United States Court of Appeals

For the Eighth Circuit

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No. 15-2046

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Jason Procknow

lllllllllllllllllllll Plaintiff - Appellant

v.

Hugh Curry; Brian Rundquist; Matt Ondrey; Brian Renzy; Rich Evans; John

Collins, City of Eagan Police Officers in their individual and official capacities;

City of Eagan; City of Eagan Police Department

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: February 9, 2016

 Filed: June 20, 2016

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Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Jason Procknow sued officers Hugh Curry, Matt Ondrey, and Brian Rundquist

of the City of Eagan Police Department, alleging that they used excessive force in

violation of the Fourth Amendment. After litigation of Procknow’s motion in limine,

which was granted in part and denied in part, the case proceeded to a jury trial. The
jury ultimately returned a verdict in favor of the defendants and the district court

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entered judgment accordingly. Procknow filed a motion for judgment as a matter of

law, which the district court denied. Procknow now appeals the partial denial of his

motion in limine, and the denial of his motion for judgment as a matter of law. We

have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and finding no

reversible error, we affirm the district court on both issues.

This case arose out of Procknow’s arrest for an alleged parole violation on

August 29, 2011. Procknow was staying at the Extended Stay America hotel in

Eagan, Minnesota, on that date. At the request of the Wisconsin Department of

Corrections, several officers from the City of Eagan Police Department—including

Curry, Ondrey, and Rundquist—went to the hotel to arrest Procknow. It was

undisputed that during the course of the arrest, Ondrey tased Procknow three times

within approximately 20 seconds, and that Procknow suffered lacerations to his lips,

nose, and forehead as well as several chipped teeth. The other facts of the arrest,

however, were disputed: Procknow claimed that he ran from the officers very briefly

out of fear, but made no attempt to resist arrest, and that his injuries were the result

of the officers kicking him, punching him, and stomping his head into the floor. The

officers claimed that Procknow attempted to flee and refused to obey their commands,

and that his injuries occurred when he fell into a door and then onto the floor when

he was tased.

Before trial, the parties filed a stipulation to Procknow’s criminal history, and

both filed motions in limine. Procknow sought to exclude evidence of several of his

prior convictions. The district court granted Procknow’s motion in part, barring the

introduction of his misdemeanor convictions for possession of a switchblade, carrying

a concealed weapon, and fleeing or eluding an officer; and denied it in part,

The Honorable Richard H. Kyle, United States District Judge for the District 1

of Minnesota.

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permitting the introduction of his convictions for theft of government funds,

aggravated identity theft, forgery (three separate convictions), impersonating a peace

officer, and attempted first degree murder.

The case proceeded to trial on March 2, 2015. On March 3, after the jury

returned a verdict for the defendants, Procknow moved for judgment as a matter of

law. In support of his motion, he argued that regardless of the jury’s factual findings,

Ondrey’s third use of the taser constituted excessive force as a matter of law. 2

Procknow also moved for a new trial, based on the district court’s partial denial of his

motion in limine. The district court denied both motions. Procknow timely appealed.

Procknow asserts first that the district court erred in admitting evidence of his

convictions for impersonating a peace officer and attempted first degree murder. We

review the district court’s evidentiary determinations for abuse of discretion. Harris

v. Chand, 506 F.3d 1135, 1139 (8th Cir. 2007). To reverse the district court on this

issue, we must conclude both that the convictions were not properly admitted under

Federal Rule of Evidence 609, and that their admission prejudiced the outcome of the

case. See id. Because the convictions at issue were more than ten years old, they

were properly admitted only if their probative value substantially outweighed their

prejudicial effect. Fed. R. Evid. 609(b).

With regard to the conviction for impersonating a peace officer, the district

court found that the crime “involved deception,” and therefore had “important

probative value which, in the Court’s view, substantially outweigh[ed] any prejudice,

particularly because [Procknow] was impersonating a law enforcement officer.” 

Though it is true that Procknow’s credibility was a significant issue in this case, we

Before trial, the district court granted summary judgment in favor of the

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defendants asto the first two applications of the taser. Thus, the jury considered only

whether the third use of the taser amounted to excessive force.

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have some doubts asto whether a more than 20-year-old conviction for impersonating

a peace officer is substantially more probative of Procknow’s credibility than

prejudicial. Cf. United States v. Brown, 956 F.2d 782, 787 (8th Cir. 1992) (noting

the admissibility of a more than 20-year-old burglary conviction was a “close

question”, even where the credibility of the witness was an important issue). 

Nevertheless, under the circumstances of this case, any error associated with the

introduction of the conviction was harmless. Cross-examination on this conviction

was limited to a single question, and occurred just before cross-examination on

Procknow’s convictions for forgery, aggravated identity theft, and theft of

government funds. Procknow does not dispute that these latter convictions, all

probative of his credibility, were properly admitted. In this context, we cannot

conclude that the conviction for impersonating a peace officer had a “substantial

influence on the jury’s verdict.” Harris, 506 F.3d at 1139.

