Amicus Curiae Brief — Hope v. Pelzer

Ww

No. 01-309

oreme Court, US,

a =. —_— =

FEG 21 2007

IN THE

Supreme Court of the

OCTOBER TERM, 2001

>

LARRY HOPE,

: Petitioner,

—

MARK-PELZER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THe ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, THE ACLU OF ALABAMA,

THE ACLU OF FLORIDA, AND THE ACLU OF GEORGIA,

IN SUPPORT OF PETITIONER

Steven R. Shapiro Mark R. Brown

American Civil Liberties Union (Counsel of Record)

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Stetson University

1401 61st Street South

St. Petersburg, Florida 33707

(727) 562-7856

James K. Green

James K. Green, PA

22 Lakeview Avenue

Suite 1630, Esperante

West Palm Beach, Florida 33401

(561) 659-2029

ZGre

QUESTIONS PRESENTED

1. Whether state officials sued in their individual capaci-

ties under 42 U.S.C. §1983 are entitled to qualified immuni-

ty unless they have violated statutory or constitutional rights

"clearly established" by a case presenting facts materially

similar to those in the plaintiff's case.

2. Whether under the circumstances that must be taken as

true at the summary judgment stage of this case, tying a

prisoner to a “hitching post” violates "clearly established”

constitutional rights for purposes of qualified immunity

under 42 U.S.C. §1983.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............-... il

a eA l

STATEMENT OF THE CASE ..............--.-. l

SUMMARY OF ARGUMENT ..............-.--. 3

EEE eee See ee ee 4

I. The Eleventh Circuit’s Fact-Specific, "Ma-

terially Similar" Analysis Is Inconsistent

With This Court’s "Fair Warning” Standard... 4

A. The Eleventh Circuit Test For Quali-

fied Immunity Treats Minor Factual

Distinctions As More Important Than

Enforcement Of Prevailing Constitu-

PE be cee ebeesbeensece 7

B. The Eleventh Circuit’s “Materially

Similar" Test, As Applied, Consistent-

ly Deviates From Lanier’s "Fair Warn-

fe ee oe ll

C. The Eleventh Circuit Errs By Refusing

To Look To Persuasive Precedent ...... 18

Il. The Right To Be Free From Prolonged

Physical Restraint That Risks Serious

Harm Was Clearly Established Long Ago ... 19

DEES cccccccccccesscceseccescnse 25

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Fulton County,

207 F.3d 1303 (11th Cir. 2000) ................. 17

Archie v. Lanier,

ee ee, GED no on ca usatbeneeen ens 10

Austin v. Hopper,

15 F.Supp.2d 1210 (M.D. Ala. 1995) ..... 1, 22, 23, 24

Ayani v. Mottola,

ee er 9

Bailey v. Andrews,

Fe § lo Ree 14

Bator v. Hawaii,

39 F.3d 1021 (9th Cir. 1994) Pe Gee ahs oid 12

Bell v. Marseilles Elementary Sch.,

160 F.Supp.2d 833 (N.D. Ill. 2001)............... 15

Braddy v. Florida Dep't of Law Enforcement,

Se ee Se ED og cic wcccendccosess 17

Brokaw v. Mercer County,

See Dade Clee Cree Gee BOOED oc ccccccccccess 6, 7,9

Buffkins v. City of Omaha,

922 F.2d 465 (8th Cir. 1990) ................... 14

Buonocore v. Harris,

ee ee GD a de nudeccacecvesaces 9

Burnham v. West,

681 F.Supp. 1160 (E.D.Va. 1987) ................ 15

Burns v. Reed,

Sn + «6 dubéedded dude tnd sé neues 4

Butera v. District of Columbia,

ST EEE Sed cececceteccecue 19

Capoeman v. Reed,

SG I eee 19

Chandler v. Florida, :

Ce 22, 23

City of Los Angeles v. Lyons,

461 U.S. 95 (1983)... 2... eee eee eee eee 10

Crawford v. Davis,

Se GE, DEED coccccecccescecsss 12

Crawford-El v. Britton,

CE 4

D’Aguanno v. Gallagher,

Ce ver eckheseceoeeceeés 18

Denno v. School Bd. of Volusia County,

Ce cnaséceceesteceseue 16

Doe v. Delio,

ee: '. cee caste eee obees 19

Doe v. Renfrow,

ns ids eee cece eeacenees 15

Duran v. City of Douglas, :

wc cenedceccocosecees 14

Enlow v. Tishomingo County,

DC PEED cccuscesecccccccese 14

Estelle v. Gamble,

429 U.S. 97 (1976) ..... See ee 20

Farmer v. Brennan,

De oscosccastésceesceces 21

\ ili

Page

French v. Owens,

, Cee Pee ED GE SUED ccccccecccceveseces 20

Fulford v. King,

en Cn. «ch ecaeeeeteadenbes 20

Gainor v. Rogers,

rn Cn .. acc adeen ee wens 14

Gates v. Collier,

Fs fy F. Le Seen 22, 23

Gold v. City of Miami, ;

121 F.3d 1442 (11th Cir. 1997) .............. 13, 17

Gonzalez v. Lee County Housing Auth.,

Fe) i Ee 8

Guffey v. Wyatt,

18 F. 3d 869 (10th Cir. 1994) .................. 14

Hamilton v. Cannon,

Ses SPE, GED oo wo ccccccccceccens 18

Hansen v. Soldenwagner,

ee Oe ES GED cee ccvccecceceusccs 13

Harbert Intern, Inc. v. James,

See Gees Pe CGD GUD co cccccceescccoes 16

Harlow v. Fitzgerald,

i 6. oo eek ada eeutearéeees 4

Harmelin v. Michigan,

fe 19

Hill v. Dekalb Regional Youth Detention Center,

Se Ce Pe . on cknébe au edee een 16

Hobbs v. State, ‘

Se )) 8 ee ee eo

Jackson v. Cain,

| & By fF. To |

Jacobs v. Chicago,

yi fe ® Tr Le

Jenkins v. Talladega City Bd. of Educ.,

95 F.3d 1036 (11th Cir. 1996),

reversed, 115 F.3d 821 (11th Cir. 1997) ........

