                                 In the

     United States Court of Appeals
                   For the Seventh Circuit
                      ____________________
No. 17-1557
KASEY BURTON,
                                                   Plaintiff-Appellant,
                                   v.

CITY OF ZION, LAKE COUNTY, ILLINOIS, et al.,
                                         Defendants-Appellees.
                      ____________________

         Appeal from the United States District Court for the
             Northern District of Illinois, Eastern Division.
        No. 1:14-cv-10486 — Sheila Finnegan, Magistrate Judge.
                      ____________________

    ARGUED JANUARY 16, 2018 — DECIDED AUGUST 24, 2018
                 ____________________

   Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
   ROVNER, Circuit Judge. On March 13, 2014, Kasey Burton
was driving to pick up her roommate’s niece for a barbeque.1
Unbeknownst to her, her license was suspended. Officer Jon-
athan Meyers, a City of Zion police officer, however, had

1 We report only the undisputed facts. The minor factual disputes are not
relevant to the motion in limine at issue in this appeal.
2                                                   No. 17-1557

learned the news in that day’s “hot sheets” (a list of items of
current interest to police). After he spotted her driving, he
verified by radio that the police had an active warrant for her
arrest for driving on a suspended license, and then pulled be-
hind Burton’s van and activated his squad car’s emergency
lights. Burton saw the flashing lights and heard the siren and
knew that an officer wanted to pull her over, but according to
her testimony at trial, Burton was afraid to pull over because
of her experience with a Zion police officer five and a half
years earlier, in 2008. During that earlier incident, Zion police
officer Joseph Richardt pulled Burton over for operating a ve-
hicle with sound amplification. By the end of that stop, Officer
Richardt had handcuffed Burton and then, while she was
handcuffed, used a taser to stun her. Burton filed a citizen’s
complaint against Officer Richardt and, after an internal in-
vestigation, the Zion Police Department sustained the allega-
tions of unnecessary force. Burton filed a federal lawsuit
against the City of Zion, Officer Richardt, and other officers
and eventually reached a settlement with the City.
     Burton testified that this prior incident was on her mind
and that she was afraid of the police when Officer Meyers
tried to pull her over. As a result, she said, she did not imme-
diately comply with Officer Meyers’ request for a stop, but
instead drove her car toward her home while following all
speed limits and traffic laws, where she knew she could exit
her car with friendly witnesses watching. The officers also tes-
tified that they knew that Burton was heading to her house.
    As she was driving home, Officer Richardt, the same of-
ficer who had been involved in the incident with Burton be-
fore, joined the pursuit, also activating his lights and siren,
followed by a third officer in a third squad car, Sergeant
No. 17-1557                                                            3

Duane Arrington. At some point, Sergeant Arrington maneu-
vered his car in front of Burton’s to get her to stop, but she
merely turned left and continued to drive, still following all
speed limits and traffic laws, until she reached her driveway.
    Burton arrived at her home and stopped her van near her
friend, Dale Wells, who was with his pit bull. Officer Meyers
stopped behind Burton’s van and as he approached the
driver’s side door, Burton exited through the passenger-side
door because, she alleged, the driver’s side door was not func-
tioning. Officer Richardt saw Burton exit the van and ran to-
ward her commanding her to get on the ground. Officer Rich-
ardt brought Burton to the ground but did so by incorrectly
executing a “straight-arm take down.” As they were on the
ground, the pit bull jumped on top of Officer Richardt and bit
his leg, but immediately released it without causing damage.
Sergeant Arrington placed his knee on Burton’s back as he
handcuffed her then dragged her away. Burton’s suit alleged
that as a result of the incident, she suffered with pain for a
month.
    Burton sued the City of Zion, Officer Richardt, and Ser-
geant Arrington, under 42 U.S.C. § 1983, claiming that the of-
ficers used excessive force in executing her arrest in violation
of her Fourth Amendment rights. 2 Prior to trial, each party
filed motions in limine, including the one at issue here, in
which the City of Zion asked that any evidence regarding
Burton’s 2008 encounter with Officer Richardt be omitted
from evidence. The district court granted the defendants’ mo-
tion, thus removing any evidence of the 2008 encounter from


