John Simon, Associate Member, University of Cincinnati Law Review
Introduction
On the morning of December 21, 2012, Sean Hoard, an inmate at the Snake River Correction Institution, a prison located in Oregon, requested a razor for personal use.[1] What seemed like a mundane request turned into a violent occurrence as Hoard was beaten by prison officials leaving Hoard with a cut on his face and a permanently injured jaw.[2] The violence began when Hoard failed to return his razor to prison officials; at the time of the attack, Hoard was held in the Intensive Management Unit (IMU) which was reserved for violent inmates.[3] Officers conducted a search of Hoard’s cell to find the missing razor, during which Hoard was handcuffed outside of his cell.[4] At this juncture, the story splits into two accounts—one provided by Hoard and one provided by the officers conducting the search.
In Hoard’s account, Officer Hartman, who oversaw Hoard while other officials conducted the search, grabbed Hoard by the collar, jerked him around, and repeatedly threatened Hoard telling him that this is what he deserved.[5] Officer Hartman was warned by other guards not to provoke Hoard. Officer Hartman continued to harass Hoard by grabbing the back of his head and slamming his face into the steel door and concrete floor.[6] Hoard lost consciousness and came to with blood dripping down his face; during this time, other officers applied leg restraints to control Hoard.[7]
The prison officials maintain that Hoard became increasingly agitated while the search continued.[8] Hoard thrashed his head back and forth while officers attempted to relax him.[9] Minimal force was applied and eventually leg restraints were placed on Hoard when he started to kick his legs.[10] Officers did not notice any injuries on Hoard, but a report following the incident noted blood on the floor outside of Hoard’s cell.[11]
Hoard’s case demonstrates a prison disturbance ultimately leading to an inmate being harmed at the hands of prison officials. While prisoners owe a debt to society, basic standards of human decency prevent the brutalization of prisoners at the hands of corrections officers.[12] However, such scenarios are complicated, as is evidenced by the split among the circuits regarding the interpretation of the standard applied in instances of excessive force used against prisoners. The question is: what is the correct standard applied for a prisoner seeking a legal remedy against prison officials for an instance of excessive force? The judiciary should follow the lead of the Ninth Circuit which maintains that a plaintiff must present evidence that the prison official intended to cause harm when using force.
Procedural Posture
Hoard’s pro se complaint against prison officials raised, among other things, a §1983 excessive force claim alleging a violation of the Eighth Amendment.[13] The district court instructed the jury that “Hoard had to prove that Officer Hartman ‘used excessive and unnecessary force against the plaintiff under all the circumstances,’ that Officer Hartman had ‘acted maliciously and sadistically for the purpose of causing harm,’ and that Officer Hartman’s acts harmed Hoard.”[14] The jury, although morally divided, returned a verdict finding that Hoard failed to meet the standard provided to the jury.[15] Hoard appealed the verdict to the Ninth Circuit Court of Appeals.[16]
History of the Excessive Force Standard
The Constitution maintains that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[17] The Framers intended for this clause to stand for the proposition that certain methods of punishment would be prohibited.[18]
The Supreme Court has gradually broadened the scope of the Eighth Amendment. Initially, the Court held that “manifestly cruel and unusual” punishments that “involve torture or a lingering death” violate the Eighth Amendment.[19] Over time, the inquiry shifted from a sole focus on punishment to a focus on the Amendment’s constant evolution.[20] In 1958, the Court held that the Eighth Amendment must be analyzed “from the evolving standards of decency that mark the progress of a maturing society.”[21]
In the context of punishment directed toward inmates, the Eighth Amendment constitutes the primary mode of inmate protection.[22] The Court, in Estelle v. Gamble, ruled that prison officials’ failure to meet the medical needs of prisoners constituted the “unnecessary and wanton infliction of pain” in violation of the Eighth Amendment.[23] The analysis focused on the justification for punishment rather than the intent of the prison officials. A violation occurred when pain was unnecessarily and wantonly caused.[24]
The Court refined its standard outlined in Estelle in Whitley v. Albers. In Albers, a prison disturbance prompted a prison official to shoot an inmate.[25] The Court found that “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 purpose of causing harm.”[26] Prison officials face constant safety concerns. It would therefore be improper to hold an official accountable “simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.”[27] Thus, prisons maintain the duty to provide prisoners with basic care; the Court lessened the responsibility on prison officials during prison disturbances.
In the wake of the Whitley decision, circuit courts disagree as to the actual standard that must be satisfied for a prisoner to successfully demonstrate an Eighth Amendment excessive force violation.