Jenkins v. Talladega City Bd. of Educ.,

115 F.3d 821 (11th Cir. 1997) ...............

Johnson v. City of Fort Lauderdale,

126 F.3d 1372 (11th Cir. 1997) ..............

Johnson v. Martin,

195 F.3d 1208 (10th Cir. 1999) ..............

Knox v. McGinnis,

998 F.2d 1405 (7th Cir. 1993) ...............

Knox v. Southwest Airlines,

124 F. 3d 1103 (9th Cir. 1997)...............

Konop v. Northwestern Sch. Dist.,

26 F.Supp.2d 1189 (D.S.D. 1998) .............

Lambert v. Fulton County,

253 F.3d 588 (llth Cir. 2000) ...............

Lassiter v. Alabama Univ. Bd. of Trustees,

28 F.3d 1146 (11th Cir. 1994) ...............

Lewis v. McDade,

250 F.3d 1320 (11th Cir. 2001) ..............

Lewis v. New Orleans,

SEED buseocsécémesctasseses

Page

MacKinney v. Nielsen,

5 Be er er 14

Marsh v. Butler County,

268 F.3d 1014 (11th Cir. 2001) ............ 8, 17, 18

May v. Sheahan,

PP ED cc ccvccescsecécuane 7

Mencer v. Hammonds,

134 F.3d 1066 :

re ee ee eet eae eed abe eens 15

Morris v. Oldham County Fiscal Court,

el eS . sc cin cceeek ene ceeee 12

Murphy v. Arkansas,

4g fl Ee Se 6

Murphy v. Walker,

rn Pn. .sanebeades éeevse’s 20

Myers v. Hasara,

ee GE GED ci sscascesteveceses 13

Oliver v. McClung,

919 F.Supp. 1206 (N.D. Ind. 1995) ............... 15

Pardo v. State,

PCE .'. ov6 cos hlnecct caves ce 18

Redd v. City of Enterprise,

Se ee EU EEEE GE EUUED coccccecéesccecsees 16

Rhodes v. ’

te RE I a ee Te 19, 20

Rogers v. Pendleton,

ee eee ee Ge SEED oo 0 0 vb 008 60s bane ee

Rowe v. Fort Lauderdale,

2002 WL 86675 (11th Cir. Jan. 23, 2002) .......... 8

Sanders v. Howze,

177 F.3d 1245 (11th Cir. 1999) .............04.- 16

Sandin v. Conner,

DPD dcdseutdevvcessaeveveenses 24

Santamorena v. Georgia Military College,

147 F.3d 1337 (11th Cir. 1998) ...............-. 16

- Saucier v. Katz,

533 U.S. 194, __, 121 S.Ct. 2151 (2001) .......... 4,5

Shabazz v. Coughlin,

gk ff le ek pre rrr rrr 19

Spiller v. City of Texas City,

Police Dep't,

> Ee GEE DUD ccccceccesoscceess 14

Tang v. State of Rhode Island,

Dep't of Elderly Affairs,

fA fb J, ls | Pree errr 6

Thomas v. Roberts,

261 F.3d 1160 (11th Cir. 2001),

petition for cert. filed

(Nov. 9, 2001)(No. 01-979) ...........5.5.. 14, 15, 17

Turner v. Safley,

Ss PEED og co cescoeccecoesceveoceoes 20

United States v. Lanier,

DE DEPEND oc codccaccssceoceceocs passim

Vaughan v. Cox,

264 F.3d 1027 (11th Cir. 2001) ...........22.5.-. 16

vii

Page

Vaughn v. Ruoff,

Se ee Se GE, SED av dec cedeeveeseees 19

Vela v. White,

Pe eee Oe GG ID no 6 Cob as ce evades en 14

Weems v. United States,

et is ok done o's o.8 ARE KN 21

Wells v. Franzen,

rik yo! Us | a re 21

Whitley v. Albers,

ee SP Sa iad sdvekw the oeanwwe’ 21

Wilson v. Blankenship,

— oe fof Le ee ee 16

Wilson v. Jones,

y BA F. fe. fs Se | ree 16

Wilson v. Layne,

ee EE 5 5'b.s sik we des see seas ae e¥ 18, 19

Wilson v. Seiter,

oi 'e.d-» 5k eG eA AE 20

Youngberg v. Romeo,

Cr ee A EE occ aedi éwehaveteweeeneas 21

Other Authorities ;

AMERICAN BAR ASSOCIATION STANDARDS

FOR CRIMINAL JUSTICE (2d ed. 1983) ............. 23

AMERICAN CORRECTIONAL ASSOCIATION

AND COMMISSION ON ACCREDITATIONS FOR

CORRECTIONS STAFF, STANDARDS FOR ADULT

CORRECTIONAL INSTITUTIONS (3d ed. 1990)......... 23

Vill

EE

Armacost, Barbara E., "Qualified

Immunity: Ignorance Excused,”

Se Es MG, SPEED Bede ess be soe deevees 6

Baynard, J., A BRIEF EXPOSITION OF THE

CONSTITUTION OF THE UNITED STATES

OG Ee re eee ee eee eT 22

Bright, Stephen B., "Can Judicial

Independence be Attained in the

South? Overcoming History,

Elections, and Misperceptions

about the Role of the Judiciary,”

14 Ga. St. L.Rev. 817 (1998) ............... secu Oe

Brown, Mark R., "The Failure of

Fault Under §1983: Municipal Lia-

bility for State Law Enforcement,”

84 Comell L. Rev. 1503 (1999) .............. 11, 17

Jeffries, John C. Jr., "Disaggre-

gating Constitutional Torts,”

Se EE ng ccc bccccevestdseseees 6

UNITED NATIONS, STANDARD

MINIMUM RULES FOR THE

TREATMENT OF PRISONERS (1984) ............4.--- 24

ee re ee

INTEREST OF AMICI'

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with ap- .

proximately 300,000 members dedicated to protecting the

principles of liberty and equality embodied in the Constitu-

tion and this nation’s civil nghts laws. In pursuit of that

goal, the ACLU is frequently involved in litigation against

government officials where issues of qualified immunity

arise, both in this Court and in the lower state and federal

courts. The ACLU of Alabama, the ACLU of Florida, and

the ACLU of Georgia are statewide affiliates of the national

ACLU located in the Eleventh Circuit. The qualified immu-

nity standard applied by the Eleventh Circuit has directly

affected each of their programs.

STATEMENT OF THE CASE

Petitioner, Larry Hope, an inmate assigned to a chain

gang at the Limestone Correctional Facility in Alabama in

1995, was twice handcuffed to a "restraining bar," also

known as a “hitching post,” as punishment for disruptive be-

havior. Hope v. Pelzer, 240 F.3d 975, 977 (11th Cir. 2001).

The hitching post is a horizontal bar "made of sturdy, non-

flexible material" placed either 45 or 57 inches above the

ground. Austin v. Hopper, 15 F.Supp.2d 1210, 1241 (M.D.

Ala. 1995). "Hope was cuffed standing to a hitching post,

with his arms at approximately head level, in the hot sun for

seven hours with no shirt, metal cuffs, only one or two

water breaks, and no bathroom breaks. At one time, prison

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

guards brought a cooler of water near him, let the prison

dogs drink from the water, and then kicked the cooler over

at Hope’s feet." 240 F.3d at 978. According to Alabama

Department of Corrections (DOC) policy, the hitching post

is to be used to "eliminate the possibility of disruption of

the work squad and to discourage other inmates from exhib-

iting similar conduct." Hope, 240 F.3d. at 978. It is by

definition, then, a punitive device.

