John McCottrell v. Marcus White

In the

United States Court of Appeals

For the Seventh Circuit

No. 17-2295

JOHN MCCOTTRELL and

DUSTIN S. CLAY,

Plaintiffs-Appellants,

v.

MARCUS WHITE and

LABARIN WILLIAMS,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15-cv-03208 — Amy J. St. Eve, Judge.

ARGUED OCTOBER 25, 2018 — DECIDED JULY 29, 2019

Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.

ROVNER, Circuit Judge. The plaintiffs were inmates at

Stateville Correctional Center when they were struck by

buckshot fired by the defendant prison guards. The plaintiffs

sued under 42 U.S.C. § 1983, asserting that the guards violated

2 No. 17-2295

their rights under the Eighth Amendment when they

discharged their shotguns over a crowded prison dining hall.

The guards countered that they fired the shots as a necessary

warning to two other inmates who were fighting with each

other and resisting the efforts of other guards who were trying

to break up the conflict. The district court granted summary

judgment in favor of the defendants. We vacate and remand.

I.

On summary judgment, we must construe the facts in favor

of the nonmovant, and may not make credibility

determinations or weigh the evidence. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Payne v. Pauley, 337 F.3d

767, 770 (7th Cir. 2003). At the time of the November 6, 2013

incident, inmates John McCottrell and Dustin Clay were eating

lunch in the Stateville Correctional Center dining hall. Guards

Marcus White and Labarin Williams were stationed in a tower

some fifteen feet above the dining hall and overlooking the

area where inmates wait in line to enter the hall (a fenced space

which the parties call “the chute”) and the seating area. White

and Williams were armed with loaded shotguns. In the dining

hall, security staff are vastly outnumbered by inmates, who

enter the hall without hand or foot restraints. Guards on the

floor of the dining hall are armed only with pepper spray, and

as many as four hundred inmates may be in the dining hall at

a meal. Fights occur more frequently in the dining hall than in

any other part of the facility because mealtimes are one of the

few occasions where large groups of unrestrained inmates

interact. Fights may escalate quickly, and inmates are

sometimes armed with improvised weapons. Fights therefore

pose a serious security threat to staff and other inmates.

No. 17-2295 3

On this occasion, a scuffle broke out between two inmates

(for security reasons, we will not name them) who were

entering the hall via the chute, approximately forty to fifty feet

from where the plaintiffs were seated. The brawling inmates

were not armed and were wrestling or tussling with one

another. Several correctional officers quickly intervened in the

confrontation. Both inmates initially resisted the staff but short

blasts of pepper spray from the officers on the floor brought

compliance from each. According to the plaintiffs, after the

inmates were separated and subdued, they were in the process

of being handcuffed when White and Williams simultaneously

discharged their shotguns over the dining hall.1 The ceiling of

the dining hall is equipped with a “shot box,” a device

intended to reduce the ricochet from warning shots. Neither

White nor Williams hit the shot box, instead discharging their

weapons either in the direction of the plaintiffs or into the

ceiling, as we will clarify in a moment. Along with two other

inmate bystanders, McCottrell and Clay were struck by

buckshot from the blasts. The entire incident lasted less than a

minute. Clay was wounded in his right arm above the elbow

1

At his deposition, Clay testified that the guards “separated the individu-

als that was tussling, put cuffs on them, and then a shot rang out.” R. 75-3,

Tr. at 11. He also testified that, “Both inmates were separated. Both inmates

was in handcuffs, so there was no need to shoot.” R. 75-3, Tr. at 65. But he

also testified that the inmates were “being cuffed” at the moment the shot

rang out. R. 75-3, Tr. at 25–26. In response to the clarifying question, “They

were both handcuffed?” Clay responded, “They was being cuffed at that

time.” R. 75-3, Tr. at 25. That specific clarification governs our understand-

ing of the timing, although it is not necessary to the outcome to determine

whether the cuffs were in place or in the process of being applied when the

shots were fired.

4 No. 17-2295

and the injury was serious enough to require stitches.

McCottrell was struck in the neck and the leg, and was given

bandages for his wounds. In addition to their physical injuries,

both men suffered mental health issues arising from the

incident.

Before proceeding, we must clarify the summary judgment

record regarding the direction in which the shots were fired. In

the district court, the plaintiffs argued that the guards fired

toward the inmates in the dining hall, rather than into the

ceiling. R. 82, at 1–2. Both plaintiffs testified in their

depositions that, although they did not see where the guards

were aiming their guns, they both assumed that the guns must

have been pointed toward the inmates because of the number

of inmates who were hit by buckshot and because of their own

wounds. R. 75-3, Tr. at 34; R. 75-2, Tr. at 21. The guards averred

that they fired into the ceiling. In response to the defendants’

statement of uncontested facts, the plaintiffs’ lawyer contended

that it was unlikely that both guards had fired into the ceiling

because it was composed of acoustic tile and yet four inmates

were struck by buckshot.2 R. 84, at 10. But there is no evidence

in the record regarding the composition of the ceiling. Oral

Argument at 14:51–15:15 (defendants’ counsel confirming that

the record does not contain evidence regarding composition of

ceiling). The district court appropriately rejected as hearsay the

2

The plaintiffs’ counsel argued that ricochet was unlikely in response to

the claim by the guards that they fired at the ceiling rather than directly at

the crowd. Having not seen the direction of fire, the plaintiffs argued in the

alternative that the guns were either pointed directly at the crowd or at the

ceiling and away from the shot boxes. We address the plaintiffs’ preserva-

tion of this claim infra at note 5 and accompanying text.

No. 17-2295 5

plaintiffs’ additional assertions that other inmates told them

that the guns were pointed toward the crowd.3 The court then

accepted as undisputed fact the defendants’ claims that they

aimed at the ceiling.

But the direction of fire cannot be conclusively resolved on

this thin and disputed record. Circumstantial evidence

supports two possible paths for the buckshot to travel to the

plaintiffs. The plaintiffs’ assertion that the guns were pointed

toward the inmates is a reasonable inference drawn from

circumstantial evidence given that the buckshot penetrated the

clothing and the skin of multiple bystander inmates (including

the plaintiffs). One could argue that when A fires a gun and the

bullet ends up in B, the most natural inference is that the gun

was pointed at B. That inference in this case is supported by

the force with which the buckshot arrived (again, the shot

penetrated the clothing and skin of the plaintiffs and buckshot

remains embedded in Clay’s arm) and the number of persons

injured. The defendants’ alternate assertion that the buckshot

arrived indirectly, by ricochet, is also a reasonable inference,

given that the shotguns (devices designed to scatter the pellets

3

We agree with the dissent that the district court correctly resolved the

hearsay issue but as we explain, hearsay was not the only evidence

supporting an inference that the guards fired in the direction of the inmates.

The district court did not address the plaintiffs’ circumstantial evidence on

this point. On summary judgment, the scope of our review is plenary.

Although we review the court’s ruling on the hearsay issue for abuse of

discretion, we review the grant of summary judgment de novo, granting no

deference to the district court. Haynes v. Indiana Univ., 902 F.3d 724, 730 (7th

Cir. 2018) (“We review a summary judgment de novo, … and we set aside

the district court’s evidentiary rulings only for an abuse of discretion[.]”).

6 No. 17-2295

loaded in the shell) were fired indoors, in a crowded room, and

away from the device installed to reduce ricochet. That

inference is supported by the defendants’ affidavits, but those

affidavits do not conclusively resolve which competing

inference is correct.4

Circumstantial evidence “is proof of a fact, or a series of

facts, that tends to show that some other fact is true.”Seventh

Circuit Pattern Jury Instructions - Civil § 1.12. For example, the

observation of someone entering a room carrying a wet

umbrella is circumstantial evidence that it is raining. Id.

Similarly, the presence of buckshot in a person’s body gives

rise to competing inferences that the shotgun was either

pointed in that person’s direction or pointed in a manner that

allowed the shot to arrive indirectly, by ricochet. Courts

routinely direct juries that the “law makes no distinction

between the weight to be given to either direct or

circumstantial evidence.” Id. That is so because

“[c]ircumstantial evidence is not only sufficient, but may also

be more certain, satisfying and persuasive than direct

evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)

4

As the dissent notes, an internal investigation into the incident also

characterizes the injuries as occurring from the ricochet of warning shots.