More concerning, given the greater severity of the offense, is the admission of

Procknow’s conviction for attempted first degree murder. Procknow argues that the

conviction was highly prejudicial and that its probative value was minimal,

particularly as to the third application of the taser (at the time of which, he argues, he

had been both incapacitated and injured and no longer could have posed any sort of

threat). This argument is persuasive insofar as the conviction was introduced as

impeachment evidence under Rule 609—an attempted murder conviction is likely to

be highly prejudicial, and its added probative value in a case with several other

convictions bearing on the witness’s credibility is likely to be quite limited. Fed. R.

Evid. 609; cf. United States v. Keene, 915 F.2d 1164, 1169 (8th Cir. 1990). But here,

the conviction was not admitted solely pursuant to Rule 609. The district court also

determined that the attempted murder conviction was admissible as substantive

evidence relevant to the reasonableness of the police officers’ use of force when

arresting Procknow. Procknow offers no basis for concluding that the conviction was

inadmissible for this purpose, and substantive evidence is generally not excluded

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from consideration merely because of its prejudicial effect. Thus, the attempted

murder conviction was properly admitted for a purpose other than impeachment, and

on cross-examination, Procknow was asked simply to confirm the existence of the

conviction. Under these circumstances, Procknow has failed to show that use of the

conviction for impeachment purposes substantially influenced the jury’s verdict. 3

Harris, 506 F.3d at 1139. We find no reversible error in the district court’s partial

denial of Procknow’s motion in limine.

Procknow also appeals the denial of his motion for judgment as a matter of law. 

Procknow’s argument on this issue is fairly narrow and well defined: he asserts that

Ondrey’s third application of the taser was an unreasonable use of force as a matter

of law because Ondrey tased Procknow for the third time only four seconds after the

second tasing. The third tasing also occurred after Procknow had already been tased

twice within approximately 15 seconds, had fallen to the ground, and had sustained

significant injuries as a result of that fall. There is no dispute that Ondrey used the

taser in this manner, and without ever warning Procknow that he was going to use the

taser.

We review the district court’s denial of a motion for judgment as a matter of

law de novo, but must consider the evidence in the light most favorable to the jury’s

verdict. Billingsley v. City of Omaha, 277 F.3d 990, 992–93 (8th Cir. 2002). 

Whatever our own view of the evidence may be, “the function of this court’s review

is exhausted when the evidentiary basis of the verdict becomes apparent.” Id. at 993. 

We reverse the jury’s verdict only if “no reasonable juror could have returned a

We also note that evidence of Procknow’s attempted murder conviction was 3

first introduced by Procknow in his own direct examination during his case-in-chief. 

See Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir.

2006) (citing Ohler v. United States, 529 U.S. 753, 757 (2000)). Because this issue

was not raised, however, we do not base our ruling on it.

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verdict for the non-moving party.” Id. A use of force is unlawful under the Fourth

Amendment if it is objectively unreasonable in light of the facts and circumstances

confronting law enforcement officers at the time of the incident. Peterson v. Kopp,

754 F.3d 594, 600 (8th Cir. 2014) (citing Graham v. Connor, 490 U.S. 386, 396

(1989)). Thus, in this case we will reverse the jury’s verdict in favor of the defendant

officers only if no reasonable juror could have determined that the officers’ actions

were objectively reasonable in light of the facts and circumstances of the incident.

The facts and circumstances of the arrest, viewed in the light most favorable

to the jury’s verdict, were that Procknow had a felony warrant for a parole violation;

he had a fairly extensive criminal history including a potentially violent offense; he

attempted to flee and evade arrest; and he refused to obey the officers’ commands. 

Most importantly, Ondrey testified that after the second application of the taser, he

observed Procknow’s hands moving “inward and down” underneath his body. 

Ondrey testified that he was concerned that Procknow could be reaching for a

weapon, and that he knew from his training that a person lying on the ground could

turn and direct a weapon toward him in seconds, even if the person had just been

tased. Cf. Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009)

(whether an officer “reasonably interpreted” plaintiff’s actions “as a realistic threat

to his personal safety . . . is a matter for the jury to decide”). Timing, warnings, and

the physical capacity of a suspect are among the many factors relevant to determining

whether use of a taser amounts to excessive force in a particular situation. But given

the evidence presented in this case, we cannot say that “no reasonable juror” could

have concluded that Ondrey’s actions were an objectively reasonable approach to

ensuring that Procknow was incapacitated and unable to harm him or the other

officers. In deference to the jury’s verdict, we conclude that the district court did not

err in denying Procknow’s motion for judgment as a matter of law.

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For the foregoing reasons, we affirm the judgment of the district court.

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