Hope filed suit against eight guards under the Eighth

Amendment and 42 U.S.C. §1983. The federal District

Court for the Middle District of Alabama dismissed Hope’s

action because of the guards’ qualified immunity. 240 F.3d

at 977. On appeal, the United States Court of Appeals for

the Eleventh Circuit concluded that "cuffing an inmate to a

hitching post for a period of time extending past that re-

quired to address an immediate danger or threat is a viola-

tion of the Eighth Amendment.” Jd. at 980. In support of

that conclusion, it noted that the Department of Justice ad-

vised prison authorities in 1994 that the hitching post was

unconstitutional. Jd. at 979. Even without that explicit ad-

visory, the Eleventh Circuit held, "a factfinder [could] con-

clude that a prison official knew of a substantial risk from

the very fact that the risk was obvious,” id. at 978, and that

the hitching post’s illegality "could be inferred from [prior]

opinions." Jd. at 981. Yet, notwithstanding its finding that

the risk presented by the hitching post "was obvious" and

that the unconstitutionality of defendants’ actions "could be

inferred" from prior opinions, the court of appeals ruled that

the defendants were entitled to qualified immunity. "De-

spite the unconstitutionality of the prison practice and, there-

fore, the guards’ actions, there was no clear, bright-line test

established in 1995 that would survive our circuit’s qualified

immunity analysis." Jd. Under the Eleventh Circuit’s quali-

fied immunity rules, "it is important to analyze the facts in

these [prior] cases, and determine if they are ‘materially

2

— ge = SE

similar’ to the facts in the case in front of us. Though anal-

ogous, the facts ... are not ‘materially similar’ to Hope’s

situation." Jd. Only "preexisting, obvious and mandatory”

precedent, according to the Eleventh Circuit, satisfies this

standard. Id.

SUMMARY OF ARGUMENT

The Eleventh Circuit’s "materially similar" test is incon-

sistent with this Court’s qualified immunity jurisprudence.

The touchstone of qualified immunity is "fair warning,” as

opposed to "factual identity." The Eleventh Circuit’s "ma-

terially similar" test, in practice, demands precise factual

identity, a rarity in constitutional litigation. Because the

Eleventh Circuit’s analysis creates an almost impregnable

shield, there is little reason for officials to comply with con-

stitutional standards. The Eleventh Circuit compounds its

error by limiting its search for materially similar cases to the

Supreme Court, the Eleventh Circuit and the supreme court

of the state where the case arose. Contrary to the Eleventh

Circuit’s position, this Court has made it plain that a con-

sensus of persuasive cases, even if they arise in other juris-

dictions, can sufficiently establish the relevant law to defeat

a claim of qualified immunity.

The use of prolonged physical restraints for punitive

purposes was clearly unconstitutional in 1995. The last cen-

tury witnessed the abandonment of stocks, stakes and pillo-

ries as arcane punitive devices that proved contrary to civi-

lized society’s evolving notions of decency. No state other

than Alabama uses restraining bars or hitching posts to pun-

ish prisoners. The Department of Justice notified Alabama

officials in 1994 that the hitching post was inconsistent with

Eighth Amendment standards. Professional standards pro-

mulgated by the American Correctional Association (ACA)

and the American Bar Association (ABA) caution against

the use of physical restraints as punishment. International

law likewise prohibits their use for punitive purposes. No

reasonable person could have believed in the mid-1990s that

the Constitution tolerated summarily chaining inmates to

hitching posts for hours on end for disciplinary purposes.

ARGUMENT

I. The Eleventh Circuit’s Fact-Specific, "Materially

Similar" Analysis Is Inconsistent With This

Court’s "Fair Warning" Standard

Executive officials performing discretionary functions

are personally liable for violating "clearly established statu-

tory or constitutional nghts of which a reasonable person

would have known." Burns v. Reed, 500 U.S. 478, 495 n.8

(1991)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); see also Crawford-El v. Britton, 523 U.S. 574, 587-

88 (1998). This "qualified immunity" defense consists of

two inquiries: the first is whether "the facts alleged show

the officer's conduct violated a constitutional right."

Saucier v. Katz, 533 U.S. 194, __, 121 S.Ct. 2151, 2153

(2001). The second is whether the wrongdoer should have

known that her conduct violated this constitutional standard

given the facts presented. See id. at 2159 ("The question is

what the officer reasonably understood his powers and re-

sponsibilities to be, when he acted, under clearly established

standards"). Because "(t]he concern of the immunity inquiry

is to acknowledge that reasonable mistakes can be made,"

id. at 2153, the ultimate question is whether "the officer’s

mistake as to what the law requires is reasonable." Jd. at

2158.

As this Court’s recent decision in United States v.

Lanier explained, qualified immunity’s "reasonable mistake"

standard closely parallels vagueness principles grounded in

the Fifth and Fourteenth Amendments’ Due Process Clauses:

4

_—_——.-— — «eS

[T]}he qualified immunity test is simply the

adaptation of the fair warning standard to give

officials (and, ultimately, governments) the

same protection from civil liability and its con-

sequences that individuals have traditionally

possessed in the face of vague criminal stat-

utes. To require something clearer than "clear-

ly established" would, then, call for something

beyond "fair warning.”

520 U.S. 259, 270-71 (1997). The Court in Lanier thus re-

jected the view that public officials can be held liable for

constitutional violations only if the contours of the right

have been defined with particularity in a case with "funda-

mentally similar" facts. Jd. at 269. While "prior decisions

[can give] reasonable warning that the conduct then at issue

violated constitutional rights,"-the "very action in question"

need not have "previously been held unlawful.” /d. at 268-

71.

Just as criminal defendants are entitled to constructive

notice that their conduct is prohibited, the qualified immuni-

ty defense insures that government officials receive "fair

warning” before being held civilly liable. Absolute certainty

is not necessary in either context, nor is unanimous judicial

agreement on the verbal formulation of the controlling

standard (whether criminal or constitutional): "Assuming,

for instance, that various courts have agreed that certain

conduct is a constitutional violation under facts not distin-

guishable in a fair way from the facts presented in the case

at hand, the officer would not be entitled to qualified immu-

nity based simply on the argument that courts had not

agreed on one verbal formulation of the controlling stand-

ard." Saucier, 121 S.Ct. at 2157.

Some rights, like an African-American’s right to be free

from invidious racial discrimination, have been so thor-

oughly litigated that their contours are clear in virtually

every context imaginable. See, e.g., Murphy v. Arkansas,

127 F.3d 750, 755 (8th Cir. 1997)("fit has been clearly es-

tablished for many years that the Equal Protection Clause

prohibits a State, when acting as an employer, from invidi-

ously discriminating between individuals or groups based

upon race"); Tang v. State of Rhode Island, Dep't of Elderly

Affairs, 120 F.3d 325, 327 (ist Cir. 1997).? Other rights

may not have been as thoroughly litigated but are nonethe-

less clearly established based on a set of universal, unchal-

lenged norms or understandings. The Seventh Circuit in

Brokaw v. Mercer County, for example, concluded that

a plaintiff need not always identify a closely

analogous case; rather, he can establish a clear-

ly established constitutional night by showing

that the violation was so obvious that a reason-

able person would have known of the unconsti-

tutionality of the conduct at issue. Thus, bind-

ing precedent is not necessary to clearly estab-

lish a right. In fact, in the most extreme cases,

an analogous case might never arise because

"the existence of the right was so clear, as a

matter of the wording of a constitutional or

Statutory provision or decisions in other cir-

cuits or in the state courts, that no one thought

it worthwhile to litigate the issue."

