Excessive force claim can go forward

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Suppose deputies use excessive force against a client after the judge finds him in contempt of court or he is convicted of a crime. Should you sue the deputies under the Eighth Amendment or the Fourth Amendment?

Both, according to a Jan. 7 opinion by the Seventh Circuit. You can’t prevail on both, but until the facts are sorted out, either may apply.

In 1997, Jack Richman was in an Illinois state court with his mother, who was fighting a traffic ticket. Richman was 34 years old; 6 feet, 2 inches; and weighed 489 pounds.

At 4 p.m., after the judge continued the case to the next day, the Richmans protested, and Richman was found in contempt of court. When Richman refused to leave the courtroom peaceably, the judge raised his sentence for contempt in stages until it ultimately totaled 120 days.

When the two deputies tried to remove Richman forcibly, he clung to the podium and they could not dislodge him. Additional deputies entered the courtroom and tried to seize Richman.

The deputies eventually managed to drag him from the podium to the floor, where he lay prone, his face down, but continuing to struggle with the deputies, who ultimately handcuffed him. Richman died in the courtroom of “restraint hypoxia,” from having officers sitting on his back while trying to restrain him.

On Richman’s behalf, his mother sued 18 deputy sheriffs for excessive force in federal court, and in an earlier appeal, the Seventh Circuit held that the deputies were not entitled to absolute immunity, even though they were carrying out the judge’s order to remove Richman from the courtroom. 270 F.3d 430 (7th Cir. 2001).

On remand, the district court ruled that the deputies were immune from suit on the Fourth Amendment claim, but not from the Eighth Amendment claim.

The deputies appealed, and the Seventh Circuit affirmed in part, and reversed in part, in a decision by Judge Richard A. Posner, holding that both claims could go forward.

Eighth Amendment

The court began by considering the Eighth Amendment claim -– that the deputies’ actions constituted punishment of Richman for his contempt of court.

The court noted that not every infliction of excessive force by officers after a person has been convicted or found in contempt qualifies as cruel and unusual punishment.

The court stated the relevant inquiry as follows: “Employing excessive force to arrest or otherwise seize a convicted defendant is in the ambiguous category; it may be punishment, but it may not be; so proof of purpose, and not merely of the practice (such as imprisonment pursuant to a judicial sentence), is required.”

The purpose a plaintiff must show is that the officers acted “maliciously and sadistically for the purpose of causing harm.”

In this case, the plaintiff presented evidence of “bad blood” between Richman and the deputies: Richman had disrupted public meetings on mosquito spraying in the City of Skokie, and had even been sued by a deputy in an effort to bar him from attending city meetings.

The court thus concluded that a jury could infer from the combination of the prior hostilities, and the level of force used, that the deputies were trying to punish him, and not merely arrest him. As a result, the Eighth Amendment claim is viable, and should go to the jury.

Fourth Amendment

Turning to the interaction between the Eighth and Fourth Amendments generally, the court wrote, “If you are beaten to a pulp before you are convicted, your remedy is under the Fourth Amendment; after, under the Eighth Amendment. But when as in this case it is uncertain whether the act complained of is punishment, deciding which remedy is available must wait upon the determination of the facts.”

Addressing the specific facts, the court wrote, “If the officers were removing Jack Richman from the courtroom because he refused to leave under his own steam, the Fourth Amendment governs; if they were punishing him for his contempt of court (an inference for which there is some evidence…), the Eighth.”

The court found two facts critical to the Fourth Amendment claim: Richman’s extreme obesity; and the lack of urgency in removing him from the courtroom.

Because court was over for the day, and a reasonably trained officer would know that compressing the lungs of a morbidly obese person can kill him, the court concluded there was no reason to endanger Richman’s life in order to remove him from the courtroom.

Accordingly, the court held that the officers were not immune from the Fourth Amendment claim either.

The defendants argued that the cause of Richman’s death was not the force used against him, but his preexisting vulnerability. However, the court rejected the argument under the “eggshell skull” rule –- a tortfeasor takes his victim as he finds him.

Although Richman did not have a normal life expectancy, the force used against him accelerated his death, so his infirmities are relevant only to the question of damages, not liability.

The defendants further argued that Richman failed to correlate the actions of specific deputies with specific harm, but the court concluded that the acts of individual deputies and their effect on Richman are factual questions to be explored on remand.

Accordingly, the court reversed the grant of immunity on Fourth Amendment grounds, and affirmed the denial of immunity on Eighth Amendment grounds.

Analysis

The lesson for plaintiffs’ attorneys, considering whom to sue in cases such as this, and under what theory, is to “throw it all against the wall and see what sticks.”

That expression is generally intended to disparage a plaintiff’s legal approach, but, in this case, the court’s analysis approves it, and trying to limit one’s theories could be fatal to the claim, if the ultimate facts at trial don’t fit the chosen theory.

Consider the case of Williams v. Rodriguez, — F.3d –, 2007 WL 4258679 (7th Cir., Dec. 6, 2007). The plaintiff was arrested for suspicion of drunk driving, when he was actually not drunk, but suffering an asthma attack; for four or five hours, he was denied access to his inhaler.

The plaintiff sued under the Fourth, Eighth, and Fourteenth Amendment, but failed to preserve his Fourth Amendment claim for appeal. That failure was fatal to his deliberate indifference claim.

It is black letter law that the Eighth Amendment applies only after conviction; the Fourteenth only after a judicial determination of probable clause. Because there had been neither a conviction, nor a probable cause determination, the plaintiff’s only viable claim was under the Fourth Amendment, but he waived that one.

In the case of a plaintiff injured by deputies after conviction or contempt, drawing a line between which Amendment will apply is far more complex than in Williams.

The Eighth Amendment applies only if the plaintiff can prove malicious intent; otherwise the Fourth Amendment governs, and the plaintiff need only show hat the officers actions were objectively unreasonable under the circumstances.

Until trial, however, one can’t be sure which way the facts will wind up; so, the only prudent course is to pursue and preserve both theories
of liability.