                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 11-1753
                                     ____________

                                   DAVID PALMER,

                                                           Appellant
                                           v.

            SAMUEL NASSAN; TERRANCE DONNELLY; SHEILA LADNER
                                     ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 10-cv-00922)
                     District Judge: Honorable Arthur J. Schwab
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 6, 2011

       Before: HARDIMAN, BARRY, and VAN ANTWERPEN, Circuit Judges

                              (Filed: December 07, 2011)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.

      Plaintiff David Palmer appeals the District Court‘s judgment following a jury trial

on his claim of excessive force under 42 U.S.C. § 1983. We will affirm.


                                            1
                                             I

       Because we write for the parties, who are well acquainted with the case, we

recount only the essential facts and procedural history.

                                             A

       As the jury found for Defendants—Samuel Nassan, Terrance Donnelly, and Sheila

Ladner—we recite the facts in the light most favorable to them. See Becker v. ARCO

Chem. Co., 207 F.3d 176, 181 (3d Cir. 2000).

       After a night of drinking, Palmer was pulled over by Nassan, a Pennsylvania State

Police Trooper, in Pittsburgh‘s South Side neighborhood. Pittsburgh Police Officer

Ladner was working with Nassan that night on the Pittsburgh DUI Task Force. Nassan

stopped Palmer because he observed Palmer‘s vehicle swerving erratically. At the time

of the stop, Palmer‘s blood-alcohol content was 0.098 percent.

       The officers testified that Palmer appeared to be drunk: he reeked of alcohol,

slurred his speech, had bloodshot eyes, and at times was unresponsive to questioning.

When asked by Nassan to exit the vehicle for a sobriety test, Palmer complied but became

belligerent, and once out of the vehicle moved his hand toward his pocket. Nassan

ordered Palmer to stop reaching for his pocket, at which time Palmer disclosed that he

had a gun. Nassan then tried to subdue Palmer, assisted by Pittsburgh Police Sergeant

Donnelly, who had arrived at the scene following the stop. A struggle ensued. After

                                             2
Palmer kicked Ladner, she tased him in the buttocks. Nassan also attempted to tase him,

but his taser misfired. Nassan then handcuffed Palmer, removed the weapon from

Palmer‘s pocket, and brought him to a hospital for treatment of the injuries he sustained

during the arrest.

                                              B

       Palmer filed suit against Nassan, Donnelly, Ladner, and two municipal entities on

both state and federal claims, but only the § 1983 excessive force claim against the

individual Defendants reached trial. Before trial, Nassan and Palmer filed motions in

limine seeking, inter alia, a pretrial ruling on the admissibility of evidence of unrelated

incidents in which Nassan had been involved. In particular, Palmer sought to introduce

evidence of an arrest effectuated by Nassan approximately thirty minutes to one hour

before Palmer was pulled over, and of three prior excessive force lawsuits against Nassan.

The District Court excluded evidence of those four incidents pursuant to Rules 403 and

404(b) of the Federal Rules of Evidence. At the conclusion of the trial, the jury found for

Defendants.

                                              II

       We review the District Court‘s application of evidentiary rules for an abuse of

discretion. Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002). ―An abuse

of discretion occurs only where the district court‘s decision is ‗arbitrary, fanciful, or

clearly unreasonable‘—in short, where ‗no reasonable person would adopt the district

                                               3
court‘s view.‘‖ United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (quoting United

States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)).

       ―Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith.‖ Fed. R. Evid. 404(b).

However, evidence of other acts ―may . . . be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.‖ Id. A district court may exclude evidence, even if relevant and

otherwise admissible, ―if its probative value is substantially outweighed by the danger of

unfair prejudice.‖ Fed. R. Evid. 403. Rearranging these requirements, we have said that

―[t]o be admissible under Rule 404(b), evidence of uncharged crimes or wrongs must (1)

have a proper evidentiary purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be

accompanied by a limiting instruction (where requested) about the purpose for which the

jury may consider it.‖ Green, 617 F.3d at 249. The first element of this test highlights

that evidence proffered under Rule 404(b) may be asserted for either a proper or improper

purpose. Rule 404(b) ―generally prohibits the introduction of evidence of extrinsic acts

that might adversely reflect on the actor‘s character, unless that evidence bears upon a

relevant issue‖ such as one of those enumerated in the second sentence of the rule.

