Heads up: TL; DR. Apparently you have to make people on this board aware of this, or otherwise they start crying about having to read. Feel free to ignore this if you don't want to read anything lengthy...I'm just partaking in a discussion that you're free to exclude yourself from at any time.
The legal determination to be made is whether or not that use of force was legal. Not whether or not the deceased was guilty of a crime. The rules for determining that legal use of force are the ones listed above. SCOTUS took the time out of their busy day to tell the courts exactly how that determination is made and the modern interpretation of that ruling includes all facts known to the officer, historical data included. They are not saying, as you suggested, that all force is justified when the suspect has been previously violent, only that a reasonable officer reacts differently to someone he or she knows is violent. Surely you can see the wisdom in that.
Yes, I do understand that. But just because a court lists out the factors that an officer can and should consider does not mean that each and every factor he considered will be admitted into evidence.
For instance, let's assume that a police officer approaches a suspect. He's aware that the suspect has a violent history. He tells the suspect to get down on the ground. The suspect does so. He tells the suspect to put his hands behind his head. The suspect does so. The officer then fires a round into the suspect's head, killing him.
The family of the deceased brings, among many other claims, a Section 1983 claim for use of excessive force under federal law. The officer's attorney wants to bring in evidence of the suspect's prior violent acts as evidence.
What is the probative value of this evidence in light of all of the other evidence? Nothing. Although criminal history is one factor that the officer can and should consider, there are other factors, and in light of all of the other factors, the criminal history should not have led the officer to decide to use deadly force. As such, allowing the criminal history as evidence would offer nothing probative, and would only serve to try to prejudice the jury against the suspect.
That is a hyperbolic example, but there would certainly be gray areas in which a judge could reasonably refuse to admit the criminal history as its prejudicial effect would outweigh the probative value in light of all of the other available evidence.
I finally found a case that directly addresses the issue of an officer's knowledge of the suspect's criminal history and how this is treated under rules 404(b) and 403:
http://www.paed.uscourts.gov/documents/opinions/13d0456p.pdfDefendants respond that Diaz’s history of violence is relevant because in an excessive force case a jury must “consider the Defendants’ subjective state of mind and knowledge at the time of the incident†which includes “all the relevant facts and circumstances that [the defendants] reasonably believed to be true at the time of the encounter."
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To address this motion I must assess: 1) whether Diaz’s past criminal convictions are relevant to his claims against the defendants; 2) whether evidence of Diaz’s past criminal convictions is admissible as probative of the defendants knowledge and state of mind (or for some other purpose not barred by rule 404) on May 14, 2010
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As above, I find that “if the [defendants] were aware of [Diaz’s] prior criminal conduct or discipline while incarcerated . . . and this information formed a basis to evaluate the level of threat posed by [Diaz] (emphasis added by 
), knowledge of such history would be relevant to the inquiry as to whether the force used against [Diaz] was reasonable under the circumstances.†Smith v. City of Phila., 2009 WL 3353148, at *2. Thus I proceed to the next prong of my inquiry.
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As above, the admissibility of a party’s crimes, wrongs or other acts is governed by Federal Rule of Evidence 404. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. Fed. R. Evid. 404(a).
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However, this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2). For other acts evidence to be admissible under the exceptions listed in Rule 404(b), (1) the evidence must have a proper purpose; (2) it must be relevant under Rule 401 and 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it was admitted. Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 520 (3d Cir. 2003).
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In order to determine whether defendants had knowledge of these convictions prior to the incident and whether this knowledge informed their actions on that day (emphasis added by ), I will again look to the deposition testimony submitted by defendants.
Several things to note about this case:
1.) The court walks through the 404(b) and 403 rules just as I've stated they should. Just because it has been stated that an officer can and should take into consideration the history of the suspect/defendant, it does not mean that this history will automatically be admitted into evidence. The rules of evidence have to be followed.
2.) The officers did not know the exact nature of the convictions for which the alleged victim was serving time, and thus the court found that those convictions could not have affected the officers' state of mind in determining the amount of force to use. I point this out because, unfortunately, this resulted in the court not advancing to the third prong of its test, which was to evaluate the probative value of the evidence in comparison to its prejudicial effect, as required by rule 403. As such, I still don't have a clear example of a court addressing this prong, but at least it is clear that this still has to be considered in use of force determinations. Again, the victim's history is not just automatically admitted simply because the officer was aware of it.
3.) As is stated by the court, the criminal history must be used as a basis to evaluate the level of threat posed by the alleged victim. Similarly, the court stated that, in order to determine the admissibility of the officer's knowledge of prior acts, it must make a determination as to whether that knowledge informed the officers' actions. As is seen with my example above, there are instances in which the criminal history of the alleged victim, although known by the officer, should not play a part in evaluating the level of threat or otherwise informing the officers' actions. In those instances, the criminal history should not be introduced as evidence, as it would be introduced solely to prejudice the jury against the alleged victim.
Again, understand that I am not arguing for one side of THIS case or the other. I'm only pointing out the legal standard for ruling on use of force. I don't know who did what in reference to the shooting all I know is too much wrong has been done since.
Same here. Not claiming to know what did or didn't occur in this instance, but instead am just trying to point out how rules 404 and 403 play into whether his criminal history is admitted. It's not as simple as stating that the officer knew of the criminal history, and thus it's admissible. You must show that the knowledge was used to evaluate the level of the threat and how to respond. If there is other evidence that shows that the criminal history is irrelevant (such as the fact that the victim cooperated and never posed a threat), then the criminal history is prejudicial, not probative, and can't be admitted.
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