2 The parties consented to the exercise of jurisdiction by the magistrate
judge.
4                                                    No. 17-1557

the jury’s consideration. In other words, the jury heard testi-
mony about and saw video of the 2014 stop, including Bur-
ton’s failure to stop, her slow drive home, and the arrest itself,
but nothing about her prior experience with Officer Richardt.
Burton filed a motion for reconsideration, but that too was de-
nied. R. 118. After a three day trial, the jury found in favor of
the defendant officers and City of Zion. Burton now appeals,
arguing that the district court erred in its order on the motion
in limine by disallowing the evidence of her 2008 encounter
with Officer Richardt.
                                  I.
    District courts have broad discretion in ruling on motions
in limine, and we review such a ruling only for an abuse of
discretion.” DiPerna v. Chicago Sch. of Prof'l Psychology, No. 17-
3351, 2018 WL 3121236, at *6 (7th Cir. June 26, 2018). We show
great deference for a district court’s evidentiary rulings.
Holder v. Ill. Dep't of Corr., 751 F.3d 486, 493 (7th Cir. 2014).
Even if we find an abuse of discretion, “[a] new trial is war-
ranted only if the error has a substantial and injurious effect
or influence on the determination of a jury and the result is
inconsistent with substantial justice.” Arrigo v. Link, 836 F.3d
787, 794 (7th Cir. 2016) (citation omitted). In other words,
there must be a significant chance that the flawed ruling af-
fected the outcome of the trial. Thorncreek Apartments III, LLC
v. Mick, 886 F.3d 626, 634 (7th Cir. 2018). Burton need not
show that on remand a jury will come out the other way.
United States v. Richards, 719 F.3d 746, 765–66 (7th Cir. 2013).
She need only show that an average juror would have found
the omitted evidence persuasive. United States v. Miller, 673
F.3d 688, 700 (7th Cir. 2012).
No. 17-1557                                                  5

    The district court granted the defendants’ motion in
limine after concluding that the evidence of the prior stop was
propensity evidence—evidence that Officer Richardt acted in
accordance with the character of someone who uses excessive
force—and, therefore under Federal Rule of Evidence 404(b),
it could not be admitted. This federal rule sets forth the pro-
hibited and permitted uses of prior acts as follows (In this
case, the controverted prior act is not criminal in nature, but
rather a civil wrong):
       (b) Crimes, Wrongs, or Other Acts.
       (1) Prohibited Uses. Evidence of a crime,
       wrong, or other act is not admissible to prove a
       person’s character in order to show that on a
       particular occasion the person acted in accord-
       ance with the character.
       (2) Permitted Uses; Notice in a Criminal Case.
       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).
    In order to delve into an analysis under Rule 404(b), we
need to explore the nature of Burton’s case, that is, what she
was trying to prove, and thus for what purpose the evidence
might have been relevant. This case alleges excessive force by
a law enforcement officer so, in order to be relevant, all evi-
dence must make it more or less probable that the officers’
force was reasonable. See Fed. R. Evid. 401.
    Burton accused Richardt of using excessive force as she ex-
ited her van. Whether the amount of force an officer used is
6                                                    No. 17-1557

excessive or reasonable turns on the “facts and circumstances
of each particular case.” Graham v. Connor, 490 U.S. 386, 396
(1989). The standard of reasonableness for a police officer in
an excessive force case is “an objective one: the question is
whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. at 397. “A
court must make this determination from the perspective of a
reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.”
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). The Su-
preme Court case law on excessive force has emphasized that
the assessment as to whether an officer has used excessive
force “requires careful attention to the facts and circum-
stances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is ac-
tively resisting arrest or attempting to evade arrest by flight.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation omitted).
In sum, the knowledge of the officer is a critical inquiry in any
assessment of reasonable force.
   In this case, the district court looked at the prior bad act—
Officer Richardt’s 2008 stop of and use of a taser against Bur-
ton—and analyzed it using this court’s four-part test to deter-
mine whether prior-act evidence was admissible. That is, the
court looked to see whether
       (1) the evidence is directed toward establishing
       a matter in issue other than the [defendant’s]
       propensity to commit the crime charged; (2) the
       evidence shows that the other act is similar
       enough and close in time to be relevant to the
No. 17-1557                                                                 7

