Use of force for COs — Reviewing Hudson v. McMillian 10 years later

The use of force by corrections officers is one of the most controversial aspects of the legal authority granted to them and questions have surfaced regarding when the use of force violates a prisoner’s constitutional rights. The United States Supreme Court  determined how claims of excessive force are examined in  Hudson v. McMillian, 503 U.S. 1 (1992).

The Court’s decision held that claims of excessive force must prove that the officer (s) used force maliciously, sadistically, and for the purpose of causing harm. Since the use of force in corrections is an important topic, a ten-year review of the decision’s impact will provide useful information.

The purpose of this article is to analyze the prevailing trends of how the Hudson standard has been applied to adult prisoners’ claims of excessive force in prison. This assessment examined 1,025 published Section 1983 cases decided by the lower courts from 1992 to 2002.   

The Hudson v. McMillian Decision

While serving a twenty-year sentence in the Angola, La. prison in 1983, prisoner Hudson and another prisoner argued over Hudson's washing his clothes in his toilet. Officer McMillian reprimanded Hudson and he began to argue with him.

McMillian and a second officer handcuffed and shackled Hudson and then escorted him to an isolation cell. During the escort they punched and kicked him, although he was complaint. Hudson sustained minor bruises, swelling in the face, mouth and lips, loosened his teeth, and damage to his a partial dental plate. A supervisor observed the beating and instructed the officers "not to have too much fun."

Hudson filed a Section 1983 claim alleging excessive force in violation of his Eighth Amendment right to be free from cruel and unusual punishment. He prevailed in the district court, winning $800. The Fifth Circuit Court of Appeals reversed and Hudson appealed to the United States Supreme Court. 

The Court granted certiorari to determine one issue: Does the use of excessive force by a corrections officer against a prisoner constitute cruel and unusual punishment even if the prisoner does not sustain a significant injury? The Court held that a claim of excessive physical force will be resolved by whether the officer used force in good faith to restore discipline, or maliciously and sadistically to cause harm. Hudson thus indicated that the "malicious and sadistic" standard will be used in all excessive force claims in accordance with the Eighth Amendment. Moreover, the Court posited that  force can exceed contemporary standards of decency in the absence of significant injury.                  

Rejecting the "extent of injury" element ensures that analysis of excessive force claims will focus on the officer’s intent. The Court, however, did stress that not every malevolent touch by a prison officer will rise to a cause of action. The Court emphasized that the extent of a prisoner’s injury is one of several factors courts should consider in prison excessive force cases. These factors include the need for force, the degree of force used in proportion to that need, and the perceived threat to the officer at the time.

The Hudson standard, however, does not outline the threshold that must be reached in order to determine the state of mind of the officer and the Court did not provide criteria from which to scrutinize such complaints. The merits of each case are therefore evaluated individually.

Case Analysis Results and Trends

Using a random sample procedure from an electronic data basis search of 4,010 prisoner excessive force claims, the researcher analyzed 1,025 (26%) published Section 1983 excessive force cases from 1992 to 2002. The sampled Section 1983 cases represent force claims filed only by prisoners confined in adult correctional facilities. Published cases do not represent the total number of cases filed against officer, dropped, or the number settled out of court.

As shown in the table, five categories represent the type of claims commonly filed. Physical force claims account for forty-four percent and include empty-hand control techniques such as control holds, wristlocks, takedowns, pressure points, and hand/leg strikes. The use of restraints, e.g., handcuffs, leg restraints, straight jackets, and four point restraints, comprise thirty-five percent of the claims. Officers using various aerosols, including oleoresin capsicum (pepper spray) and chemical agents, accounted for eleven percent of the claims. The use of batons, TASERS, and stun guns accounted for nine percent of the claims and the use of lethal force comprised one percent (i.e., firearms). Use of force claims involving a combination of the above categories accounted for fifth-eight percent of the cases (excluding firearms).

Trends in Excessive Force Claims by Category Type: 1992-2002
Number  Percent Prisoner  Correction Official
Category Type       Studied (%)        % Prevailed (n)       % Prevailed (n)
Physical force         455 (44)              20 (90)                 80 (365)

Restraints                355 (35)              19 (77)                78 (278)

Aerosols                  110 (11)             26 (26)                 76 (84)

Force Devices          100 (9)               22 (22)                 78 (78)   

Lethal force                  5 (1)                  0                        100 (5)

Total Number         1,025 (100)         21 (215)               79 (810)
The analysis reveals that corrections officers prevailed in every litigated category-type and overall by approximately a four-to-one ratio, or seventy-nine percent (n=810). Corrections officers prevailed in eighty percent of the physical force cases and one hundred percent when using lethal force. When prisoners prevailed, rarely did the court publish a monetary award and therefore monetary damages trends are not reported.

Case analysis also revealed four plaintiffs’ allegation levels in asserting an excessive force claim. The first level alleged that the responding officer(s) over-reacted by using the degree of force he or she employed. Claims at this level generally asserted that the office recklessly misused physical control techniques and or force equipment, and failed to follow their training and department’s force policy.

A frequent secondary claim alleged that the plaintiff suffered some type of injury as a result of the excessive force and timely and adequate medical care was denied or delayed. The third claim level asserted that supervisors have failed to train, supervise, and direct officers in the constitutional limits of force and have failed to keep officers proficient in force tactics and equipment.

The final level of allegations normally claimed that supervisory personnel failed to investigate excessive force claims and failed to discipline officers, thereby tolerating a "pattern and practice" of excessive force.

Concluding Observations

The Hudson ruling and the lower federal courts’ application of the standard underscores that the excessive force claims will be evaluated in accordance with the Eighth Amendment. The standard requires a determination of whether the officer used force in good faith rather than maliciously or sadistically for causing harm. 

Severe or significant injury need not occur for a valid excessive claim to exist. Factors to consider may include: the need to use force, the perceived threat to the officer or others at the time, the prisoner’s possession or access to a weapon, and the reaction time of the officer with which to make such a decision.

During the study period corrections officials prevailed at a ratio of four-to-one.  In those decisions where prisoners did prevail, the courts held force was applied in a sadistic manner. Whiles some courts require proof of injury, corrections officers should not rely on such a requirement to avert liability. Case analysis revealed that courts are inclined to rule favorably for a prisoner when it is determined that the officer used force indiscriminately, in retaliation, as a form of punishment, and/or knowingly subjected the prisoner to a substantial risk of harm with no legitimate penological objective. 
Accordingly, corrections officers should continue to adhere to court guidelines and their department’s policy when deciding to use a physical control technique, use of force equipment, or firearm. Civil liability will most assuredly attach in cases where an officer has used force as a form of punishment, or for revenge. Officers should be knowledgeable of their agency’s policy and exhibit competency in employing physical techniques, force equipment, restraints, and firearms. After a use of force incident, prisoners should receive medical attention/examination as the need arises. A use of force report should also be submitted documenting officers' participation in using force.

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