But the report does not expressly analyze the issue of the direction of fire

and reaches no official conclusion on that issue. The part of the report

quoted by the dissent is based on “information” that initiated the investiga-

tion. The report then addresses various versions of the incident from staff

and inmate witnesses. The report assumes that the injuries occurred by

ricochet. In any case, the report presents nothing more than a competing

view of a contested fact, and it is not conclusive for summary judgment

purposes.

No. 17-2295 7

(quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.1

(1957)). Indeed, circumstantial evidence is sufficient to

establish guilt beyond a reasonable doubt in criminal cases,

and deserves no less respect in civil matters. See Holland v.

United States, 348 U.S. 121, 139–40 (1954).

The dissent’s assertion that the plaintiffs have “no evidence

that the officers shot into the crowd” is incorrect. The plaintiffs

possess circumstantial evidence that the gun was pointed in

their direction. In the dissent’s view, a court would be required

to conclusively credit a witness’s sworn statement that it was

not raining even in the face of the proverbial wet umbrella. But

in the face of circumstantial evidence, a jury would not be

required to credit the defendants’ statements here, and that

would leave the two competing inferences that the shot arrived

either directly or indirectly. On summary judgment, a “‘court

may not assess the credibility of witnesses, choose between

competing inferences or balance the relative weight of

conflicting evidence; it must view all the evidence in the record

in the light most favorable to the non-moving party and

resolve all factual disputes in favor of the non-moving party.’”

Orton-Bell v. Indiana, 759 F.3d 768, 772–73 (7th Cir. 2014)

(quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir.

2005)). And if a jury not only rejected the defendants’ assertion

but also concluded that the defendants affirmatively lied about

the direction of fire, that lie would be additional circumstantial

evidence supporting the inference that the shot was aimed

toward the plaintiffs. See Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 147 (2000) (in the employment discrimination

setting, proof that the defendant’s purportedly

nondiscriminatory explanation for its actions is “unworthy of

8 No. 17-2295

credence is simply one form of circumstantial evidence that is

probative of intentional discrimination, and it may be quite

persuasive.”).

Contrary to the dissent’s charge that we have given the

plaintiffs “an assist,” the plaintiffs’ arguments below and on

appeal encompass both the possibility that the shots were fired

into the ceiling, as the defendants claim, or toward the inmates,

as may be inferred from the injuries sustained. See R. 82, at 1–2

(characterizing the defendants’ actions as “[f]iring shotguns

into a crowd of innocent bystanders …” and asserting that

defendants “were aiming at them when they fired”).5 Having

preserved the issue in the district court, the plaintiffs do not

expressly concede on appeal that the shots were directed at the

ceiling (as the defendants claim), instead arguing that the

5

Indeed, even the defendants extensively referenced the plaintiffs’ theory

that the shots were fired in their direction in their Statement of Uncontested

Facts. R. 75, at 5, ¶¶ 24–29. Paragraph 27 specifies, “Plaintiff McCottrell

admits that the only reason he believes that the gun was aimed at him when

he was shot is the fact that he was hit.” The plaintiffs, in turn, admitted that

assertion in their Response. R. 84, at 6. The defendants argued in their

Memorandum of Law in Support of Their Motion for Summary Judgment

that the plaintiffs’ injuries were not sufficient evidence of the defendants’

intent, and that there was no evidence supporting a claim that they fired

directly into the dining hall. R. 76, at 12. The plaintiffs then countered in

their response brief below that they both credibly believed that the

defendants were aiming at them when the shotguns were discharged. R. 82,

at 2. In their reply, the defendants argued that the plaintiffs’ injuries were

not evidence of the direction of fire, characterizing this circumstantial

evidence as an assertion of the plaintiffs’ “unsupported beliefs.” R. 90, at

3–4. But as we explain, it is reasonable to infer from the presence of

buckshot in a person’s body that the shooter was pointing the shotgun in

that person’s direction.

No. 17-2295 9

district court “improperly credited Defendants’ version of the

facts.” Opening Brief at 3. On appeal, the plaintiffs focus

primarily on the guards’ avoidance of the shot box, but

contrary to the dissent’s assertion that the direction of the shots

is undisputed, there is a preserved fact question regarding the

direction of fire. See Opening Brief at 2 (“fired gunshots that hit

at least four bystander inmates”); at 4–5 (“fired buckshots that

hit four inmates”); at 6 (“failed to shoot the ‘shot box’”); at 11

(“neither Defendant shot the shotboxes”); at 20 (“extreme

response of firing gunshots into the ceiling of a crowded

area”); at 25 (“district court gave Defendants credit for

purportedly choosing to aim ‘at the ceiling and at the shot

board on the ceiling’”); at 26 (“A reasonable jury could instead

determine that Defendants’ decision to shoot in the first place

and their failure to hit the shot box intended to catch buckshot

was because they did not want the buckshot caught.”). In

addition to these references in the Opening Brief, the plaintiffs

expressly characterize the shots as being fired into a crowded

area or near a crowd in their Reply Brief. Reply Brief at 11–15.

As we explain above, that is a reasonable inference drawn from

circumstantial evidence. That there is a competing inference

and testimony to the contrary creates an issue for the jury. We

will also focus primarily on the claim that the shots were

aimed at the ceiling and away from the shot box, but the

plaintiffs are free to dispute the direction of fire on remand,

having never conceded the point. As we conclude below,

summary judgment is not appropriate in either scenario.

White and Williams filed written Incident Reports with

prison authorities and submitted to interviews with an internal

affairs investigator from the Illinois Department of Corrections

10 No. 17-2295

regarding the event. They also submitted affidavits with their

motion for summary judgment. White and Williams wrote the

Incident Reports within hours of the event, and the interviews

took place in the early afternoon of the same day. In his brief

Incident Report, Williams wrote that when staff rushed in to

separate the inmates, the inmates began to struggle with the

staff. He asserted that he believed the lives of the staff were in

danger and so he “fired a warning round into the ceiling.” He

wrote that staff members were then able to secure the inmates.

Williams told the investigator that he saw the inmates begin to

fight but did not see any weapons. The inmates were wrestling

up against a wall when staff rushed in to separate them.

Williams saw the staff separate the inmates but did not see

whether any officers on the ground used pepper spray. After

the inmates were pulled apart, he could see only one of the

inmates and that man was resisting and non-compliant but did

not strike any staff members. Williams claimed that he thought

the lives of the guards were in danger and so he fired a

warning shot into the ceiling. R. 86, at 52–53.

In his Incident Report, White wrote that he saw the two

inmates striking each other in the face and head with closed

fists. He saw security staff respond to the scene and attempt to

break up the fight but the men continued to be combative and

would not stop fighting. At that point, White said, he believed

that lives were in imminent danger and so he fired one

warning shot into the ceiling. After the shot, the guards on the

floor were able to separate and restrain the brawling inmates.

White told the investigator that Williams directed his attention

to the chute where two inmates were “punching each other in

the face.” He saw “a bunch of staff” attempt to stop the fight

No. 17-2295 11

but the inmates continued to scuffle. White reported that the

inmates were “still going at it” when he fired a warning shot

into the ceiling. He did not see a weapon and did not see the

inmates strike any staff member but would not rule out the

possibility that a staff member had been struck. White told the

investigator that he fired the warning shot because he felt that

the staff members were in imminent danger. Finally, White

said that he saw the staff members use pepper spray after he

fired the warning shot.

