Terrence Barber v. City of Chicago

In the

United States Court of Appeals
For the Seventh Circuit
No. 12-2562

TERRENCE BARBER,
Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 C 6363 — John W. Darrah, Judge.

ARGUED FEBRUARY 11, 2013 — DECIDED AUGUST 2, 2013

Before EASTERBROOK, Chief Judge, and POSNER and TINDER,
Circuit Judges.

TINDER, Circuit Judge. This suit, brought under 42 U.S.C.
§ 1983, stems from the December 14, 2005, arrest of then-14-
year-old Terrence Barber by Chicago police officers Michael
Malaniuk and Michael Shields. Barber claims that the officers
arrested him without probable cause and that Officer Malaniuk
used excessive force in gratuitously shoving him into a holding
2 No. 12-2562

cell, causing him to strike his head on a hard surface. The
officers deny these allegations and say that Barber’s head
injury occurred because he was intoxicated and fell over his
own feet. A jury sided with the defendants, and the district
court denied Barber’s motion for a new trial. Barber appeals,
claiming that several of the district court’s evidentiary rulings
and other actions prejudiced his case. Though some of Barber’s
claims are baseless, his contentions that the district court
committed reversible error when it allowed defense counsel to
cross-examine him about a subsequent arrest for underage
drinking and about his intervening felony conviction both have
merit. We therefore reverse the district court’s order denying
Barber’s motion for a new trial, vacate the judgment, and
remand for a new trial.
I
The parties offer drastically different accounts of the events
surrounding Barber’s arrest. The general rule is that on appeal
from a jury verdict this court will view the facts in a light most
favorable to the verdict. See Common v. City of Chicago, 661 F.3d
940, 942 (7th Cir. 2011). This standard of review is sensible in
many instances, such as when the issue is whether the verdict
is supported by sufficient evidence. But it does not make as
much sense when the issue on appeal is whether the district
court committed reversible error in admitting or excluding
evidence, because whether there was reversible error turns on
an analysis of the evidentiary ruling in the context of the entire
trial record, see Kotteakos v. United States, 328 U.S. 750, 761–65
(1946). Indeed, we routinely set out the conflicting evidence in
appeals challenging a district court’s evidentiary rulings or
jury instructions. See, e.g., Griffin v. Bell, 694 F.3d 817, 819–20
No. 12-2562 3

(7th Cir. 2012); Guzman v. City of Chicago, 689 F.3d 740, 742–44
(7th Cir. 2012). We do the same here, beginning with Barber’s
version of events.
According to Barber, after he got home from school (he was
in the eighth grade) on the day of the incident he played video
games with his brother in the family’s apartment at the
Marshall Field Gardens housing project. At some point that
evening, Barber’s mother called and asked him to go down-
stairs and wait for her outside the building so that he could
help her with the groceries. While Barber waited outside for his
mother, his friend Michael Jones walked up, followed by
Barber’s girlfriend and one of her friends. The youths stood off
to the left of the building and chatted for a while. They were
not blocking any entrances, were not bothering anyone, and
were not drinking.
At some point Malaniuk and Shields arrived in their
marked police car. Officer Malaniuk got out of the car, spoke
with a security guard, and then went into the building.
Meanwhile, Officer Shields approached Barber and his friends
and asked Barber for his name and the reason he was standing
outside; Barber gave his name and said that he was waiting for
his mother. Shields “started to use profanity, like F you and
your mother and get the F out of here”; Barber responded, “F
you, too,” and did not move. Shields grabbed Barber’s shirt
and began searching his sweatshirt, pants, and back pockets.
Shields threw Barber’s possessions into the snow, shoved him,
and told him to “get the F out of here.” Shields and Malaniuk
then got back into their car and began driving away, but the
officers abruptly executed a U-turn and returned. The officers
got out of the car and told Barber and Jones “to get the F on the
4 No. 12-2562

wall”; Barber and Jones complied. Both were handcuffed and
placed into the police car. Barber testified that he was not
drunk, that he was not unsteady on his feet, that he was not
swaying in the backseat of the car, and that neither he nor the
car smelled of alcohol.
Barber and Jones were transported to the station house.
Once there, Malaniuk yanked Barber out of the car by the hood
of his sweatshirt, causing him to stumble over a brick and land
on his back. Barber did not get up, so Malaniuk dragged him
by his hood for about 12 to 14 feet to a holding cell. At the
holding cell’s entrance, Malaniuk stood Barber up and force-
fully pushed his upper back while he was still handcuffed
(behind the back), which launched him across the cell face first
into a hard surface—Barber blanked out momentarily and
woke up bleeding. A female officer came by, saw Barber
bleeding, and decided to help him—she gave him napkins,
called a janitor to clean up the blood, took Barber to the
restroom, uncuffed him, let him go into the restroom to clean
himself, and returned him to the holding cell.
A while later, Malaniuk and Shields returned and saw that
Barber was injured; two hours after Barber sustained the
injury, the officers took him to the hospital. Barber testified that
he did not tell the nurse or the physician at the hospital that he
had lost consciousness because Malaniuk and Shields pulled
them out of the room before he had a chance to do so, and he
could not remember if the nurse even asked him whether he
had lost consciousness. He also testified that he was not drunk
at the hospital, was not fighting, and was not struggling,
though he could not recall whether he had refused to give his
mother’s phone number to hospital staff. Barber received
No. 12-2562 5

