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Use of force in jails is an area which is legally complex.  The problem is the result of varying standards which may apply based upon the status of the prisoner. The use of force on a free citizen falls under the Fourth Amendment’s reasonableness standard, while the use of force on a sentenced prisoner falls under the Eighth Amendment’s cruel and unusual punishment standard.  The confusion lies with pre-trial detainees.  Some court’s have applied the Fourth Amendment reasonableness standard, while other have applied the Fourteenth Amendment’s Due Process standard.

The United States Supreme Court interpreted the Eighth Amendment standard in use of force involving sentenced prisoners in Hudson v. McMillianii and Whitley v. Albers.ii

The Whitley case involved a shooting during a prison riot in which Albers was shot. The facts in Whitley were set forth by the United States Supreme Court:

“At the time he was injured, respondent Gerald Albers was confined in cellblock “A” of the Oregon State Penitentiary.  Cellblock “A” consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.

At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex.  Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary’s isolation and segregation facility.  This incident could be seen from the cell windows in cellblock “A,” and some of the onlookers became agitated because they thought that the guards were using unnecessary force.  Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock “A,” ordered the prisoners to return to their cells. The order was not obeyed.  Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper.  Kemper escaped but Officer Fitts was taken hostage. Klenk and other inmates then began breaking furniture and milling about.

Upon being informed of the disturbance, petitioner Harol Whitley, the prison security manager, entered cellblock “A” and spoke with Klenk.  Captain Whitley agreed to permit four residents of cellblock “A” to view the inmates who had been taken to segregation earlier.  These emissaries reported back that the prisoners in segregation were intoxicated but unharmed.  Nonetheless, the disturbance in cellblock “A” continued.

Whitley returned to the cellblock and confirmed that Fitts was not harmed.  Shortly thereafter, Fitts was moved from an office on the lower tier to cell 201 on the upper tier, and Klenk demanded that media representatives be brought into the cellblock. In the course of the negotiations, Klenk, who was armed with a homemade knife, informed Whitley that one inmate had already been killed and other deaths would follow.  In fact, an inmate had been beaten but not killed by other prisoners.

Captain Whitley left the cellblock to organize an assault squad.  When Whitley returned to cellblock “A,” he was taken to see Fitts in cell 201.  Several inmates assured Whitley that they would protect Fitts from harm, but Klenk threatened to kill the hostage if an attempt was made to lead an assault.  Klenk and at least some other inmates were aware that guards had assembled outside the cellblock and that shotguns had been issued.  Meanwhile, [Albers] had left his cell on the upper tier to see if elderly prisoners housed on the lower tier could be moved out of harm’s way in the event that tear gas was used.  [Albers] testified that he asked Whitley for the key to the row of cells housing the elderly prisoners, and Whitley indicated that he would return with the key.  Whitley denied that he spoke to [Albers] at any time during the disturbance.

Whitley next consulted with his superiors, petitioners Cupp, the prison Superintendent, and Kenney, the Assistant  Superintendent.  They agreed that forceful intervention was necessary to protect the life of the hostage and the safety of the inmates who were not rioting, and ruled out tear gas as an unworkable alternative.  Cupp ordered Whitley to take a squad armed with shotguns into cellblock “A.”

Whitley gave the final orders to the assault team, which was assembled in the area outside cellblock “A.” Petitioner Kennicott and two other officers armed with shotguns were to follow Whitley, who was unarmed, over the barricade the inmates had constructed at the cellblock entrance.  A second group of officers, without firearms, would be behind them.  Whitley ordered Kennicott to fire a warning shot as he crossed the barricade.  He also ordered Kennicott to shoot low at any prisoners climbing the stairs toward cell 201, since they could pose a threat to the safety of the hostage or to Whitley himself, who would be climbing the stairs in an attempt to free the hostage in cell 201.

