# Dorothea Gravely v. John Madden

> Court of Appeals for the Sixth Circuit · April 21, 1998 · 142 F.3d 345

URL: https://www.frixlaw.com/law-library/cases/9491119

## Case

- **Full name:** Dorothea GRAVELY, Plaintiff-Appellee, v. John MADDEN, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 21, 1998
- **Citations:** 142 F.3d 345; 1998 U.S. App. LEXIS 7680; 1998 WL 191379
- **Precedential status:** Published
- **Opinion:** Concurrence by Kennedy
- **Judges:** Boggs, Kennedy, Merritt
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491119

## How later opinions describe it (automated extraction)

- holding that the Eighth Amendment applied to an excessive force claim brought by an escaped convict because “[t]he Fourth Amendment is not triggered anew by attempts at recapture because the convict has already been ‘seized,’ tried, convicted, and incarcerated.”
- noting that Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), "made it clear that the legal status of the victim of the excessive force determines whether the Fourth, the Eighth, or the Fourteenth Amendment governs his excessive force claims"
- noting that Whitley v. Albers, 475 U.S. 312 (1986), “made it clear that the legal status of the victim of the excessive force determines whether the Fourth, the Eighth, or the Fourteenth Amendment governs his excessive force claims”

## Opinion text

KENNEDY, Circuit Judge,
concurring in
the result.
I concur in the result but respectfully dissent from the reasoning of the majority opinion. I am unpersuaded by the majority’s analysis regarding the applicability of the Eighth Amendment. The cases upon which the majority relies all involve actions taken against convicted persons in the prison context. Because I believe that a convicted person whom prison officials are not hotly pursuing 1 is more analogous to a fleeing felon than to a confined prisoner, I would apply the Fourth Amendment to the claims of escapees. I then would find that the prison officials’ actions violated the decedent’s rights under this Amendment. However, I too believe summary judgment is appropriate because the Fourth Amendment’s applicability to an official’s use of deadly force during an attempt to apprehend an escaped, convicted felon was not clearly established in 1987, when the relevant actions took place.
A. Fourth Amendment Provides Proper Framework for Analyzing Gravely’s . Claim
In Tennessee v. Gamer, the Supreme Court held that the Fourth Amendment applies to the use of deadly force during an attempt to apprehend a fleeing felony suspect. 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). The Court reasoned that this was so because the apprehension of a suspect is a “seizure” within the meaning of the Fourth Amendment. Id. at 7 , 105 S.Ct. at 1699 (noting that “[wjhenever an officer restrains the freedom of a person to walk away, he has seized that person,” and that although “it is not always clear just when minimal police interference becomes a seizure,” “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment”). The Court did not elaborate whether its holding was limited to suspects or would apply equally to convicted persons at large. Id. We are able to find only one case since Gamer that has decided the appropriate constitutional standard in a ease involving a factual scenario identical to the one presented here. 2 In Patterson v. Fuller, the Northern District of Georgia extended Gamer, concluding that the Fourth Amendment, not the Eighth, governs an escaped, *351 convicted felon’s excessive force claim. 654 F.Supp. 418, 421 (N.D.Ga.1987) (stating explicitly that “because Patterson had escaped, the Court finds the Eighth Amendment inapplicable,”); see generally United States v. Hunt, 893 F.2d 1028, 1031-32 (9th Cir.1990) (court “assum[ed] without deciding” that Hunt, as an escapee, had “standing ... to assert fourth amendment rights against unreasonable search and seizure”). Unfortunately, the Patterson court did not articulate why an escaped, convicted felon should receive the same constitutional protections as a fleeing felony suspect rather than as an inmate attempting to escape from prison. Id.
The majority holds that Gamer applies only to fleeing felony suspects and therefore is inapposite. Since Gravely was a convicted felon, it asserts that the Eighth Amendment is the relevant constitutional standard. The majority relies on the Supreme Court’s opinion in Graham v. Connor for support:
Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear, however, that the Due Process clause protects a pretrial detainee from the use of excessive force that amounts to punishment. After conviction, the Eighth Amendment ‘serves as the primary source of substantive protection ... in cases ... where the deliberate use of force is challenged as excessive and unjustified.’ Any protection that ‘substantive due process’ affords convicted prisoners against excessive force is, we have held, at best redundant of that provided by the Eighth Amendment.