twelve stitches to seal wounds on his face and was given
medication. He was then returned to the station house, booked,
and placed in the youth room until his mother arrived, at
which point he was permitted to leave with her.
Malaniuk and Shields have a considerably different version
of events. According to them, on the evening of December 14,
2005, they responded to a 911 call from security guards at the
Marshall Field Gardens housing project. When they arrived,
there was a group of teenagers congregated on the sidewalk
near the building. The security guards informed the officers
that two members of the group—namely, Barber and
Jones—were blocking the building’s entrance and attempting
to start fights with people entering and leaving the building.
The guards signed preprinted criminal complaints alleging
disorderly conduct, and on the basis of those complaints the
officers placed Barber and Jones under arrest. Barber was a bit
uncooperative but was successfully handcuffed without much
resistance. According to Malaniuk, Barber did not fall but was
“a little uneasy on his feet.”
The officers transported Barber and Jones to the station
house. During the short trip, a strong odor of alcohol filled the
squad car and Barber was swaying side to side as he sat in the
back seat—the officers testified that Barber told them that he
had been drinking Martell, a brand of cognac, all day. Officer
Shields dropped off Officer Malaniuk in the sally port of the
station house, along with Barber and Jones, and then went to
park the car.
6 No. 12-2562

Malaniuk escorted Barber and Jones into the holding area
of the station house. Barber was still unsteady on his feet and
at one point fell to the ground as he walked down a hallway.
Malaniuk asked Barber to get up, but Barber did not comply so
Malaniuk picked him up and got him back on his feet. Barber
resumed walking down the hallway under his own power,
though “[h]e was walking kind of side to side.” Barber then
walked into a holding cell and because of his intoxicated state
tripped over his own feet and fell again. This time he struck his
head on a metal bolt that secured a partition within the holding
cell to the floor, causing his head to bleed. Malaniuk again
helped Barber to his feet then took him to the restroom and
helped him clean up. Barber never requested medical attention,
but the officers agreed that they would take him to the hospital
for treatment after they finished processing Jones into
lockup—Barber’s head had stopped bleeding and the officers
figured it was a minor injury that did not require immediate
medical attention. About two hours after the injury, the officers
took Barber to the hospital where his wounds were stitched up.
The officers testified that medical staff had relayed to them that
Barber was being difficult while at the hospital.
Barber subsequently brought this action under 42 U.S.C.
§ 1983 against Malaniuk and Shields, asserting claims of false
arrest and excessive force. Though Barber’s poor briefing
makes it difficult to ascertain, his false-arrest theory appears to
have been that the security guards never actually signed a
complaint and that the officers forged the complaint after the
arrest. His excessive-force theory was based on Malaniuk’s
gratuitous shove, and it was stressed during trial that at the
time of the incident Barber had been approximately 5’1” tall
No. 12-2562 7

and had weighed approximately 120 pounds, whereas
Malaniuk had been approximately 6’5” tall and had weighed
approximately 240 pounds. In addition to his federal claims,
Barber asserted supplemental state-law claims of assault,
battery, and intentional infliction of emotional distress against
the City of Chicago. Prior to trial, Barber voluntarily dismissed
all but the assault claim against the City, and after the close of
plaintiff’s evidence the district court granted the defendants’
motion for judgment as a matter of law on the assault claim, see
Fed. R. Civ. P. 50(a). The federal claims went to a jury, which
returned a verdict for Malaniuk and Shields. The district court
denied Barber’s subsequent motion for a new trial, Fed. R. Civ.
P. 59(a). See Barber v. Malaniuk, No. 08–CV–6363, 2012 WL
8303336 (N.D. Ill. June 8, 2012).
Barber appeals the denial of his motion for a new trial,
asserting six points of trial error. He contends that the district
court erred (1) in allowing him to be cross-examined about his
subsequent arrest for underage drinking; (2) in allowing him
to be cross-examined about the fact of his prior conviction and
resulting prison term; (3) in prohibiting him from impeaching
Malaniuk and Shields with several of their prior inconsistent
statements; (4) in prohibiting him from introducing several of
his own prior consistent statements; (5) in admonishing one of
his trial attorneys not to interrupt a witness’s answer to lodge
an objection during the defendants’ cross-examination; and (6)
in demonstrating bias in favor of the defendants. We review
the denial of a motion for a new trial for an abuse of discretion.
Whitehead v. Bond, 680 F.3d 919, 927 (7th Cir. 2012).
8 No. 12-2562

II
We first tackle Barber’s contentions that the district judge
erred in permitting cross-examination about his arrest for
underage drinking and about his felony conviction for posses-
sion of a stolen motor vehicle. A district court’s evidentiary
rulings, including those regarding the scope of cross-examina-
tion, are reviewed for an abuse of discretion. Jordan v. Binns,
712 F.3d 1123, 1137 (7th Cir. 2013); Cruz v. Safford, 579 F.3d 840,
844–45 (7th Cir. 2009).
A
During trial, Barber testified on direct examination that he
had not been drinking on the day of the incident. On cross-
examination, defense counsel and Barber had the following
exchange:
Q: Do you drink at all, sir?
A: No, sir.
Q: You don’t drink, period?
A: Period, at all.
At sidebar, defense counsel argued that Barber’s denial of
drinking was “another lie and he’s trifling with the Court,”
informing the district judge that Barber subsequently had been
arrested in 2009 at Marshall Field Gardens for underage
drinking and requesting that the defense be permitted to
question Barber about that arrest. The judge acknowledged
that an arrest for underage drinking does not suggest a
character for untruthfulness, and so the arrest could not come
in under Rule 608(b) of the Federal Rules of Evidence. Never-
No. 12-2562 9