After completing interviews and receiving reports from

staff and inmate witnesses, the investigator issued a report

concluding that both White and Williams “violated

Department Rules regarding Use of Excessive Force[.]” R. 86,

at 5. The investigator found that the shots were fired

immediately after one of the guards administered pepper

spray toward one of the brawling inmates. Both defendants

failed to note in their Incident Reports that the fighting inmates

had been separated before the warning shots were fired. Both

White and Williams also failed to give accurate depictions of

the incident in chronological order in their official reports. For

example, White’s claim that the inmates were “still going at it”

when he fired a warning shot conflicted with the video and

other evidence.6 Moreover, no staff members were punched or

struck during the altercation, and the video showed no signs

that anyone within view sustained injuries that could be

6

The district court concluded that the factual findings from the internal

affairs report were admissible under Federal Rule of Evidence 803(8), and

the defendants have not challenged that conclusion. We discuss below the

use of the report in summary judgment proceedings.

12 No. 17-2295

considered “great bodily harm.” R. 86, at 5. The report

concluded that “White and Williams used an unreasonable

amount of force (warning shot) outside the scope and not in

accordance with Departmental Rule 501.30 Justifiable Use of

Force.” R. 86, at 5.7

McCottrell and Clay sued Williams and White under 42

U.S.C. § 1983, alleging that the guards violated their rights

under the Eighth Amendment by using excessive force when

they fired shotguns into the crowded dining hall after the

conflict was over.8 During the course of the litigation, some

three years after the internal affairs report was issued, White

and Williams signed affidavits describing the event somewhat

differently than they had on the day of the shooting. White’s

affidavit states, in relevant part:

On November 6, 2013, I witnessed two offenders

fighting within the dining hall. Correctional staff

acted quickly to separate the offenders. However,

one of the offenders continued to struggle with

correctional staff and refused to comply.

Correctional staff members were having difficulty

restraining this offender. I discharged a warning

shot into the ceiling.

7

There is no “Rule 501.30 Justifiable Use of Force,” and so the reference to

Rule 501.30 may have been in error. Rule 501.30 covers “Resort to Force,”

and Rule 501.40 is titled “Justifiable Use of Force.” Both rules would

arguably apply to the incident at issue here.

8

The plaintiffs initially raised a number of additional claims against the

guards and the prison’s health care providers but the only claim that is on

appeal is the one against White and Williams for excessive force.

No. 17-2295 13

R. 75-5, at 2. Williams’ affidavit repeats this language word for

word, adding the phrase, “toward the nearest shot-box” to the

end of the final sentence. R. 75-4, at 2. White added to his

affidavit that he shot into the ceiling as opposed to the shot box

because he had been advised that it would decrease the risk of

ricochet and he wished to minimize that risk. Thus, contrary to

their earlier reports, they acknowledged during the litigation

that the inmates had been separated and that only a single

inmate purportedly continued to struggle at the time the shots

were fired. Williams had not previously reported that his

firearm was directed toward the shot box, and White had not

previously claimed that he believed the ceiling to present less

of a risk of ricochet than the shot box. Both guards averred that

they believed that warning shots were necessary to restore

safety and order in the dining hall, that the struggling offender

posed a serious threat to the correctional staff attempting to

subdue him, that they did not know whether the offender

possessed a weapon, and that they did not fire their weapons

with the intent to injure anyone.

The district court granted summary judgment in favor of

the defendants after concluding that the plaintiffs lacked

evidence that the officers’ use of force was wanton or

unnecessary. Noting the statements of White and Williams that

they fired the shots in order to restore order, the court found

that the defendants’ belief that the shots were necessary was

reasonable given that prison fights often escalate quickly and

inmates sometimes use makeshift weapons. Crediting the

defendants’ statements that the shots were fired toward the

ceiling rather than in the direction of the plaintiffs, the district

court found that the direction of the shots indicated an attempt

14 No. 17-2295

to temper the severity of the response. The court also noted

that neither officer knew the plaintiffs or harbored any

personal ill will toward them. After reviewing a blurry

surveillance video of the dining hall, the court concluded that

the shots were fired while one of the inmates continued to

struggle with the officers, and the court found that it was

therefore reasonable to believe that the warning shot was

necessary to restore order.9 Because the plaintiffs lacked

9

Like the district court, we too have reviewed the video. The quality of the

blurred black and white video is extremely poor and there is no audio track.

It is difficult to distinguish one individual from another in the area where

the fight took place, and it is only from the reactions of the seated bystand-

ers that one could hazard a guess as to when the shots were fired. Although

there is a counter/time index included with the video, the parties could not

agree during Clay’s deposition whether the index represented seconds

elapsed. R. 75-3, Tr. at 31. The jerky motion of the persons moving in the

video suggests that more than one second has elapsed between frames or

that perhaps only one image was taken each second; it is simply impossible

to tell. It is also impossible to determine when the pepper spray was

applied. We cannot discern from the video if the fighting inmates were

continuing to struggle with officers at the time the shots were fired. But the

internal affairs investigator who cited the video had the benefit of inter-

viewing the persons depicted in it and appears to have drawn conclusions

about the video based on those interviews as well as on the video itself. A

person who participated in the event might be able to identify the blurry

figures and the actions taken but we are not able to do so. The district court

made no express ruling on the admissibility of the video. The defendants

made no attempt in the record to lay a foundation for the video, and so we

have no idea if the view presented in the video is the same view that the

guards had of the situation. Nor do we know whether the video has been

altered in any way. We will not draw independent factual conclusions from

it. To the extent that the district court’s interpretation of the poor quality

(continued...)

No. 17-2295 15

evidence that the defendants acted “maliciously and

sadistically,”10 the court granted judgment in favor of the

defendants. McCottrell and Clay appeal.

II.

On appeal, McCottrell and Clay assert that there are

genuine issues of material fact regarding the intent of the

defendant officers when they fired the shots over the dining

hall. They argue that the court should have applied the five-

factor test set forth by the Supreme Court in Hudson v.

McMillian, 503 U.S. 1 (1992), and Whitley v. Albers, 475 U.S. 312

(1986), in determining the officers’ intent, and that application

of those factors would have made clear that the key question

of intent was disputed. Instead, they maintain, the court

inappropriately resolved disputed fact questions in favor of the

defendants. We review the district court’s grant of summary

judgment de novo, examining the record in the light most

favorable to the plaintiffs and construing all reasonable

9

(...continued)

video conflicts with the testimony of the plaintiffs or the conclusions of the

investigator who interviewed the persons involved in the incident, we must

credit the plaintiffs’ version of events on summary judgment. Cf Scott v.

Harris, 550 U.S. 372, 380–81 (2007) (where a reliable videotape clearly

captures an event in dispute and blatantly contradicts one party’s version

of the event so that no reasonable jury could credit that party’s story, a

court should not adopt that party’s version of the facts for the purpose of

ruling on a motion for summary judgment).

10

As we will discuss below, in Whitley v. Albers, 475 U.S. 312, 320–21 (1986),

the Supreme Court set this as the standard for liability in Eighth Amend-

ment excessive force claims related to prison security measures.

16 No. 17-2295

inferences from the evidence in their favor. Anderson, 477 U.S.

at 255; Lapre v. City of Chicago, 911 F.3d 424, 430 (7th Cir. 2018).

Summary judgment is appropriate when there are no genuine

disputes of material fact and the movant is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477

U.S. at 247–48; Lapre, 911 F.3d at 430.

A.

The Eighth Amendment forbids the imposition of “cruel

and unusual punishments” against persons convicted of

crimes. Whitley, 475 U.S. at 318. In Whitley, prison personnel

were faced with a riot instigated by drunken inmates who took

a guard hostage. One inmate was armed with a homemade

knife and had threatened to kill the hostage if prison officials

sent in an assault squad to end the conflict. After assessing the

situation, officials decided to send in the armed assault team

with directions to fire a warning shot and then aim low at any

prisoners taking a staircase that led to the area where the

hostage was being held. The assault squad was successful in

retrieving the hostage and capturing the inmate who was

armed with a knife. But in the course of the rescue, an inmate

uninvolved in the fracas was shot when he attempted to take

the staircase back to his cell. 475 U.S. at 314–16.