490 U.S. 386 , 395 n. 10, 109 S.Ct. 1865 , 1871 n. 10, 104 L.Ed.2d 443 (1989) (emphasis added) (quoting Whitley v. Albers, 475 U.S. 312, 327 , 106 S.Ct. 1078, 1088 , 89 L.Ed.2d 251 (1979)). Graham v. Connor, however, does not suggest that the Eighth Amendment is the only source of constitutional protection after conviction; it is merely the primary source of protection. Moreover, even Graham v. Connor appears to contemplate only excessive force claims in the prison context and finds the Eighth Amendment properly applies to such claims when brought by convicted prisoners. Since the prison officials’ actions against Gravely took place outside of the prison context and indeed any custodial context, I do not believe Graham v. Connor resolves the question of whether the Fourth or Eighth Amendment properly applies to Gravely’s excessive force claim.
Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir.1992), Kinney v. Indiana Youth Center, 950 F.2d 462 (7th Cir.1991) and Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir.1994) arguably provide additional support for the majority’s belief that the Eighth Amendment governs an official’s use of deadly force to apprehend a convicted felon who is fleeing from corrections officials. This Circuit, in Cornwell , stated that a claim of improper use of force “asserted by a convicted prisoner is to be raised exclusively under the Eight Amendment’s cruel and unusual punishment clauses.” 963 F.2d at 915 . The excessive force complained of occurred on the prison grounds during a protest. In Kinney , a correction officer shot an inmate as he attempted to escape by climbing the outer prison fence. 950 F.2d 462 . The Seventh Circuit determined that the plaintiff, as a convicted prisoner, was barred from invoking the Fourth Amendment’s protections, and that the Eighth Amendment controlled his claim. Id. at 465. Similarly, in Brothers , sheriffs deputies used deadly force to apprehend a pretrial detainee who attempted to escape from custody during transport from one holding cell to another. 28 F.3d 452 . The Fifth Circuit held the Fourth Amendment did not apply to the resulting excessive force claim:
Once an individual has been arrested and is placed into police custody, and surely after the arresting officer has transferred the individual to a jail cell, the individual becomes a pretrial detainee, protected against excessive force by the Due Process Clause. Until the detainee is released from custody, this status never reverts back to that of mere suspect. Any other conclusion would lead to the anomalous result of pretrial escapees receiving great *352 er protection than those detainees who peacefully remain in their cells. 3
Id. at 457. By analogy, Gravely’s status while he was at large remained that of a convicted felon. Since the Supreme Court, this Circuit and other circuits plainly have stated that the lesser Eighth Amendment protections apply after conviction, the District Court’s application of the Fourth Amendment arguably contradicted the dictates of these higher courts. However, each of those cases involved convicted prisoners; by definition, an escapee is no longer a prisoner. Therefore, this Court must consider whether the policy reasons for affording Eighth, rather than Fourth, Amendment protections to convicted prisoners also support applying the Eighth Amendment to the claims of convicted escapees.
The lesser Eighth Amendment constitutional protections courts afford prisoners is predicated in large part upon the need to maintain or restore discipline within the prison and to minimize threats to the safety of prison staff and inmates. See, e.g., Whitley v. Albers, 475 U.S. at 320 , 106 S.Ct. at 1084-85 ; Bell v. Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878 (“Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.”); Kinney, 950 F.2d at 465 (applying Eighth Amendment to claim of “convicted person in state confinement” that officials used excessive force in preventing his escape); Sharp v. Kelsey, 918 F.Supp. 1115, 1122 (W.D.Mich.1996) (“The Eighth Amendment governs those charged with the custodial care of convicted persons, including where the care requires force employed as a security measure.”) (emphasis added). Cf. Ingraham v. Wright, 430 U.S. 651 , 670 n. 40, 97 S.Ct. 1401 , 1412 n. 40, 51 L.Ed.2d 711 (1977) (justifying the lesser protection on the ground that the state already “has secured a formal adjudication of guilt in accordance with due process of law”). Most of these concerns simply are not implicated — or if implicated are greatly reduced — where the convicted felon has successfully escaped and the officials merely seek to return him to prison.
Of course, one may argue that the potential threat an escaped, convicted felon poses to citizens militates in favor of not granting escapees greater constitutional protection while they remain at large. However, a convicted felon is not, by virtue of having been convicted, more dangerous than a fleeing felon guilty of the same crime. Moreover, affording an escaped, convicted person Fourth Amendment protections will not place society at greater risk since, pursuant to that standard, an officer still may use deadly force to apprehend the felon if the officer has probable cause to believe that the felon poses an immediate threat of harm to the officer or third parties. Thus, if the escapee is guilty of murder or other crimes which would permit the use of deadly force in his apprehension, such force would be permissible under the circumstances this case presents.