* See John C. Jeffries, Jr., "Disaggregating Constitutional Torts,” 110

Yale L. J. 259, 277 (2000\"Someone who purposely discriminates

against racial minoritics cannot claim that he or she reasonably thought

such action to be lawful. The defense is irrelevant because it is factually

incredible"); Barbara E. Armacost, “Qualified Immunity: Ignorance Ex-

cused,” 51 Vand. L. Rev. 583, 591 (1998)("Today, discrimination

against someone because she is African-American or Hispanic is viewed

as inherently and obviously ‘bad’ behavior, obviating the need for quali-

fied i ity in 0 case alleging such discrimination”).

6

—_— OS

235 F.3d 1000, 1022 (7th Cir. 2000)(citations omitted and

emphasis added). See also May v. Sheahan, 226 F.3d 876,

882 (7th Cir. 2000)("a perfect match with the facts of a

prior case is not required to defeat a qualified immunity

claim"). The court in Brokaw thus had little difficulty deny-

ing qualified immunity to officials who had improperly re-

moved a child from his parents’ home, notwithstanding the

lack of binding decisions precisely on point. Qualified im-

munity is justified when rights are truly in doubt. When

they are not, either because of clear precedent or common

understanding, immunity should be denied.

A. The Eleventh Circuit Test For Qualified

Immunity Treats Minor Factual Distinc-

tions As More Important Than Enforce-

ment Of Prevailing Constitutional Norms

By requiring a civil rights plaintiff to show the exist-

ence of a prior decision involving nearly identical facts in

order to recover damages for a constitutional wrong, the

Eleventh Circuit has effectively converted qualified immuni-

ty into absolute immunity for numerous government offi-

cials. When Justice Holmes spoke of "fair warning,” he

meant “language that the common world will understand."

Lanier, 501 U.S. at 265 (citation omitted). He did not

mean, and the law has never been construed to require, pre-

cise and unmistakable directions parsing every conceivable

combination of facts.

Yet, that is the practical effect of the Eleventh Circuit’s

qualified immunity analysis: “only in exceptional cases will

government actors have no shield against claims made

against them ...." Lassiter v. Alabama Univ. Bd. of

Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994)(en banc).’

* See also Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 825 n.3

(continued...)

Rather than search for common world understandings, the

Eleventh Circuit demands legal precision and factual iden-

tity: “For qualified immunity to be surrendered, pre-existing

law must dictate, that is, truly compel (not just suggest or

allow or raise a question about), the conclusion for every

like-situated, reasonable government agent that what defen-

dant is doing violates federal law in the circumstances.”

Rowe v. Fort Lauderdale, 2002 WL 86675 (11th Cir. Jan.

23, 2002)(quoting Lassiter, 28 F.3d at 1150). Arguable dif-

ferences in minor facts are enough to defeat liability:

[Minor variations in some facts (the precedent

lacks an arguably significant fact or contains

an additional arguably significant fact not in

the circunistances now facing the official)

might be very important and, therefore, be able

to make the circumstances facing an official

materially different from the preexisting prece-

dents, leaving the law applicable -- in the cir-

cumstances facing the official -- not clearly es-

tablished when the defendant official acted.

Marsh v. Butler County, 268 F.3d 1014, 1032 (11th Cir.

2001)(emphasis added).

Just how differently this standard functions in practice

from Lanier’s fair warning standard is demonstrated by the

Eleventh Circuit’s en banc reversal of Judge Kravitch’s

panel decision in Jenkins v. Talladega City Bd. of Educ., 95

F.3d 1036 (11th Cir. 1996), reversed, 115 F.3d 821 (11th

Cir. 1997)(en banc). In her panel opinion, Judge Kravitch

> (...continued)

(11th Cir. 1997)(en banc)(refusing to reconsider Eleventh Circuit test in

light of Lanier); Gonzalez v. Lee County Housing Auth., 161 F.3d 1290,

1295 (1ith Cir. 1998)("[t}his circuit has established stringent standards

a

immunity”).

concluded that school officials who strip-searched two eight-

year-old second graders were not entitled to qualified immu-

nity. She explained that Lassiter’s “materially similar”

standard “has been misconstrued as announcing a sweeping

change." 95 F.3d at 1040. It “has been read by some to in-

dicate that qualified immunity is due every official unless

this court has addressed essentially identical facts in a previ-

ous case." Jd. This, Judge Kravitch argued, was not the

purpose of qualified immunity: "To treat each set of facts

as unique and legally indeterminate would make qualified

immunity absolute ...." Jd. Judge Kravitch instead read

the Supreme Court’s qualified immunity precedent to allow

for common sense: where “the official misconduct is more

egregious than conduct of the same general type that has

been deemed illegal in other cases," and where “application

of the legal standard would necessarily lead reasonable offi-

cials in the defendant’s situation to but one inevitable con-

clusion," immunity is lost. Jd. at 1041. Even though no

court had previously held school officials liable under iden-

tical facts, because the school officials "acted in blatant dis-

regard of the Fourth Amendment,” id. at 1048, they could

not credibly claim immunity. In so ruling, Judge Kravitch

joined a majority of circuits in recognizing that nothing is

served by excusing blatant wrongdoing. See, e.g., Ayani v.

Mottola, 35 F.3d 680 (2d Cir. 1994); Buonocore v. Harris,

65 F.3d 347 (4th Cir. 1995); Brokaw v. Mercer County, 235

F.3d 1000.

Her opinion did not last for long, however. The en

banc majority rejected Judge Kravitch’s reasoning on the

theory that "neither the Supreme Court nor any court in this

circuit nor the Alabama courts . . . had ever actually applied

the test established in [New Jersey v. T.L.O., 469 U.S. 325

(1985)] to define a reasonable (or unreasonable) search in

the context of facts materially similar to those of this school

search .... [S]chool officials cannot be required to con-

strue general legal formulations that have not once been ap-

plied to a specific set of facts by any binding judicial au-

thority." 115 F.3d at 826-27. Whether the strip searches

were more egregious than previously defined wrongs was

not controlling nor even relevant. Nor was the fact that a

reasonable official would "inevitably" conclude that strip

searches under these facts were impermissible. Only an

identical case, according to the en banc court, defeats quali-

fied immunity. It is fair to surmise that had Judge Lanier

extorted sexual favors from his victims in Florida, Georgia

or Alabama, he would have been immune from §1983 lia-

bility.‘

Like the Sixth Circuit test rejected in Lanier, the

Eleventh Circuit’s test for qualified immunity applies the

"wrong gauge” to the qualified immunity question. Comb-

ing prior opinions for "arguable," "minor" differences serves

no purpose other than to insulate blatant wrongdoing.’

“In the civil analog to the criminal prosecution of Judge Lanier, the

Sixth Circuit concluded he was not entitled to absolute judicial immu-

nity. See Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996). By contrast,

the Eleventh Circuit would very likely extend Judge Lanier qualified im-

munity, since no similar case has ever been litigated in Alabama, Geor-

gia or Florida. See Lewis v. McDade, 250 F.3d 1320, 1321 (11th Cir.

2001)(Barkett, J., dissenting from denial of rehearing en banc)(discussed

infra at IB).