The bystander inmate sustained severe injuries to his leg as

well as mental and emotional distress. Like McCottrell and

Clay, he brought suit under 42 U.S.C. § 1983, claiming violation

of his rights under the Eighth Amendment. Although the

district court granted summary judgment to the defendants,

the court of appeals reversed. The court of appeals relied on

evidence that the disturbance was subsiding at the time that

No. 17-2295 17

prison officials sent in the assault squad. Moreover, the

plaintiff had presented expert evidence concluding that the

amount of force employed was excessive under the

circumstances. But the Supreme Court determined that the

court of appeals had “effectively collapsed the distinction

between mere negligence and wanton conduct … implicit in

the Eighth Amendment.” Whitley, 475 U.S. at 322. Although the

general disturbance had died down, the situation remained

dangerous and volatile; the safety of the guard being held

hostage was still in question and an inmate was armed. As for

the expert opinion:

At most, this evidence, which was controverted by

petitioners’ experts, establishes that prison officials

arguably erred in judgment when they decided on

a plan that employed potentially deadly force. It

falls far short of a showing that there was no

plausible basis for the officials’ belief that this

degree of force was necessary. Indeed, any such

conclusion would run counter to common sense, in

light of the risks to the life of the hostage and the

safety of inmates that demonstrably persisted

notwithstanding repeated attempts to defuse the

situation. An expert's after-the-fact opinion that

danger was not “imminent” in no way establishes

that there was no danger, or that a conclusion by the

officers that it was imminent would have been

wholly unreasonable.

Whitley, 475 U.S. at 323. Ultimately the Court concluded that

the prison officials did not violate the plaintiff’s Eighth

18 No. 17-2295

Amendment right to be free from cruel and unusual

punishment. Whitley, 475 U.S. at 326.

In reaching this conclusion, the Court reasoned that Eighth

Amendment claims must be analyzed “with due regard for

differences in the kind of conduct against which an Eighth

Amendment objection is lodged.” Whitley, 475 U.S. at 320. For

example, claims regarding deliberate indifference to a

prisoner’s serious medical needs or harsh conditions of

confinement do not present the same institutional concerns as

those relating to the amount of force needed to maintain or

restore order to the prison. Id. As the Court pointed out, the

jailer’s “responsibility to attend to the medical needs of

prisoners does not ordinarily clash with other equally

important governmental responsibilities.” Id.

But, in making and carrying out decisions involving

the use of force to restore order in the face of a

prison disturbance, prison officials undoubtedly

must take into account the very real threats the

unrest presents to inmates and prison officials alike,

in addition to the possible harms to inmates against

whom force might be used.

Whitley, 475 U.S. at 320. For that reason:

Where a prison security measure is undertaken to

resolve a disturbance … that indisputably poses

significant risks to the safety of inmates and prison

staff, … 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

No. 17-2295 19

maliciously and sadistically for the very purpose of

causing harm.”

Whitley, 475 U.S. at 320–21 (quoting Johnson v. Glick, 481 F.2d

1028, 1033 (2d Cir. 1973) (Friendly, J.)).

The ultimate determination of the intent of the person

applying the force in an excessive force claim involving prison

security measures depends upon a number of factors,

including: (1) the need for the application of force; (2) the

relationship between the need and the amount of force that

was used; (3) the extent of injury inflicted; (4) 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 (5) any efforts made to temper the severity

of a forceful response. Whitley, 475 U.S. at 321. See also Hudson,

503 U.S. at 7 (listing the five factors); Lewis v. Downey, 581 F.3d

467, 477 (7th Cir. 2009) (same); Fillmore v. Page, 358 F.3d 496,

504 (7th Cir. 2004) (same). “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.” Whitley,

475 U.S. at 321.

Deference must be accorded to prison administrators in the

adoption and execution of policies and practices that are

needed to preserve order and ensure institutional security.

Whitley, 475 U.S. at 321–22. The Court intended that this

deference be extended to a particular security measure taken

in response to an actual prison disturbance as well as to

preventative measures:

20 No. 17-2295

[That deference] does not insulate from review

actions taken in bad faith and for no legitimate

purpose, but it requires that neither judge nor jury

freely substitute their judgment for that of officials

who have made a considered choice. Accordingly, in

ruling on a motion for a directed verdict in a case

such as this, courts must determine whether the

evidence goes beyond a mere dispute over the

reasonableness of a particular use of force or the

existence of arguably superior alternatives. Unless it

appears that the evidence, viewed in the light most

favorable to the plaintiff, will support a reliable

inference of wantonness in the infliction of pain

under the standard we have described, the case

should not go to the jury.

Whitley, 475 U.S. at 322.

Although Whitley involved a prison riot that included a

guard being held hostage, the Court later remarked that the

concerns underlying the holding of Whitley apply whenever

guards use force to keep order:

Whether the prison disturbance is a riot or a lesser

disruption, corrections officers must balance the

need “to maintain or restore discipline” through

force against the risk of injury to inmates. Both

situations may require prison officials to act quickly

and decisively. Likewise, both implicate the

principle that “‘[p]rison administrators ... should be

accorded wide-ranging deference in the adoption

and execution of policies and practices that in their

No. 17-2295 21

judgment are needed to preserve internal order and

discipline and to maintain institutional security.’” In

recognition of these similarities, we hold that

whenever prison officials stand accused of using

excessive physical force in violation of the Cruel and

Unusual Punishments Clause, the core judicial

inquiry is that set out in Whitley: whether force was

applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause

harm.

Hudson, 503 U.S. at 6–7 (citations omitted).

In Hudson, the Court also made clear that not “every

malevolent touch by a prison guard gives rise to a federal

cause of action.” 503 U.S. at 9. Instead, the Eighth

Amendment’s prohibition against cruel and unusual

punishments excludes from constitutional recognition de

minimis uses of force that are not of the kind that would be

“repugnant to the conscience of mankind.” Hudson, 503 U.S. at

9–10 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But the

Court also clarified that “[w]hen prison officials maliciously

and sadistically use force to cause harm, contemporary

standards of decency always are violated. This is true whether

or not significant injury is evident.” Hudson, 503 U.S. at 9. The

extent of injury is relevant to the Eighth Amendment inquiry

because it provides some indication of the amount of force

applied, and because it may suggest whether the use of force

was plausibly necessary in a particular situation; but the

absence of serious injury is not the end of the analysis. Wilkins

v. Gaddy, 559 U.S. 34, 37 (2010).

22 No. 17-2295

B.

In this case, the threshold question of whether the force

applied was more than de minimis is easily answered. The

firing of two shotguns toward the crowd, or into the ceiling of

a crowded dining hall no doubt qualifies as more than a de

minimis use of force, as the district court found. See McCottrell

v. Correctional Officers, No. 1:15-cv-03208, slip. op. at 9 (N.D. Ill.

May 22, 2017) (finding that discharging a firearm is plainly

more than a de minimis use of force). The prison itself had

installed a “shot box” device on the ceiling to minimize the

known risks of ricochet from warning shots discharged in that

space, and both defendants aimed away from this safety

device. The resulting injuries and the pain inflicted confirm

that the force was significant. See Lewis, 581 F.3d at 475 (pain is

the barometer by which we measure claims of excessive force,

and the use of a stun gun, which sends an electric pulse

through the body causing immobilization, disorientation, loss

of balance, and weakness, is more than a de minimis application

of force).

Setting aside for a moment the plaintiffs’ claim that the

guards may have fired directly toward the crowd, the dissent

suggests that firing two shotguns loaded with buckshot into

the ceiling of a crowded dining hall cannot be deemed to be

malicious and sadistic or even characterized as an intentional

application of force without a showing that a guard “intended

to hit or harm someone with his application of force.” That

standard is met here. A jury may infer intent to make physical

contact from the nature of the act taken, and spraying buckshot

into a crowded room, either directly towards people or by the

known force of ricochet, is circumstantial evidence that gives

No. 17-2295 23

rise to an inference that the guards intended to injure the

persons seated below. As we discuss infra, both defendants

averred that they fired into the ceiling, avoiding the device

intended to minimize ricochet. That action of purposely

avoiding the shot box gives rise to an inference that the guards

intended to make physical contact. That they might not have

cared which particular inmate (or how many inmates) they hit

is not relevant to the question of whether they intentionally

applied force. Discharging shotguns loaded with buckshot in

a crowded dining hall was a “force applied” that was more

than de minimis. From consideration of the Whitley factors,

“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.” Whitley,

475 U.S. at 321. See also Farmer v. Brennan, 511 U.S. 825, 835–36

(1994) (in a claim for excessive force during a prison

disturbance, the claimant must show that officials applied force

maliciously and sadistically for the very purpose of causing

harm, or that officials used force with a knowing willingness

that harm occur). Firing a shotgun into the ceiling and away

from the shot boxes in a crowded dining hall gives rise to an

inference that the guards used force with a “knowing

willingness” that harm would occur. Whitley, 475 U.S. at 321.

