Petition for Writ of Certiorari — Wiggins v. Valencia

IN THE a

SUPREME COURT OF THE UNITEDSLATES'*= ©

OCTOBER TERM, 1993

GARRY D. WIGGINS,

Petitioner

V.

RAUL JOSE VALENCIA,

Respondent

* * *

Petition for Writ of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

* * *

Counsel of Record

DOUGLAS M. BECKER

Additional Counsel

ROGER MOORE

900 West Avenue

Austin, Texas 78701

(512) 482-0061

Attorneys for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

2 &

NO.

GARRY D. WIGGINS,

Petitioner

V.

RAUL JOSE VALENCIA,

Respondent

x k *

Petition for Writ of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

Counsel of Record

DOUGLAS M. BECKER

Additional Counsel

ROGER MOORE

900 West Avenue

Austin, Texas 7870!

(512) 482-0061

Attorneys for Petitioner

oe

QUESTIONS PRESENTED

1. Is a claim alleging the use of excessive force

against a state pre-trial detainee governed by Fourth

Amendment or Fourteenth Amendment standards?

2. Are cuts, scratches and bruises that do not

require medical attention de minimis injuries for

purposes of excessive force claims arising under the

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United States Constitution?

3. Does qualified immunity protect a state

officer from liability when the law at the time the

conduct occurred required a plaintiff to show that the

force used by the officer inflicted severe injury?

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

GARRY D. WIGGINS,

Petitioner

V.

RAUL JOSE VALENCIA,

Respondent

*x *K X*

Petition for Writ of Certiorar!

To The United States Court of Appeals

For the Fifth Circuit

*K *K *

LIST OF ALL PARTIES

Raul Jose Valencia

Garry D. Wiggins

a

TABLE OF CONTENTS

Table of Authorities 4

The Opinion Below 5

\

Statement of Jurisdiction 5

Constitutional and Statutory

Provisions Involved 5

Statement of the Case ]

Argument:

A claim alleging the use of excessive force against

a state pre-trial detainee should governed by a

fourth amendment standard rather than by a

fourteenth amendment standard fe

I] Cuts, scratches and bruises that do not require

medical attention are de minimis injuries for

purposes of excessive force claims arising under

the United States Constitution 9

ITT. Qualified immunity protects a state officer from

liability when the law at the time the conduct

occurred required a plaintiff to show that the

force used by the officer inflicted

severe injury. 1 |

to

Conclusion

”

TABLE OF AUTHORITIES

Anderson v. Creighton, 1]

483 U.S. 635, 638 (1987)

Austin v. Hamilton, 9)

945 F.2d 1155 (10th Cir. 1991)

Graham v. Connor, 8

oo. , 109 S.Ct.

1865. 1871 n. 10 (1989)

Harlow v. Fitzgerald, 1]

457 U.S. 800, 818-19 (1982)

Hudson v. McMillian, 10

__iU-S. _ 34 oe. oe

(1992)

Johnson v. Glick, 10

481 F.2d at 1033

Justice v. Dennis, 9

834 F.2d 380 (4th Cir. 1987),

vacated 490 U.S. 1087

Robins v. Harum, 9

773 F.2d 1004 (9th Cir. 1985)

Shillingford v. Holmes, 11, 12

634 F.2d 263 (Sth Cir. 1981)

Titran v. Ackman, )

893 F.2d 145 (7th Cir. 1990)

Valencia v. Wiggins, OE

981 F.2d 1440 (Sth Cir. 1993)

THE OPINION BELOW

The opinion of the court below is published as

Valencia v. Wiggins, 981 F.2d 1440 (Sth Cir. 1993).

STATEMENT OF JURISDICTION

[he decision of the court below was announced

on January 18, 1993. No motions for rehearing were

filed. This petition for writ of certiorari is filed within

YO days of entry of judgment by the court below. This

Court has jurisdiction to review the decision of the

court below by writ of certiorari under the provisions

of 28 U.S.C. §1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides, in part:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, ... .

+ TF

The Fourteenth Amendment to the United States

Constitution provides, in part:

Sec. | .. . nor shall any State deprive

any person of life, liberty, or property,

without due process of law; .

42 U.S.C. §1983 provides, in part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person’ within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law,suit in equity, or other liable proper

proceeding for redress. . .

7

STATEMENT OF THE CASE

This case involves a claim by a former pre-trial

detainee that during his incarceration in a county jail

while he awaited trial, a county deputy used excessive

force against him. The plaintiff asserted claims arising

under various provisions of the United States

Constitution, and under several federal statutes,

including 42 U.S.C. §1983. He also asserted numerous

pendent state law claims. After a bench trial, the court

found that the defendant had violated 42 U.S.C. §1983,

but denied relief under all other federal and state causes

of action. The trial court found that the plaintiff's

injuries consisted of cuts, scrapes and bruises that did

not require medical attention and awarded the plaintiff

$2,500 in damages. In a supplemental order entered

atter trial, the trial court also awarded the plaintiff

approximately $27,600 in attorney’s fees and costs.

The defendant appealed all parts of the judgment.

The plaintiff did not challenge by cross-appeal any part

of the judgment. In a published opinion, the Fifth

Circuit Court of Appeals affirmed the district court’s

judgment. Valencia v. Wiggins, 981 F.2d 1440 (Sth

Cir. 1993). This petition for writ of certiorari

followed.