* Amici recognize, of course, that qualified immunity is not available in

injunction actions and cannot be raised by municipal defendants, even in

damage actions. An injunction, however, is a forward-looking remedy

that does not make the plaintiff whole. Moreover, under this Court’s ju-

risprudence, a plaintiff seeking injunctive relief must allege an ongoing

constitutional violation. See City of Los Angeles v. Lyons, 461 U.S. 95

(1983 (holding that victim of chokehold had no standing to seek injunc-

tive relief because he could not demonstrate he would be choked again).

Similarly, municipal liability demands proof of a local policy or custom,

which will rarely exist when officials engage in patent wrongdoing. Be-

(continued...)

10

B. The Eleventh Circuit’s "Materially Sim-

ilar" Test, As Applied, Consistently

Deviates From Lanier’s "Fair Warning"

Standard

The Eleventh Circuit’s "materially similar" standard se-

nously impairs victims’ ability to redress constitutional

wrongs. Even patent wrongs are insulated by minor factual

distinctions. Judge Barkett’s description of the factual

record in Lewis v. McDade, 250 F.3d 1320, 1321 (11th Cir.

2001)(Barkett, J., dissenting from denial of rehearing en

banc), offers one illustration of a persistent problem:

[The defendant] "ran a DA’s office rife with

gender-discrimination,” . . . (1) berating his fe-

male employees with pejorative terms such as

“hysterical female," "bitch," "blonde bomb-

shell," "smurfette," and "bimbette," (2) photo-

graphing his female employees’ buttocks, (3)

throwing coins and other objects down his fe-

male employees’ blouses, (4) telling a female

employee to uncross and cross her legs again

while he watched, (5) stating that the only

thing women are good for is "making babies,"

(6) saying "women don’t have the balls to be

prosecutors," and (7) embarrassing his female

employees with statements such as "you can’t

come in, Rita doesn’t have her clothes on,"

* (...continued)

cause "[bjoth forms of relief require a concrete policy, [] more often

than not [) the victim of constitutional wrongdoing [is] left without re-

lief of any sort." Mark R. Brown, "The Failure of Fault Under §1983:

Municipal Liability for State Law Enforcement,” 84 Comell L. Rev.

1503, 1537-38 (1999).

1]

Despite these facts, the Eleventh Circuit ruled that "qualified

immunity protects [the defendant] from civil liability be-

cause there [was] no pre-existing case which would have put

him on notice ...." Jd. In explaining the reason for her

dissent, Judge Barkett observed that "a reasonable district at-

torney, or any other reasonable person, would have known

that such outrageous conduct constituted sexual harassment."

Id. at 1321. The majority disagreed. Relying on the Elev-

enth Circuit’s expansive view of qualified immunity, it con-

cluded that a reasonable person in the defendant’s position

would not have known that his behavior violated the plain-

tiffs constitutional rights, regardless of how outrageous that

behavior may have been, "because the facts of this case are

not sufficiently similar to any pre-existing case." /d. As

Judge Barkett pointed out, by narrowing the inquiry to a

search for similar facts rather than for a guiding legal prin-

ciple, the Eleventh Circuit reached a result that is contrary

to this Court’s precedent, the analytic approach followed in

every other circuit, and common sense. /d.°

* Less egregious facts have caused other circuits to deny qualified immu-

nity in the context of sexual harassment. See, e.g., Morris v. Oldham

County Fiscal Court, 201 F.3d 784, 800 n.2 (6th Cir. 2000)("because the

law regarding sexual harassment was established at the time Plaintiff

brought her claim, Black was not entitled to the defense of qualified im-

munity"); Johnson v. Martin, 195 F.3d 1208, 1220 (10th Cir. 1999)

("[e]ven if the contours of a supervisor’s responsibility are uncertain,

complete inaction in the face of claimed harassment cannot be objective-

ly reasonable conduct entitling a supervisor to qualified immunity");

Bator v. Hawaii, 39 F.3d 1021, 1029 (9th Cir. 1994)("A supervisor who

has been apprised of unlawful harassment . . . should know that her fail-

ure to investigate and stop the harassment is itself unlawful"); Crawford

v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997)"Although the law con-

struing the specific causes of action and remedies provided for by

§§1983 and Title [IX continues to evolve, it is evident that in 1994 Ms.

Crawford had a clearly established right not to be discriminated against

or harassed on the basis of her sex").

12

First Amendment. rights have also suffered under the

Eleventh Circuit’s view of qualified immunity. For all in-

tents and purposes, a public employee claiming workplace

retaliation based on protected speech is barred from recover-

ing damages in the Eleventh Circuit. See Hansen v. Solden-

wagner, 19 F.3d 573, 576 (11th Cir. 1994)("Because Picker-

ing requires a balancing of competing interests on a case-by-

case basis ... only in the rarest of cases will reasonable

government officials truly know that the termination or dis-

cipline of a public employee violated ‘clearly established’

federal rights").’ Likewise, police have been given a virtual

blank check to suppress speech using disorderly conduct and

breach of the peace statutes. For example, in Gold v. City

of Miami, 121 F.3d 1442 (11th Cir. 1997), a local attorney

in Miami drove into a bank’s parking lot, observed an ap-

parently nonhandicapped woman walk to her car parked in a

handicapped space, shouted to a nearby police officer:

"[A]ren’t you supposed to give them a ticket for parking in

a handicapped spot?,” id. at 1444, and "Miami police don’t

do shit," id., and was arrested for disorderly conduct. A\l-

though acknowledging that both federal courts and Florida’s

Supreme Court had on several occasions "reversed convic-

tions for disorderly conduct where a defendant merely di-

rected profane language at police officers," see id. at 1445,

the Eleventh Circuit nonetheless ruled that the defendant

police officers were entitled to qualified immunity. Ac-

cording to the Eleventh Circuit, "[t]he fact-intensive nature

of the constitutional inquiry,” coupled with a lack of "cases

clearly establish[ing] that [the suspect’s] actions did not con-

stitute legally proscribed disorderly conduct," sufficiently

blurred the First Amendment question to absolve the officers

of liability. Prior rulings that the First Amendment protects

angry and even profane language directed at police officers

"Compare Myers v. Hasara, 226 F.3d 821 (7th Cir. 2000)(refusing to

award qualified immunity in case involving retaliation based on speech).

13

were not enough for the Eleventh Circuit.* Instead, it de-

manded a case with identical facts.

A similar fate has befallen the Fourth Amendment,

which outside the excessive force context is now virtually

unenforceable in the Eleventh Circuit. In Thomas v.

Roberts, 261 F.3d 1160 (11th Cir. 2001), petition for cert.

filed (Nov. 9, 2001)(No. 01-979), for example, students at

West Clayton Elementary School in Clayton County, Geor-

gia were strip searched following a classmate’s report that

he had lost an envelope containing $26.00. Jd. at 1163.

