Crime & Federalism

Hope v. Pelzer at Trial

I.  Hope v. Pelzer's Background. (Skip to Part II if you're familiar with the case.)
Under 42 U.S.C. 1983, a state actor is liable for violating the rights of others.  Prisoners in state prison have the right under the Eighth and Fourteenth Amendment to be free from "cruel and unusual punishment."  In Hope v. Pelzer (here) Larry Hope sued under Section 1983 after prison guards allegedly handcuffed his arms to a metal bar.  His arms were cuffed above shoulder level.  They had made him take off his shirt, and left him in the Alabama sun for seven hours.  They denied him bathroom breaks, and when he asked for water, they mocked him.  They then gave some water to the dogs, and kicked over the water cooler.

In Section 1983 actions, government officials can assert the qualified immunity defense.  In sum, they won't be held liable even if they violate someone's constitutional rights, if the person's constitutional rights were clearly established.  The prison guards argued that the right to not be left in the Alabama sun without water for over seven hours, while perhaps being cruel and unusual punishment, wasn't something a prison guard would have known was cruel and unusual.  In other words, pehaps taking a low view of what prison guards are expected to know, they argued that prison guards would have thought they behaved just fine.

The Supreme Court rejected that view in a 6-3 opinion; Larry Hope's case could go to trial.  Mr. Hope's lawyers tried his case before a judge instead of a jury.  After Hope's lawyers finished their arguments, the judge dismissed the case, writing that Hope's case failed as a matter of law.  (Called a "Rule 50 order" after Rule 50 of the Federal Rules of Civil Procedure; the judge's order dismissing the case is here.  You can read Scott Simonson's excellent article about the case here.)

II.  The trial court's order.
Either the judge or her law clerk didn't fully understand the law, and wrote a confused order.  The judge wrote:

To prevail on an Eighth Amendment challenge, a prisoner must satisfy both an objective and subjective test. Chandler v. Crosby, [here] 379 F.3d 1278, 1289-90 (11th Cir. 2004). Under the objective analysis, the "prisoner must prove that the condition he complains of is sufficiently serious to violate the Eighth Amendment." Id. at 1289. Pursuant to the subjective analysis, the prisoner must show that the prison officials acted with "deliberate indifference" with regard to the condition at issue. Id. A prison official acts with "deliberate indifference" when he is "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Id. at 1290.

Rule 50 order.  This is a clumsy way of writing things, and someone unfamiliar with this area of law would justifiably be a little confused.  But it would be good enough, if didn't get so murky later on:

Although the use of the restraining bar in this case constituted cruel and unusual punishment, as found by the Supreme Court in Hope v. Pelzer, 536 U.S. 730, 737-78 (2002), Plaintiff failed to meet his burden of proof as to the individual liability of the three named defendants. Specifically, 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. Merely showing that an Eighth Amendment violation occurred, without more, is not sufficient to impose liability on the defendants in this case.

Id. at 1-2 (emphasis added).  Yet "showing an Eighth Amendment violation occurred," by definition, means that the the plaintiff proved deliberate indifference.  Thus, so best as I can tell, here is what the judge was trying to say:

To prevail in this case, Plaintiff must prove that the condition he complains of constitutes cruel and unusual punishment forbidden by the Eighth Amendment.  He must also show that the defendants acted with deliberate indifference with regard to the condition at issue.  A prison official acts with deliberate indifference when he, through more than mere negligence, has a (1) subjective knowledge of a risk of serious harm; and (2) he disregards that risk.

In other words, something cruel and unusual must have happened to the prisoner.  Cruel and unusual pulishment includes "[t]he unnecessary and wanton infliction of pain," Whitley v. Albers, (here), which are painful things guards to do prisoners "that are totally without penological justification." Rhodes v. Chapman (here).  The Supreme Court noted that, as a matter of law, what happened to Hope was cruel and unusual punishment.

Second, the cruel and unusual punishment must have resulted from a prison guard's deliberate indifference.  In other words, when the prisoner says, "Hey, in case you forgot, I've been in the sun for 7 hours.  This is Alabama.  I haven't had any water.  I'm could get heat stroke," the guards must think: "Who cares?"  That is, they are indifferent, not because they don't know, or because they're absent-minded professors, but because they do know and don't care.  In legalese, here is how the Eleventh Circuit (the law that the trial judge was bound to apply), defines deliberate indifference:

[D]eliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.

Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003).  The prison guards were more than "mere[ly] negligence," since they actually handcuffed the guy to the hitching post.  So much for the third factor.  Thus, the issue before the trial court was this: Did the prison guards have "(1) [a] subjective knowledge of a risk of serious harm," and did they "(2) disregard ... that risk"?

Since deliberate indifference is basically an evil intent, the plaintiff can prove this using circumstantial evidence: the act itself can prove the mental state.  That is, if the act itself is so dangerous or evil, the court can infer that the person doing the act intended to harm the person.  If someone hits you with a baseball bat in the head, the court can infer that the person intended to harm you, since people don't hit others in the head with baseball bats unless they want to harm someone.  Thus, the Supreme Court wrote in Hope v. Pelzer: "We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious." 

Is leaving someone outside with his arms handcuffed to a metal pole, and denying him water and bahtroom breaks obviously harmful?  Does taunting someone who is begging for water wanton and cruel?  To use a legal term of art: Well, duh.

Yet here the judge 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."  Order at 2.  This can't be true.  The plaintiff offered "evidence to prove that ... the individual defendants acted with deliberate indifference," by offering evidence that the guards handcuffed him to the hitching post.  Here, offering evidence of the underlying act, by definition, meant offering evidence of the defendant's mental state.

Unfortunately, given the way standards of review work, the plaintiff here might well lose his appeal.  Then again, a trial court's incorrectly applying the law is subject to de novo review.  (That, is the appellate court won't defer to the trial court.)  The judge's Rule 50 Order is sufficiently confused that perhaps the plaintiff's lawyer can show that the judge reached her conclusion after misapplying the law.

Notice, Deliberate Indifference, and Supervisory Liability

Davis v. City of North Richland Hills, No. 04-10036 (5th Cir. Apr. 11, 2005) (via AL&P) is a significant section 1983 decision.  If the Court does not grant certiorari and reverse, Richland Hills will spell the end of supervisory liability in the Fifth Circuit.

While executing a no-knock warrant, Allen Hill shot Troy Davis within two seconds of entering Mr. Davis' home.  According the Davis' Estate, which brought a section 1983 action against Hill and his supervisors, Mr. Davis was unarmed and standing with this arms out, indicating that he would willingly surrender. 

The suit alleged that Allen Hill's supervisors were on notice that he was a violent and degenerate man who should never have been trusted to execute a no-knock warrant.  In allowing Hill to execute a warrant that would require discretion and care, the Hill's supervisors were deliberately indifferent to the rights of Mr. Hill.

The uncontradicted evidence regarding Allen Hill's conduct included:

(1) testimony [regarding SWAT team training exercises] from Ann Shelton, a former NRHPD SWAT team member, indicating that Shockley and Wallace knew or should have known that Hill was likely to fire his weapon inappropriately or illegally;
(2) Shelton’s testimony that prior to the shooting of Troy Davis, when Hill intentionally exposed himself during the snapping of a team photograph at SWAT training exercise . . . Shockley and Wallace failed to take adequate disciplinary action against Hill . . .;
(3) evidence that Hill frequently exposed himself to other members of the NRHPD and, as a result, had acquired the nickname “Penie”;
(4) evidence in Hill’s background investigation showing Hill had a propensity for violence; [and]
(5) testimony that Shockley and Wallace failed to take any action after receiving a complaint from Randy Cole, a citizen who had been pulled over by Hill for a traffic violation prior to the shooting death of Troy Davis, [in the course of which Cole claimed to Shockley and Wallace that] Hill was a "rogue" cop, behaved "like a psycho" and was "going to kill somebody"

Slip op. at 11-12.  Despite this evidence, the panel held that Hill's supervisors were not deliberately indifferent to the rights of others when they allowed Hill to execute sensitive missions.  Id. at *12 ("Even accepted as true and taken as a whole, the above evidence is legally insufficient ... to support a finding of deliberate indifference.")  The panel wrote that "[p]rior indications cannot simply be for any and all 'bad' or unwise acts, but rather must point to the specific violation in question."  Id. at *14.  Thus,

while Hill’s over-“exposed” photography stunt and his earned nickname collectively demonstrate lack of judgment, crudity, and, perhaps illegalities, they do not point to past use of excessive force. Similarly, the traffic stop, while perhaps improper in its own right, did not involve excessive force with a deadly weapon resulting in harm to a citizen in a context similar to the present case.