Huddleston v. United States, 485 U.S. 681, 685 (1988).

       Palmer lacks a permissible, relevant use of the purported Rule 404(b) evidence. A

claim of excessive force under § 1983 requires ―the jury . . . to determine whether [the

                                             4
officer] used force that was objectively reasonable under the circumstances and facts

confronting him at that time, without regard to his underlying motivation.‖ Mosley v.

Wilson, 102 F.3d 85, 95 (3d Cir. 1996). Because the inquiry views the officer‘s actions

objectively, his subjective intent or motivation is irrelevant. Graham v. Connor, 490 U.S.

386, 396–97 (1989); Mosley, 102 F.3d at 94–95. Therefore, while Rule 404(b) might

have permitted Palmer to introduce evidence of other acts to show Nassan‘s intent or

motive, those factors were irrelevant to the proof of the claim and were properly

excluded. See Fed. R. Evid. 401, 402.

       Palmer reaches into Rule 404(b)‘s grab bag for other permissible uses of other-acts

evidence. He contends that the prior incidents show Nassan‘s ―plan,‖ ―preparation,‖ or

―opportunity.‖ To introduce other acts for these purposes, the proponent of the evidence

must show that the prior acts are linked with the acts at issue, but there is no indication of

any such link in the record here. See Becker, 207 F.3d at 195–200 (requiring a common

scheme to assert a ―plan‖). In the same vein, Palmer offers little to assist us in

―pinpoint[ing] the evidential fact‖ he seeks to prove by showing a plan, preparation, or

opportunity. Id. at 195. Palmer‘s argument is simply that if Nassan had used excessive

force on past occasions, he was more likely to have used it here. But that argument

asserts the evidence for ―exactly the purpose that Rule 404(b) declared to be

improper, . . . namely, to establish the defendant[‘s] propensity to commit the charged

act.‖ Id. at 201 (omission in original) (internal quotation marks omitted).

                                              5
       For similar reasons, Palmer‘s contention that the arrest that took place shortly

before the stop is not an ―other . . . act[]‖ because it was ―part of a continuous course of

conduct by Nassan‖—and therefore that it does not fall within the purview of Rule

404(b)—is unconvincing. Palmer was not present during that arrest. Nor were the arrests

of such a similar character or close enough in time that they could be fairly characterized

as ―intrinsic evidence‖ or ―res gestae‖ by which to judge whether Nassan‘s use of force

was objectively reasonable under the circumstances. See Green, 617 F.3d at 239–49

(discussing the history of intrinsic evidence as a carve out from Rule 404(b)).1 Even if

the details of the other arrest were not inadmissible under Rule 404(b), Rule 402 would

render them inadmissible for the reason discussed above. Because the force used by an

officer must be evaluated objectively, Nassan‘s state of mind and other actions leading up

to his encounter with Palmer were not relevant to the question submitted to the jury.

       Finally, as the introduction of evidence of other acts had the potential to prejudice

Nassan and confuse the jury, it was not an abuse of the District Court‘s discretion to

exclude the evidence pursuant to Rule 403.2


       1
          In Green, we held that ―evidence is intrinsic if it directly proves the charged
offense‖ or if the other acts were ―performed contemporaneously with . . . [and]
facilitate[d] the commission of‖ the act alleged. 617 F.3d at 248–49 (internal quotation
marks omitted).
       2
         In the District Court, Palmer sought the right to proffer evidence of Nassan‘s
other acts to prove only the substance of his claims. On appeal, he argues that the
evidence is also admissible to challenge Nassan‘s credibility, which is relevant because at
trial Palmer and Nassan gave different accounts of the events that transpired during the
                                              6
                                            III

      For the foregoing reasons, we will affirm the District Court‘s judgment.




stop and arrest. Even if Palmer properly raised and preserved this issue by asserting the
impeachment value of the evidence, which he apparently did not, he would not have been
able to prove the other acts by extrinsic evidence. Fed. R. Evid. 608(b). Moreover, Rule
608(b) gives the District Court discretion to determine whether those acts are ―probative
of truthfulness or untruthfulness,‖ and the District Court would have been well within its
discretion to exclude reference to Nassan‘s other acts both on that basis and on the bases
set forth in Rule 403.
                                            7