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ARGUMENT

I. A CLAIM ALLEGING THE USE

OF EXCESSIVE FORCE

AGAINST A STATE PRE-TRIAL

DETAINEE SHOULD

GOVERNED BY A_ FOURTH

AMENDMENT STANDARD

RATHER THAN BY A

FOURTEENTH AMENDMENT

STANDARD.

In Graham _ vy. Connor, U.S. , 109

S.Ct. 1865, 1871 n. 10 (1989), this Court noted that:

[oJur cases have not resolved the question

whether the Fourth Amendment continues

to provide individuals with protection

against the deliberate use of excessive

force beyond the point at which arrest ends

and pretrial detention begins, and we do

not attempt to answer that question today.

The issue left unresolved in Graham remains unresolved

today.

The courts of appeals have reached different

conclusions concerning the applicable constitutional

standards to be applied to excessive force claims by

pre-trial detainees. The Seventh Circuit and the Fourth

Circuit have adopted substantive due process standards

derived from the fifth and fourteenth amendments to be

used once the arresting officers have completed the

_Q-

arrest. Titran v. Ackman, 893 F.2d 145 (7th Cir.

1990): Justice v. Dennis, 834 F.2d 380 (4th Cir. 1987),

vacated 490 U.S. 1087. The Ninth and Tenth Circuits

have explicitly held that the fourth amendment

continues to apply to excessive force claims beyond the

point that arrest has been completed. Robins_v.

Harum, 773 F.2d 1004 (9th Cir. 1985); Austin v.

Hamilton, 9:5 F.2d 1155 (10th Cir. 1991).

The court below held that excessive force cases

involving pre-trial detainees should be analyzed using

a substantive due process analysis derived from the

fourteenth amendment. In this, the court below erred.

Application of this standard caused the court below to

focus unduly upon the officer’s subjective mental state

as the benchmark of analysis. Application of the

proper, more objective Fourth Amendment inquiry,

required analysis of the officer’s conduct under a

reasonableness standard and, equally important,

required objectively more serious injuries as a predicate

to proving a constitutional violation.

ll. CUTS, SCRATCHES AND

BRUISES THAT DO NOT

REQUIRE MEDICAL

ATTENTION ARE DE MINIMIS

INJURIES FOR PURPOSES OF

EXCESSIVE FORCE CLAIMS

ARISING UNDER THE UNITED

STATES CONSTITUTION.

Not all injuries inflicted by law enforcement

officials rise to the level of constitutional violations.

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Minor harms and transient injuries, while relevant to

some state tort claims do not have constitutional import.

Although this Court recently rejected the Fifth Circuit's

"significant injury" requirement in eighth amendment

excessive force cases, Hudson v. McMillian, U.S.

___, 112 S.Ct. 995 (1992), in the same case the Court

did not reject the notion that some injuries are too

insignificant to be afforded constitutional protection:

That is not to say that every malevolent

touch by a prison guard gives rise to a

federal cause of action. See, Johnson v.

Glick, 481 F.2d at 1033 ("Not every push

or shove, even if it may later seem

unnecessary in the peace of a judge's

chambers, violates a _ prisoner's

constitutional rights"). The Eighth

Amendment’s prohibition of "cruel and

unusual" punishment necessarily excludes

from constitutional recognition de minimis

uses of physical force, provided that the

use of force is not of a sort "‘repugnant to

the conscience of mankind’”.

Hudson v. McMillian, supra, __—U.S. at my

S.Ct at 1000.

In this case, the undisputed finding of the trial

court was that the injuries suffered by the Plaintiff

consisted of cuts, scrapes and bruises that did not

require medical attention. The court below erred in

failing to find that these injuries were de minimis for

purposes of determining whether the plaintiff had

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shown that he had suffered an injury of constitutional

dimension. The holding of the court below trivializes

the constitution by elevating insignificant, wholly

transient injuries to a constitutional tort.

Wl. QUALIFIED IMMUNITY

PROTECTS A STATE OFFICER

FROM LIABILITY WHEN THE

LAW AT THE TIME’ THE

CONDUCT OCCURRED

REQUIRED A PLAINTIFF TO

SHOW THAT THE FORCE USED

BY THE OFFICER INFLICTED

SEVERE INJURY.

At the time of this incident, Defendant Wiggins

was a public safety official. As such, he is entitled to

assert the defense of qualified immunity. For qualified

immunity purposes, the objective reasonableness of an

official’s conduct must be measured with reference to

the law as it existed at the time of the conduct in

question. Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982). As long as the government official’s actions

could reasonably have been thought consistent with the

rights he is alleged to have violated, the qualified

immunity defense shields him from liability. Anderson

v. Creighton, 483 U.S. 635, 638 (1987).

The conduct involved in this case occurred in

July, 1987. At that time, Shillingford v. Holmes, 634

F.2d 263 (Sth Cir. 1981), was clearly established law

for cases involving the use of excessive force in the

Fifth Circuit. In order to prevail on an excessive force

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claim, Shillingford required a plaintiff to prove that

"the state officer’s action caused severe injuries, was

grossly disproportionate to the need for action under the

circumstances and was inspired by malice rather than

merely careless or unwise excess of zeal so that it

amounted to an abuse of official power that shocks the

conscience. .. ." Id. 634 F.2d at 265. These three

requirements each had to be proven.

If a reasonable peace officer could have

concluded in 1987 that Defendant Wiggins did not

violate Plaintiff's right to be free from excessive force

as that right was understood at that time, Defendant

Wiggins is entitled to the benefits of the qualified

immunity defense.

