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ESTABLISHING EXCESSIVE FORCE IN CIVIL RIGHTS LITIGATION

By: Senior Staff Attorney Michele Luecking-Sunman and Sharon G. Robertson, ACP

A common request for assistance that NCPLS reviews involves a claim of an excessive use of force against a prisoner. Let's examine the following incident to see if it would meet the standards required to win a federal lawsuit based on a claim of excessive use of force.

John Doe has been held for the past year and a half at the Anywhere Jail waiting to go to trial. At first, Doe and Officer Rambo began joking with each other. Then Officer Rambo made a joking comment about an envelope Doe received from his wife. Doe did not appre ciate Officer Rambo's comment and complained to shift supervi sor Sgt. Right who made Officer Rambo apologize to Doe. Follow ing the apology, Officer Rambo began writing Doe up for small or imagined infractions, causing Doe to accumulate several disciplin ary infractions. On Nov. 13, Doe was playing cards with three other inmates when Officer Rambo came by and told only Doe to go back to his cell. Doe stood up, started walking towards Officer Rambo and asked in a rather loud voice why Officer Rambo was picking on him. Officer Rambo and Doe began name calling (with some four letter words) as Doe walked past Officer Rambo and toward his cell. Just before reaching his cell, Doe says Officer Rambo shoved him face first into the wall and began hitting him in the ribs. Officer Rambo says Doe gave him a shoulder as he walked by and Officer Rambo just defended himself by pushing Doe. Sgt. Right, who was just entering the cellblock, heard the commotion and came to Officer Rambo's aid. The officers took Doe to the ground where he was handcuffed behind his back and removed from the cellblock to a holding cell. While riding in the elevator to the holding cell, Doe says Officer Rambo continued to hit him in his back and rib area while Sgt. Right and Officer Doolittle watched. The whole incident in the elevator was captured on video surveillance. Doe was taken to the medical unit so the nurse could examine his bleed ing nose, cut lip, sore ribs, sore back, and swollen right wrist. The nurse found some bruises around his ribs, treated his cut lip, and gave Doe two Tylenol tablets for pain. Doe's medical records show that he received follow-up treatment for his nose and cut lip. A few days later, Doe was examined by the jail doctor who told him his nose and wrist were not broken, and he did not need any x-rays. Doe stopped signing up for sick call right after seeing the jail doctor because he didn't like being charged $10 just to see the nurse or doctor, and wanted to spend the little money he had for canteen items. Doe says he is still experiencing lower back pain and has problems with his wrist six months after the incident.

The Legal Standard

The Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution protects pretrial detainees from excessive force while in jail. United States v. Cobb, 905 F.2d 784 (4th Cir. 1990), cert denied , 498 U.S. 1049 (1991). (The Eighth Amendment applies to convicted prisoners, but for all practical purposes, the legal standard is the same. Bell v. Wolfish , 441 U.S. 520, 535 n.16 (1979) (rights of pretrial detainees under 14th Amnd. are at least as great as those of convicted prisoners under 8th Amnd.) The Fourteenth Amendment basically states that pre-trial detainees may not be punished in any way without due process. Any use of force against a pre-trial detainee that was punitive in nature, would therefore violate the Constitution. Of course, law enforcement officers have the right to use force in most circumstances, as long as that force is not used solely as a form of punishment or to compel some illegal and danger ous act. Jackson v. Allen , 376 F. Supp. 1393, 1395 (E.D. Ark. 1974).

A four-part test has been developed to determine whether an incident involving the use of force was lawful. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert denied , 414 U.S. 1033 (1973). The court will consider the following factors:

1. the need for application of force;
2. the amount of force used;
3. he extent of injury inflicted; and
4. hether the force used was applied in good faith to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.

Accord , King v. Blankenship, 636 F.2d 70, 73 (4th Cir. 1980); see also , for example, Whitley v. Albers, 475 U.S. 312 (1986).

It is difficult to prove the factors listed above, but there is another obstacle to overcome in an exces sive use of force lawsuit. The plaintiff must have suffered a serious injury as a result of the illegal conduct. See the Prison Litigation Reform Act at 42 U.S.C. §1997e ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physi cal injury"). "The Eighth Amend ment's prohibition of 'cruel and unusual' punishment necessarily excludes from constitutional recog nition de minimis uses of physical force . . .." Estelle v. Gamble, 429 U.S. 97 at 106 (1976).

