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Use of force during attempted escape of convicted prisoners

The Eighth Amendment controls use of force outside prison walls


In Tennessee v. Garner and Graham v. Connor, the United States Supreme Court established the constitutional standards for law enforcement use of force on free citizens. Garner and Graham involve only the application of the Fourth Amendment and its “objective reasonableness” standard for use of force on free citizens. In adopting an “objective reasonableness” standard, the Court declared that the subjective state of mind or subjective intent of the alleged offending officer was irrelevant to the equation. Instead, the Court ruled that in the future only objective factors relevant to the officer’s conduct would be reviewed.

The Supreme Court ruled in Whitely v. Albers, 475 U.S. 312 (1986) that the Eighth Amendment controls use of force directed at convicted prisoners. In Whitely, the Court ruled that the Eighth Amendment requires more than a review of objective factors pertaining to a particular use of force against a convicted prisoner. In addition to objective factors, the Court ruled that the subjective state of mind (i.e. intent) of the government officials applying force must be evaluated. In this regard, the Court will review whether the applied force was administered in good faith or maliciously and sadistically for the purpose of causing pain and suffering.

Previous articles reviewed the constitutional use of force standards on convicted prisoners and on pretrial detainees. This article reviews how the Eighth Amendment governs the constitutional use of force on convicted prisoners outside the prison environment.

Gravely v. Madden, 142 F.3d 345 (6th Cir. 1998)

Gravely was a convicted prison inmate in the Ohio State prison system. He escaped from a minimum-security farm detail. Madden was an Ohio corrections officer who joined with other law enforcement officers in an attempt to arrest Gravely and return him to prison.

Gravely was located in the home of a friend. Madden covered the back of the home with another corrections officer while other officers entered through the front door. Madden was in street clothes but had his badge displayed. The officer with him in the back was dressed in a corrections uniform with a badge displayed. Both officers drew their handguns at the time of entry by officers in the front.

Gravely exited through the back door onto a porch. Madden saw that Gravely had an object in his hand. He ordered Gravely to freeze and surrender. Instead, he jumped off the porch and ran past both officers. Madden again yelled for him to stop but he ignored them and turned to run. Madden fired a single shot that struck Gravely in the back and killed him. Officers located a butcher knife under Gravely’s leg.

Madden later testified that he did not consider Gravely to be an immediate threat but stated that he had no other way to prevent his escape. He testified that he believed that prison regulations authorized him to use deadly force to apprehend an escaped prisoner.

Madden was sued by Gravely’s family pursuant to 42 USC § 1983. The suit alleged that Madden’s use of deadly force violated the Fourth, Fourteenth and Eighth Amendments. Madden took an appeal from the District Court’s denial of his qualified immunity defense. In refusing to honor Madden’s qualified immunity defense, the District Court applied a Fourth Amendment analysis to this incident as set forth in the Supreme Court case of Tennessee v Garner, 471 U.S. 1 (1985). In Garner, the Supreme Court ruled that deadly force directed toward a free citizen trying to escape arrest by police officers requires probable cause that the suspect posed a significant threat of serious physical harm to the officer or others (a Fourth Amendment objective reasonableness test).

The Sixth Circuit ruled that the District Court applied the wrong constitutional amendment in its decision to rule against Madden. The court ruled that the proper constitutional amendment to be applied in use of force cases involving convicted prisoners is the Eighth Amendment. The court cited the Supreme Court’s decision in Whitley v. Albers, 475 U.S. 312 (1986) as its authority for applying the Eighth Amendment to the shooting of Gravely.

The court pointed out that the Eighth Amendment protects convicted inmates from the infliction of unnecessary and wanton pain and suffering. Moreover, in making that determination in the convicted prisoner context, a court must decide “whether [the] force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”

The court ruled that there was no evidence that Madden fired his weapon maliciously or sadistically for the purpose of inflicting harm upon Gravely. Rather, Madden fired in a good faith attempt to prevent the escape of an armed felon who had twice evaded capture. He fired only after Gravely ignored repeated warnings to stop and surrender. Madden’s conduct did not violate Gravely’s Eighth Amendment right to be free from cruel and unusual punishment.

Estrada v. Smart, (CA No. 20-cv-0549-WJM-STV) U.S.D.C., D. Colorado (1/20/2021)

Estrada was a convicted prisoner in the Sterling Colorado Correctional Facility. He was taken to an out-of-prison pretrial conference at the Logan County Courthouse on 5/30/2018.

He was bound with shackles on his wrists and ankles, connected at his waist to restrict range of motion. Four correctional officers were with him in the courtroom during the conference. The courtroom was located on the second floor of the building. To reach the first floor, one would need to leave the courtroom and travel 90 feet down a hallway to an elevator or staircase. A security guard was stationed at the first-floor exit from the Courthouse.

During the hearing, while still restrained by shackles, Estrada attempted to escape from the courtroom. He rose from a seat in the jury box and took a few steps toward the courtroom door to the hallway. An officer intervened and pushed him to the ground. He got back to his feet and again moved toward the door. Officer Smart drew his firearm and fired at Estrada. The first shot hit Estrada in his midsection. Estrada continued to move toward the door while being pursued by the four officers. Smart fired three more shots, striking Estrada in the chest, hand and arm. Estrada stumbled into the hallway outside the courtroom and collapsed.

Estrada subsequently sued Smart pursuant to 42 USC § 1983 and alleged that he used excessive force in violation of the Eighth Amendment’s cruel and unusual punishment clause. Smart claimed that he was entitled to qualified immunity and moved for dismissal of the complaint. The District Court denied Smart’s motion and explained that an analysis of an excessive force Eighth Amendment claim requires a two-part inquiry: “(1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind.”

The court applied this legal paradigm to its analysis and determined that the shooting of this unarmed inmate who was fully restrained in the manner described “was patently unnecessary to prevent his escape or any harm to the public.” The court explained that [Smart] “should have been on notice that the use of deadly force on an unarmed prisoner restrained in the manner as was Plaintiff would violate Plaintiff’s Eighth Amendment right to be free of the use of excessive force, particularly where, as here, the facts … show that deadly force was not the only way to prevent Plaintiff’s escape.”


Federal courts examining excessive force lawsuits involving use of force by correctional officers against convicted prisoners outside of prison grounds and their immediate confines have chosen to apply Eighth Amendment standards to resolve these claims. In so doing, the courts have made it more difficult for convicted prisoners to prevail in these excessive force lawsuits.

A convicted inmate escapee, for example, must not only prove that the actual force employed was factually inappropriate but also that it was administered intentionally for a malicious and sadistic purpose to cause harm. Proving that an officer possessed the subjective state of mind to inflict punishment is not easy to accomplish.

John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.

Contact Mike Callahan.