Clearly, the injuries found by the trial court were

not severe injuries within the meaning of the

Shillingford standard. For this reason, a reasonable

peace officer in 1987 would not have believed that

Officer Wiggins violated any constitutional right of

Valencia’s as it was understood at that time. The court

below should have reversed the trial court’s judgment

in favor of the plaintiff based upon the qualified

immunity defense Wiggins asserted.

CONCLUSION

For all these reasons, a writ of certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit.

is EERE panic a

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Respectfully submitted,

Counsel of Record

DOUGLAS M. BECKER

)

A { ‘

ij j 4 = g

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Additional Counsel

ROGER MOORE

GRAY & BECKER, P.C

900 West Avenue

Austin, Texas 78701

(S12) 482-0061

Attorneys for Petitioner

APPENDIX A

A-]

Raul Jose VALENCIA,

Plaintiff-Appellee,

V.

Garry D. WIGGINS, Defendant-

Appellant.

No. 91-8018.

United States Court of Appeals,

Fifth Circuit

Jan. 18, 1993.

Before GOLDBERG, JOLLY, and WIENER,

Circuit Judges.

WIENER, Circuit Judge:

This appeal results from a pretrial detainee’s civil

rights suit against a county jailer. The district court

found that the jail official used force greatly in excess

of that which was reasonable under the circumstances.

The court also found that the official acted malicious!y

toward the pretrial detainee with the intention to punish

him, and that qualified immunity was not available. A

money judgment was rendered in favor of the detainee.

Concluding that the district court’s findings of fact were

not clearly erroneous, we find the jail official not

entitled to qualified immunity. And, agreeing with the

district court that the jail official used force maliciously

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and sadistically with the intent to punish the pretrial

detainee, we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. THE JAILHOUSE INCIDENTS

As a result of an undercover police operation

conducted by Defendant-Appellant Gary D. Wiggins,

Plaintiff-Appellee Raul Jose Valencia was arrested on

drug charges. On July 3, 1987, Valencia was

committed to Brewster County (Texas) Jail. Shortly

thereafter, Wiggins ceased work as an undercover agent

and became Acting Chief Deputy of Brewster County

Jail, responsible for, among other things, supervision of

the jail.

One evening three weeks into his pretrial detention,

Valencia took part in a jail disturbance in which the

inmates made excessive noise and threw objects out of

cells. The next day, the inmates, including Valencia,

again created a disturbance by singing and making

noise. Jailer Joaquin Jackson requested that the inmates

quiet down. When they refused, Jackson summoned

Wiggins, who reiterated Jackson’s command. Unlike

most other inmates, however, Valencia and his

cellmate, Gilbert "Bebo" Espinosa, continued to make

noise. Wiggins then ordered Valencia out of his cell.

Valencia refused to come out, and instead asked why he

was being singled out. At that point, Wiggins entered

Valencia’s cell to enforce his order. Participants and

witnesses give quite different accounts of what

transpired next. Valencia contends that Wiggins

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grabbed him by the hair and bashed his head repeatedly

against the cell bars. Wiggins asserts, on the other

hand, that Valencia’s head accidentally hit the bars

during this altercation. Espinosa testified, in what

perhaps is a third version of events, that Valencia’s

head hit the bars when he stiffened his body to resist

removal from the cell. Irrespective of those conflicting

reasons, there is general agreement on what happened

next: Wiggins applied a choke hold that left Valencia

momentarily unconscious. After getting him to the

floor, Wiggins put Valencia in handcuffs.

Wiggins and the other jailer than took Valencia

downstairs to the drunk tank. Valencia testified that,

after Wiggins ordered the other jailer to close the door

and wait, he (Wiggins) went into the drunk tank with

Valencia and struck him at least three times while he

was handcuffed and on his knees. Not surprisingly,

Wiggins’s version of events is quite different. He

testified that he and the other jailer escorted Valencia to

the drunk tank, removed the handcuffs, shut the door,

and left Valencia alone in the cell. Wiggins claims that

he never struck Valencia.

Two days after this incident, and for reasons that are

not stated in the record, Valencia was moved to the

Pecos County Jail. But because that jail had no room,

Valencia was moved once again, this time to the Law

Enforcement Center. There, the interviewing jailer

noted that Valencia had visible injuries, including

bruises on his face and scratches and cuts on his throat,

but concluded that these injuries did not require

immediate medical attention. Several days later,

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Valencia was visited by an attorney who also noticed

the bruises and scratches. Although Vaiencia testified

that his voice was damaged permanently as a result of

the choke hold applied by Wiggins in the upstairs

incident, both his cousin and a jailer at the Brewster

Courty Jail (who was also a friend of Valencia’s

family), testified that they noticed no change.

B. THE DISTRICT COURT’S DECISION

Valencia filed this civil rights action, under 42

U.S.C. § 1983, complaining that Wiggins and another

jailer violated his constitutional rights by using

excessive force during his incarceration in the Brewster

County Jail.' Subsequently, Wiggins filed a motion

for summary judgment on the basis of qualified

immunity. Rather than ruling immediately on

Wiggins’s motion, however, the trial judge carried it

with the case.

After a bench trial, the district court found for

Valencia, and ordered Wiggins to pay damages to

'The complaint originally named as defendants the County of

Brewster, the District Attorney whose district included Brewster

County, the Sheriff of Brewster County, the Head Jailer of

Brewster County, another jailer of the Brewster county Jail, a

Deputy Sheriff of Brewster County, the Brewster County Judge,

and the Brewster County Attorney. Valencia later amended his

complaint to remove claims against the County Judge, County

Attorney, and the District Attorney.