The Eleventh Circuit had "little trouble concluding" that the

mass strip searches were unconstitutional; it was "readily ap-

* Contrast Lewis v. New Orleans, 415 U.S. 130 (1974)(striking down

New Orleans ordinance making it unlawful for any person "wantonly to

curse or revile or to use obscene or opprobrious language toward or with

reference to any member of the city police"). Every other circuit to

consider this issue since Lewis has found that arrests based on profanity

violate clearly established First Amendment standards. See, e.g., Spiller

v. City of Texas City, Police Dep't, 130 F.3d 162 (Sth Cir. 1997)(no

qualified immunity for arresting a motorist who told an off-duty police-

man at a gas station to "move his damn truck"); Knox v. Southwest Air-

lines, 124 F.3d 1103 (9th Cir. 1997)(verbal exchange at airport; demand

for officer’s name and badge number; refusal to exit immediately after

being ordered to do so); MacKinney v. Nielsen, 69 F.3d 1002 (9th Cir.

1995)(writing with washable chalk on public sidewalk; failure to imme-

diately stop); Guffey v. Wyatt, 18 F.3d 869 (10th Cir. 1994)(arrest of

referee at hotly-contested high school basketball game); Gainor v.

Rogers, 973 F.2d 1379 (8th Cir. 1992)(arrest of person walking through

downtown carrying a large cross and distributing leaflets); Enlow v.

Tishomingo County, 962 F.2d 501, 509-10 (Sth Cir. 1992)(on plaintiff's

version, inquiry whether the sheriff had a search warrant or an arrest

warrant; taking photographs of the officers); Buffkins v. City of Omaha,

922 F.2d 465 (8th Cir. 1990)(calling police officer an “asshole"); Duran

v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990)obscene gestures and

yelling profanities); Bailey v. Andrews, 811 F.2d 366 (7th Cir. 1987)

(telling officer "I want my damn dog” and "did you shoot my dog?");

Vela v. White, 703 F.2d 147 (Sth Cir. 1983)(walking down the street;

agitated questioning about arrest).

14

parent that the strip searches were highly intrusive . . . [and]

clearly represent[ed] a ‘serious intrusion upon the student’s

personal rights.’" Jd. at 1168-69. Still, because it found no

pre-existing, "factually defined" case precisely on point, it

awarded the officials qualified immunity.’

Space constraints prevent amici from detailing an ex-

haustive list of cases awarding qualified immunity in the

Eleventh Circuit. Suffice it to say that the Eleventh Circuit

has, post-Lanier, found qualified immunity in literally every

constitutional context imaginable. In addition to those cases

discussed above, the Eleventh Circuit has upheld a qualified

immunity defense to defeat racial discrimination claims,"

* Courts have ruled for well over a decade that strip searches in schools,

absent particularized suspicion, violate the Fourth Amendment. See Doe

v. Renfrow, 631 F.2d 91, 93 (7th Cir. 1980)(holding that strip search of

13-year-old student violates Constitution and "any known principles of

human decency"); Bell v. Marseilles Elementary Sch., 160 F.Supp.2d

833 (N.D. Ill. 2001)(qualified immunity denied for mass strip search of

students for missing money because case law “clear for sixteen years")

(emphasis added); Konop v. Northwestern Sch. Dist., 26 F.Supp.2d

1189, 1205 (D.S.D. 1998)(qualified immunity denied for strip search of

eighth grade girls where school "possessed no specific information that

any particular student had stolen the money [that had come up missing

from the girls locker room]"); Oliver v. McClung, 919 F.Supp. 1206,

1218 (N.D. Ind. 1995)(qualified immunity denied because "argument

that it is not unreasonable to conduct a strip search of [an entire seventh

grade class of] young school girls in an effort to recover the grand sum

of four dollars and fifty cents is simply not convincing"); Burnham v.

West, 681 F.Supp. 1160, 1165 (E.D.Va. 1987)(mass student search "con-

ducted in an atmosphere devoid of individualized suspicion" unconstitu-

tional).

"° See, e.g., Mencer v. Hammonds, 134 F.3d 1066, 1070-71(11th Cir.

1998)(holding in interlocutory appeal that plaintiff's claim of racial dis-

crimination was defeated by qualified immunity); see also Johnson v.

City of Fort Lauderdale, 126 F.3d 1372, 1379 (11th Cir. 1997)(applying

qualified immunity to defeat §§1981 and 1983 claims based on racial

(continued...)

15

free speech claims,'' charges of deadly force,'? illegal

searches’ and unlawful arrests under the Fourth Amend-

ment,'* claims of abuse,’’ unsanitary prison conditions’

and neglect'’ under the Eighth Amendment, and both pro-

cedural'* and substantive’? claims under the Fourteenth

'° (...continued)

discrimination). See Stephen B. Bright, "Can Judicial Independence be

Attained in the South? Overcoming History, Elections, and Mispercep-

tions about the Role of the Judiciary," 14 Ga. St. L. Rev. 817, 841-42

(1998)("The [Eleventh Circuit] has also frequently found those accused

of racial discrimination or other constitutional violations to be immune

from suit").

'' See, e.g., Denno v. School Bd. of Volusia County, 182 F.3d 780 (11th

Cir. 1999)(officials immune for suspending student who brought Confed-

erate flag to school).

" See, e.g., Vaughan v. Cox, 264 F.3d 1027 (11th Cir. 2001)(officer im-

mune from liability for using deadly force and shooting into moving ve-

hicle).

'° See, e.g., Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001)(officers im-

mune for strip searching detainee arrested for drunk driving).

* See, e.g., Redd v. City of Enterprise, 140 F.3d 1378 (11th Cir. 1998)

(officers immune for arresting traveling minister for disorderly conduct).

'* See, e.g., Hill v. Dekalb Regional Youth Detention Center, 40 F.3d

1176 (11th Cir. 1994)(officials immune in connection with sexual abuse

of youthful detainee by center employees).

'* See, e.g., Wilson v. Blankenship, 163 F.3d 1284 (11th Cir. 1998)(pris-

on officials immune for poor prison conditions).

" See, e.g., Sanders v. Howze, 177 F.3d 1245 (11th Cir. 1999)(failure to

prevent suicide by prisoner)._

'* See, e.g., Harbert Intern, Inc. v. James, 157 F.3d 1271 (11th Cir.

1998)(finding immunity from liability for Procedural Due Process and

Fifth Amendment Takings violations).

'’ See, e.g., Santamorena v. Georgia Military College, 147 F.3d 1337

(continued...)

16

rE ee

Amendment’s Due Process Clause. The Eleventh Circuit, in

sum, continues to immunize virtually every constitutional

wrong imaginable under its "fact-specific" test.”°

Gold, Lewis, Thomas and the present case illustrate the

reality of constitutional litigation in the Eleventh Circuit:

government officials regularly receive immunity regardless

of the gravity of their wrongs and irrespective of the clarity

of the rights they violate. Government officials are not ex-

pected by the Eleventh Circuit to deduce, extrapolate, or

analogize, nor are they expected to employ constitutional

common sense. See Brown, "The Failure of Fault Under

§1983," supra note 5, at 1511 n.52 (noting that "the prob-

lem of too much immunity" may be "peculiar to the Elev-

enth Circuit"). Because the Eleventh Circuit’s "materially

similar" test has devolved into almost-absolute immunity, it

strays far from the "fair warning” norm established by this

Court and recognized by virtually every other circuit.