Although Whitley afforded deference to prison officials

during a disturbance, the Court did “not insulate from review

actions taken in bad faith and for no legitimate purpose.” 475

U.S. at 322. A warning shot taken when there is no need to

warn arguably has no legitimate purpose, and one purposely

aimed away from a safety device raises an inference of bad

24 No. 17-2295

faith. But under the dissent’s version of the test, a guard could

blindly unload a shotgun above a crowd of bystanders with

impunity because making contact is not a certainty. Nothing in

Whitley requires targeting. Whitley instead refers to a “security

measure … undertaken to resolve a disturbance” and directs

us to consider “whether the measure taken inflicted

unnecessary and wanton pain and suffering,” a calculus that,

in the prison disturbance setting, 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.” Whitley, 475 U.S. at 321. Firing buckshot toward a

crowd of bystanders or into the ceiling above them (and away

from the devices intended to reduce ricochet) may be

comfortably characterized as a force applied during a security

measure. See also Gomez v. Randle, 680 F.3d 859, 861–62, 864–65

(7th Cir. 2012) (bystander prisoner struck by buckshot fired

into inmate population by guard on catwalk as guards on the

ground sought to break up a fight between two unarmed

inmates stated a claim for excessive force under the Eighth

Amendment).

The dissent also asserts that, in order to show that the

guards intentionally shot the plaintiffs (as opposed to

recklessly disregarding the risk of ricochet), the plaintiffs could

have introduced evidence regarding the composition of the

ceiling in order to demonstrate that ricochet was “very likely.”

In that event, the dissent continues, “firing into the ceiling

would be the functional equivalent of firing into the crowd.”

Infra, at 6. There is no evidence in the record regarding the

composition of the ceiling but there is evidence that the prison

regarded the ceiling as a dangerous target: the prison itself

No. 17-2295 25

installed shot boxes throughout the facility to reduce ricochet

from warning shots. The installation of those boxes is evidence

that the prison itself considered ricochet to be “very likely.” A

jury may infer from the presence of the shot boxes that the

guards were aware that a shotgun blast to the ceiling would

ricochet into the crowd below.

As we discuss below, in analyzing the fifth Whitley factor

(efforts made to temper the severity of the force), the plaintiffs

contend that “failure to hit the shot box might have been

malicious.” Opening Brief at 26. The plaintiffs argued that the

guns were either directed at the crowd or at the ceiling. They

maintained that if the shots were fired into the ceiling, a

reasonable jury could infer that the guards’ “failure to hit the

shot box intended to catch buckshot was because they did not

want the buckshot caught.” Opening Brief at 26. The plaintiffs

also argued that a jury could find that the guards’ claims

regarding the shot box (including their inability to hit it or their

decisions to aim elsewhere, purportedly for safety reasons)

were not credible, especially in light of their other misleading

statements. Id. Thus, the plaintiffs do in fact cite circumstantial

evidence that shooting at the ceiling (and away from the shot

box) was functionally equivalent to sending buckshot into the

crowd. This is more than recklessness, as the dissent asserts; a

jury could conclude that this application of force “evinced such

wantonness with respect to the unjustified infliction of harm as

is tantamount to a knowing willingness that it occur.” Whitley,

475 U.S. at 321. It is obviously easier for the plaintiffs to prove

that the guards met this standard if the guns were pointed at

the crowd instead of the ceiling. But it is possible to prove that

the standard was met even if the guns were pointed at the

26 No. 17-2295

ceiling and purposefully away from the shot box. From the

evidence presented, the jury could infer both intent to make

contact and malice.

C.

So we turn to the five factors that the Supreme Court set

forth in Whitley, the controlling test for determining intent

when more than de minimis force is applied in a prison

disturbance.11 See Lewis, 581 F.3d at 476 (once the court has

determined that the force applied was more than de minimis,

the inquiry turns to the mind set of the individual applying the

force).

1.

The first factor is the need for the application of force, and

on this point, there are material disagreements of fact. The

plaintiffs produced evidence that the fight was nothing more

than a minor shoving match between two unarmed

combatants, and that the tussling inmates had been separated

11

The district court suggested that, in Fillmore v. Page, 358 F.3d 496 (7th Cir.

2004), the Seventh Circuit had “distilled” the analysis of Whitley and Hudson

into a two-part inquiry of whether the force was more than de minimis, and

whether the actions of the defendant officers were designed expressly for

the purpose of punishing or humiliating the plaintiff inmates. Fillmore

appropriately identified those as the operative, overarching questions in a

case involving the use of force during a prison disturbance, but Fillmore did

not purport to distill the five-part test set forth in Whitley. Fillmore in fact

listed the five factors as the means of determining the officers’ intent and

purpose in such a case. 358 F.3d at 504. Fillmore faithfully applied Whitley

and Hudson when it affirmed a finding that the force applied was de

minimis. Because that threshold had not been met, there was no need to

progress through the five-part test to determine the officers’ intent.

No. 17-2295 27

and subdued and were in the process of being handcuffed

when the shots were fired. In the plaintiffs’ view, there was no

need for the warning shots because the officers on the ground

had already successfully used pepper spray to secure the

situation. Some of the factual conclusions of the internal affairs

report bolster this view. The report found that the fighting

inmates had already been separated, that neither was armed

with a weapon, that no staff members had been struck, and

that the fighting inmates were brought to compliance with the

application of pepper spray before the shots were fired.

The defendant guards, on the other hand, told an evolving

story about the sequence of events, at first reporting that the

inmates were fighting and struggling with staff members who

were trying to separate them at the moment the shots were

fired, then later stating that the inmates had been separated

before the shots were fired, and then finally that the inmates

had been separated and only one inmate continued to struggle

before the shots were then fired. A jury could infer from the

shifting stories told by the guards that they were not truthful

regarding the need for the application of force. See Reeves, 530

U.S. at 147; Ray v. Clements, 700 F.3d 993, 1025 n.7 (7th Cir.

2012) (witness’s changing story supports inference of lying).

If the plaintiffs are correct about the sequence of events,

then there was arguably no need for warning shots at all. Lewis,

581 F.3d at 477 (where the exact sequence of events leading to

a stun gun’s use is strongly disputed, the court is required to

view the facts in the light most favorable to prisoner opposing

summary judgment). Unlike Whitley, there was no ongoing

dangerous and volatile situation. See Lewis, 581 F.3d at 477–78

(where an inmate asserts that he was merely lying on his bunk,

28 No. 17-2295

weak and sluggish from a hunger strike, without sufficient

time to respond to an order to stand, the inmate displayed no

aggressive or threatening behavior that would have justified

application of a stun gun without warning). But if the

defendants’ various versions of the event can be reconciled and

are correct, then from the guards’ perspective, the force could

plausibly have been thought necessary. Whitley, 475 U.S. at 321;

Wilkins, 559 U.S. at 37. The evidence supports an inference that

the shots were fired after the fight on the floor was under

control. Only a jury can resolve the factual dispute regarding

the state of the conflict and the need for force at the time the

shots were fired. But, construing the facts in favor of the

plaintiffs, there was no need for any warning shots at the time

they were fired, which gives rise to an inference of malice and

sadism on the part of the guards.

2.