A-5

Valencia in the amount of $2,500. The district court

made the following factual findings: Valencia refused

to come out of his cell; to enforce his order, Wiggins

entered the cell; "[a] wrestling match ensued during

which Wiggins hit Valencia’s head against the jail bars

and applied a ‘choke hold’ rendering Valencia

momentarily unconscious"; Wiggins’s methods of

enforcing jail discipline were "unreasonable and clearly

excessive"; Wiggins went into the drunk tank with

Valencia and shut the door; "Wiggins then struck

Valencia while he was cuffed and on his knees at least

three times"; and Valencia’s scratches, cuts, and

bruises were serious, but did not require medical

attention.

As to the applicable law, the district court concluded

that because Valencia was a pretrial detainee, the case

involved the Fourteenth Amendment’s »nrotection

against summary punishment, not the Fourth

Amendment’s prohibition of "unreasonable seizures" or

the Eighth Amendment’s prohibition of "cruel and

unusual punishments." And finding Wiggins’s use of

force to be both excessive and malicious and Valencia’s

physical injuries to be "severe," the district court

concluded that Valencia met his burden under

Shillingford v. Holmes,’ the case which, at the time of

the incident, articulated this court’s substantive due

*Upon motion, the district court involuntarily dismissed

claims against the head jailer, sheriff, deputy sheriff, and

Brewster County.

°634 F.2d 263 (Sth Cir. 1981).

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process standard for claims of excessive use of official

force. Additionally, the court found that Wiggins was

not entitled to qualified immunity, presumably because

this court stated in Stevens v. Corbell,’ that immunity

is not available in excessive force cases. Finally, ina

supplemental order entered two months after trial, the

district court granted Valencia approximately $27,600

in attorney’s fees and costs.

Wiggins appealed to this court.

Il. ANALYSIS

A. CONSTITUTIONAL BASIS

Wiggins argued in this pretrial detainee excessive

force case that the district court should have used the

Fourth Amendment's excessive force standard, set forth

by the Supreme Court in Graham v. Connor, and

adopted with modification by this court in Johnson v.

Morel.® Valencia, on the other hand, urged this court

*832 F.2d 884, 89C (Sth Cir. 1987) (finding it "well-settled

in this Circuit that knowing use of excessive force in booking an

arrestee violates the arrestee’s constitutional rights").

°490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

°876 F.2d 477 (Sth Cir. 1989) (en banc) (per curiam).

Under Morel, a plaintiff alleging excessive force in violation of

the Fourth Amendment had to prove three elements: "(1) a

significant injury, which (2) resulted directly and only from the

use of force that was clearly excessive to the need; and the

excessiveness of which was (3) objectively unreasonable." /d.

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to continue using Shillingford,’ which articulates a

substantive due process standard derived from Johnson

v. Glick,’ the Second Circuit’s seminal decision for

excessive force claims.

We do not believe that the Fourth Amendment

provides an appropriate constitutional basis for

protecting against deliberate official uses of force

occurring, as in this case, after the incidents of arrest

are completed, after the plaintiff has been released from

the arresting officer’s custody, and after the plaintiff

has been in detention awaiting trial for a significant

period of time. Our reasons for so deciding are

threefold. First, we believe that the Fourth

Amendment itself provides weak textual support for

such an extension. As the Fourth Amendment protects

against unreasonable "seizures," it seems primarily

directed to the initial act of restraining an individual’s

liberty,? such as an investigatory stop or arrest.

at 480. Knight v. Caldwell, 970 F.2d 1430, 1432 (Sth Cir.

1992), recently determined that the Supreme Court’s decision in

Hudson v. McMillian, __ U.S. __, 112 S.Ct. 995, 117

L.Ed.2d 156 (1992), overturned Morel’s significant injury

element.

’634 F.2d at 263.

°481 F.2d 1028 (2d Cir. 1973).

"See Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir. 1989)

("A natural although not inevitable interpretation of the word

*seizure’ would limit it to the initial act of seizing, with the

result that subsequent events would be deemed to have occurred

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(Graham itself offers no explicit suggestion as to when

a Fourth Amendment seizure comes to an end, although

its facts indicate that a seizure under the Fourth

Amendment does not end the moment the police gain

custody and contro! over a suspect."’)

Subsequent to Graham, a number of circuits

endorsed the extension of the Fourth Amendment to the

period between arrest and charge,'' or through the

after rather than during the seizure."). But see, e.g., Justice v.

Dennis, 834 F.2d 380, 387-88 and n. 12 (4th Cir.1987) (en

banc) (Phillips, J., dissenting) (arguing that "seizure does not

relate only to the event of "arrest," but applies as well when

individuals already in custody suffer further restrictions on their

liberty), vacated 490 U.S. 1087, 109 S.Ct. 2461, 104 L.Ed.2d

982 (1989).

"Graham applied the Fourth Amendment's objective

reasonableness standard even though the plaintiff was

handcuffed--and thus securely in police custody--during the time

in which the police allegedly tormented and beat him. See, e.g.,

Henson v. Thezan, 717 F.Supp. 1330, 1335 (N.D.III. 1989)

(Graham "appears to undercut Wilkin’s view that a seizure ends

at the moment the police gain custody and control over the

suspect.").