'? (...continued)

(11th Cir. 1998)(officials immune from liability for rape of female stu-

dent on college campus).

° Only in rare instances are officials denied immunity. Amici have un-

covered only a handful of Eleventh Circuit cases post-Lanier that re-

fused qualified immunity. Most of these, moreover, involved frequently

litigated, crystal-clear constitutional rights, like the prohibitions on invid-

ious race- and gender-based discrimination. See, e.g., Lambert v. Fulton

County, 253 F.3d 588 (11th Cir. 2000)(racial discrimination); Alexander

v. Fulton County, 207 F.3d 1303 (11th Cir. 2000)(racial discrimination);

Braddy v. Florida Department of Law Enforcement, 133 F.3d 797 (11th

Cir. 1998)(sexual harassment). As observed above, the Eleventh Circuit

sometimes awards immunity even in these contexts. An en banc deci-

sion of the Eleventh Circuit also recently denied qualified immunity in

the context of prisoners’ safety. See Marsh v. Butler County, 268 F.3d

1014 (11th Cir. 2001).

17

C. The Eleventh Circuit Errs By Refusing

To Look To Persuasive Precedent

The Court has made plain that its qualified immunity

inquiry focuses on whether the plaintiff can identify "con-

trolling authority in [its] jurisdiction at the time of the inci-

dent which clearly established the rule on which [it] seek{s]

to rely," or "a consensus of cases of persuasive authority

such that a reasonable officer could not have believed that

his actions were lawful." Wilson v. Layne, 526 U.S. 603,

617 (1999). The Eleventh Circuit, however, continues to ig-

nore persuasive precedent. Instead, it holds that clearly es-

tablished law can only be located in published decisions of

this Court, the Eleventh Circuit, and the supreme court of

the state where the action arose. See Hamilton v. Cannon,

80 F.3d 1525, 1531-32 n.7 (11th Cir. 1996); D’Aguanno v.

Gallagher, 50 F.3d 877, 881 n.6 (11th Cir. 1995)("The re-

maining cases on which plaintiffs rely do not come from the

U.S. Supreme Court, the Eleventh Circuit Court of Appeals,

or the Florida Supreme Court and, therefore, cannot show

that plaintiffs’ right to due process was clearly established");

Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821 (11th ©

Cir. 1997)(en banc); Marsh v. Butler County, 268 F.3d at

1032 n.10 ("We do not understand Wilson v. Layne, 526

U.S. 603 (1999), to have held that a ‘consensus of cases of

persuasive authority’ from other courts would be able to es-

tablish the law clearly"). The result is a vanishingly small

vision of fair warning.”!

- Compounding the Eleventh Circuit’s cramped vision of relevant prec-

edent is its refusal to recognize that Florida’s district courts of appeal

are empowered to render binding decisions on a state-wide basis, see

Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992)(""I]n the absence of

interdistrict conflict, district court decisions bind all Florida trial

courts”), as well as its refusal to consider decisions of its federal district

courts.

18

Virtually every other circuit to address the matter has

concluded that a consensus of persuasive cases defeats quali-

fied immunity. See, e.g., Rogers v. Pendleton, 249 F.3d

279, 287 (4th Cir. 2001)(citing Wilson, 526 U.S. at 617);

Butera v. District of Columbia, 235 F.3d 637, 652 (D.C.Cir.

2001)("the court must determine whether the Supreme

Court, the District of Columbia Circuit, and, to the extent

that there is a consensus, other circuits have spoken clearly

on the lawfulness of the conduct at issue")emphasis added);

Jacobs v. Chicago, 215 F.3d 758, 767 (7th Cir. 2000)

(same); Doe v. Delio, 257 F.3d 309, 332 (3d Cir. 2001)

(Nygaard, J., concurring and dissenting)(I believe that a

‘consensus of cases of persuasive authority’ had been estab-

lished by 1995")(citing Wilson, 526 U.S. at 617)(emphasis

added). As with its demand for precise, factually indistin-

guishable precedent, the Eleventh Circuit stands alone when

it insists on binding support. No other circuit takes such a

limited approach to qualified immunity.”

Il. The Right To Be Free From Prolonged Physical

Restraint That Risks Serious Harm Was Clearly

Established Long Ago

The Eighth Amendment prohibits "cruel methods of

punishment that are not regularly or customarily employed."

Harmelin v. Michigan, 501 U.S. 957, 976 (1991). This pro-

hibition encompasses both “unnecessary and wanton inflic-

tion of pain,” see Rhodes v. Chapman, 452 U.S. 337, 346

(1980), and prison conditions that deny inmates the "mini-

22 Several other circuits reached this conclusion before this Court’s deci-

sion in Wilson. See, e.g., Shabazz v. Coughlin, 852 F.2d 697, 701 (2d

Cir. 1988); Vaughn v. Ruoff, 253 F.3d 1124, 1130 (8th Cir. 2001);

Capoeman v. Reed, 754 F.2d 1512, 1514-15 (9th Cir. 1985).

19

mal civilized. measures of life’s necessities." /d. at 347.

Because the Eighth Amendment applies to prison authorities

as well as legislative bodies and judges, “deprivations that

were not specifically part of the sentence, but were suffered

during imprisonment" are subject to its terms. See Wilson v.

Seiter, 501 U.S. 294, 297 (1991). Where "the pain inflicted

is not formally meted out as punishment by the statute or

the sentencing judge, some mental element must be at-

tributed to the inflicting officer before it can qualify.” /d. at

300 (emphasis in original). Where punitive intent is clear,

the question is an objective one: whether the punishment is

compatible with “the evolving standards of decency that

mark the progress of a maturing society." Estelle v. Gam-

ble, 429 U.S. 97, 102-03 (1976).

Handcuffs, shackles and irons are not per se unconstitu-

tional under the Eighth Amendment. See Jackson v. Cain,

864 F.2d 1235, 1243 (Sth Cir. 1989)(holding that chains

may be used under certain circumstances). Restraints are

permissible, for example, when linked to a “legitimate pe-

nological interest," Turner v. Safley, 482 U.S. 78, 89-90

(1986), such as preventing escape when a prisoner is taken

outside the prison, see Fulford v. King, 692 F.2d 11 (Sth

Cir. 1982)(holding that handcuffs may be used on prisoners

outside the prison to prevent escape), preventing suicide or

violence, see Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.

1995), or limiting immate access to unauthorized areas

within the prison. Knox v. McGinnis, 998 F.2d 1405, 1412

(7th Cir. 1993).

Prolonged physical restraint runs afoul of the Eighth

Amendment in two instances: (1) “where movement is de-

nied [,] . . . [and] the health of the individual is threatened,”

French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), and

(2) where the restraint "could [not] plausibly have been

thought necessary" to achieve some legitimate penological

interest, such as protecting the inmate, preventing escape, or

20

“restoring official control over a tumultuous cellblock." See

Whitley v. Albers, 475 U.S. 312, 319 (1986); Youngberg v.

Romeo, 457 U.S. 307 (1981)(holding that freedom of bodily

movement is a fundamental right); Wells v. Franzen, 777

F.2d 1258, 1262 (7th Cir. 1995)("Due process requires. that

the nature and duration of the physical restraint bear some

reasonable relation to the purpose for which it is pre-

scribed"). Prolonged physical restraint for punishment’s

own sake necessarily constitutes cruel and unusual punish-

ment -- with or without serious physical injury.