The Eighth Circuit
In 2017, the Eighth Circuit issued a ruling in an excessive force case stemming from 2014 involving Plaintiff Ronnie Jackson, an inmate at the Oak Park Heights maximum security prison in Minnesota.[28] When Jackson arrived at the prison in 2012, he underwent a psychiatric evaluation revealing a history of self-harming including twenty-eight suicide attempts and violent outbursts directed toward his school principal and fiancé.[29] Following several violations, Jackson was placed in the Administrative Control Unit (ACS) so the prison could closely supervise him.[30] In May 2014, Jackson, after requests for medical attention were ignored, pounded on his cell door with a grease container.[31] Officials subdued Jackson and placed him on a restraint board to calm him down and prevent self-harm and harm to others.[32] Jackson stayed on the restraint board for several hours before officials permitted his removal.[33] Following the incident, Jackson filed an excessive force complaint against the corrections officers alleging a violation of the Eighth Amendment.[34]
Citing to the Supreme Court’s holding in Whitley, the Eighth Circuit found that the complainant needed to provide evidence supporting the contention that the force was applied “maliciously and sadistically.”[35] The inquiry, according to the Eighth Circuit, “turns on ‘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.’”[36] From these factors, courts can infer whether the force used had a plausible explanation, or whether it was used unjustifiably to only cause harm.[37] According to the Eighth Circuit, the terms maliciously and sadistically, taken together, establish a higher level of intent.[38]
The Eighth Circuit maintains that the standard outlined by the Supreme Court is “highly deferential.”[39] Excessive force claims are not barred, but the standard does not permit the judge or the jury to “‘freely substitute their judgment for that of [prison] officials.’”[40] The standard effectively maintains that the inmate must show that “‘there was no plausible basis for [their] belief that this degree of force was necessary.’”[41]
The Eighth Circuit ultimately determined that Jackson failed to present evidence demonstrating that the prison officials’ actions “‘evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur,” nor did Jackson provide evidence of malicious or sadistic motive.[42]
The Ninth Circuit
Returning to Sean Hoard’s excessive force case, on appeal, the Ninth Circuit reached an entirely different conclusion regarding the application of the Supreme Court’s excessive force standard. The Ninth Circuit noted: “Consistent with Whitley and its progeny, an officer’s subjective enjoyment is not a necessary element of an Eighth Amendment excessive force claim.”[43] Thus, maliciousness and sadism are not required for a successful excessive force claim.
The Ninth Circuit maintains that judicial opinions are not written with the intent that each word will be scrutinized.[44] Under this assertion, “[s]ometimes, a word is just a word.”[45]
The Ninth Circuit then determined that “there is ample evidence here that the Supreme Court did not intend its use of ‘maliciously and sadistically’ in Whitley to work a substantive change in the law on excessive force beyond requiring intent to cause harm.”[46] The court cites, as evidence, the fact that the Supreme Court has not “addressed ‘maliciously and sadistically’ separately from the specific intent to cause harm.”[47] In a subsequent case, the Supreme Court even failed to mention “maliciously and sadistically” in reference to the standard required for Eighth Amendment liability.[48] Based upon evidence from subsequent cases, the Ninth Circuit ultimately found that, “the use of these two terms emphasizes the cruelty inherent in harming an inmate for no other reason than to cause harm.”[49] Thus, an inmate only needs to prove that prison officials “acted in bad faith with the intent to harm the inmate” to succeed on an excessive force claim.[50] To make the determination of whether the claim succeeds, the Ninth Circuit found that a court should look to the following factors: (1) the necessity of the use of force, (2) the relationship between the need for such force and the amount of force used, (3) the extent of any injuries inflicted, and (4) the degree of the threat posed to the safety of staff and inmates.[51]
As a result of the Ninth Circuit’s judgment, the district court’s judgment was vacated and the case was remanded for a new trial consistent with the Ninth Circuit’s excessive force standard.[52]
Recommendation
Both Circuits apply what appears to be a totality of the circumstances analysis by considering factors that evaluate the objective reasonableness of the use of force by a prison official against an inmate. Additionally, both Circuits acknowledge that prison officials maintain significant deference because of the daily threats existing in a prison. However, the Circuits differ on the necessity of one significant element: whether proof of sadism is required to successfully make an excessive force claim. On this point, the judiciary should follow the standard adopted by the Ninth Circuit which holds that proof of sadism is not required to succeed on an excessive force claim.