The second factor, the relationship between the need for

force and the amount of force employed, is closely tied to the

first factor. Obviously, if there was no need for the warning

shots, then those shots were significantly disproportionate to

the need for force. The guards on the floor were already

applying force, pulling the offenders apart and applying

pepper spray when they did not comply with handcuffing

procedures. Again, the stories told by the plaintiffs and the

guards are materially different, and the prison itself concluded

that the additional force applied by the defendants was not

needed to secure the situation. That is not to say that the

officers’ violation of prison policies regarding the use of force

was evidence of an unconstitutional amount of force. We have

found in the Fourth Amendment context, for example, that

No. 17-2295 29

“the violation of police regulations or even a state law is

completely immaterial as to the question of whether a violation

of the federal constitution has been established.” Thompson v.

City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006). But the

plaintiffs here are not attempting to equate a violation of

department policy with a constitutional transgression. Rather,

they are citing the factual conclusions of an official

investigation into this very incident as support for their

assertion that, because the fight had been resolved, there was

no further need for the use of force, including in particular the

warning shots fired by the defendants. See Daniel v. Cook

County, 833 F.3d 728, 740 (7th Cir. 2016).

As we noted in footnote 6 above, the district court

concluded that the report was admissible under Federal Rule

of Evidence 803(8), as “factual findings from a legally

authorized investigation,” a conclusion that the defendants did

not contest on appeal. Thus, the plaintiffs are free to use the

factual findings of the report to demonstrate that there are

genuine issues of material fact that must be resolved at trial. It

is not the prison’s policies or the guards’ violations of those

policies that are relevant. Only the factual findings may be

considered, and those findings bolster the plaintiffs’ evidence

that the shots were fired after the conflict was over, at a time

when there may have been “no plausible basis for the officials’

belief that this degree of force was necessary.” Whitley, 475 U.S.

at 323. See also Lewis, 581 F.3d at 478 (in light of the absence of

any agitation or threat from an inmate, the short passage of

time between a single order and the application of a stun gun,

and a lack of warning as to the consequences of a failure to

comply with the order, summary judgment in favor of the

30 No. 17-2295

defendant officer is not appropriate). Construing the facts in

favor of the plaintiffs, the force applied was grossly

disproportionate to the force that could plausibly have been

thought necessary, again giving rise to an inference of malice

and sadism.

3.

We next consider the extent of injury inflicted. McCottrell

and Clay each suffered physical and psychological wounds

caused by the buckshot. In Clay’s case, the wound had to be

closed with stitches and the buckshot remains in his arm.

McCottrell bled from the wounds in his neck and leg, and

required pain medication. Both men also suffered

psychological trauma from the event and sought treatment for

their emotional injuries. “Injury and force … are only

imperfectly correlated, and it is the latter that ultimately

counts.” Wilkins, 559 U.S. at 38. The defendant guards do not

dispute the extent of the injuries or the nature of the force

applied, and we can safely say that the injuries and the force

employed were significant enough to bring the case within the

constitutional realm.

4.

The fourth factor is the extent of the threat to the safety of

staff and inmates, as reasonably perceived by the responsible

individuals on the basis of the facts known to them. The

evidence on this point is also mixed. The guards presented

evidence that the dining hall is the site of frequent fights, that

makeshift weapons sometimes appear during these incidents,

that the guards on the floor are vastly outnumbered by the

inmates in the hall, and that prison fights can escalate quickly.

No. 17-2295 31

No doubt even a shoving match between two inmates can

quickly turn into something much more serious. The

undisputed evidence demonstrated that even after guards

were able to pull the inmates apart, they continued to struggle

for some period of time until pepper spray brought about

compliance. From beginning to end, the entire incident lasted

less than a minute and the guards in the tower had to decide

very quickly whether the warning shots were necessary. Under

the standards set forth in Whitley, this factor initially appears

to favor White and Williams.

At the same time, other witnesses reported that the fight

was over by the time the shots were fired, that no weapons had

materialized, that no other inmates joined the fracas, and that

no staff had been attacked. Unlike Whitley, there was no prison

riot, no hostage, and no armed agitator. In combination with

the finding that White and Williams gave inaccurate and

evolving accounts of the sequence of events, a jury could infer

that their perception of the threat was not reasonable. If the

defendants saw that the fight was over and that the guards on

the floor had the situation under control, then there was no

penological justification for firing warning shots, giving rise to

an inference of malice and sadism. Whitley, 475 U.S. at 322

(deference to prison officials does not insulate from review

actions taken in bad faith and for no legitimate purpose);

Fillmore, 358 F.3d at 504 (infliction of pain that is totally

without penological justification is per se malicious).

32 No. 17-2295

5.

The fifth and final factor is whether any efforts were taken

to temper the severity of a forceful response. This factor is also

disputed. As we discussed above, there is a reasonable

inference that the guards fired directly toward the bystander

inmates. Supra at p.4–9. That would indicate that little or no

effort was taken to temper the severity of the force. Even the

defendants’ evidence, as construed in favor of the plaintiffs,

demonstrates that White and Williams purposely fired into the

ceiling rather than the shot box, the device intended to reduce

injuries from ricochet. Williams submitted an affidavit during

summary judgment proceedings in which he stated that he

“discharged a warning shot into the ceiling toward the nearest

shot-box.” R. 75-4, at 2. Williams did not indicate whether he

was trying to hit the shot box and missed, or purposely aimed

at the ceiling, but the evidence raises an inference that he

purposely shot at the ceiling. In his official “Incident Report,”

Williams wrote that he “fired one warning round into the

ceiling.” R. 85, at 54. In his interview with the investigator, he

also stated that he fired a round “into the ceiling.” R. 85, at 52.

Only in his affidavit did he add the detail that he fired the shot

“toward the nearest shot-box.” Construing this account in

favor of the plaintiffs, Williams chose the ceiling rather than

the shot box for the warning shot. As discussed above, the

plaintiffs also raised a reasonable inference that the shots were

directed toward the inmates.

White conceded that he purposely “discharged a warning

shot into the ceiling,” rather than at the shot box. He claimed

that, prior to this incident, he “had been told by [his]

colleagues that shooting into the ceiling, as opposed to the shot

No. 17-2295 33

box, decreased the chance of ricochet.” R. 75-5, at 2–3. He

asserted that he fired into the ceiling “in order to minimize the

chance that anyone would be struck by ricocheted buckshot.”

R. 75-5, at 3.

In any event, this evidence, construed in favor of the

plaintiffs, indicates that both White and Williams purposely

fired into the ceiling rather than the shot box. If the jury

determines that the shots were directed at the ceiling instead

of toward the inmates, the jury must also assess the credibility

of White’s purported reason for his choice. Williams has yet to

explain why he did not fire into the shot box. Negligence (even

gross negligence) is not actionable but neither defendant has

claimed that he mistakenly missed the shot box. A jury could

conclude that purposely shooting toward the inmates or into

the ceiling of a crowded dining hall rather than the shot box

“evinced such wantonness with respect to the unjustified

infliction of harm as is tantamount to a knowing willingness

that it occur.” Whitley, 475 U.S. at 321.

Moreover, purposely avoiding the shot box served no

penological purpose. That is, a warning shot aimed at the shot

box fulfills the purpose of a warning shot, and no additional

penological value is gained by purposely avoiding this safety

device, again giving rise to an inference of malice and sadism.

See Fillmore, 358 F.3d at 504. Aiming a warning shot into the

shot box was the course for the guards if the purpose of the

shot was a good faith effort to restore order. As the plaintiffs

argue, purposely avoiding the shot box gives rise to an

inference that the guards “did not want the buckshot caught.”

Opening Brief at 26.

34 No. 17-2295

D.

There are a number of contested issues of material fact that

preclude the entry of summary judgment at this stage. To

summarize, a finder-of-fact must first determine whether the

guards intended to hit the inmates with buckshot when they

discharged their shotguns over the crowded dining hall, a

calculus that depends in part on the disputed direction of fire.