theless, he ruled that the defense could impeach Barber with
the subsequent arrest to contradict his testimony that he never
drinks. The judge reasoned that, in light of Barber’s denial of
drinking, a subsequent arrest for underage drinking “certainly
would be probative to whether or not he was drunk on the
night in question,” and he found that the probative value was
not substantially outweighed by the risk of unfair prejudice.
Later, in his order denying Barber’s motion for a new trial, the
judge gave a somewhat different explanation, namely, that the
arrest evidence was admissible under Rule 608(b) as a specific
instance of conduct to shed light on Barber’s character for
untruthfulness. 2012 WL 8303336, at *4–6.
Defense counsel asked Barber if he subsequently had been
arrested for underage drinking in the same area. Barber
testified that he had been arrested and charged with underage
drinking but denied that he had been drinking; he explained
that he had been standing with a group of friends and that the
police arrested and charged everyone who was there. Defense
counsel then moved to admit the arrest record, but the district
judge sustained Barber’s objection. The judge then instructed
the jury as follows: “Ladies and gentleman, that testimony a
few moments ago about [the arrest for underage drinking], I
instruct you that you may consider this testimony of Mr.
Barber only for the purposes of determining the character of
Terrence Barber for truthfulness or untruthfulness and not for
any other reason.”
Barber argues that the district court abused its discretion in
allowing cross-examination about the arrest because that arrest
was not probative of truthfulness and did “not impeach [his]
testimony [that] he did not drink.” The defendants argue that
10 No. 12-2562

questioning about the arrest was proper in light of Barber’s
broad denial of drinking.
The district judge and the parties appear to have confused
the type of impeachment at issue here. In denying Barber’s
motion for a new trial, the district judge explicitly ruled that
the cross-examination was permissible under Rule 608(b),
which permits cross-examination (though not extrinsic evi-
dence) regarding specific instances of prior conduct that did
not result in conviction but are probative of the witness’s
character (or propensity) for untruthfulness. But what the
defendants were attempting with this cross-examination was
not so much to show that Barber was probably lying because
he had lied in the past, but to contradict his testimony that he
does not drink. See Simmons, Inc. v. Pinkerton’s, Inc., 762 F.2d
591, 604 (7th Cir. 1985) (“Impeachment by contradiction simply
involves presenting evidence that part or all of a witness’
testimony is incorrect.”). Impeachment by contradiction differs
from attacking a witness’s character for veracity with specific
instances of conduct and is not governed by Rule 608(b). See
United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996);
United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995). But
we need not undertake a comprehensive comparison of these
two methods of impeachment here, for it is clear that under
either theory the district court abused its discretion in permit-
ting this line of questioning.
The well-established, general rule is that a witness’s
credibility may not be impeached by evidence of his or her
prior arrests, accusations, or charges. See Michelson v. United
States, 335 U.S. 469, 482 (1948) (dicta) (“Arrest without more
No. 12-2562 11

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.”); accord Thompson v. City of Chicago, Nos.
10–2951 & 11–2883, 2013 WL 3455502, at *12 (7th Cir. July 10,
2013); Cruz, 579 F.3d at 845; United States v. Lashmett, 965 F.2d
179, 184 (7th Cir. 1992); United States v. Bolden, 355 F.2d 453, 457
(7th Cir. 1965). But cf. Fed. R. Evid. 609 (permitting impeach-
ment with prior convictions, subject to certain limitations).
“‘This rule is based upon a clear recognition of the fact that the
probative value of such evidence is so overwhelmingly
outweighed by its inevitable tendency to inflame and prejudice
the jury against the [party-witness] that total and complete
exclusion is required in order that the right to trial by a fair and
impartial jury may not be impaired.’” United States v. Dilts, 501
F.2d 531, 535 n.14 (7th Cir. 1974) (quoting United States v.
Pennix, 313 F.2d 524, 529 (4th Cir. 1963)). Another reason for
prohibiting impeachment with evidence of a prior arrest is that
it is “easy and proper for the questioner to ask directly about
the behavior [that led to the arrest] itself.” 3 C.B. Mueller &
L.C. Kirkpatrick, Federal Evidence § 6:33, at 219 (3d ed. 2007);
accord Young v. James Green Mgmt., Inc., 327 F.3d 616, 626 n.7
(7th Cir. 2003).
Barber testified on cross-examination that he does not
drink. It may have been permissible to allow the defendants to
follow-up with a question like, “haven’t you consumed alcohol
at Marshall Field Gardens on other occasions?” See, e.g., United
States v. Chevalier, 1 F.3d 581, 583–84 (7th Cir. 1993) (defendant
could be impeached in tax-fraud trial with facts surrounding
severed bank-fraud counts). Such a question, however, would
not have been permissible under Rule 608(b) because the rule
12 No. 12-2562

