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4th's Mistake Gives Free Pass to Prison Guard's Excessive Force

By William Peacock, Esq. on August 22, 2013 | Last updated on March 21, 2019

Thanks to the Fourth Circuit's mistake in 1994, Demetrius Hill, who was allegedly assaulted (though not severely injured) by Corrections Officer William Crum, will be unable to bring a Bivens suit, despite a U.S. Supreme Court decision to the contrary.

According to Hill, in 2007, his cellmate broke the sprinkler in his cell. After the cellmate was removed in hand restraints, Hill, also in restraints, was punched in the abdomen and ribs, and was elbowed in the head, by C.O. Crum, who shouted, "Break another sprinkler, I'll break your neck." On the way out of the cell, Crum knocked Hill's head against the gate.

After 17 hours in ambulatory restraints, he was finally released. A medical inspection found no injuries whatsoever, and video footage of Hill and his roommate an hour after the incident also reflected to injuries or impairment.

Norman Meets Wilkins

Nonetheless, Hill brought a Bivens claim, alleging violations of his rights in using the ambulatory restraints, as well as during the alleged beating. The latter is what is at stake here, as the suit was dismissed by the district court. The district court relied upon Norman v. Taylor, which held that more than a de minimis injury was required to prevail in an excessive force claim.

Alas, that 1994 holding was abrogated by the U.S. Supreme Court's holding in Wilkins v. Gaddy. That 2010 case tore apart the Fourth Circuit's long-standing precedent, stating:

Fourth Circuit's strained reading of Hudson is not defensible. This Court's decision did not, as the Fourth Circuit would have it, merely serve to lower the injury threshold for excessive force claims from "significant" to "non-de minimis" -- whatever those ill defined terms might mean. Instead, the Court aimed to shift the "core judicial inquiry" from the extent of the injury to the nature of the force -- specifically, whether it was nontrivial and "was applied ... maliciously and sadistically to cause harm."

Under Wilkins, Hill would have a claim, but there is still the issue of qualified immunity.

Qualified Immunity

Qualified immunity will protect an official's behavior as long as his actions did not violate "clearly established law" at the time of the act. In 2007, when Hill was allegedly beaten, the controlling rule was basically, "don't hurt 'em too badly," or in legal terms, more than de minimis.

Dissent: Beating Restrained Prisoners Was Never OK

In a dissent, Judge Stephanie Thacker cites common sense, as well as the first paragraph of Hudson v. McMillian, to argue against the notion that, as of 2007, excessive force was permissible as long as visible injuries didn't result.

Hudson begins by stating:

This case requires us to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury. We answer that question in the affirmative.

It doesn't get much more clear than that, does it? Judge Thacker argues that 15 years of the Supreme Court's holding in Hudson clearly established the federal law, even if the Fourth Circuit botched its own case in Norman.

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