        matter in issue, (3) the evidence is sufficient to
        support a jury finding that the [defendant] com-
        mitted the similar act, and (4) the probative
        value of the evidence is not substantially out-
        weighed by the danger of unfair prejudice.
D. Ct. Order, R. 116 at 9–10, citing United States v. Vargas, 689
F.3d 867 (7th Cir. 2012). 3 Using this framework as a guide, the
district court determined that the evidence of the prior act
could not be admitted to show Burton’s fearful state of mind,
because using an objective standard of reasonableness from
the officer’s point of view, her state of mind was not relevant
to the question of whether a police officer used excessive
force. R. 116 at 10. The officers could not have known what
was going through Burton’s mind, the district court ex-
plained, and therefore her fearful state of mind was not rele-
vant to the assessment of reasonableness. Id.
   Likewise, the district court reasoned that the evidence
could not have been relevant to show the totality of the cir-
cumstances either because, again, Officer Richardt could not

3 The plaintiff included only the first paragraph and piecemeal selections
of the District Court’s underlying order (R. 116) in the short appendix. Cir-
cuit Rule 30(a) requires that “The appellant shall submit, bound with the
main brief, an appendix containing the judgment or order under review
and any opinion, memorandum of decision, findings of fact and conclu-
sions of law, or oral statement of reasons delivered by the trial court or
administrative agency upon the rendering of that judgment, decree, or or-
der.” For clarity we note, although including only relevant portions of
transcripts or other records is permissible, the parties should include the
orders from which they are appealing in their entirety rather than just the
particular parts that are referenced in the brief. The entire order, including
the portions not appealed, allows an appellate court to have context for
the appeal.
8                                                    No. 17-1557

have known that Burton must have been afraid of him and
therefore the evidence could only be used for impermissible
propensity purposes—to show that he likely used excessive
force because he had done so before. Id. at 11. Finally, the dis-
trict court concluded that the prior incident was “neither suf-
ficiently similar nor close in time to be probative,” noting that
the prior incident had occurred some five and a half years be-
fore the current arrest, that it involved different initiating of-
ficers, that she was pulled over for different infractions, and
that Officer Richardt’s alleged excessive force in 2008 in-
volved a taser rather than a “takedown.” Id. at 11–13.
    Having evaluated the facts through the lens of the four-
part test, the district court granted the defendant’s motion in
limine, barring any mention of the evidence of Burton’s prior
encounter with Officer Richardt as propensity evidence. Id. at
13. The jury would never hear that five years earlier, Officer
Richardt had fired a taser at Burton while she was hand-
cuffed.
     The problem, however, is that this court eschewed that
four part test three years prior to the district court’s order,
“abandon[ing] it in favor of a more straightforward rules-
based approach.” United States v. Gomez, 763 F.3d 845, 853 (7th
Cir. 2014). The decision in Gomez stated that the change is
“less a substantive modification than a shift in paradigm.” Id.
This is true in the sense that the former test was legitimate to
the extent that it reflected the requirements of the Federal
Rules of Evidence. But, we noted, using the test allowed for
the possibility that “misapplication of the law can creep in.”
Id. In other words, legal error was a possibility because “some
aspects of [the previous] test lack[ed] an adequate basis in the
rules.” Id. Thus we warned that using the test could lead to
No. 17-1557                                                    9