covers only specific instances of conduct bearing on a witness’s
character for veracity, and underage drinking is not probative
of veracity. See United States v. Manske, 186 F.3d 770, 774–76
(7th Cir. 1999); cf. United States v. Spano, 421 F.3d 599, 606 (7th
Cir. 2005) (“It is improper to impeach a witness by presenting
evidence that he has engaged in criminal or otherwise illegal or
socially reprobated behavior unless the evidence undermines
the credibility of his testimony beyond whatever undermining
would be accomplished just by besmirching the witness’s
character.”). Such a question would have been a permissible
form of impeachment by contradiction, but if Barber had
denied drinking on other occasions (as he did when he
explained the circumstances of the arrest) the defense would
have been stuck with his answer. It could not have used
extrinsic evidence to show that Barber had in fact been drink-
ing on other occasions because whether he had done so is
collateral to whether he was drinking on December 14, 2005,
when he was arrested and sustained his facial injuries. See
United States v. Kozinski, 16 F.3d 795, 806 (7th Cir. 1994) (“[O]ne
may not contradict for the sake of contradiction; the evidence
must have an independent purpose and an independent
ground for admission.”); Taylor v. Nat’l R.R. Passenger Corp.,
920 F.2d 1372, 1375 (7th Cir. 1990) (“The rule in this circuit is
that ‘a witness may not be impeached by contradiction as to
collateral or irrelevant matters elicited on cross-examination.’”
(quoting Simmons, 762 F.2d at 604)). And even if the matter
could be deemed not to be collateral, the defense would have
had to find some other extrinsic evidence aside from the fact of
the arrest (e.g., a witness who had actually observed Barber
drinking on other occasions) to contradict Barber’s testimony,
No. 12-2562 13

as an arrest or accusation does not establish that the underly-
ing conduct actually occurred, Michelson, 335 U.S. at 482. The
fact that the defendants would have run into these hurdles by
questioning Barber on the conduct underlying the arrest rather
than the arrest itself makes it even clearer that it was an abuse
of discretion to allow cross-examination on the arrest itself.
The defendants acknowledge the general prohibition on
impeaching a witness with his or her prior arrests, but they
stress that the relevant passage in Michelson was dicta and,
citing a handful of cases, argue that allowing such impeach-
ment may be appropriate where the witness makes sweeping
denials about engaging in the type of conduct underlying a
prior arrest. While Michelson’s explanation was dicta, it was
dicta of the strongest kind, as it came from the Supreme Court
and was firmly rooted in logic. Moreover, the cases cited by the
defendants do not persuade us that the cross-examination of
Barber was proper. The only decision from this court cited by
the defendants, Sanchez v. City of Chicago, 700 F.3d 919, 931–32
(7th Cir. 2012), involved the admission of an arrest record to
undermine a § 1983 plaintiff’s claim for emotional-distress
damages and has no bearing on the propriety of cross-examin-
ing Barber about his arrest.
The strongest support for the defendants’ position comes
from the Ninth Circuit. In United States v. Castillo, the court
held that the defendant’s “expansive and unequivocal denial
of involvement with drugs on direct examination warranted
the district court’s decision to admit extrinsic evidence of the
1997 cocaine arrest as impeachment by contradiction.” 181 F.3d
1129, 1134 (9th Cir. 2001). And in United States v. Weicks, the
14 No. 12-2562

court held that it was permissible to impeach the defendant
with his prior arrests for being a felon in possession of a
firearm after he had portrayed himself on cross-examination as
someone who never possessed guns and avoided being around
firearms. 362 F. App’x 844, 849–50 (9th Cir. 2010). The defen-
dants also draw support from the Tenth Circuit. In United
States v. Erb, 596 F.2d 412 (10th Cir. 1979), the defendant had
testified on direct that he had last made methamphetamine
fifteen months prior to the charged incident. The court held
that it was permissible for the government to cross-examine
the defendant about an arrest on similar charges occurring
around the time of the charged incident, and that it was also
permissible for the government to call a rebuttal witness to
testify about the circumstances leading to the other arrest. Id.
at 420.
These cases are not persuasive. Castillo failed to acknowl-
edge Michelson or the numerous other cases prohibiting
impeachment of a witness with an arrest. And Weicks relied
solely on Castillo, while at the same time acknowledging that
Castillo was inconsistent with Michelson and United States v.
Pennix, 313 F.2d 524, 529 (4th Cir. 1963), which we quoted
approvingly in Dilts, 501 F.2d at 535 n.14. As for Erb, the court
focused almost exclusively on the rebuttal witness and ad-
dressed the arrest only in a cursory manner, failing to mention
Michelson. Notably, since Erb the Tenth Circuit has held that a
witness may not be impeached with an arrest, see, e.g, United
States v. Wilson, 244 F.3d 1208, 1217–18 (10th Cir. 2001); United
States v. Pino, 827 F.2d 1429, 1431 (10th Cir. 1987), and it is not
alone, see, e.g., Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992);
Jordan v. Medley, 711 F.2d 211, 218 (D.C. Cir. 1983) (Scalia, J.)
No. 12-2562 15

(dicta); United States v. Dennis, 625 F.2d 782, 798 (8th Cir. 1980);
United States v. Labarbera, 581 F.2d 107, 108–09 (5th Cir. 1978).
It is true that in some circumstances it may be proper to
impeach a witness with evidence of a prior arrest, for instance,
to establish the witness’s bias, see United States v. Spencer, 25
F.3d 1105, 1109 (D.C. Cir. 1994). But in this case the defense
was permitted to question Barber about the arrest on the
mistaken premise that the arrest for underage drinking
established that he actually does drink. This was an abuse of
discretion. Cf. Labarbera, 581 F.2d at 109 (“This driving under
the influence arrest could not be used to either generally
impeach defendant or to impeach defendant’s specific state-
ment that he did not drink.”).
B
Barber’s next contention is that the district judge abused his
discretion in allowing the defense to bring up Barber’s 2010
felony conviction for possession of a stolen motor vehicle
(“PSMV”) on the issue of damages. Immediately following the
inquiry into Barber’s 2009 arrest for underage drinking, the
cross-examination turned to the issue of emotional distress.
Earlier in the trial, defense counsel had cross-examined Bar-
ber’s mother as follows:
Q: Did [Barber] complain about being afraid
of the police?
A: Yes.
Q: Did he complain about being afraid of the
police until this very day?
A: Yes.
16 No. 12-2562

