Constitutional Rights of Prisoners Chapter 3 Use of Force

1. Constitutional Rights of Prisoners Chapter 3 Use of Force

2. Use of Force-Introduction • Physical force by officer against person • Liability for excess force • Prior case law find liability only when force used to extent that it “shocked the conscience.” • Old law analyzed excessive force claims under a single substantive due process standard. • SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects. • The Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope.

3. Use of Force-Introduction • Current standard for seized person before or during arrest (Graham v, Conner, 1989) • “objective reasonableness standards” • Evaluated under 4th Amendment or 8th Amendment standard depending on the constitutional right that was allegedly violated. • One reading of Graham indicates that SDP did not survive the decision. • Cases falling outside the 4th & 8th Amendment can only be addressed by state tort law.

4. Use of Force-Introduction • Standard for a pre-trial detainee • Neither the 4th Amendment nor the 8th Amendment apply • Standard is whether the conduct “shocks the conscience” • Evaluated under 14th Amendment due process clause • Question whether the force was applied in an attempt to punish the pretrial detainee.

5. Use of Force-Introduction • Standard for Convicted offender – • “wanton infliction of pain” Whitley v. Albers (1986) in context of riot • “force used maliciously and sadistically to cause pain” Hudson v. McMillian (1992) Evaluated under the 8th Amendment’s cruel and unusual clause.

6. Use of Force • Person (including prisoner) has right to be free from: • fear of offensive bodily contact • actual offensive bodily contact • Person who violates either of those rights may be liable civilly and criminally, unless privileged

7. Use of Force • Prison officials are privileged to use force: • self-defense • defense of other persons • prevent escape • prevent crime

8. Degree of Force Permitted • Such force as reasonably necessary to control the inmate • Facts of each case determine whether the force was reasonable • A totality of circumstances type of evaluation to determine reasonableness of force.

9. Degree of Force Permitted • Controlling factual elements: • degree of force used by inmate • whether inmate possessed weapon • officer’s reasonable perception of danger of death or serious injury • means of force available to the officer

10. Degree of Force Permitted • Distinction between deadly and non-deadly force • “Deadly force”-force that will cause death of serious injury • Knives, firearms always considered deadly • Method of using force is factual element which effects whether force was deadly or non-deadly

11. Whitley v. Albers, 475 U.S. 312 (1986) Issue: whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically to cause harm. • The absence of serious injury is relevant to, but does not end the 8th Amendment inquiry. • No merit to assertion that significant injury was mandated by the objective component discussed by the Supreme Court in Wilson.

12. Hudson v. McMillian, 503 U.S. 1 (1992) Clarified for the standard for determining whether 8th Amendment violations have occurred. The core judicial inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.

13. Self-Defense • Every person has right to protect self from assault by others. • Prison officials have same right. • Correctional officers may use degree of force reasonably necessary to protect themselves and to control the inmate. • Broad discretion when using force • May not use force when threat has ended

14. Self-Defense • Extent of force depends upon • Degree of force used by inmates • Officers reasonable perception of danger • Officers means of resisting the assault

15. Self-Defense: Excessive Force? • Green v. Hawkins, (D.C. Md. 1977) inmates involved in fight with officers received serious injuries, including severe cuts, bruises and broken bones. • One inmate treated in intensive care. • Not found to be excessive force • Inmates resisting lawful prison authority. • Court held this force was reasonable under the circumstances. • What is excessive? • Prisoners of Attica Correctional Facility did grant injunction when officers retaliated after riot.

16. Deadly Force • Never justified, • Unless officer is in reasonable fear of death or serious injury. • Can be officer, another prisoner, or third person.

17. Defense of Others • Similar to defense of self. • Must be based upon reasonable fear of death or serious injury to others • Degree of force used must be reasonable under the circumstances • Follows same principles as defense of others as used in general criminal law.

18. Enforcement of Prison Rules and Regulations • Correctional institutions have right to set out rules and regulations to provide for discipline and order in the facility. • Have right to use force to enforce these rules and regulations. • Distinguish between using force to enforce rule, and • Use of force as punishment for violating rules.

19. Enforcement of Prison Rules and Regulations • Deadly force generally not available to enforce prison rules • Deadly force appropriate when necessary to protect human life. • Can be the officer, another prisoner, or society at large. • Deadly force permissible to stop some escaping prisoners.

20. Hope v. Pelzer, 536 U.S. 730 (2002) An Alabama was twice handcuffed to a hitching post for disruptive behavior. • The facts clearly established an 8th Amendment violation. • Unnecessary and wanton infliction of pain constituting cruel and unusual punishment are those that are without penological justification. • The prisoner was subdued and presented no threat. • This determination is made in the prison setting by determining whether an official acted with deliberate indifference to prisoners health or safety.

21. Prevention of Crime • Duty to prevent inmates from committing crimes within a prison or jail. • Sometimes duty is imposed by statute. • May use reasonable force to prevent misdemeanor or felony. • Degree of force permitted depends upon level of offense • Deadly force allowed to prevent felony, but only after all other means have failed • Deadly force never allowed to prevent misdemeanor • If inmate physically resists, general rules regarding self-defense apply

22. Prevention of Escape • Most states make escape or attempted escape by felon a felony offense. • Idaho escape is a felony if underlying crime was felony. • Use of force to prevent felony • Including deadly force as last resort

23. Prevention of Escape • Henry v. Perry, 866 F.2d 657 (3rd Cir. 1989) • Handcuffed, the inmate had climbed the gate beside bus that was to transport him and was running away. • Officer gave verbal warning, then fired warning shots. • Court acknowledged that deadly force may be cruel and unusual punishment. • In this case, shooting the escaping inmate appeared the only recourse. • Shooting the inmate is justified if the prisoner has committed a crime that involved the infliction of serious bodily harm

24. Corporal Punishment • Corporal punishment includes: • infliction of physical pain on inmate • Examples: • whipping, • shocking, • cold showers, • hanging from bars • Does not include solitary confinement

25. Corporal Punishment History • For many years corporal and capital punishment was the sole form of punishment • Prisons developed as a reform and an alternative to physical punishment • Corporal punishment used as part of prison discipline • Continued in US into 1960s • One of last two states to use corporal punishment was Arkansas.

26. Jackson v. Bishop, 268 F.Supp. 804 (E.D. Ark, 1967) • The Director of Federal Prisons testified during the trial that whipping and other forms of corporal punishment were “brutal and medieval and did no real good”. • In State v. Cannon (1963), the Delaware Supreme Court held that whipping to punish certain crimes did not violate state or federal bans on cruel and unusual punishment. • In Talley v. Stevens (1965), the Arkansas court refused to declare whipping unconstitutional, but held that whipping must not be excessive and must be inflicted as dispassionately as possible.

27. Jackson v. Bishop, 404 F.2d 571, (8th Cir. 1968) The court held that whipping as a means of enforcing prison discipline did violate the 8th and 14th Amendments (overturned District court). • The Bishop decision has been followed in judicial decisions, statutes, and administrative rulings. • Any attempt to revive corporal punishment would face serious if not insurmountable constitutional challenges. • Harold Blackmun wrote the opinion