1 Defendant police officers Anthony Krzeminski, Richard Fiorillo, and James T. Conners appeal from a judgment of the District Court for the District of Connecticut (Warren W. Eginton, Judge) entered after a jury verdict finding all of them liable under 42 U.S.C.

1983 (1982) for using excessive force against the plaintiff and finding Sergeant Fiorillo liable for denying him medical attention in violation of his constitutional rights. The jury awarded plaintiff $80,000 in compensatory damages on the excessive force count and $100 for the denial of medical care. The jury also assessed punitive damages of $125,000 against Fiorillo, $60,000 against Krzeminski, and $35,000 against Conners. 3 In the station's detention area, O'Neill identified himself as an Army Captain. His attitude apparently attracted the disapproving attention of then Sergeant Fiorillo, the detention room supervisor, and Officer Krzeminski, who was on duty at the time. Plaintiff testified that these police officers shoved him and swore at him, prompting him to ask Krzeminski, 'What are you, the gestapo? Is this Nazi Germany?'

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At this point O'Neill, still in handcuffs, was struck three times in rapid succession on his face and head. It is undisputed that at least one blow was struck by Fiorillo, who testified that he thought he had broken O'Neill's nose, and at least one more was struck by Krzeminski using a blackjack. Officer Krzeminski then dragged O'Neill by the throat across the detention area, castigating him for 'bleeding all over my floor.' Officer Conners observed these events without interceding on O'Neill's behalf. 4 Disoriented, O'Neill was taken to a holding cell. Soon thereafter, an unidentified man in civilian clothing entered the cell, examined O'Neill, and commented to an unidentified observer that O'Neill needed medical attention.

Sergeant Fiorillo subsequently entered the cell and screamed repeatedly at the plaintiff, 'Are you refusing medical treatment?' Eventually, plaintiff was driven in a police van to Yale-New Haven Hospital where he was treated for a fractured nose, lacerations to his forehead and eyebrow, and tenderness in his throat. The Prior Excessive Force Judgment. Similar act evidence was offered and received under Fed.R.Evid. 404(b) against Fiorillo to show that he had the intent to use excessive force when he struck the plaintiff. The plaintiff initially sought to introduce evidence of two prior section 1983 judgments against Fiorillo, one for an unlawful arrest and one for use of excessive force.

The trial judge refused to permit any evidence with respect to the unlawful arrest judgment on grounds of relevance. Upon determining that the second judgment concerned use of excessive force during an incident less than a month before the O'Neill incident, the trial judge allowed plaintiff to establish both the existence of the second judgment and the date of the underlying incident. 6 This panel is divided in its views on the admissibility of the prior similar act evidence; the writer believes that the evidence was admissible, Judge Meskill believes admitting the evidence was error, but harmless in view of the strength of the other evidence against Fiorillo, and Judge Van Graafeiland believes it is unnecessary to decide whether error occurred, since he concludes that if there was error, it was harmless.