Does Doe Have Grounds for a Successful Lawsuit?

Have you made a decision on whether our John Doe has a chance of winning a lawsuit alleging the use of excessive force? Let's look again at our facts based in light of the legal standard outlined above.

As you can see, the test to determine whether force was used illegally poses a difficult burden of proof. It is always hard to convince a jury that officers acted maliciously and with the specific intent to cause harm. In such cases, law enforcement officials often testify that the inmate provoked the use of force by unruly or assaultive conduct and that the officer was simply using the force necessary to control the situation or enforce a lawful order. Officers often swear (and believe) that the inmate was accidentally injured during the fray, or that the inmate injured himself. Juries are all too willing to accept these accounts, despite an inmate's testimony to the contrary. In our case, Officer Rambo will likely say that Doe was willfully disobeying a direct order to return to his cell; that Doe assaulted him by striking him on his shoulder; and that Rambo was defending himself when he pushed Doe into the wall. Sgt. Right may well corroborate Officer Rambo's version of the incident. In the absence of strong, supportive testimony from others who witnessed the event, it is unlikely that Doe will prevail.

But remember, a second incident occurred in the elevator when Doe, who was in restraints, was struck repeatedly in the ribs by Officer Rambo. If the video tape confirms Doe's account of the events, it would seem that Officer Rambo's actions were malicious and sadistic, intended to cause harm.

All right, perhaps Doe can satisfy the legal standard as to whether excessive or unnecessary force was used. Now let's look at the nature of Doe's injuries to answer the question of whether they were constitutionally significant (and not de minimis ). The medical records show that Doe suffered a cut lip that required no stitches, a bloody nose (not broken), a swollen wrist (not broken), bruising around the ribs (but again, no fractured ribs), and a sore back. Doe continues to complain about back pain and pain in his wrist; however, we have no documentation (through medical records) to prove these claims because Doe became discouraged and did not request follow-up medical care.

As stated above, a showing of "significant injury" is necessary to establish a valid claim and to convince a jury that Doe should recover a significant amount of money in compensation for the wrong he suffered. Juries are often reluctant to force an officer to pay money to an inmate. A verdict for Doe will depend upon strong evidence that Officer Rambo acted illegally and that, as a result, Doe suffered a serious injury, such as broken bones, cuts that required stitches, or the infliction of unjustifiable and severe pain. In such a case, the medical records that document plaintiff's injuries are very important evidence.

Unfortunately, while Doe may have been able to prove a claim of excessive force for the elevator incident, the court would probably dismiss the case on defendants' motion for summary judgment because Doe's injuries would likely be seen as de minimis .

This is the kind of analysis that a legal professional uses to assess a case and the chance of success in litigation. Decisive factors include the extent of the injury suffered and witnesses, documents, or other evidence that can corroborate an account of improper or illegal conduct. For this reason, it can be critical that you document the incident as best you can. This will help lay the groundwork if you should decide to file a lawsuit. In this regard, witness statements can be especially helpful.

To be of use in court, a sworn statement must (1) be made on personal knowledge, (2) set forth such facts as would be admissible in evidence, and (3) show that the declarant is competent to testify to the matters stated in the declara tion. Additionally, the declaration must be signed and dated. For use in state court, such a document must be notarized. In federal court, however, it is enough (1) that the declaration contain the following language: "I declare under penalty of perjury that this statement is true and correct to the best of my knowledge;" and (2) the declara tion must be signed and dated by the witness. Finally, in order that the witness may be located if his testimony should be needed in the future, it is important that a perma nent address be given (either that of the witness, a spouse or a family member through whom the witness can be located). For this reason, a prison identification number and/or a date of birth can often be helpful.

Finally, there are a great many things to think about before filing a lawsuit - the time and cost of litigation, the chance of winning the lawsuit, and the amount of any potential recovery. But one of the most important things to be aware of is the statute of limitation. A statute of limitation is a law that sets a time-limit for filing a law suit, and there are different time- limits for filing different kinds of lawsuits. Usually, a case alleging a violation of constitutional rights may be filed within three years of the incident upon which the suit is based. Failure to file a lawsuit within the time allowed by the statute of limitation will ordinarily prevent the injured party (plaintiff) from ever getting the case into court.