error if the test was used too rigidly, as a “straightjacket,” or
if it was used in a way that was not supported by the Federal
Rules of Evidence. Id. at 854–55.
    After rejecting the four-part test of Vargas, (and, by exten-
sion, United States v. Zapata, 871 F.2d 616, 620 (7th Cir. 1989),
and United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.
1984)) we set forth a new framework that weighs the rele-
vance of other-act evidence directly, using the Federal Rules
of Evidence as a guide. Under that framework,
       to overcome an opponent’s objection to the in-
       troduction of other-act evidence, the proponent
       of the evidence must first establish that the
       other act is relevant to a specific purpose other
       than the person’s character or propensity to be-
       have in a certain way. See Fed. R. Evid. 401, 402,
       404(b). Other-act evidence need not be excluded
       whenever a propensity inference can be drawn.
       But its relevance to “another purpose” must be
       established through a chain of reasoning that
       does not rely on the forbidden inference that the
       person has a certain character and acted in ac-
       cordance with that character on the occasion
       charged in the case. If the proponent can make
       this initial showing, the district court must in
       every case assess whether the probative value of
       the other-act evidence is substantially out-
       weighed by the risk of unfair prejudice and may
       exclude the evidence under Rule 403 if the risk
       is too great. The court’s Rule 403 balancing
       should take account of the extent to which the
10                                                  No. 17-1557

       non-propensity fact for which the evidence is
       offered actually is at issue in the case.
Gomez, 763 F.3d at 860.
    Although some of the changes between the four-part test
the district court used and the new rules-of-evidence-based
test reflect more of a change in process than substance, in
other ways Gomez altered the framework in ways that are sig-
nificant to the outcome of this case. Specifically relevant to
this case, Gomez rejected the rigid application of the rule re-
quiring a court to look at the similarity and recency of the
prior act. Instead, we noted that if we look more generally to
the Federal Rules of Evidence to guide our analyses,
       the need to check for similarity and recency may
       be substantially diminished or nonexistent de-
       pending on the particular purpose for which the
       evidence is offered. In some cases the relative
       similarity of the other act to the charged offense
       may be unimportant as a test of relevance. … It’s
       far too tempting to stop at superficial compari-
       sons without meaningfully analyzing how the
       similarity and recency of the prior bad act affect
       its relevance in the unique circumstances of the
       case. And the similarity and timing of the other
       act may not bear on the relevance question at all.
Id. at 854 (internal citations omitted). In short, sometimes sim-
ilarity or recency or both will be relevant to the inquiry and
sometimes they will not. If they are not, then a court may not
reject the evidence based on a lack of similarity or recency. In
this case, they were not relevant.
No. 17-1557                                                   11

    The district court erred, therefore, by applying a legal test
this court has rejected and by rigidly applying the similarity
and recency rule to find that the prior incident was “neither
sufficiently similar nor close in time to be probative.” R. 116
at 11. The district court found that the prior incident had oc-
curred some five and a half years before the March 2014 ar-
rest, that it involved different initiating officers, that Burton
was pulled over for different infractions, and Officer Rich-
ardt’s alleged excessive force in 2008 involved a taser rather
than a “takedown.” But the district court erred by clinging too
tightly to the requirements of similarity and recency, as the
need to check for these “may be substantially diminished or
non-existent depending on the particular purpose for which
the evidence is offered.” Gomez, 763 F.3d at 854. This is just
such a case. As we will explain below, the only reason for
which the prior incident would have been relevant was to
show Officer Richardt’s knowledge—to prove that Officer
Richardt knew that Burton had a previous frightening and
painful encounter with the police, and not to show that Of-
ficer Richardt has a tendency to use excessive force. The sim-
ilarity between the prior incident and this one, therefore, was
not relevant. And for the same reason, recency would only
matter if, in fact, the prior incident had happened so long ago
that Officer Richardt could not have remembered it. We think
this unlikely. After the prior incident, the City investigated
and sustained the allegations that Officer Richardt used un-
necessary force. Burton filed a federal lawsuit with Officer
Richardt as the named defendant which the City eventually
settled. It seems the type of event he was unlikely to have for-
gotten, even after five and a half years.
   As we have just foreshadowed, we must now turn to the
theory of this particular case and evaluate the potential uses
12                                                 No. 17-1557