'' Austin v. Hamilton, 945 F.2d 1155, 1162 (10th Cir. 1991)

(holding that the Fourth Amendment’s objective reasonableness

standard applies post-arrest up to the arrested suspect's first

judicial hearing); Hammer v. Gross, 884 F.2d 1200, 1204 (9th

Cir. 1989), vacated en banc on other grounds, 932 F.2d 842 (9th

Cir.1991) (Fourth Amendment applies to force used to compel

drunk driving arrestee to consent to chemical tests because force

constituted search incident to arrest); and Calamia v. new York,

879 F.2d 1025, 1034-35 (2d Cir.1989) (Fourth Amendment

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period in which an arrestee remains in the arresting

officer’s custody.'* But we have discovered no case

in which a court has ruled that the Fourth Amendment

continues to protect against the official use of force in

the attenuated stage of pretrial detention at issue

here.'> Therefore, without deciding whether the

concept of continuing seizure is appropriate in other

contexts, we find that the concept of "seizure" in the

Fourth Amendment is not so capacious or elastic as to

cover pretrial detention three weeks after the initial

arrest, the period at issue in this case.

Our second reason for not extending the Fourth

Amendment to cover this period of pretrial detention is

that the Supreme Court, in several recent cases, has

been markedly unwilling to concede that the Fourth

Amendment protects inmates after incarceration.'*

applies to search incident to arrest).

'*See, e.g., Powell v. Gardner, 891 F.2d 1039, 1044 (2d

Cir.1989) ("Fourth Amendment standard probably should be

applied at least to the period prior to the time when the person

arrested is arraigned or formally charged, and remains in the

custody (sole or joint) of the arresting officer. ").

See, e.g., Titran v. Ackman, 893 F.2d 145, 147 (7th

Cir.1990) (assuming that arrestee’s "presence in the jail and the

completion of the booking marked the line between ‘arrest’ and

*detention’").

'*See Wayne R. LaFave, 4 Search and Seizure § 10.9, at

102-27 (West 1987). But see Winston v. Lee, 470 U.S. 753, 105

S.Ct. 1611, 84 L.Ed.2d 662 (1985) (Fourth Amendment ts

implicated when state compels suspect to undergo surgery to

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For instance, in Bell v. Wolfish,'> the Supreme Court

refused to hold that a pretrial detainee has a privacy

interest in his person that is protected by the Fourth

Amendment. (The Court then proceeded to find that,

even if the Fourth Amendment were implicated, the

institution’s practice of requiring detainees to expose

their body cavities for visual inspection after contact

visits with persons from outside the institution was

reasonable). Similarly, in Hudson v. Palmer,'® the

Court concluded that the Fourth Amendment protects

neither a prisoner’s privacy interest in his prison cell

nor his possessory interest in personal property

contained in his cell. We also find it significant that

Whitley v. Albers,'’ which resolved that the Eighth

Amendment is the primary source of protection against

the official use of force for convicted prisoners, never

even considered the Fourth Amendment’s prohibition

against unreasonable seizures as an additional source of

substantive protection.

Third, and most importantly, the Supreme Court's

decisions in Graham and Bell indicate that the due

process clause in the Fifth (or Fourteenth) Amendment

is the appropriate constitutional basis for pretrial

retrieve evidence).

5441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

16468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

7475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251

(1986).

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A-11

detainee excessive force suits.'* Although Graham

left open whether the Fourth Amendment applied after

arrest, it nevertheless made clear that "the Due Process

Clause protects a pretrial detainee from the use of

excessive force that amounts to punishment."!?

Likewise, in Bell, the Court concluded that the Court

of Appeals had properly relied on the due process

clause in considering claims of pretrial detainees. Bell

holds that conditions and restrictions of pretrial

detention amount to deprivations of liberty without due

process if those restrictions or conditions "amount to

punishment of the detainee."*° Writing for the Court,

then Associate Justice Rehnquist explained:

Not every disability imposed during pretrial

detention amounts to "punishment" in the

constitutional sense, however . . . . A court must

decide whether the disability is imposed for the

purpose of punishment or whether it is but an

incident of some other legitimate governmental

purpose. Absent showing of an expressed intent

to punish on the part of detention facility officials,

that determination generally will turn on "whether

an alternative purpose to which [the restriction]

'*See also Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97

S.Ct. 1401, 1412 n. 40, 51 L.Ed.2d 711 (1977) ("Where the

State seeks to impose punishment without such an adjudication,

the pertinent constitutional guarantee is the Due Process Clause

of the Fourteenth Amendment.").

"490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10.

441 U.S. at 535, 99 S.Ct. at 1872.

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may rationally be connected is assignable for it,

and whether it appears excessive in relation to the

alternative purpose assigned [to it]." Thus, if a

particular condition or restriction of pretrial

detention is reasonably related to a legitimate

governmental objective, it does not, without more,

amount to "punishment." Conversely, if a

restriction or condition is not reasonably related to

a legitimate goal--if it is arbitrary or purposeless--

a court permissibly may infer that the purpose of

the governmental action is punishment that may

not constitutionally be inflicted upon detainees qua

detainees.”!

Our conclusion that Graham and Bell indicate the

Supreme Court’s intention that lower courts determine

whether force exerted against a pretrial detainee

constitutes punishment under the Due Process Clause is

consistent with this Court’s decision in Ortega v.

Rowe,** and the Seventh Circuit’s recent

pronouncement in Jitran v. Ackman.”

