# Amicus Curiae Brief — Hope v. Pelzer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0496%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 730

## Text

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).

24

——_—

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

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0496%3A10. Public record. Not legal advice.