of the evidence using the proper framework, the one set forth
in Gomez, to see for what purpose the prior stop may have
been used.
    When evaluating the reasonableness of a police officer’s
use of force, the key question is “what the officer knew at the
time.” Kingsley, 135 S. Ct. at 2473. A plaintiff must show the
officer’s use of force was objectively excessive from the per-
spective of a reasonable officer on the scene under the totality
of the circumstances. Graham, 490 U.S. at 396–97. Reasonable-
ness depends on the facts and circumstances confronting an
officer at the time. Kisela, 138 S. Ct. at 1152. And, as the Su-
preme Court and this court have emphasized again and
again, a court must consider “the amount and quality of the
information known to the officer at the time.” Horton v. Pob-
jecky, 883 F.3d 941, 949–50 (7th Cir. 2018) (citation omitted).
See also Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539,
1546–47 (2017) (“Excessive force claims ... are evaluated for
objective reasonableness based upon the information the of-
ficers had when the conduct occurred.”) citing Saucier v. Katz,
533 U.S. 194, 207 (2001); Doornbos v. City of Chicago, 868 F.3d
572, 579 (7th Cir. 2017) (“In deciding excessive force claims,
the issue is whether an officer’s use of force was objectively
reasonable given the information he or she knew at the
time.”); Common v. City of Chicago, 661 F.3d 940, 943 (7th Cir.
2011) (“A jury must stand in the shoes of an officer and judge
the reasonableness of his actions based on the information he
possessed.”).
    Thus, the entire question in an excessive force case boils
down to this: Was the officers’ force, in light of the facts and
circumstances before them and known to them at the time,
reasonable. Because the keystone question in this case was
No. 17-1557                                                         13

what the officers knew at the time, it is true, as the district
court reasoned, and the defendants argue on appeal, that the
2008 taser incident was not relevant to, and therefore should
not have been admitted to show, Burton’s state of mind. The
only relevant inquiry is whether Officer Richardt used exces-
sive force based on the perspective of the reasonable officer
on the scene, knowing what Richardt knew and hearing and
observing what Richardt did. Mendez, 137 S. Ct. at 1546–47.
Nor could the evidence be admitted to demonstrate Officer
Richardt’s subjective intent when he arrested Burton, as the
subjective intent of an officer making an arrest is not relevant
to an excessive force claim. Kingsley, 135 S. Ct. at 2473.
    Although neither Burton’s state of mind nor Richardt’s
subjective intent were relevant, Officer Richardt’s knowledge
at the time certainly was. The fact that Burton had previously
been subjected to excessive police force was one of the facts
and circumstances known to Officer Richardt and to the of-
ficer who stopped her, Officer Meyer. See R. 68-4 at 17. And it
would be hard to imagine that this knowledge was not run-
ning through their minds as they assessed the situation. The
knowledge was indeed critical. It explained why Burton did
not immediately stop. It explained why she would drive to a
familiar place with friendly witnesses. It explained why she
might exit the car away from the officers. 4 It surely would
have been a known fact and circumstance that a reasonable
officer would have put in the mix when assessing the level of
force required to subdue her. In other words, the officers had
some information about why Burton may not have stopped

4 Burton testified that the driver’s side door was broken and would not
open. Although this information would not have been known to the offic-
ers, the fact of her prior abuse by police officers was known.
14                                                No. 17-1557

immediately and why she headed to her house. An officer cer-
tainly is entitled to take what he knows about a suspect’s his-
tory into account in deciding on a reasonable amount of force.
See DeLuna v. City of Rockford, 447 F.3d 1008, 1010, 1012 (7th
Cir. 2006) (use of deadly force was reasonable based in part
on officer’s knowledge of suspect's history of violence and
that he was “known to both carry and sell weapons”). And,
under the same reasoning, it would be unreasonable for an
officer to refuse to take his knowledge of the suspect into ac-
count. Moreover, it would create an odd asymmetry to say
that a police officer may consider a suspect’s prior bad acts
when considering the amount of force to use, but need not
consider his own prior bad acts. In this case, Officer Richardt
testified that it was within his realm of knowledge that a rea-
sonable person in Burton’s shoes might have reason to fear
the police. Officer Richardt testified at his deposition:
      Q. I’m not asking you how she felt. Would it be
      reasonable to understand—Given that your job,
      your training, is to take into consideration the
      thoughts and mental processes of others as part
      of your totality of circumstances test—just tak-
      ing that into consideration—would it be reason-
      able and part of your job to take that into con-
      sideration attributable to your job?
      A. Yes.
      Q. So would it be reasonable to take into con-
      sideration, from your point of view, that Ms.
      Burton may be afraid of you at the time you ar-
      rested her?
      A. I don't know if she was afraid of me or not.
No. 17-1557                                                15