211d. 441 U.S. at 537-39, 99 S.Ct. at 1873 (internal citations

omitted).

22796 F.2d 765, 767 (5th Cir. 1986) ("Bell first directs us to

the due process clause rather than the Eighth Amendment in

considering claims of pretrial detainees.").

23893 F.2d at 147 ("Did the state punish? ... is the right

question when a captive of the state claims that she has been

attacked by her jailors."). See also, Martin A. Schwartz and

John E. Kirklin, 1 Section 1983 Litigation, § 3.9, at 165-66

(Wiley 1991).

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B. PRETRIAL DETAINEE EXCESSIVE FORCE

STANDARD

In our determination of what standard of due process

applies to claims of excessive use of force brought by

pretrial detainees,we are first guided by Bell. Bell

concerned the constitutionality of conditions or

restrictions of pretrial detention and concluded that the

proper inquiry is whether these conditions amount to

punishment of the detainee. To determine if a

condition or restriction amounts to "punishment," a

court must decide whether the disability is imposed for

the purpose of punishment or whether it is but an

incident of some other legitimate governmental purpose.

Absent proof of an official’s expressed intent to punish,

the determination of whether an alternative purpose to

which the restriction may rationally be connected is

assignable for it, and whether it appears excessive in

relation to the alternative propose assigned to it.

While this inquiry works well for claims of improper

conditions or restrictions, it does not lend itself to

analysis of claims of excessive use of force in

controlling prison disturbances. In Bell, the Court

stated that the government must be able to take steps to

maintain security and that "“[rJestraints that are

reasonably related to the institution’s interest in

maintaining jail security do not, without more,

constitute unconstitutional punishment. . . . "4 Bell

further noted that there is no reason to distinguish

4441 U.S. at 540, 99 S.Ct. at 1874.

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between pretrial detainees and convicted inmates in

reviewing challenged security practices because there is

no basis to conclude that pretrial detainees pose any

lesser security risk that convicted inmates.”°

For these reasons, we conclude that excessive use of

force claims by pretrial detainees should not be

analyzed under Bell’s conditions of confinement

standard. Instead, we are guided by the standard

announced in Whitley and Hudson. While these cases

specifically addressed claims of excessive use of force

brought by convicted prisoners, it is impractical to

draw a line between convicted prisoners and pretrial

detainees for the purpose of maintaining jail security.

Moreover, the Court indicated in Hudson that many of

its concerns in Whitley were not limited to Eighth

Amendment claims but "arise whenever guards use

force to keep order."*° It further observed that claims

based on conditions of confinement are different in

kind.?’

Therefore, when a court is called upon to examine

the amount of force used on a pretrial detainees for the

purpose of institutional security, the appropriate

analysis is that announced in Whitley and Hudson:

whether the measure taken inflicted unnecessary and

wanton pain and suffering depends on "whether force

Id. at 546 n. 28, 99 S.Ct. at 1878 n.28.

% US. at__, 112 S.Ct. at 998.

"Id. _ _ U.S. at ___, 112 S.Ct. at 1000.

Pinar onic iene a items

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was applied in a good faith effort to maintain or restore

discipline, or maliciously and sadistically for the very

purpose of causing harm."**

Often, of course, there will be no evidence of the

detention facility official’s subjective intent, and the

trier of fact must base its determination on objective

factors suggestive of intent.’? The trier of fact would

need to examine "the need for the application of force,"

and the "threat ’reasonable perceived" by the detention

facility official.’"°? When appropriate, the tricr of

fact must reflect in this calculus that the detention

facility official may have had to act quickly and

decisively. The trier of fact should also consider "any

efforts to temper the severity of a forceful

response."*' "[T]he extent of injury suffered by an

Id. «U.S. at__, 112 S.Ct. at 998, citing Whitley, 475

U.S. at 320-21, 106 S.Ct. at 1085.

Our recent decision on remand in Hudson summarized

some of the relevant objective factors:

1. The extent of the injury suffered;

2. The need for the application of force;

3. The relationship between the need and the amount

of force used;

4. The threat reasonably perceived by the responsible

officials; and

5. Any efforts made to temper the severity of the

forceful response.

Hudson v. McMillian, 962 F.2d 522, 523 (Sth Cir.1992).

Hudson, _‘U.S. at __, 112 S.Ct. at 999.

"Id.

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inmate is one factor that may suggest ’whether the use

of force could plausibly have been thought necessary’

in a particular situation, ’or instead evinced such

wantonness with respect to the unjustified infliction of

harm as is tantamount to knowing willingness that it

occur’"*?

Our conclusion that Whitley and Hudson provide the

correct standard for excessive force suits brought by

pretrial detainees means that this Circuit’s test in

Shillingford has no continuing force.’ Neither

Whitley nor Hudson requires that a detention facility

official’s conduct be so excessive and outrageous that

it "shocks the conscience." And it is clear that

Shillingford’s "severe" injury element did not survive

Hudson.

Here the district court found, as to the upstairs

incident, that Wiggins’s use of the choke hold and other

force used to subdue a non-resisting Valencia and

render him temporarily unconscious was unreasonable

and was an excessive use of force. The district court

further found that the force Wiggins inflicted on

Valencia in the drunk tank while Valencia was

handcuffed, kneeling, and non-resisting "was for no

other purpose than to punish him prior to any

327d., citing Whitley, 475 U.S. at 321, 106 S.Ct. at 1085.

