Seventh Circuit highlights difference between 8th, 14th Amendments

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A recent Seventh Circuit case highlights, once again, the importance of keeping constitutional rights straight when claiming that a defendant used excessive force.

The court vacated a grant of summary judgment in the defendants’ favor. But the case would have been even easier if the plaintiff had properly sued under the Fourteenth Amendment, rather than the Eighth.

Darryl Lewis was a federal prisoner in Illinois. He had been convicted of being a felon in possession of a firearm, but had not been sentenced.

Lewis went on a hunger strike, and at one point was ordered by guards to get up from his bed after he scattered a bottle of pills on the floor of his cell.

According to Lewis’ allegations he was too weak and sick to get up, but before he could explain, and without warning, a guard shot him in the leg with a taser gun (The guards dispute these facts, but for purposes of reviewing a summary judgment motion, the court assumed them to be true).

Lewis sued, alleging that shooting him with the taser gun violated his Eighth Amendment right to be free from cruel and unusual punishment.

The district court granted summary judgment in favor of the guards. But the Seventh Circuit reversed, in an opinion by Judge Michael S. Kanne.

Before discussing the merits, the court explained the difference between excessive force claims under the Eighth and Fourteenth Amendments, and why the distinction is important.

The Eighth Amendment protects prisoners who have been convicted and sentenced from cruel and unusual punishment. The Fourteenth Amendment protects pre-trial detainees.

In some cases, such as deliberate indifference to medical needs, the burden of proof is the same. But the court noted that, for excessive force claims, the Fourteenth Amendment provides broader protection, because it prohibits all “punishment,” not just punishment that is “cruel and unusual.”

Lewis did not fit neatly into either the category of a convicted and sentenced prisoner or a pre-trial detainee presumed innocent; he had been convicted but had not yet been sentenced. However, in Graham v. Connor, 490 U.S. 386 (1989), the U.S. Supreme Court held that the Eighth Amendment does not begin to apply “until after conviction and sentence.”

Thus, the court found that Lewis should have brought his claim under the Fourteenth Amendment. Despite that, it analyzed the claim under the Eighth Amendment only, stating, “we will not consider any safeguards the Fourteenth Amendment provides beyond those it shares with the Eighth Amendment. Lewis has argued only for these more limited protections.”

The court acknowledged that use of a taser gun in a jail setting may be appropriate, and under the Eighth Amendment its use would only be unlawful if it involved the “unnecessary and wanton infliction of pain.”

The court reviewed several cases where the use of a taser gun did not violate the Eighth Amendment, because the prisoner was violent, aggressive, or presented an immediate risk of danger.

Here, however, according to Lewis, it was used on him without warning, without violent or aggressive activity on his part, and without opportunity to comply with the guard’s order.

If true, the court concluded, this would clearly run afoul of the Eighth Amendment.

Analysis

The failure of plaintiffs to allege the applicable constitutional provisions is a problem that continues to recur with regularity.

In Williams v. Rodriguez, 509 F.3d 392 (7th Cir. 2007), the plaintiff was an asthmatic who was arrested under suspicion of driving while intoxicated. He alleged that the officers were deliberately indifferent to his medical needs.

He sued under both the Eighth Amendment and Fourteenth Amendment, but not the Fourth, a fatal mistake. The Seventh Circuit noted that the Eighth Amendment applies only after conviction and sentence, and the Fourteenth Amendment applies only to pretrial detainees who have received a judicial determination of probable cause.

The claims of pretrial detainees who have yet to receive a determination of probable cause are governed by the Fourth Amendment. Because the plaintiff failed to argue his deliberate indifference claim under the Fourth Amendment, the court held that he waived it.

In Richman v. Sheahan, 512 F.3d 876 (7th Cir. 2008), the plaintiff died resisting arrest after a court found him in contempt and ordered court officers to arrest him.

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. … 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…. the Eighth.”

In Richman’s case, a jury finding was required to determine which constitutional right was violated, and his attorney necessarily had to cover all options by alleging a violation of both the Eighth and Fourth Amendment.

In Williams’ case, only the Fourth applied – the one he failed to assert.

In the case at bar, the plaintiff’s decision to sue under the Eighth Amendment, rather than the Fourteenth, means he will have a higher burden of proof on remand to the district court (unless the court permits him to amend his pleadings).

Thus, despite the longstanding rule that plaintiffs need not allege facts or legal theories in their complaints to survive a motion to dismiss, the failure to allege the appropriate legal theories in civil rights cases regularly causes big problems at the summary judgment stage.