      Q. I'm not asking if she is afraid of you. Would
      it be reasonable for you to take that into consid-
      eration that at the time you arrested her in
      March 2014—
      A. Yes.
      Q. —that she was afraid of you? Okay. And it
      would be reasonable for her—Strike that. It
      would be reasonable to take that into consider-
      ation given that there was a finding by your De-
      partment that you had used too much force
      with her back in 2008, correct?
      A. Right.
      Q. And she filed a lawsuit against you, right?
      A. Right.
      Q. And do you know that the City paid a sig-
      nificant sum of money attributable to that law-
      suit?
      A. Yes.
      Q. Okay. So in her mind as a civilian, you could
      appreciate that she may have some significant
      concerns attributable to you, correct?
      A. Right.
      Q. I’m not saying she is right or wrong about
      those concerns. I’m saying: As a civilian—not a
      cop, not a judge, not an attorney—she may have
      her own personal concerns, right?
      A. Yes.
16                                                 No. 17-1557

      Q. That is something you should take into con-
      sideration when you’re arresting her, right?
      A. Yes.
R. 68-6 at 26–28. Officer Richardt did not need to know how
Burton felt at the time, he only needed to know that she had
been handcuffed and tasered by a police officer before, that
such an experience would have been painful and unpleasant,
that the City of Zion had determined that the action was un-
warranted, and that a reasonable person would not want to
have it happen again. He knew all of these things. We need
not focus on whether Officer Richardt took this knowledge
into consideration (although he testified that it was something
“he should take into consideration” R. 68-6 at 28), we need
only focus on whether it is the kind of information that a rea-
sonable officer should take into consideration. Officer Rich-
ardt’s testimony is merely additional evidence of what a rea-
sonable police officer would do.
    Moreover, we know that the question “why did Burton re-
fuse to stop” was a key question facing the jury because the
defendants made it so. They mentioned her mysterious re-
fusal to stop no less than eight times in closing argument as
follows:
      • Now you have seen and heard multiple
      times now plaintiff did not stop properly. R. 141
      at 30.
      • Instead of stopping she went to her home. Id.
      • You heard that Officer Meyers activated his
      lights, his sirens, and attempted to pull her over,
      [B]ut she didn’t stop. Id.
No. 17-1557                                                    17

       • It is undisputed that they tried to pull her
       over, that she knew they were trying to pull her
       over. Id. at 34.
       • They attempted to get her to stop. Sergeant
       Arrington pulled in front of her. She didn’t stop.
       She went home. Id. at 38.
       • After a sequence of events wherein they
       tried—tried to use the lower—presence com-
       mands. She didn’t comply. Id.
       • It was escalating because she failed to com-
       ply. And there was a chase. Id. at 40.
       • Again, we have to consider what they knew.
       They didn’t know whether she had a gun. They
       didn’t know whether she had drugs. All they
       knew is that she wasn’t going to stop. Id. at 42.


The last comment was particularly ironic because, in fact, Bur-
ton was the one who wanted the jury to consider everything
the officers knew. But it was the defendants who fought the
admission of a key piece of their knowledge. It was not in fact
true that “[A]ll they knew is that she wasn’t going to stop.”
They also knew that she had been on the receiving end of ex-
cessive force by police in the past.
    In other words, although they could not have known for
certain what was in her mind, they did know the following:
(1) she had been stopped before, handcuffed, and stunned
with a taser; (2) this behavior was found to be an excessive
use of force; (3) being subjected to a taser is painful, distress-
ing and, quite literally, stunning; (4) a reasonable person
18                                                    No. 17-1557