Q: And it was all because of this event, De-
cember 14th of ’05?
A: Yes.
Q: There weren’t any other reasons he
was afraid of the police?
A: No.
Following up on the examination of Barber’s mother,
defense counsel questioned Barber as follows:
Q: Okay. Well, is it your testimony today
that you suffer from emotional distress
until this very day because of the arrest
on December 14th, ’05?
A: Yes. It left me scared of the police.
Q: It’s made you afraid of the police?
A: Them two officers right there, sir.
Q: Okay. And it’s made you afraid of the
police generally?
A: No. I have family members that are police
officers, sir.
Q: Okay. So it’s made you afraid of these
two particular police officers?
A: Yes, sir.
…
No. 12-2562 17

Q: And you don’t have any emotional dis-
tress from any other interactions with law
enforcement, right?
A: No, sir.
At sidebar, the defense requested that it be allowed to
question Barber about his PSMV conviction on the basis that it
was a supervening cause of any emotional distress he was
suffering. Barber objected on grounds that it would be unfairly
prejudicial and that Barber had said he was afraid of the two
defendants, not police generally. The district judge overruled
Barber’s objection. So defense counsel asked Barber about the
conviction, though inquiry was limited to whether Barber had
been convicted of an unrelated crime and had served a stint in
state prison; Barber responded in the affirmative. The judge
then instructed the jury that it may “consider this testimony
only for the limited purpose of determining the issue of
emotional distress and damages.”
Barber contends that the district court abused its discretion
in permitting this line of questioning, for two reasons. First,
citing Rule 609, Barber contends that the district judge abused
his discretion because he did not consider credibility as a factor
in deciding to permit cross-examination on the conviction.
Second, Barber contends that the district judge abused his
discretion because the testimony at trial was that Barber was
afraid of the two defendants, not police generally.
As a threshold matter, the defendants contend that Barber
waived this issue by failing to develop it adequately on appeal.
It is true that Barber’s argument, like the rest of his brief, leaves
much to be desired, but we think it squeaks by, as it is strik-
18 No. 12-2562

ingly similar to the argument presented to the district court in
Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906, 913–14
(7th Cir. 2011), which we found not to be waived. Like the
argument in Hernandez, Barber’s argument was sufficient to
give the defendants adequate notice, which is clear in light of
the defendants’ five-page response addressing this point.
Barber’s reliance on Rule 609 is misplaced because that rule
governs the admissibility of a witness’s prior convictions only
for impeachment purposes. The district judge did not allow the
defense to impeach Barber with his conviction, so Barber has
no claim under Rule 609. As a general matter, the fact that
evidence may be inadmissible for one purpose does not mean
that it is inadmissible for all purposes. See, e.g., Gora v. Costa,
971 F.2d 1325, 1330–31 (7th Cir. 1992). The district judge
permitted the defense to question Barber about his PSMV
conviction and incarceration to rebut Barber’s claim for
emotional-distress damages, and “[t]he admissibility of such
evidence for purposes other than impeachment is dictated by
Rules 401 and 403 … .” Id. at 1331.
There arguably may be some connection between Barber’s
intervening PSMV conviction and incarceration and the issue
of emotional-distress damages, but that connection is tenuous
at best. In Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. 2012),
the same district judge allowed the defendants to question the
§ 1983 plaintiff about his arrest history after he had testified on
direct that he had suffered emotional distress from being
falsely arrested and subjected to excessive force. We observed
that “[r]easonable people might disagree as to the probative
worth of Sanchez’s arrest history.” Id. at 931. The fact that
No. 12-2562 19

Sanchez had been arrested before (presumably without
excessive force) did not undermine his claim of trauma
stemming from an incident in which officers “manhandled”
him, as there is “a material difference between being arrested
and being subjected to excessive force in the course of that
arrest.” Id. But since Sanchez also sought to recover for
emotional trauma from being falsely detained, his arrest
history “arguably might have been relevant to the jury’s
assessment of any emotional distress he suffered as a result of
the improper detention.” Id. at 932. We did not, however,
definitively determine whether the district judge had abused
his discretion in permitting that evidence to come in because
we concluded that Sanchez had not suffered any material
prejudice. Id.
Like the plaintiff in Sanchez, Barber asserted claims of false
arrest and excessive force and sought to recover emotional-
distress damages. But unlike the Sanchez plaintiff, Barber
explicitly testified that he was afraid of defendants Malaniuk
and Shields, specifically, and he disavowed any fear of police
generally. This makes the connection of his felony conviction
and incarceration to his claimed emotional distress even more
tenuous than the questionable connection in Sanchez. As we
observed in Sanchez, there is a difference between being
arrested with and without excessive force. Moreover, there is
a difference between being falsely arrested on one occasion and
being rightfully arrested (and rightfully convicted) on another
occasion. It is possible for a person to be traumatized by being
falsely hauled off to jail and incarcerated, while accepting
responsibility for his other misdeeds that result in even longer,
lawful incarceration. That is, a person may suffer emotional
20 No. 12-2562