The Ninth Circuit’s standard protects the interests of prison officials to select their own operational standards for maintaining the safety of everyone in the prison while also allowing inmates to seek redress for injuries suffered at the hands of prison officials. The line between constitutional and unconstitutional use of force is informed by the surrounding circumstances. An official who applies force in a good-faith effort to restore order has acted constitutionally; on the other hand, an official who applies force for the purpose of causing harm has acted unconstitutionally.[53] The terms malicious and sadism, stated in Whitley, serve only to bolster, rhetorically, an intent to cause harm. Both terms “emphasiz[e] the cruelty inherent in harming an inmate for no other reason than to cause harm.”[54]
As Justice Marshall noted in his dissent in Whitley, requiring proof of intent to cause harm is an onerous burden for plaintiffs.[55] Requiring proof of sadism, in addition to an intent to cause harm, creates an almost impossible standard for plaintiffs to meet. Not only must the plaintiff show that no plausible reason existed for the use of force, aside from an intent to cause harm, but the plaintiff must also show that the prison official exacting that harm gained pleasure or enjoyment from his or her actions. A prison official, for example, may have a lapse in judgment resulting in an inmate’s injuries—undoubtedly an instance of cruelty—but the Eight Circuit’s standard requires, essentially, that the inmate present evidence going beyond the realm of cruelty.
Conclusion
To ensure that an inmate who suffers injuries at the hands of corrections officers receives a fair opportunity to seek redress for those injuries, the Ninth Circuit’s application of the excessive force standard should be uniformly adopted. Under the Ninth Circuit’s application, an inmate must show that the prison official acted with the intent to cause harm—no evidence of the official’s subjective enjoyment is necessary. A separate requirement that an inmate present evidence of sadism, on top of the requirement that the inmate show an intent to cause harm, creates an insurmountable obstacle that will only result in an inmate’s failure on an excessive force claim.
While it is unclear whether the Supreme Court will hear a challenge to the excessive force standard applied by the Eighth Circuit, and others, the Court should act on its next opportunity to ensure that inmates’ safeguards against excessive force are realized.
[1] Hoard v. Hartman, 904 F.3d 780, 782-83 (9th Cir. 2018).
[2] Id. at 783-84.
[3] Id. at 783.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 784.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Ilann M. Maazel, Prison Excessive Force Cases: A Primer New York Law Journal (Jul. 11, 2018), https://www.law.com/newyorklawjournal/2018/07/11/prison-excessive-force-cases-a-primer/.
[13] Hoard. at 785.
[14] Id. at 786.
[15] Id.
[16] Id.
[17] U. S. Const. amend. VIII.
[18] Anthony F. Granucci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Cal. L. Rev. 842 (1969).
[19] In re Kemmler, 136 U.S. 436, 447 (1890).
[20] Michael D. Dean, State Legislation and the “Evolving Standards of Decency”: Flaws in the Constitutional Review of Death Penalty Statutes, 35 Dayton L. Rev. 389.
[21] Trop v. Dulles, 356 U.S. 86, 101 (1958).
[22] Maazel, supra note 16.
[23] Estelle v. Gamble, 429 U.S. 97, 103 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173).
[24] Hoard, 904 F.3d at 787.
[25] Whitley v. Albers, 475 U.S. 312, 316 (1986).
[26] Id. at 320.
[27] Id. at 319.
[28] Jackson v. Gutzmer, 866 F.3d 969, 971 (2017).
[29] Id. at 971-72.
[30] Id. at 972.
[31] Id.
[32] Id. at 973.
[33] Id. at 973-74. A restraint board is, a flat, gurney-like item, where straps are used to restrain the individual.
[34] Id. at 974.
[35] Id.
[36] Id. (citing Whitley, 475 U.S. at 321).
[37] Id. (citing Whitley, 475 U.S. at 321).
[38] Id. (citing Howard v. Bennett, 21 F.3d 868, 872 (8th Cir. 1994).
[39] Id.
[40] Id. (citing Whitley, 475 U.S. at 322).
[41] Id. at 974-75 (citing Whitley, 475 U.S. at 323).
[42] Id. at 977-978 (citing Whitley, 475 U.S. at 321).
[43] Hoard, 904 F.3d at 789.
[44] Id. at 788 (citing United States v. Muckleshoot Indian Tribe, 235 F.3d 429, 433 (9th Cir. 2000)).
[45] Id. at 789.
[46] Id.
[47] Id.
[48] Id. (citing Cty. Of Sacramento v. Lewis, 523 U.S. 833, 854 (1998)).
[49] Id.
[50] Id. at 790.
[51] Id. at 789 (citing LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993))
[52] Id. at 793.
[53] Id. at 788.
[54] Id. at 789.
[55] Whitley, 475 U.S. at 328.