Whether the guards fired in the direction of the inmates or at

the ceiling, there are genuine disputes of material fact for

virtually every factor in the Supreme Court’s five-part test, and

we must vacate the judgment and remand for further

proceedings.12

The facts, construed in favor of the plaintiffs, support an

inference that the defendants acted maliciously and sadistically

rather than in good faith to restore order. If the jury found

both that the brawling inmates were subdued before the shots

were fired and that the defendants perceived as much, then the

jury could find that by purposely discharging shotguns toward

the crowd or into the ceiling (rather than toward the shot box),

the defendants acted maliciously and sadistically for the

purpose of causing harm, and did so at a time when there was

no need for any force. The jury would have to focus on what

the defendants could see and actually did see before they

discharged their firearms. But on this record, we cannot rule

12

In the final sentence of their brief on appeal, the defendants also assert

that they were “at least entitled to qualified immunity.” Defendants’ Brief

at 31. Perfunctory and undeveloped arguments are waived, and we need

not consider this single-sentence argument further. Tobey v. Chibucos, 890

F.3d 634, 652 (7th Cir. 2018).

No. 17-2295 35

out the possibility that the defendants saw that the fight was

over, and that the combatants had been separated and

subdued before the shots were fired. Failing to accurately

depict the event in official reports and failing to aim for the

very device intended to protect bystanders are facts that weigh

in favor of the plaintiffs’ view that the officers’ actions were not

a good faith effort to restore order but rather were undertaken

maliciously and sadistically for the very purpose of causing

harm. Hudson, 503 U.S. at 6; Whitley, 475 U.S. at 320–21. A jury

would not be compelled to find that the officers acted with that

intent, but it could so find.

III.

We acknowledge that the Supreme Court called for

deference to prison officials making split-second decisions

during disturbances. But a jury must determine whether the

shots were fired during an ongoing struggle that threatened

staff and other prisoners, or after the struggle was over.

Whitley, 475 U.S. at 320–21. See also Lewis, 581 F.3d at 478

(although it is not difficult to imagine any number of scenarios

that would justify the immediate and unadvertised use of

summary force, where the inmate’s version of the facts calls

into question the guard’s state of mind at the time force is

applied, summary judgment is not appropriate). And a jury

must determine why the officers chose to fire toward the

crowd or into the ceiling rather than the shot box. In short,

there are significant factual disputes that affect the analysis of

every one of the five Whitley factors. We may not simply credit

the claims of White and Williams that they believed the shots

were necessary to restore order and defer to that claim when

there is evidence that appears to contradict their assertion of

36 No. 17-2295

good faith. See McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir.

2004) ("It is rarely appropriate on summary judgment for a

district court to make a finding on state of mind."); Stumph v.

Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985)

(“‘Summary judgment is notoriously inappropriate for

determination of claims in which issues of intent, good faith

and other subjective feelings play dominant roles.’”) (quoting

Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 185 (8th

Cir.1976), cert. denied, 429 U.S. 1040 (1977)). Summary judgment

is not appropriate when there is evidence in the record that

could support a reasonable jury finding that the defendants

acted maliciously and sadistically for the very purpose of

causing harm rather than in a good faith effort to restore order.

Anderson, 477 U.S. at 255–56; Whitley, 475 U.S. at 320–21.

VACATED AND REMANDED.

No. 17-2295 37

BARRETT, Circuit Judge, dissenting. As the plaintiffs briefed

and argued this case, they would have lost it. They argued

that the defendants violated the Eighth Amendment by dis-

charging their weapons into the ceiling, rather than into the

shot box, immediately after the fight had been broken up and

there was no plausible need for that use of force. But they did

not argue—and had no evidence to prove—that the defend-

ants intentionally hit anyone. That deficit should have been

fatal, because if the officers did not intend to hit anyone, they

could not have done so “maliciously and sadistically,” as

Whitley v. Albers requires. 475 U.S. 312, 320 (1986). The guards

may have acted with deliberate indifference to inmate safety

by firing warning shots into the ceiling of a crowded cafeteria

in the wake of the disturbance. In the context of prison disci-

pline, however, “deliberate indifference” is not enough.

The Supreme Court has drawn a clear distinction between

the standard applicable to claims challenging the conditions

of confinement and the standard applicable to claims chal-

lenging the use of excessive force. In Farmer v. Brennan, it ex-

plained that prisoners challenging the conditions of their con-

finement must show that officials were deliberately indiffer-

ent to an excessive risk to inmate health or safety, and that

“deliberate indifference to a substantial risk of serious harm

to a prisoner is the equivalent of recklessly disregarding that

risk.” 511 U.S. 825, 836 (1994). Put differently, deliberate in-

difference means criminal recklessness. Id. at 839–40 (“[S]ub-

jective recklessness as used in the criminal law is a familiar

and workable standard that is consistent with the Cruel and

Unusual Punishments Clause as interpreted in our cases, and

38 No. 17-2295

we adopt it as the test for ‘deliberate indifference’ under the

Eighth Amendment.”).

The Court emphasized, however, that “‘application of the

deliberate indifference standard is inappropriate’ in one class

of prison cases: when ‘officials stand accused of using exces-

sive physical force.’” Id. at 835 (citation omitted); see also Whit-

ley, 475 U.S. at 320 (holding that the “deliberate indifference”

standard does not apply in the context of prison security). In

that context, “the question whether the measure taken in-

flicted 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.’” Whitley, 475 U.S. at

320–21 (citation omitted). The Court has described this as a

“very high state of mind” requirement—one much higher

than the criminal recklessness necessary to show deliberate

indifference. Farmer, 511 U.S. at 836. The Whitley factors are

designed to evaluate this “very high state of mind” by smok-

ing out why the guard inflicted harm: was it to maintain dis-

cipline or for the satisfaction of hurting the prisoner? A guard

who injures a prisoner by using force in the absence of a rea-

sonable belief that a threat exists and without any effort to

temper the severity of the force can be thought to knowingly

will “the unjustified infliction of harm.” Whitley, 475 U.S. at 321

(emphasis added). In other words, those circumstances sup-

port an inference that the guard acted in extreme bad faith

rather than “in a good faith effort to maintain or restore disci-

pline.” Id. at 320.

No. 17-2295 39

An inmate cannot satisfy the “malicious and sadistic”

standard without showing that a guard intended to hit or

harm someone with his application of force. After all, if the

guard did not intentionally apply force to a prisoner, how

could he have had a malicious and sadistic intent to cause him

pain? In the absence of an intent to exert force on someone,

there is nothing for the Whitley factors to probe.1 That is pre-

sumably why the cases treat the intent to make physical con-

tact as a given—I have been unable to find any case, in either

the Supreme Court or our circuit, in which an excessive force

claim did not involve force directly and intentionally applied

to the plaintiff. (That is true, incidentally, of both successful

and unsuccessful claims.) In Whitley, a guard deliberately shot

the plaintiff in the knee, following orders to “shoot low at any

prisoners climbing the stairs” behind an officer engaged in an

effort to free a hostage. 475 U.S. at 316. In Hudson v. McMillian,

the guard “punched Hudson in the mouth, eyes, chest, and

stomach while [another guard] held the inmate in place and

kicked and punched him from behind.” 503 U.S. 1, 4 (1992).

See also Wilkins v. Gaddy, 559 U.S. 34, 35 (2010) (the officer

“slammed [the plaintiff] onto the concrete floor” and “pro-

ceeded to punch, kick, knee, and choke [him].”). Our own ex-

cessive-force cases have been brought against officers who

1 That is not to say that the guard must intend to exert force on the partic-

ular inmate who is injured. See Gomez v. Randle, 680 F.3d 859, 862, 864–65

(7th Cir. 2012) (reversing the dismissal of a claim against a guard who fired

into a crowd rather than at one specific inmate). The point is that the guard

must maliciously and sadistically exert force on someone. And the officer

in Gomez, who fired “into the inmate population,” id. at 862, exerted force

on the inmates at whom he fired.

40 No. 17-2295

intentionally shot, tasered, physically assaulted, or pepper

sprayed prisoners. See, e.g., Rice ex rel. Rice v. Corr. Med. Servs.,

675 F.3d 650, 668 (7th Cir. 2012) (pepper spray); Lewis v.

Downey, 581 F.3d 467, 475–78 (7th Cir. 2009) (taser); Fillmore v.

