting
as a law enforcement officer, willfully used unreasonable force against Hamrick.”

Restitution – Where the government proved that the defendant suffered medical expenses, it was not required to prove what, if any, medical expenses the victim would have had to pay had the defendant not used excessive force against him.

From the Case: The court was not wrong to order Cowden to pay Hamrick’s full medical bill, even though Hamrick had suffered a bruise to the head prior to being transported to the station where Cowden assaulted him.