distress from being falsely arrested and held for mere hours
while suffering no or minimal emotional distress (or emotional
distress of a different kind) after being rightfully arrested,
convicted, and incarcerated.
Moreover, Barber did not claim a generally disabling long-
term trauma. That is, he did not try to establish that everything
rotten in his life stems from the emotional trauma he experi-
enced as a result of the defendants’ actions. Suppose Barber
had testified that his emotional trauma had prevented him
from fulfilling his dream of becoming a banker (or otherwise
integrating into society). A logical response might have been:
You are not a banker because you did not finish school, and
you did not finish school because you were serving time in
prison upon being convicted of a felony. Another reasonable
response might have been: You are not a banker because you
are a convicted felon, and banks generally do not hire felons
with no apparent skills. Had Barber’s claim for emotional-
distress damages been cast in such a broad manner (in the
hopes of obtaining a larger verdict), then the probative value
of his intervening PSMV conviction and resulting incarceration
would have been much greater. The larger the chunk of one’s
life that is claimed to have been negatively impacted by
emotional distress, the more important it is to explore other
events that may have contributed to the individual’s loss.
But from the record before us it does not appear that Barber
blamed the defendants for all of the misery in his life. Rather,
he testified that he was afraid of the two defendants, albeit up
to this day, and that he had felt embarrassed walking around
with a battered face. During trial, the defendants made much
of Barber’s unsavory lifestyle, including that he had fathered
No. 12-2562 21

three children before his eighteenth birthday, had not gradu-
ated from high school, and had a sporadic work history. In
response, Barber’s counsel made no attempt to link up Barber’s
troubled life since the underlying incident to the emotional
trauma he allegedly suffered as a result of that incident. He
acknowledged that Barber was irresponsible and stressed to
the jury that Barber came from a different background, and he
asked the jury to look past that and consider only the events of
December 14, 2005. Indeed, after conceding that Barber did not
have “a stellar work history,” counsel stressed that Barber was
not “claiming lost wages in this case” and that Barber’s work
history had nothing to do with the underlying incident. And
when discussing damages during his closing argument,
Barber’s counsel argued as follows: “You’re allowed to award
damages for his pain and suffering and his emotional distress.
I’m not going to rehash his testimony about what he said about
his pain and suffering … . He’s not saying–we’re not saying
this is a major life-changing event for him and asking for
hundreds of thousands of dollars. He’s a 14-year-old kid who
got a fairly bad blow to his face and got some stitches and cuts,
and we think damages should be appropriate to that and his
testimony. That’s all we’re saying.” Barber’s claim for
emotional-distress damages was limited to the terror he
experienced during and shortly after the incident and his
continued fear of the two defendants. It is thus difficult to see
the probative value of his intervening PSMV conviction and
resulting incarceration on the issue of emotional distress.
We think it clear that the risk of unfair prejudice substan-
tially outweighed the miniscule probative value of the convic-
tion on this issue. “Evidence is unfairly prejudicial where ‘its
22 No. 12-2562

admission makes it likely that the jury will be induced to
decide the case on an improper basis, commonly an emotional
one, rather than on the evidence presented.’” Smith v. Hunt,
707 F.3d 803, 810 (7th Cir. 2013) (quoting Thompson v. City of
Chicago, 472 F.3d 444, 456–57 (7th Cir. 2006)). Presenting a
§ 1983 plaintiff’s criminal history to the jury presents a substan-
tial risk that the jury will render a defense verdict based not on
the evidence but on emotions or other improper motives, such
as a belief that bad people should not be permitted to recover
from honorable police officers. See Llaguno v. Mingey, 763 F.2d
1560, 1570 (7th Cir. 1985) (en banc) (observing “that civil rights
actions often pit unsympathetic plaintiffs—criminals, or
members of the criminal class …—against the guardians of the
community’s safety, yet serve an essential deterrent function”),
abrogated on other grounds by County of Riverside v. McLaughlin,
500 U.S. 44 (1991); see also Gora, 971 F.2d at 1331 (explaining
that courts must be “careful to ensure that a civil rights plain-
tiff’s criminal past is not used to unfairly prejudice him or
her”). Moreover, unlike Gora, 971 F.2d at 1331, and Cobige v.
City of Chicago, 651 F.3d 780, 784–85 (7th Cir. 2011), where
emotional distress was a central theme of the respective
plaintiff’s cases, the issue of emotional-distress damages
during Barber’s trial was a very minor issue and was focused
narrowly on Barber’s feelings about Malaniuk and Shields in
particular, not police in general. Barber’s counsel did not harp
on emotional distress in either his opening statement or his
closing argument, and the testimony from Barber on direct
examination was limited to the following:
Q: Did this incident cause you any
emotional distress?
No. 12-2562 23

A: Yes. Yes.
Q: Can you describe that for the jury?
A: I was really embarrassed to like
walk around [with my] face like
that, and I was really like shocked
that the police would really do
something like that to me when I
did nothing at all.

Any doubt that the risk of unfair prejudice substantially
outweighed the minimal probative value of the conviction and
incarceration on the issue of emotional-distress damages is
extinguished by a simple comparison with the district judge’s
pretrial ruling barring the defense from using the conviction
for impeachment purposes. The district judge ruled that the
defense could not impeach Barber with the PSMV conviction
under Rule 609(a)(1) because the risk of unfair prejudice
substantially outweighed the probative value of the conviction
for impeaching Barber’s credibility. While he agreed to
reconsider the motion to address defense counsel’s (erroneous)
argument that circuit precedent treats receipt of stolen prop-
erty as a crime of dishonesty (which would deprive the judge
of discretion to exclude the conviction for impeachment, see
Fed. R. Evid. 609(a)(2); United States v. Wilson, 985 F.2d 348, 351
(7th Cir. 1993)), no final ruling was made, but the defense was
not permitted to impeach Barber with the conviction. A felony
conviction for possession of stolen property (or possession of
a stolen motor vehicle) is not a crime of dishonesty per se,
United States v. Jackson, 546 F.3d 801, 819 (7th Cir. 2008), but it
is more probative of dishonesty than other crimes, like murder
24 No. 12-2562

or assault, Varhol v. Nat’l R.R. Passenger Corp., 909 F.2d 1557,
1567 (7th Cir. 1990) (en banc) (per curiam). In other words, the
district judge thought the risk of prejudice accompanying the
conviction substantially outweighed its considerable probative
value for impeachment. It defies reason to conclude that the
balance is shifted toward admissibility when the risk of unfair
prejudice remains the same but the probative value on the
issue of damages is negligible.