Page, 358 F.3d 496, 501–05 (7th Cir. 2004) (assault); Kinney v.

Indiana Youth Center, 950 F.2d 462, 464–65 (7th Cir. 1991) (gun-

shot).

Faced with this hole in the plaintiffs’ case, the majority

gives them an assist by changing the case. It offers two theo-

ries of why the plaintiffs can show that the guards intended

to shoot the inmates. First, it insists that the guards might

have shot directly into the crowd of inmates, rather than at

the ceiling. Second, it suggests that the guards might have in-

tentionally tried to hit the inmates by bouncing buckshot off

of the ceiling. Yet the plaintiffs did not raise the first argument

at all before us, and the second argument consists of one

oblique sentence in their brief. And in any event, there is in-

sufficient evidence in the record to permit a reasonable juror

to draw either conclusion.

In the district court, the plaintiffs relied on the hearsay tes-

timony of two other inmates to support the claim that the

guards shot directly into the crowd. The defendants, in con-

trast, swore in their affidavits that they aimed at the ceiling.

The district court resolved that issue against the plaintiffs. It

stated:

Plaintiffs have speculated that the Officer De-

fendants were aiming at them, but it is undis-

puted that they did not see where the Officer

Defendants were aiming and there is no

No. 17-2295 41

admissible evidence that would create a genu-

ine factual dispute regarding where the Officer

Defendants aimed. … Plaintiffs have attempted

to create a factual dispute by asserting that two

inmates, identified only as “Rico” and “Fuzz,”

told McCottrell that they observed one of the

Officer Defendants aiming at the inmates. This

statement, however, is inadmissible hearsay,

and the Court may not consider it at the sum-

mary judgment stage. As a result, there is no ev-

idence suggesting that the Officer Defendants

aimed at the inmates.

Memorandum Opinion and Order at 12 (record citations

omitted).

The plaintiffs have not challenged either the district

court’s evidentiary ruling or its conclusion that the plaintiffs

had failed to create a factual dispute on this issue. That was a

prudent choice. The district court’s resolution of the hearsay

issue was plainly correct, and without that testimony, the

plaintiffs have no evidence that the officers shot into the

crowd. It bears emphasis that this is so even if the officers lied

in their affidavits about the direction of the shots. A plaintiff

cannot discharge her burden simply by tearing the defend-

ant’s case down; “[i]nstead, the plaintiff must present affirm-

ative evidence in order to defeat a properly supported motion

for summary judgment.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986).

Although the plaintiffs do not ask us to reverse this ruling,

the majority, reading between the lines of the brief, maintains

42 No. 17-2295

that “the plaintiffs’ arguments … encompass both the possi-

bility that the shots were fired into the ceiling ... or toward the

inmates.” Maj. Op. at 8. Yet in the absence of an explicit fac-

tual assertion that the officers fired into the crowd, much less

an explicit request that we reverse the district court, it is safe

to say that the plaintiffs have waived this argument on ap-

peal. The majority resurrects the issue on its own, and—fault-

ing the district court for failing to appreciate the significance

of circumstantial evidence—concludes that the plaintiffs can

rest on the fact that shots hit them to prove that the guards

fired at them. That argument should have lost even if the

plaintiffs had made it. One can draw two plausible inferences

from the circumstantial evidence of the plaintiffs’ injury: the

buckshot hit them either directly or by ricochet. The officers’

affidavits and the prison’s internal affairs report, which as-

serts that the “[i]nmates were struck with pellets from the ric-

ochet” of warning shots, support the ricochet theory.2 The

plaintiffs introduced no admissible evidence in support of the

2 The majority minimizes the report’s repeated statements that the plain-

tiffs were injured by ricochet, asserting that these statements reflect no

more than an assumption about the direction of the shots. Maj. Op. at 6

n.4. It was not an assumption. The report concludes by stating that “[a]fter

a total review of the evidence, statements, reports, and all available facts,”

the investigators determined that White and Williams “used an unreason-

able amount of force (warning shot)” in violation of Department policy.

(Emphasis added). A “warning shot” is one intentionally aimed away

from people. The report does not identify a single piece of evidence sug-

gesting that there was direct fire, and such evidence would have been im-

portant, to say the least, in an investigation of whether the officers used

unreasonable force.

No. 17-2295 43

“direct hit” theory.3 There is therefore insufficient evidence to

permit a reasonable juror to find that fact in the plaintiffs’ fa-

vor.

As for the claim that the guards indirectly aimed at the

plaintiffs by intentionally bouncing buckshot off the ceiling

and into the crowd: this too is an argument that the plaintiffs

do not develop and that the evidence does not support. To be

sure, the plaintiffs contend that the guards fired into the ceil-

ing and that the buckshot then ricocheted and hit them. But

to show that the guards intentionally shot them—as opposed

to recklessly disregarding the risk that the buckshot would

ricochet—the plaintiffs needed to introduce some evidence

that guards were intentionally, albeit indirectly, aiming to hit

3 According to the majority, my view is that “a court would be required to

conclusively credit a witness’s sworn statement that it was not raining

even in the face of the proverbial wet umbrella.” Maj. Op. at 7. That is

certainly not my view. The overwhelming inference raised by the circum-

stantial evidence of a wet umbrella is that it was raining outside; the infer-

ence is nowhere close to as powerful here. I’m also unsure why the major-

ity invokes “the force with which the buckshot arrived … and the number

of persons injured” as additional circumstantial evidence that the guards

aimed at the prisoners rather than at the ceiling. Maj. Op. at 5. As an initial

matter, the record contains no evidence about the force with which the

bullets hit the inmates, and the incident report, which determined that the

inmates’ injuries were “minor,” is inconsistent with the proposition that

the shots hit the inmates with great force. Moreover, the force of the hit

and the number of injuries support the “direct hit” theory only if those

two factors would be different with a hit from ricochet. Maybe they would

be. To carry their burden on summary judgment, though, the plaintiffs

would have had to introduce evidence to support that.

44 No. 17-2295

them.4 For example, the plaintiffs could have introduced evi-

dence that the ceiling was composed of a material that made

ricochet very likely; in that event, firing into the ceiling might

be the functional equivalent of firing into the crowd. Rather

than introducing such evidence, however, plaintiffs made the

opposite argument: they insisted (as part of their effort to

show that the guards shot directly into the crowd) that it is

“‘unlikely that both defendants fired into [the] ceiling’ be-

cause the ceiling is acoustic tile and would not have caused a

ricochet.” Memorandum Opinion and Order at 5 n.3.

The most that the plaintiffs say to support a “deliberate

ricochet” theory is that “a reasonable jury could [] determine

that Defendants’ decision to shoot in the first place and their

failure to hit the shot box intended to catch buckshot was be-

cause they did not want the buckshot caught.” The guards’

failure to hit the shot box is certainly evidence in the plaintiffs’

favor. But without any evidence of how likely ricochet was

from the ceiling, the comparatively lower risk of ricochet from

the shot box would not permit a reasonable jury to find that

4 The majority says that under my reading of Whitley, “a guard could

blindly unload a shotgun above a crowd of bystanders with impunity be-

cause making contact is not a certainty.” Maj. Op. at 24. But those facts—

a guard emptying his shotgun above a crowd of bystanders—raise an in-

ference that the guard intended for a bullet to hit someone. The facts in

this case—two guards each firing a warning shot into the ceiling—do not,

standing alone, raise the same inference. It is also worth observing that a

guard who shoots a gun outside the context of prison discipline is subject

to the “criminal recklessness” standard of Farmer v. Brennan, and there is

no doubt that unloading a shotgun above a crowd of bystanders would be

criminally reckless. 511 U.S. 825, 839-40 (1994).

No. 17-2295 45

the officers pinballed buckshot off the ceiling with the intent

to hit a prisoner.

If the plaintiffs could win by showing that the guards reck-

lessly put them at risk by firing warning shots into the ceiling

after the fight on the floor was under control, I would agree

that they could survive summary judgment. But because that

is not the standard, I respectfully dissent.