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4th Cir.: Officer’s history of excessive force admissible

An officer’s conviction for injuring an arrestee was affirmed, in part because the officer’s past conduct toward individuals he perceived as disrespecting law enforcement was probative of his state of mind during the events giving rise to the crime.


Appellant Mark Cowden, a lieutenant with the Hancock County Sheriff’s Office, and other officers on duty at the HCSO station were preparing to process arrestee Ryan Hamrick. Before Hamrick arrived, officers heard he had resisted arrest. An officer at the station heard Cowden say that Hamrick was “not going to act that way with us. This is our house. Play by our rules.” Another officer testified that Cowden’s mood at the time was unusually hostile.

When Hamrick arrived at the station in handcuffs, officers present testified that he was not threatening them physically or verbally and was not actively bleeding. As Cowden and another officer escorted Hamrick inside the station by his arms, he attempted to pull away. Although none of the other officers present interpreted the move as a threat, Cowden responded by throwing Hamrick against the wall. While Hamrick was facing the wall, still in handcuffs and not resisting, Cowden pulled Hamrick’s head away from the wall and slammed his head and face back into the wall. Cowden again stated that the station was “our house” and that Hamrick had to “play by our rules.” Cowden then punched Hamrick in the back of his head, grabbed him by the throat, and knocked him by the head into the corner of the waiting elevator, yelling at Hamrick about resisting law-enforcement officers.

The other officer who had been holding Hamrick testified that he didn’t see any reason for force to be used and that Cowden seemed to be losing control. That officer intervened by putting his hand between Cowden and Hamrick and telling Cowden to “back off.” At this point, Hamrick had 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 walls of the elevator and the hallway.

Hamrick received medical care at a local hospital, with medical costs totaling $3,044.

Before trial, the government noticed its intent under Federal Rule of Evidence 404(b) to introduce evidence of Cowden’s use of force during two prior criminal investigations. In the first incident, Cowden and other officers responded to a domestic disturbance report involving Clayton Settle.  Without warning or provocation, Cowden hit Settle in the nose, causing it to bleed. Cowden then roughly forced Settle to the ground before the sheriff arrived and ordered Cowden to “back off.”

In the second incident, officers responded to a report of possible fighting at a nightclub. William Hall, an individual involved in the confrontation, began arguing with the responding officers, though they did not perceive this as a threat. Nevertheless, Cowden arrived on scene during this exchange and pushed Hall. Hall then pointed a finger at Cowden and said, “you need to learn to show respect.” In response, Cowden shoved Hall into a vehicle and punched him in the face. When Hall tried to get up, Cowden threw Hall face down on the ground. As Hall was lying in a fetal position with both hands covering his face, Cowden punched Hall in the back of the head.

The district court admitted the evidence of Cowden’s previous conduct, but instructed the jury that it may not consider that evidence in deciding if Cowden committed the acts charged. The court further instructed the jury: “You may consider this evidence 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.”

After his conviction, Cowden appealed on grounds that the district court improperly admitted the evidence of prior acts. Cowden also challenged the district court’s instructions to the jury and award of restitution.

Prior bad acts

The district court did not err by admitting evidence of Cowden’s prior “bad acts.” The evidence as used in this case satisfies the four-factor test identified in United States v. Johnson, 617 F.3d 286 (4th Cir. 2010).

First, both prior incidents were relevant to Cowden’s use of excessive force in circumstances when officers were not actually threatened but Cowden perceived inadequate respect. Similar to the prior incidents where Cowden apparently felt disrespected, in the present case Cowden repeatedly stated after learning that Hamrick had resisted arrest that Hamrick had to “play by our rules” because the sheriff’s office was “our house.” Thus, the prior incidents were probative of Cowden’s state of mind at the time he used excessive force – namely, of his intent to punish Hamrick for earlier defying officers’ directions.

Second, the prior “bad act” evidence was necessary to the government’s case, because Cowden testified at trial that he had not intended to punish Hamrick but was only responding to the threat Hamrick posed. Given the conflicting testimony at trial and the government’s heavy burden of proof, the evidence was necessary to demonstrate an essential claim.

Third, testimony regarding the prior “bad acts” was reliable, especially given that the witnesses were subject to cross-examination and argument regarding their credibility.

Finally, the evidence of prior “bad acts” provided significant information about Cowden’s actions when dealing with individuals he perceived as manifesting resistance to law enforcement. The probative value of this information was not substantially outweighed by possible unfair prejudice to Cowden. Moreover, any prejudicial effect was reduced by two sets of limiting instructions – one given after the witnesses testified and the other given as part of the complete set of jury instructions at the conclusion of evidence.

Jury instructions

The district court correctly explained the distinctions associated with violations under 18 U.S.C. § 242, which are felonies if the defendant caused bodily injury to the victim but misdemeanors when no bodily injury resulted. The jury instructions in this case permitted the jury to find Cowden guilty of a misdemeanor rather than a felony if the jury determined that Hamrick had not suffered a bodily injury.

The district court also did not err in presenting the jury with a verdict form that included special interrogatories.  Although special interrogatories are disfavored in criminal trials, the ultimate decision whether to employ them is within the district court’s discretion. In this case, both the court’s instructions and the verdict form itself contained instructions not to consider the issue of bodily injury unless the jury first found that the government had proved the three essential elements of a § 242 offense beyond a reasonable doubt. In the absence of any contrary indication, this court assumes that the jury understood and followed the district court’s accurate instructions.


The government met its burden of proof under the Mandatory Victims Restitution Act as to the amount of loss sustained by the victim. The jury found that Hamrick suffered bodily injury as a result of Cowden’s criminal conduct, a finding essential to the felony conviction. This finding was supported by testimony from several officers that Cowden’s use of force caused cuts and lacerations on Hamrick’s face. The same officers testified that Hamrick was not actively bleeding when he arrived at the station but was bleeding after Cowden’s use of force.

The amount of Hamrick’s medical expenses was not disputed, and the government was not required to present testimony estimating what, if any, medical expenses Hamrick would have incurred in the absence of Cowden’s use of excessive force. Based on the overwhelming evidence regarding the injuries Hamrick suffered as a result of Cowden’s actions, it was within the district court’s discretion to require Cowden to pay the full amount of Hamrick’s medical expenses.


United States v. Cowden, Case No. 17-4046, Feb. 16, 2018. 4th Cir. (Keenan) from NDWV at Wheeling (Stamp). Martin Patrick Sheehan for Appellant; Christopher Chen-Hsin Wang for Appellee. VLW No. 018-2-029, 19 pp.

VLW 018-2-029