Given the substantial risk of prejudice, the infinitesimal
probative value of the evidence, and the fact that emotional
distress was touched on briefly, it was an abuse of discretion to
permit the defense to question Barber about his PSMV convic-
tion and resulting incarceration to rebut his narrowly focused
claim for emotional-distress damages. The district judge’s view
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. This, of course, would be contrary
to our prior statements instructing courts to proceed carefully
when deciding to admit evidence of a § 1983 plaintiff’s criminal
past.

C

So the district court abused its discretion in allowing the
defense to cross-examine Barber about his 2009 arrest and his
No. 12-2562 25

PSMV conviction, but Barber is not entitled to a new trial if
those errors were harmless, see, e.g., Jordan v. Binns, 712 F.3d at
1137–38. An evidentiary error warrants a new trial “only if the
error affects a substantial right of the party,” Fed. R. Evid.
103(a); see also Fed. R. Civ. P. 61, which means that there is a
significant chance that the error affected the jury’s verdict,
Jordan v. Binns, 712 F.3d at 1137; 3M v. Pribyl, 259 F.3d 587, 599
(7th Cir. 2001). To make this determination, we examine the
error in light of the entire record, and a new trial will be
granted only if we are unable to say with fair assurance that
the error did not substantially sway the jury. See, e.g., Kotteakos
v. United States, 328 U.S. 750, 761–65 (1946). “Where there are
several errors, each of which is harmless in its own right, a new
trial may still be granted if the cumulative effect of those
otherwise harmless errors deprives a litigant of a fair trial.”
Jordan v. Binns, 712 F.3d at 1137 (citing Christmas v. City of
Chicago, 682 F.3d 632, 643 (7th Cir. 2012)).
After examining the record, we are unable to say with fair
assurance that the erroneous questioning about the 2009 arrest
and the PSMV conviction and incarceration did not substan-
tially sway the jury. The trial boiled down essentially to a
credibility contest between Barber and the two officers. This
was particularly so with respect to whether Barber had been
drinking on December 14, 2005, for the defendants both
testified that Barber had told them that he had been drinking
Martel all day, but Barber denied this (and the medical
evidence did not indicate intoxication, but more on this later).
And as the district judge observed, whether Barber had been
drinking on that day was a central issue at trial: the defense
claimed that Barber fell and injured himself because he was
26 No. 12-2562

intoxicated, whereas Barber claimed that he had not been
drinking and instead was forcefully thrown into the holding
cell by Officer Malaniuk. The jury was informed that Barber
had subsequently been arrested for underage drinking under
very similar circumstances (with a group of others at Marshall
Field Gardens), which created a substantial risk that the jury
would use it for impermissible propensity purposes. Cf. United
States v. Harding, 525 F.2d 84, 89 (7th Cir. 1975) (Stevens, J.)
(noting that the impermissible propensity “inference is largely
a function of the degree of similarity between the earlier crime
and the present charge”).
Indeed, the limiting instruction given by the district judge
likely urged the jury to draw the impermissible propensity
inference. Barber denied that he had been drinking when he
was arrested on December 14, 2005, and he then denied that he
drinks generally (though he did not say he had never had a
drink, as the question and answer were limited to the present
tense). The district judge instructed the jury that the question-
ing on the subsequent arrest was to be used only for judging
Barber’s character for truthfulness. But, as explained above,
neither underage drinking nor an arrest for underage drinking
is probative of a witness’s character for truthfulness. So what
was the jury to do? The most likely scenario is that the jury
viewed the evidence of the subsequent arrest as making it
more likely that Barber had been drinking with a group of
friends at Marshall Field Gardens on December 14, 2005.
Barber had denied drinking then, and the jury may well have
thought that this subsequent arrest for underage drinking
under similar circumstances showed he was lying about the
circumstances surrounding the December 14, 2005, arrest. But
No. 12-2562 27

that is not impeachment. That is propensity evidence. In other
words, that he allegedly had been drinking at Marshall Field
Gardens in 2009 made it more likely that he was doing the
same in 2005.
The defendants emphasize that Barber explained that he
had not been drinking when he was arrested in 2009, but this
is no cure to permitting the improper questions in the first
place. Indeed, the explanation further bolstered the propensity
inference sought by the defense. During closing argument, the
defense argued as follows: “He never—he doesn’t drink,
period, he doesn’t drink, but, oops, yes, I was arrested again
for minor drinking at the very same place a few years after this
event. But again, you know, the other guys had the beer, I
didn’t have a thing. Oops!” In essence, the defense asked the
jury to gauge the likelihood that a person would be wrongly
accused under near-identical circumstances on two separate
occasions. Thus, the fact that Barber explained the circum-
stances of the subsequent arrest did not cure the error in
allowing questioning on that arrest in the first place.
Permitting the cross-examination of Barber on his 2009
arrest for underage drinking sufficiently harpooned Barber’s
case that a new trial is necessary, and allowing the questioning
about the PSMV conviction to follow on the tails of that cross-
examination put the nail in the coffin of Barber’s case. The
defendants contend that the erroneous questioning about the
PSMV conviction could have had no impact on the jury
because the district judge instructed the jury to consider the
conviction only on the issue of damages. Since the jury did not
find liability, the argument goes, it never had occasion to
consider damages, and hence it never considered the convic-
28 No. 12-2562