The restraint employed in the present case seriously

threatened the health of the inmate. As observed by the

court below, Hope’s restraint posed a substantial risk of

harm that was disregarded by the staff. Hope, 240 F.3d at

978. Hope was handcuffed to the post "in the hot sun for

seven hours with no shirt,” little water and no restroom

breaks. See id. at 978-79 (citing Farmer v. Brennan, 511

U.S. 825, 847 (1994), and Wilson v. Seiter, 501 U.S. at

300). “At one time, prison guards brought a cooler of water

near him, let the prison dogs drink from the water, and then

kicked the cooler over at Hope’s feet." 240 F.3d at 978.

His restraint, moreover, was unrelated to any legitimate pe-

nological interest. In Whitley, 475 U.S. at 322, this Court

warned that “actions taken in bad faith and for no legitimate

purpose” by prison officials violate the Eighth Amendment.

Shooting an inmate in order to punish him certainly violates

this standard. Jd. Likewise, because chaining an inmate to

a post or stake for a prolonged period of time serves no le-

gitimate nonpunitive purpose, it too runs afoul of the Eighth

Amendment. As recognized below, punishment for punish-

ment’s sake is not a legitimate justification for abusive force

and prolonged restraint. Hope, 240 F.3d at 979.

For more than a century, courts have routinely con-

demned physical restraints such as stocks, stakes and pillo-

ries. In Weems v. United States, 217 U.S. 349, 376-78

21

(1910), this Court expressed doubt over whether the pillory

and whipping post were acceptable punishments: "it may be

well doubted,” the Court opined, that either proved consist-

ent with a “progressive” and "enlightened" approach to crim-

inal corrections. By 1981, it was clear that "the public pil-

lory [had been] long abandoned as a barbaric perversion of

decent justice."*» Chandler v. Florida, 449 U.S. 560, 580-

81 (1981). Indeed, as early as 1840 one constitutional com-

mentator concluded that "[t]he prohibition of cruel and un-

usual punishments . . . would not tolerate the use of the rack

or the stake, or any of those horrid modes of torture, de-

vised by human ingenuity for the gratification of fiendish

passion.” J. Baynard, A BRIEF EXPOSITION OF THE CONSTI-

TUTION OF THE UNITED STATES 154 (2d ed. 1840)(quoted in

Harmelin, 501 U.S. at 981).

Because "[t]he pillory is almost identical to the stocks,

which is identical to the restraining bar," Austin v. Hopper,

15 F.Supp.2d at 1259 (quoting transcript of hearifig before

magistrate judge), and since, "[i]f anything, the pillory, as it

was designed, was probably more comfortable because in

most cases the prisoner sat on the ground and had his feet

and his hands put through a stock,” id., the hitching post’s

comparison to the pillory is inevitable. The Eleventh Cir-

cuit’s predecessor, the Fifth Circuit, had little difficulty with

this analogy in Gates v. Collier, 501 F.2d 1291, 1306 (Sth

Cir. 1974), where it found that "handcuffing inmates to the

fence and to cells for long periods of time . . . and forcing

inmates to stand, sit or lie on crates, stumps, or otherwise

* The Court cited Hobbs v. State, 32 N.E. 1019 (Ind. 1893), where the

Indiana high court stated that punishments "such as that inflicted at the

whipping post, in the pillory, burning at the stake, [and] breaking on the

wheel” were certainly cruel and unusual. 217 U.S. at 376.

22

~ eet ee ee a -

maintain awkward positions for prolonged periods” runs

afoul of the Eighth Amendment. In 1994, the Department

of Justice "advised the DOC that the use of the hitching post

constituted improper corporal punishment and was not an

acceptable use of restraints." Hope, 240 F.2d at 978-79.

Judge Thompson in Austin v. Hopper, 15 F.Supp.2d at 1259,

citing Gates, observed that "for over 20 years, institutional

practices that impose pain on inmates in ways similar to the

hitching post have been deemed to ‘offend contemporary

concepts of decency, human dignity, and precepts of

civilization which we profess to possess.’"

The fact that only Alabama authorizes physical restraint

in this fashion, Austin, 15 F.Supp.2d at 1259, demonstrates

that the practice is "not regularly or customarily employed.”

Harmelin, 501 U.S. at 976. Professional standards promul-

gated by the American Correctional Association (ACA) and

the American Bar Association (ABA), moreover, absolutely

prohibit the use of prolonged restraint as punishment. See

AMERICAN CORRECTIONAL ASSOCIATION AND COMMISSION

ON ACCREDITATIONS FOR CORRECTIONS STAFF, STANDARDS

FOR ADULT CORRECTIONAL INSTITUTIONS 60 (3d ed. 1990)

("instruments of restraint, such as handcuffs, irons, and

straight jackets, are never applied as punishment . . . .")(em-

phasis added);* IV AMERICAN BAR ASSOCIATION STAND-

ARDS FOR CRIMINAL JUSTICE 23-121 (2d ed. 1983)("Person-

al restraints like handcuffs, irons, and straitjackets are to be

used only if necessary to prevent individual prisoners from

* According to the ACA, "instruments of restraint should be used only

as a precaution against escape during transfer, for medical reasons, by

direction of the medical officer, or to prevent self-injury to others, or

property damage." STANDARDS FOR ADULT CORRECTIONAL INSTITU-

TIONS, supra.

23

escaping during transfers or injuring themselves or

others")(cited in Austin, 15 F.Supp.2d at 1259 nn.221 &

222). It was thus abundantly clear in 1995 that Alabama’s

use of hitching posts as corporal punishment was foreign to

the American penological ideal. Indeed, Alabama’s practice

is aberrant even when judged by universal standards, such as

those promulgated by the United Nations. See UNITED Na-

TIONS, STANDARD MINIMUM RULES FOR THE TREATMENT

OF PRISONERS 6-7 (1984)("Instruments of restraint, such as

handcuffs, chains, irons and strait-jackets, shall never be ap-

plied as a punishment")(cited in Austin, 15 F.Supp.2d at

1259 n.222). By 1995, no reasonable official could have

understood constitutional precedent to tolerate summarily”®

chaining an inmate to a hitching post for hours on end. The

practice was clearly unconstitutional.

** Although apparently not raised below, summary use of the hitching

post likely violates procedural due process, since it "imposes atypical

and significant hardship on the inmate in relation to the ordinary inci-

dents of prison life.” Sandin v. Conner, 515 U.S. 472, 486 (1995).

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——_—

CONCLUSION

The judgment of the United States Court of Appeals for

the Eleventh Circuit, awarding qualified immunity, should

be reversed.

Respectfully submitted,

Mark R. Brown

(Counsel of Record)

Stetson University

1401 61st Street South

St. Petersburg, Florida 33707

(727) 562-7856

James K. Green

James K. Green, PA

222 Lakeview Avenue

Suite 1630, Esperante

West Palm Beach, Florida 33401

(561) 659-2029

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Dated: February 20, 2002

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