would not want to be on the receiving end of a taser again.
Any reasonable officer, with all of this knowledge would have
to at least consider the possibility that Burton was avoiding a
similar encounter to the previous one. One would not need to
be a mind reader to put the facts together, just a person of rea-
sonable intelligence. To put it another way, no reasonable of-
ficer with this information could not have considered the fact
that Burton might be trying to get to a safe public place to
have an encounter with the police.
    To see why this is clear, we present a few hypothetical sce-
narios. Suppose Officer Richardt encountered a deaf sus-
pect—we will call her Sophia—and, after calling to her to stop
several times, she does not stop (because, of course, she can-
not hear him) and he fires his taser to stop her, only to find
out, after the fact, that she is deaf. In all likelihood a finder of
fact might give his use of this force a pass because, at the time
of the events, Officer Richardt could not have known that the
suspect was deaf. Now, however, suppose he encounters So-
phia six years later, radios to his commander that he is follow-
ing “Sophia,” and once again he calls to her from behind and
she does not stop. This time if he uses a taser to stop her, or
tackles her, or uses a “straight arm takedown,” a jury could
certainly find that this use of force was excessive in light of
the facts known to the officer at the time—that Sophia could
not respond to his order because she could not hear it. It
would be error for a trial judge to exclude the evidence that
Officer Richardt knew the suspect was deaf. That evidence,
after all, is not being used to demonstrate propensity—that
Officer Richardt was the type of person who was too quick to
use a taser or other excessive force—but rather it was being
used only to demonstrate that he knew about some
No. 17-1557                                                    19

characteristic of the suspect that he should have considered
before using the level of force that he did. This case is no dif-
ferent.
    Moreover, imagine the same scenario above, except this
time, a different officer fired his taser at the deaf suspect, So-
phia, during the first episode, but it is undisputed that Officer
Richardt knew about the incident and knew that Sophia was
deaf. It would still be relevant evidence—offered not to
demonstrate anyone’s propensity for excessive force, and cer-
tainly not Officer Richardt’s, but rather, to show that Officer
Richardt knew Sophia was deaf and yet used force to subdue
her when she refused to heed his oral command.
    Rule 404(b) allows for prior bad act evidence if “the other
act is relevant to a specific purpose other than the person’s
character or propensity to behave in a certain way.” Gomez,
763 F.3d at 860. In this case the evidence was relevant to show
Officer Richardt’s knowledge that Burton had a frightening
and painful encounter with a Zion police officer before—one
that had not been justified. It can be completely divorced from
a chain of reasoning that involves propensity because, in this
case, the evidence was not used to argue that Officer Richardt
“ha[d] a certain character and acted in accordance with that
character on the occasion charged in the case.” (Gomez, 763
F.3d at 860)—in other words that he was the type of officer
who used excessive force. It was used to demonstrate his
knowledge of Burton’s prior experience of having been sub-
ject to a taser. We know the evidence is relevant without rely-
ing on a propensity inference because it would have been just
as useful to Burton if the prior incident had involved a differ-
ent officer, but it was undisputed that Officer Richardt knew
about it. And it would have been just as helpful to Burton in
20                                                    No. 17-1557

this case to demonstrate Officer Richardt’s knowledge if,
other than the incident of the tasing of Burton, Richardt had a
perfect police record, had never used a taser or “straight arm
take down” before, he had never been accused of excessive
force by anyone else, and had a personnel file full of letters
from citizens praising him for fair, civil, respectful interaction.
Burton did not need to demonstrate that Richardt was the
type of person who always acted this way at all; in fact, Bur-
ton only needed to demonstrate that she previously had a
very frightening interaction with him of which he was aware.
After that, it was up to the jury to decide whether Richardt’s
behavior was reasonable given what he knew. It was error,
however, for the district court to have applied the four factor
test used in Vargas without sufficient flexibility for the context
of this case, and it was error for the court to have labeled the
evidence as inadmissible propensity evidence. It was not.
    Gomez requires reflective discretion—that is, “identifying
the non-propensity theory that makes the other-act evidence
relevant and specifically asking how the evidence tends to
make a particular fact of consequence more or less probable.”
Gomez, 763 F.3d at 856. Other-act evidence need not be ex-
cluded whenever a propensity inference can be drawn, pro-
vided its relevance to another purpose can be established
through a chain of reasoning that does not rely on the forbid-
den inference. Id. at 860. This requires more flexibility in anal-
ysis than the Vargas factors allow.
     Finally, we address the application of Federal Rule of Evi-
dence 403 which allows a court to exclude relevant evidence
“if its probative value is substantially outweighed by a danger
of … unfair prejudice.” Fed. R. Evid. 403. Gomez requires that
after a proponent of potential evidence establishes relevance
No. 17-1557                                                   21