Finally, I would hold that the Eighth Amendment applies so long as the officials are in “hot pursuit,” or “immediate and continuous pursuit,” of the escapee. See Welsh v. Wisconsin, 466 U.S. 740, 753 , 104 S.Ct. 2091, 2099 , 80 L.Ed.2d 732 (1984) (defining hot pursuit). The Eighth Amendment should apply so long as the officials are in “hot pursuit” because we cannot expect prison guards to know, or take the time to learn, for what crime the escapee was imprisoned. In addition, applying the lesser constitutional standard throughout the “hot pursuit” of an escapee would be a deterrent to other prisoners contemplating an escape attempt. This deterrent interest is served when other pris *353 oners are prevented from witnessing successful escapes. Once a convicted person is no longer being hotly pursued, his eventual recapture is less likely to affect other inmates’ decision to attempt escape. At that point, the policy reasons militate in favor of Fourth Amendment protection.
Since the policy reasons supporting the grant of greater deference to prison administrators in the prison context do not support an equal grant of deference once the felon has escaped and the immediate and continuous pursuit, if any, has ended, I believe the Fourth Amendment should apply to an official’s use of force in apprehending an escapee.
B. The Right was not “Clearly Established”
As the majority stated, prison officials “are entitled to qualified immunity unless, ‘on an objective basis, it is obvious that no reasonably competent officer would have concluded that [the conduct was lawful]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.’ ” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992) (quoting Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986)). The Supreme Court in Anderson v. Creighton, 483 U.S. 635, 639-40 , 107 S.Ct. 3034, 3038-39 , 97 L.Ed.2d 523 (1987) elaborates:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Following the Supreme Court’s decision in Anderson , this Circuit provided some guidance regarding what law its courts should rely on in conducting this inquiry:
[I]n the ordinary instance, to find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decision of other courts to provide such “clearly established law,” these decisions must point unmistakably to the uneonstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.
Ohio Civil Serv. Employees Assn. v. Seiter, 858 F.2d 1171 (6th Cir.1988).
As no relevant authority exists which clearly establishes that the Fourth Amendment governs the excessive force claims of escaped, convicted felons, the defending officer was entitled to qualified immunity and summary judgment.
. I would apply the Eighth amendment to convicted felons fleeing from prison throughout a chase so that prison officials would not be subject to two different sets of constitutional rules during one continuous chase. It is true that a hot pursuit distinction would require courts to determine at what point a prisoner has successfully completed an escape attempt. However, many lines that courts must draw are fuzzy along the edges; the hot pursuit determination is no more difficult than other determinations courts currently must make. Moreover, a framework already exists for making hot pursuit determinations.
. The District Court stated that the Fifth Circuit, in Wisniewski v. Kennard, 901 F.2d 1276 (5th Cir.1990), also appears to have assumed, without deciding explicitly, that a Fourth Amendment analysis is appropriate when dealing with claims made by an escapee who has completed the escape and is then being reapprehended. However, this case is inapposite. Wisniewski was not a convicted felon; he had only been indicted. Moreover, the court explicitly declined to decide the "difficult issue” of whether the Fourth Amendment or Due Process clause applies.
. As the defendant argued in his brief, it is troublesome that "an inmate who is successful in his escape falls within a Fourth Amendment realm, and an inmate who is unsuccessful in his escape remains in an Eighth Amendment realm. The apparent reward for successful illegal behavior is both inconsistent with the law and with common sense.” See United States v. Hunt, 893 F.2d 1028, 1032 (1990) (recognizing "the possible incongruity of allowing a prisoner to reap the reward of greater constitutional protections without the prison than within”); United States v. Roy, 734 F.2d 108, 111 (2d Cir.1984) (stating that escapee should have same constitutional protections while at large as he would if he were still confined in the penitentiary). However, this concern alone is insufficient to warrant lesser constitutional protection.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491119. Public record. Not legal advice.