Mimesis Law
20 January 2021

Smith v. Pilkerton: Cops Can’t Use Past Bad Arrests To Justify New Ones

October 28, 2016 (Fault Lines) — In a shocking development, the 4th Circuit Court of Appeals has ruled that evidence of previous arrests is not admissible to show that a victim of unlawful arrest “deserved” what happened to her. This is a huge departure from how things are normally done.

In the hours following a police shooting, we all brace ourselves. We all know that the government is about to use its awesome investigative powers to find every bad thing the victim has ever done. Every “thuggish” Facebook photo. Every loose cigarette arrest. All in an effort to salvage the department’s reputation by creating the implication that the victim must have done something to deserve what happened to him.

In the rare instances where there is nothing negative to say, there is usually an intense and prolonged silence. When Philando Castile was shot, his frustratingly lovable demeanor and inspiring life story left officers grasping for straws, pointing out that they had handed the four-year-old who witnessed his death a teddy bear for her trouble. Even the evidence of his many stops by police proved to be a double-edged sword, as it supported the narrative that he was being racially profiled even as he led something like an exemplary life.

But Makia Smith, by contrast, was not quite so squeaky clean. She earned the wrath of a Baltimore police officer, William Pilkerton, when she dared to film him in public as he arrested a child. The child, whose only apparent basis for arrest was that he was “running through the streets” after school let out, was apparently struggling with the female officer who was trying to hold him down while half a dozen other officers formed a perimeter.

So there are two full-grown officers struggling with a child, going about their business, when they hear a sudden, rude interjection—squealing tires as a car jolted to a stop. Out came Makia Smith, fifty feet away and filming with her cell phone, telling officers “I’m not going to let you hurt that young boy. I ain’t moving. I ain’t moving shit.”

This is the part where the account varies quite a bit. The officer says that he politely “quick stepped” towards Smith to make a “traffic stop,” because her car was blocking traffic behind her and that she “ran back into her car” after he asked for her license. So while he was grabbing her out of the vehicle, she scratched him, and he was forced to make an arrest. Then he threatened to call child protective services to take her daughter away.

Smith, by contrast, says that the officer approached, smacked the cell phone out of her hand, and threatened to knock her teeth out while calling her a bitch. He then dragged her out of her car by her hair. At some point, she lost consciousness and woke up to find an officer threatening to break her arm as he bent it into handcuffs.

Apparently, prosecutors found Smith’s account more credible because, a year after she was charged with attacking the officer, failing to show her license, and obstructing the roadway, the case was dismissed through what’s known as a nolle prossequi. This is typically done when a prosecutor feels that a case is unwinnable, unethical, or otherwise distasteful for some reason and wants to focus on other things.

But then Smith brought suit, alleging that she had been unlawfully arrested for exercising her First Amendment rights, and had suffered excessive force. At trial, she planned to testify that she had suffered physical and emotional distress at the arrest, that she apologized to her daughter regularly and tensed up when she saw police officers.

But the defense had an interesting response to that. It argued that because she had already been arrested three times before, once for fleeing and eluding (she said that she had driven to a lit area before pulling over), and twice for assault, it couldn’t have been all that traumatic. It was probably just part of her everyday experience, even though none of the three previous arrests had resulted in a conviction. The trial court let it in, reasoning that it didn’t go to whether the officers were correct, only whether she was truly traumatized.

The jury heard all this, and promptly handed the Baltimore police a win.

And the 4th Circuit handily reversed:

We fail to see how Smith’s prior arrests were relevant to her claim for damages, which was the sole reason the district court admitted them, and any probative value of those arrests was far outweighed by prejudice to Smith.

It was a good call, this was a classic he-said, she-said case. The two accounts could not be more different, and of course it would affect a jury’s perception of Smith to know she had been arrested before. It might suggest that she was a trouble-maker. Even worse was the trial court’s justification.

In criminal law, after all, every victim is an eggshell plaintiff. It is not a defense to a rape case to say that the victim had been raped plenty of times before, and so it probably didn’t even bother her very much. By using Smith’s history of arrests as a way to diminish the credibility of her suffering, the District Court was using a history of government mistakes to justify a brand new error.

It’s unlikely that this case will do much to change how police departments react when the thin blue line gets out of hand. The court of public opinion has no rules of evidence, after all. But if it can make a government lawyer just a little bit more hesitant to say that someone had it coming for being homeless, or mentally ill, or less than spotless in their personal lives, it might do just a little bit of good.

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  • Brad
    28 October 2016 at 10:36 am - Reply

    Thank you so much for blogging this case. I had not seen it yet. As an avid reader of 4A-grounded civil cases against the popo, I can confirm that this result is every bit as surprising as you say, especially because it is Fourth Circuit.