in a manner that does not rely on the forbidden propensity
inference, the court must “in every case assess whether the
probative value of the other-act evidence is substantially out-
weighed by the risk of unfair prejudice and may exclude the
evidence under Rule 403 if the risk is too great.” Gomez, 763
F.3d at 860. The district court mentioned Federal Rule of Evi-
dence 403 only in passing, while evaluating the similarity and
closeness in time between the two incidents as required by the
now-abandoned Vargas test. In the process of considering re-
cency and similarity, the district court stated, in one sentence,
without further explanation, that “any probative value the
2008 evidence may have is substantially outweighed by the
danger of unfair prejudice.” R. 116 at 13. The district court’s
weighing of probative value and prejudice in the context of
its evaluation of similarity and recency was based on its con-
clusion that similarity and recency were relevant to the in-
quiry in this case. We have held that they are not.
     The district court did not have reason to consider Rule
403’s weighing requirements while considering the other Var-
gas factors or the nature of the previous stop overall, because
it found that the evidence should be excluded under Rule 404.
On appeal it is up to this court to determine whether the evi-
dence is so prejudicial when compared with the probative
value that no reasonable district court judge could have al-
lowed it to come in. This is certainly not the case here.
   Having decided that the evidence was not barred by Rule
404, the district court, on remand, can balance the probative
value of the 2008 stop against the potential prejudice, keeping
in mind the following considerations: In this case there was
indeed a risk that the jury might conclude that Officer Rich-
ardt had a propensity to use excessive force. Any prejudice
22                                                    No. 17-1557

the defendant may have faced from the admission of other-
act evidence, however, could have been mitigated by appro-
priate jury instructions. Gomez, 763 F.3d at 860. In fact, in
Gomez, this court even offered specific instructions on how to
phrase a jury instruction limiting propensity evidence by ex-
plaining to the jury that “they must not use the other-act evi-
dence to infer that the defendant has a certain character and
acted ‘in character’ in the present case because it does not fol-
low from the defendant’s past acts that he committed the par-
ticular crime charged in the case.” Id. at 861. See also id. at 865
(Hamilton, J., concurring in part and dissenting in part) (sug-
gesting a specific jury instruction which instructs as follows:
“The government cannot meet its burden by inviting you to
infer that the defendant is a person whose past acts suggest
he has a bad character or a tendency to commit crimes.”). We
presume that juries follow the court’s instructions. Kansas v.
Carr, 136 S. Ct. 633, 636 (2016); See also Gomez, 763 F.3d 860–
61. Of course, another way the district court can mitigate the
prejudice to the defendants is to use its discretion to deter-
mine how the facts of the 2008 stop are presented to the jury.
    The district court will also have to consider how highly
probative the evidence of the prior stop would be. Burton’s
failure to stop must have raised myriad questions for the jury.
Most law-abiding citizens stop for the police, and we can as-
sume that most, if not all, members of the jury have never re-
fused to stop for the police. There are usually two primary
reasons that a person would refuse to stop for the police. First,
and more commonly, if she is guilty of a crime and trying to
escape or get rid of evidence, or second, if she is in fear, either
of the police or of the potential that the pursuer is an imposter.
The 2008 evidence was probative of this critical question that
was likely on every juror’s mind.
No. 17-1557                                                23

                               II.
   The fact that Burton had been subjected to excessive force
by the police on a prior occasion was not propensity evidence
and could not be excluded under Federal Rule of Evidence
404. On remand, the district court will have to weigh the pro-
bative value against the potential prejudice keeping in mind
the ways in which any prejudice can be mitigated. We
REVERSE the district court’s ruling on the motion in limine
and REMAND for further proceedings consistent with this
decision.