Id. at *15 (emphasis added).  The court cited favorably an earlier decision, where the Fifth Circuit held that "a habit of displaying a firearm during traffic stops does not constitute a relevant pattern with respect to using deadly force during a traffic stop."  Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).  In sum, a supervisor is on notice that his subordinate has a tendancy to violate the rights of others only if the prior rights violations were identical to the ones allged in a supervisory suit. 

For example, a supervisor would be liable under a failure to train or supervise suit against his subordinate police officer who shoots a motorists only if the officer had previously shot a motorist.  If the officer had previously "merely" pointed his gun or threatened motorists, then the supervisor would not be on notice that the officer might someday actually shoot someone.  Does that sound like a proper notice analysis?

Imagine a company, sued under a negligent hiring claim, argued that they weren't on notice that an employee might go postal because the employee's prior conviction was for armed robbery with a knife.  Would any court hold that the company wasn't on notice that the employee might use a firearm when going postal?

If this notice discussion sounds familiar, that's because it is, and thus, Hope v. Pelzer is instructive.  In Pelzer, Alabama prison guards tied a prisoner's hands to a hitching post, where he was hung for nearly eight hours.  The guards mocked the prisoner as he moaned in pain.  They denied him a restroom break.  When the prisoner requested water, the guards laughed and poured a ladle of water on the guard dogs near the prisoner's feet.

The guards argued that they were entitled to qualified immunity, since no case held that it was cruel and unusual punishment to treat a prisoner in this way.  In other words, there was no notice that this conduct was unconstitutional.  A 6-3 Court rejected this argument, and noted that a state actor can be denied qualified immunity in even novel fact situations where the "obvious cruelty inherent in [a] practice" put the actors on "some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment." 

The Fifth Circuit should have employed a similar analysis and held that for purposes of deliberate indifference, a supervisor is on notice of a subordinates potential to engage in rights violations when the subordinate has shown a reckless disregard for civil rights in related contexts.  That is, evidence of prior rights violations and indiscrete or illegal behavior puts the supervisor on notice that his or her subordinate is likely to violate rights in other contexts.

This case has cert.-worthy written all over it.  Like Hope v. Pelzer, it involves an issue of broad application, namely, whether a supervisor is on notice that his subordinate is likely to violate the rights of others. I don't know for sure, but I suspect there is a circuit split on this issue of how similar prior conduct must be before a supervisor is on notice that his subordinate might unreasonably use deadly force.

Deliberate Indifference

Does Harris County, Texas have a policy or custom in place that shows deliberate indifference for a citizen's constitutional rights? You decide.

Landscape contractor Blair Davis was in his northwest Harris County home around 2 p.m. Tuesday when there was a knock at his door.

Davis said he hadn't even gotten his hand on the doorknob when it flew open and he was looking at the barrel of a pistol.

Behind the gun were about 10 members of the Harris County Organized Crime and Narcotics Task Force, who burst into the home, guns drawn, and began shouting at him to get down on the floor.

There on the floor, Davis said, it took a while to figure out that what had caused the swarm of lawmen to descend upon him was the hibiscus in his front yard.

That's right, hibiscus.
***
Evidently, some well-meaning but horticulturally challenged citizen turned Davis in. Davis said the team of narcotics officers combed his house for about an hour, at one point discussing whether red and gold bamboo growing in his window might be marijuana. They also asked what he did with the watermelons and cantaloupes growing in his back yard.

"What would I do with them?" Davis said.

Finally the officers gave up and left, leaving Davis only a "citizen's information card" with "closed-report" written on it.

"No apology, no nothing," Davis said. "I realize they have a job to do, but this seems a little bizarre."

CrimLaw shows us the difference between a hibiscus and marijuana plant here.