tion. While it is true that there is a general presumption that
juries follow their instructions, that presumption is not
absolute. See, e.g., Wilson v. Groaning, 25 F.3d 581, 587 (7th Cir.
1994); United States v. Boroni, 758 F.2d 222, 225 (7th Cir. 1985)
(“An instruction will not always cure the damage caused by
erroneously admitted evidence. A reviewing court must
determine with fair assurance whether, in spite of the instruc-
tion, the verdict was substantially swayed by the error.”
(citations omitted)). 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. See, e.g., United States v.
Jones, 455 F.3d 800, 811 (7th Cir. 2006) (Easterbrook, J., concur-
ring) (“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.”).
The potential damage from allowing the jury to hear of
Barber’s conviction was two-fold. First, the jury may have
drawn the improper propensity inference that Barber’s
conviction of a felony makes it more likely that he was in fact
committing the lesser crime of disorderly conduct (not to
mention underage drinking) on the date of the underlying
incident. Second, it provided powerful ammunition to support
a jury argument that Barber is a despicable human being who
should not be permitted to recover from the angelic police
officers being wrongfully sued. Here, it is true that defense
counsel did not explicitly mention the conviction in his closing
with regard to anything but emotional distress, but it was
No. 12-2562 29

mentioned several times and the prevailing theme throughout
the argument was that Barber is a horrible person who should
recover nothing from the valiant police officers. Indeed, much
of defense counsel’s closing consisted of a general character
assassination. For instance, the defense argued to the jury that
Barber “likely never graduated from grade school. He fathered
his first child at 14, and now he’s fathered two more by the
time he’s 17, and he still doesn’t work. You can consider his
background, and they do not conform to acceptable behavior.”
Defense counsel also argued, “What’s been proved, really, is
that you have a sad instance where there is a pathological and
cross-generational dysfunction in that Barber house. And that’s
a sad fact. And as mothers you can feel sorry for him, but you
don’t reward that dysfunction. That’s quite an irony in these
topsy-turvy times, that it’s your job now to serve and protect
these two fine men for doing an unpleasant task.” While the
defense may not have expressly mentioned the conviction in
making these arguments, it did not need to do so to get its
point across. The sting of the PSMV conviction was carefully
folded into the pastry of bad behavior that the defense served
to the jury.
The defendants also claim that there was overwhelming
other evidence to cast doubt on Barber’s credibility and his
story in general. They point to numerous discrepancies
between Barber’s deposition testimony and his trial testi-
mony—for example, he could not remember how long he was
waiting outside for his mother before the police arrived and
could not remember all of the details of his visit to the
hospital—but most (if not all) of these discrepancies can be
attributed to the passage of time between the incident and trial,
30 No. 12-2562

which was almost six years, and Barber’s inexperience as a
witness. Indeed, when Officer Shields and Officer Malaniuk
(both of whom testified that they had served as witnesses
hundreds of times) could not recall details, the passage of time
was emphasized as the reason for their memory lapses. The
defendants also claim that Barber’s testimony that a female
officer helped him clean himself up after he was injured is
patently absurd because the officer would have been acting
contrary to protocol and placing herself in grave danger. But
it does not strike us as so incredibly unbelievable that a police
officer who happens upon an injured and bleeding child
(Barber was 14, was 5’1” tall, and weighed approximately 120
pounds) would ignore protocol and offer a helping hand.
There may be other holes in Barber’s case, but the fact that
there may be other reasons for not believing Barber’s story
does not necessarily mean that the improper questioning was
harmless. See, e.g., Taylor, 920 F.2d at 1377.
We also observe that the defendants’ story was not iron-
clad. Most importantly, they testified that Barber was a little
intoxicated and was not falling-down drunk, while at the same
time testifying that he was injured because he was so intoxi-
cated he fell down. It seems that falling down and injuring
oneself due to one’s intoxicated state is the very definition of
“falling-down drunk,” but the defendants went to great
lengths to deny that Barber was falling-down drunk. Why?
Perhaps this was because the medical records did not mention
anything about Barber being drunk, something the treating
physician testified he would have noted with a 14-year-old
patient. It is true that Barber was injured around 8 p.m. and not
taken to the hospital until 10 p.m., but it may strike a jury as
No. 12-2562 31

odd that a 14-year-old child who allegedly had been drinking
liquor all day long would be unable to walk steadily at 8 p.m.
and then sober up to the point that he had no indicia of
intoxication a few hours later. In short, this was not a one-sided
case, and we cannot say with fair assurance that the improper
questioning on Barber’s subsequent underage drinking arrest
and PSMV conviction did not substantially sway the jury.
III
Given our resolution of Barber’s first two claims of error,
we need not address his remaining contentions. Pursuant to
Circuit Rule 36, Barber’s new trial will be assigned to a differ-
ent district judge (absent consent of the parties), who can
revisit the rulings in limine. We note, however, that Barber’s
claims of judicial bias are utterly meritless and are not well
taken. Cf. Liteky v. United States, 510 U.S. 540, 555–56 (1994).
The district court’s denial of Barber’s motion for a new trial
is REVERSED, the judgment is VACATED, and the case is RE-
MANDED for a new trial.