3The Seventh Circuit in Titran, 893 F.2d at 147-48,

similarly overruled Gumz v. Morrissette, 772 F.2d 1395 (7th

Cir.1985), its substantive due process standard, which, like

Shillingford, derived from Glick.

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adjudication of wrong doing|,] was clearly excessive

and was not in good faith." The court specifically

found Wiggins’s actions to be "excessive, maliciously

and sadistically applied."

As such, we have no difficulty finding that, in both

the upstairs and downstairs incidents, Wiggins used

force maliciously and sadistically to cause harm, not in

a good-faith effort to maintain or restore discipline.

Neither do we have difficulty deciding that the district

court was not clearly erroneous in finding Wiggins’s

use of force grossly disproportionate to the need for

action and inspired by malice. The district court

credited Valencia’s testimony that he did not resist

Wiggins at any time, either in the cell or in the drunk

tank, and we see no basis for reversing that finding.

The-same is true for the district court determination’s

that Wiggins’s malice is evident from the very

excessiveness of his conduct--this was no "careless or

unwise excess of zeal," as Wiggins now asserts.

es QUALIFIED IMMUNITY.

Qualified immunity shields government officials

performing discretionary functions "from civil damages

liability as long as their actions could reasonably have

been thought consistent with the rights they are alleged

to have violated."** Whether a defendant asserting

qualified immunity may be personally liable turns on

Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct.

3034, 3038, 97 L.Ed.2d 523 (1987).

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the objective reasonableness of the defendant’s actions

assessed in light of clearly established law.”

In this case, Wiggins asserted the defense of

qualified immunity in a motion for summary judgment.

But rather than rule on the motion, the district court

elected to carry it with the case. Then, at close of

trial, the court ruled against Wiggins, stating without

elaboration that "[u]nder the circumstances of this case

Wiggins is not entitled to qualified immunity."

We are not certain whether the district court decided

that Wiggins could not assert a qualified immunity

defense under Shillingford, or that Wiggins was not

entitled to qualified immunity because his behavior was

objectively unreasonable. In support of its ruling, the

district court cited dictum in Stevens v. Corbell,*® to

the effect that "the defense of qualified immunity is

unavailable to a police officer who the plaintiff has

alleged thus used excessive force"*’ Later, in Brown

v. Glossip,® this court interpreted Stevens as

suggesting that the defense of qualified immunity might

not be available to an official accused of employing

excessive force under the Shillingford standard because

5See id., 483 U.S. at 639, 107 S.Ct. at 3038.

*©832 F.2d at 890.

"Id. at 890.

38878 F.2d 871, 873 n. 2 (Sth Cir. 1989). See also Coon v.

Ledbetter, 780 F.2d 1158, 1164 (Sth Cir. 1986)

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Shillingford’s malice prong cannot be reconciled with

the good faith requirement of qualified immunity.

After those decisions were rendered, however, we

concluded that "scienter is not material to qualified

immunity... It is therefore irrelevant whether the

defendants in this case acted with intent to injure as

long as their conduct was objectively reasonable."’’

Wiggins, therefore, is not foreclosed from asserting

qualified immunity. Whether he is entitled immunity

from liability, however, turns on whether his use of

force was objectively reasonable.

The objective reasonableness of Wiggins’ conduct

must be measured with reference to the law as it existed

at the time of the conduct in question.*” The force

which Valencia alleges was applied to him excessively

was used in 1987, at which time Shillingford’s

substantive due process standard was the clearly

established law in this circuit for excessive force claims

brought by pretrial detainees. In Shillingford, as noted

earlier, we held that to maintain an excessive force

claim a plaintiff must prove that the defendant’s actions

"caused severe injuries, was grossly disproportionate of

the need for action under the circumstances and was

*°Pfannstiel v. Marion, 918 F.2d 1178, 1182 (Sth Cir. 1990),

citing Malley v. Briggs, 475, U.S. 335, 341, 106 S.Ct. 1092,

1096, 89 L.Ed.2d 271 (1986) ("an allegation of malice is not

sufficient to defeat immunity if the defendant acted in an

objectively reasonable manner").

“See Harlow v. Fitzgerald, 457 U.S. 800,818-19, 102 S.Ct.

2727, 2738, 73 L.Ed.2d 396 (1982).

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inspired by malice rather than merely careless or

unwise excess of zeal so that it amounted to an abuse of

official power that shocks the conscience...."*'

Wiggins insists that he is immune from liability

because Valencia’s injuries are not sufficiently

"severe," as required by Shillingford. While we

acknowledge that there is case law in this circuit

suggesting that injuries such as those sustained by

Valencia might not constitute "severe" injury under

Shillingford, so too is there case law indicating that

such injuries are indeed "severe." Recitation in

appellate opinions of such subjective determinations as

the relative severity of an injury do not lend themselves

to useful or instructive comparison.”

*'634 F.2d at 265.

“Perhaps this point is best made perhaps by a partial

recapitulation of this court's decisions on the element of injury.

The following cases found injuries to be "severe" under

Shillingford: Shillingford, 634 F.2d at 266 (lacerated forehead,

leaving a scar, sustained when a police officer smashed a camera

with a nightstick while photographer was taking a picture);

Roberts v. Marino, 656 F.2d 1112, 1115 (Sth Cir. 1981)

(multiple bruises and scars to the head and body, resulting from

a severe beating); Hinshaw v. Doffer, 785 F.2d 1260, 1267 (Sth

Cir. 1986) (multiple contusions and lacerations resulting in a two

day hospital stay after a beating by an officer, continuing

occasional numbness in one arm); and Mouille v. Live Oak, 918

F.2d 548, 552 (5th Cir. 1990) (pinched nerve in the leg).