At about 10:30 p.m., Whitley reappeared just outside the barricade.  By this time, about a half hour had elapsed since the earlier breaking of furniture, and the noise level in the cellblock had noticeably diminished.  [Albers], who was standing at the bottom of the stairway, asked about the key.  Whitley replied ‘No,’ clambered over the barricade, yelled ‘shoot the bastards,’ and ran toward the stairs after Klenk, who had been standing in the open areaway along with a number of other inmates. Kennicott fired a warning shot into the wall opposite the cellblock entrance as he followed Whitley over the barricade.  He then fired a second shot that struck a post near the stairway.  Meanwhile, Whitley chased Klenk up the stairs, and shortly thereafter respondent started up the stairs. Kennicott fired a third shot that struck [Albers] in the left knee.  Another inmate was shot on the stairs and several others on the lower tier were wounded by gunshot.  The inmates in cell 201 prevented Klenk from entering, and Whitley subdued Klenk at the cell door, freeing the hostage. As a result of the incident, [Albers] sustained severe damage to his left leg and mental and emotional distress.

In its analysis of the case, the United States Supreme Court asserted:  “Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm… As the District Judge correctly perceived, ‘such factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted,’, are relevant to that ultimate determination. From such considerations inferences may be drawn as to whether the use of force could plausibly have been thought  necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur… But equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.”

The Court then applied this standard to the facts of the shooting and determined that Albers could not establish an Eighth Amendment claim of cruel and unusual punishment.

Hudson v. McMillian, established that a prisoner need not prove that he or she was seriously injured in order to prevail in a claim of excessive force.

At the time of the incident that is the subject of this suit, petitioner Keith Hudson was an inmate at the state penitentiary in Angola, Louisiana. Respondents Jack McMillian, Marvin Woods, and Arthur Mezo served as corrections security officers at the Angola facility. During the early morning hours of October 30, 1983, Hudson and McMillian argued. Assisted by Woods,  McMillian then placed Hudson in handcuffs and shackles, took the prisoner out of his cell, and walked him toward the penitentiary’s ‘administrative lockdown’ area. Hudson testified that, on the way there, McMillian punched Hudson in the mouth, eyes, chest, and stomach while Woods held the inmate in place and kicked and punched him from behind. He further testified that Mezo, the supervisor on duty, watched the beating but merely told the officers ‘not to have too much fun.’  As a result of this episode, Hudson suffered minor bruises and swelling of his face, mouth, and lip. The blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months.”
Hudson filed a lawsuit against the correctional officers alleging excessive force.  “The parties consented to disposition of the case before a Magistrate, who found that McMillian and Woods used force when there was no need to do so and that Mezo expressly condoned their actions.”

The case was appealed to the United States Court of Appeals for the Fifth Circuit where it was determined that the officers had used excessive force, but since Hudson did not have a significant injury, there was no violation.

The United States Supreme Court overruled the Fifth Circuit in concluding that serious or significant injury while relevant to the inquiry as to whether excessive force was used in a jail/prison setting, it is not a prerequisite.  “That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F. 2d, at 1033 (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights”). The Eighth Amendment’s prohibition of  ‘cruel and unusual’‘ punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort  ‘repugnant to the conscience of mankind.’..In this case, the Fifth Circuit found Hudson’s claim untenable because his injuries were ‘minor.’  Yet the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes. The extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983 claim.”

It should be noted that the United States Court of Appeals for the Ninth Circuit has indicated that the Fourth Amendment reasonableness standard applies to any use of force on a pretrial detainee,iii while most Circuits indicate that the Fourteenth Amendment would be the standard to apply.


i Hudson v. McMillian, 503 U.S. 1 (1992).

ii Whitley v. Albers,  475 U.S. 312 (1986).

iii See e.g. Cotton v. County of Santa Barbara, 286 Fed. Appx. 402 (9th Cir. 2008) ((“‘The Fourth Amendment sets the applicable constitutional limitations for considering claims of excessive force during pretrial detention.'” (quoting Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002)).

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