Claims of official misconduct arising under 42 U.S.C. Section 1983 almost always turn on difficult mixed questions of law and fact. The case of Hope v. Pelzer, 536 U.S. 730 (2002), and the bizarre results on remand to the trial court, illustrate way.
The plaintiff is an inmate. He was tied to a hitching post without water and without an opportunity to relieve himself for seven hours in the hot sun. He brought a claim contending that this treatment amounted to cruel and unusual punishment under the Eighth Amendment. The United States Supreme Court held, as a matter of law, that this treatment was unlawful; such a restraint could be justified only as a means of maintaining control in an emergency.
On remand, the trial court granted the defendants motion for judgment as a matter of law at the close of the plaintiff's case. Why? Judge Karon O. Bowdre of the U.S. District Court for the Northern District of Alabama wrote: "Plaintiff offered no evidence to prove that any of the individual defendants acted with deliberate indifference or were aware of a substantial risk of serious harm," Bowdre wrote. "Merely showing that an Eighth Amendment violation occurred, without more, is not sufficient to impose liability on the defendants in this case." Hope v. Pelzer, No. CV-96-BE-2968-S.
I have not been able to find the complete decision, but if this is core of the court's ruling, a reversal is likely.
Judge Bowdre's writing is far from clear. Her opaque conclusion that one can show an Eighth Amendment violation in the absence of the accompanying mental state simply makes no sense, and it cannot be squared with Hope v. Pelzer. In the Hope case, the Court held that the mere fact of the tethering, without sufficient penological justification, was unlawful per se. Judge Bowdre appears to have missed that part of the Supreme Court's holding.
How could she miss it? I suspect she was thinking in terms of qualified immunity, and not deliberate indifference. Under Harlow v. Fitzgerald, an official is entitled to qualified immunity if his or her conduct does not violate clearly established law or if reasonable police officers could disagree about whether the conduct was unlawful. In the tethering case, there is a powerful argument that the law was not clearly established at the time of the tort -- it took the Supreme Court to say what the law was. This is a quesiton of law. Additionally, because the law was not clearly established, officers could disagree about the lawfulness of the conduct. This is a question of fact.
Odds are Bowdre concluded not that the conduct was permissible, but that the officers were immune because the law was unsettled at the time of their conduct. Then why a reversal of this latest decision?
I expect the appellate court to say that under a standard Eighth Amendment analysis there was no justification -- before Hope or after Hope -- for this episode torn from the pages of Cool Hand Luke. Some acts are sufficiently brazen that it should not take a Court to make the law clear. Tethering a man to a post without justification is just such an act.