The following cases found injuries to be "significant" under

Morel: Morel, 876 F.2d at 480 (handcuffs causing scars and

resulting in disabling from employment for two weeks); Hay v.

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The trier of fact, in this case the trial judge, found

Valencia’s injuries to be "severe." To the extent we

can productively compare the description of Valencia’s

injuries in the record with the descriptions of injuries

Irving, 892 F.2d 796, 798; (Sth Cir. 1990) (bruises to head and

shoulders, severe bruise to leg, extensive swelling of jaw with

medical testimony that injuries were severe, pinched nerve in the

leg); and Adams v. Hansen, 906 F.2d 192 (Sth Cir. 1990)

(lacerated fingers requiring sutures).

In these cases, injuries were deemed not "severe" under

Shillingford: Raley v. Fraser, 747 F.2d 287, 289 (Sth Cir. 1984)

(bruises on arm, scrapes on face, welts raised by handcuffs,

choke hold with sore throat and hoarse voice for two weeks);

Mark v, Caldwell, 754 F.2d 1260, 1261 (Sth Cir. 1985) (slaps

to the face); Mouille, 918 F.2d at 554 (one plaintiff: transient

fear for the safety of another; another plaintiff: small red mark

and fear for safety of unborn child); Pfannstiel, 918 F.2d at 1185

(one plaintiff: neck strain requiring the wearing of a collar for

about a week; second plaintiff: scratches on arms and hurt

throat from being choked: third plaintiff: aggravation of pre-

existing high blood pressure and marks on wrists from

handcuffs).

In these cases, injuries were found not "significant" under

Morel: Wisniewski v. Kennard, 901 F.2d 1276, 1277 (Sth Cir.

1990) (two punches in the stomach and transient fear when

officer placed his gun in the arrestee’s mouth and threatened to

blow his head off); Wesson v. Oglesby, 910 F.2d 278, 283 (Sth

Cir. 1990) (choke hold causing plaintiff to briefly lose

consciousness); Wise v. Carlson, 902 F.2d 417, 417-28 (Sth

Cir. 1990) (bruises to chest and forearm, hematoma on eyelid);

Mouille, 918 F.2d at 554 (one plaintiff: transient fear for safety

of another; another plaintiff: small red mark and fear for safety

of unborn child).

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A-22

reported in appellate opinions from other excessive

force cases, we conclude that the district court’s

findings of fact here do not markedly deviate from

those in other cases.** Therefore, applying the

"clearly erroneous" standard of review, we refuse to

overturn on appeal the district court’s finding of fact

that Valencia’s injuries were "severe" under

Shillingford.

Hl. CONCLUSION

When, as here, the incidents of arrest have long

since been completed and the pretrial detainee remains

in detention, it is the Due Process Clause that provides

the appropriate constitutional basis for determining

whether a detention official’s use of deliberate force on

such a detainee is excessive.** Neither the

Unreasonable Search and Seizure Clause of the Fourth

43 See cases cited at note 42.

“Precisely when the arrest mode ceases and the pretrial

detainment mode beings remains an unanswered question, albeit

one of increasingly diminishing importance in excessive force

cases given the continued convergence of the various tests under

the Fourth, Eighth, and Fourteenth Amendments _ for

maltreatment of arrestees, detainees or convicted prisoners,

respectively. Under any test, the-instant jailhouse altercations

occurred well after all incidents of Valencia’s arrest had ceased,

so an effort to write a bright line or demarcation between arrest

and detention here would produce obiter dicta at best. We

therefore leave to a future panel the task of addressing that issue

when the appropriate factual setting presents itself.

eo

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Amendment nor the Cruel and Unusual Punishment

Clause of the Eighth Amendment is applicable.

In light of the Supreme Court’s statements in Bell

and Graham that the appropriate question under the

Due Process Clause is whether the detention official’s

use of force was with the intent to punish the pretrial

detainee, and guided by that Court’s recent decisions in

Whitley and Hudson on excessive force claims in the

context of prison disturbances, we hold that this

circuit’s excessive force standard as previously set forth

in Shillingford is no longer the appropriate one for

testing claims of excessive force brought by pretrial

detainees. Henceforth, the question in this circuit for

suits brought by pretrial detainees alleging excessive

use of force in the context of a prison disturbance, is

that stated in Hudson: whether force was applied in a

good-faith effort to maintain or restore discipline or

maliciously and sadistically to cause harm. The focus

of this standard is on the detention facility official’s

subjective intent to punish. But, in determining such

intent, the calculus of the trier of fact must include such

objective factors as the extent of the injuries suffered,

the apparent need for the application of force, the

degree of force exerted, the threats reasonably

perceived by the detention facility official, and the need

to act quickly and decisively.

Here the finding of the district court that the

deliberate force used against Valencia by Wiggins was

excessive and unreasonable under the circumstances,

and was applied maliciously and sadistically, was not

clearly erroneous. As such, the district court did not

’

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err in concluding that Wiggins intended to punish

Valencia--not to restore order or maintain discipline in

the jail. Neither did the district court err in holding

that Wiggins was not entitled to qualified immunity. In

all respects, therefore, the judgment of the district court

is

AFFIRMED.