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GRAACK v. BOROUGH OF NAZARETH

May 20, 1994

HARRY R. GRAACK, JR. and EVELINE GRAACK, Plaintiffs
v.
THE BOROUGH OF NAZARETH, ROY SEIPLE, MICHAEL STEVEN MELINSKY, GARY HAMMER and JOSEPH ROCCOSANTO, Defendants



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs allege that defendant police officers used excessive force in effecting the arrest of plaintiff Harry R. Graack. The trial in this matter is scheduled to begin on May 23, 1994. Plaintiffs have now brought a motion in limine and raised separate objections from a videotaped deposition in order to exclude two pieces of evidence from the trial: (1) evidence of plaintiffs' conviction in the arrest at issue in this case; (2) portions of a physician's testimony given during a videotaped deposition which plaintiff finds objectionable. We treat these areas of evidence in turn.

 1. Plaintiff's Conviction

 Plaintiff was arrested for, and ultimately convicted of, disorderly conduct and resisting arrest. *fn1" This § 1983 excessive force action arises from the very same arrest. Defendants urge admission of evidence of this conviction because, they argue, it is probative of whether the officers were justified in employing substantial force to overcome plaintiffs' resistance. Defendants point to 18 Pa.C.S. Section 5104, which defines the crime of resisting arrest as follows:

 
. . . if, with the intent of preventing a public servant from affecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

 Plaintiffs respond by arguing that the probative nature of this evidence is outweighed by its potential for prejudice to the plaintiffs. Fed.R.Evid. 403. Citing Diaz v. Cianci, 737 F.2d 138 (1st Cir. 1984), plaintiffs argue that a jury may be unduly prejudiced when confronted with evidence of a conviction, and may disregard their duty to determine whether the police used the force that was actually necessary under the circumstances. We note that the Fourth Circuit has recently taken a similar approach in Kopf v. Skyrm, 993 F.2d 374 (4th Cir. 1993). The Kopf court held:

 
If probable cause to arrest is present, the actual guilt or innocence of the arrestee is irrelevant to the amount of force that may be used. Just as the officers' actions ought not to be faulted through "the 20/20 vision of hindsight," so also should they not be absolved by it. Had [plaintiff] been the innocent victim of a tragic mistake, his story might have provoked popular consternation or served as grist for an investigative journalist's expose.

 Id., at 379. The Kopf court ruled that a § 1983 plaintiff's ultimate conviction for a store robbery was not relevant to the excessive force claim.

 While we are impressed with the arguments of both the First and Fourth Circuits, we are persuaded by the recent decision of the Court of Appeals for the Seventh Circuit in Calusinski v. Kruger, No. 93-2126, 24 F.3d 931, 1994 U.S. App. LEXIS 10814 (7th Cir. May 16, 1994) holding that the evidence of plaintiff's conviction is indeed admissible. In Calusinski, the Seventh Circuit evaluated the use of state criminal convictions as evidence in subsequent federal section 1983 actions in light of 28 U.S.C. § 1738. *fn2"

 Section 1738 provides the following with respect to the records and judicial proceedings of any court of any State within the United States:

 
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

 28 U.S.C. § 1738. In Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980), the Supreme Court addressed the preclusive effect of criminal convictions in subsequent section 1983 actions in light of § 1738. The Court held: "Congress has specifically required all federal courts to give preclusive effect to state court judgments whenever ...


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