Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 7350-Joan B. Gottschall, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge
Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE, Circuit Judges.
Eighteen deputy sheriffs of Cook County, sued under 42 U.S.C. § 1983 for violating the federal constitutional rights of the plaintiff, and of her son who died resisting arrest, appeal from the denial of their motion for summary judgment on grounds of official immunity. The district judge ruled that they had immunity from the Fourth Amendment claim on the son's behalf, but not from the Eighth Amendment claim (which is solely on behalf of the son) or from the Fourth Amendment claim on the plaintiff's own behalf.
The case, before us for the second time, is very old. We ruled the first time that the defendants were not entitled to the absolute immunity from tort suits that judges enjoy, merely because they committed the alleged torts in the course of carrying out the judge's order to remove the plaintiff's son from the courtroom. 270 F.3d 430 (7th Cir. 2001). The judge did not order them to commit a tort, and, even if he had done so, to clothe them with judicial immunity would be as absurd as ruling that the judge would have been immune from liability had he brained the plaintiff's son with his gavel. But the defendants may be entitled to qualified immunity; let us see.
The event giving rise to the suit occurred in Skokie in 1997 when the plaintiff, an elderly woman who walks with a cane, and her son, Jack Richman, a grossly obese 34 year old-6 feet 2 inches and weighing 489 pounds- who also walked with a cane, were waiting in the courtroom of an Illinois state court for her case (she was fighting a traffic ticket) to be called. At 4 p.m., the end of the court day, the judge told the Richmans that he was continuing the case to the next day. Both Richmans were irate, and protested vigorously. The judge listened to them for a while and then told them to be quiet, on pain of being held in contempt of court. When Jack Richman continued protesting, the judge pushed the panic button on his bench to summon deputy sheriffs, who provide security in the court; there were none in the courtroom at the time. Two of the deputies responded. The judge told Richman to leave the court with them. He refused, and the judge declared him in contempt, ordered the deputies to arrest Richman, and, with Richman continuing to refuse to leave peaceably, jacked up his jail sentence for contempt, in stages, until it reached 120 days.
But when the two deputies tried to remove Richman forcibly, he clung to the podium and they could not dislodge him. Additional deputies-the other defendants in this case-now entered the courtroom and tried to seize Richman. Mrs. Richman began screaming and waving her cane. Three female deputies dragged her out of the courtroom and took her cane away. She tried to re-enter but was blocked by another deputy. The three female deputies thrust her into a wheelchair and wheeled her down the hall to another courtroom, where they detained her briefly.
Back in the courtroom the struggle between the deputies and Jack Richman continued for a few minutes until the deputies managed to drag him from the podium to the floor, where he lay prone, his face down, but continued to struggle with what by now was a swarm of deputies. They tried to handcuff him and eventually succeeded. By then, several of them were on Richman's back. (Meanwhile the judge had left the courtroom.) Richman screamed that he couldn't breathe. Then he fell quiet and the deputies noticed that he had urinated and defecated and that his skin had turned blue. He was dead.
The autopsy report stated that he had died as a result of coronary artery disease to which "restraint hypoxia," or, as more commonly termed, "positional asphyxia," due to his morbid obesity had contributed. Hypoxia means a shortage of oxygen in the blood, a condition that people typically experience at high altitudes, where the air is thin. But it can also be induced by compressing the lungs, which the weight of several persons on one's back can do. So police are warned not to sit on the back of a person they are trying to restrain, especially if he is obese. National Law Enforcement Technology Center, "Positional Asphyxia- Sudden Death" (U.S. Dept. of Justice, Office of Justice Programs, June 1995); Chicago Police Department, Training Bulletin: Positional Asphyxia (Feb. 1995), www.chicagoreporter.com/index.php/c/Web_Extras/ d/ Chicago_Police_Training_Bulletin_on_Positional_Asphyxia (visited Dec. 5, 2007); see LeBlanc v. City of Los Angeles, 2006 WL 4752614, *13 (C.D. Cal. 2006); Reindl v. City of Leavenworth, 443 F. Supp. 2d 1222, 1232-33 (D. Kan. 2006); Ashworth v. Round Lake Beach Police Department, 2005 WL 1785314, at *4-*6 (N.D. Ill. 2005) (and cases cited in id. at *6). For the obese are especially susceptible to hypoxia, and shortage of oxygen can and apparently in this case did precipitate a fatal heart attack. American Medical Association, Complete Medical Encyclopedia 913 (Jerrold B. Leikin & Martin S. Lipsky eds. 2003); Ronald L. O'Halloran & Janice G. Frank, "Asphyxial Death During Prone Restraint Revisited," 21 Am. J. of Forensic Medicine & Pathology 39, 49 (2000); Derrick Ounder, "Acute Excited States and Sudden Death: Death After Restraint Can Be Avoided," 316 British Medical J. 1171 (1998).
The theory behind the Eighth Amendment claim is that the deputies were punishing Richman for his contempt of court. Of that the main evidence is merely that the judge had held him in contempt before they swarmed on him. So the claim comes perilously close to the erroneous proposition that any infliction of excessive force by public officers on a person after he has been convicted is "punishment" and therefore, not conforming to the regular, prescribed procedures for imposing punishment (and thus "unusual"), and being severe (and thus "cruel"), violates the Eighth Amendment.
It is one thing if officers escorting a newly convicted defendant gratuitously beat him en route, thus adding to the punishment to which he has been sentenced. Cf. Valdes v. Crosby, 450 F.3d 1231, 1237-39 (11th Cir. 2006). But suppose an escaped prisoner is caught and in subduing him the officers use excessive force. Is that punishment? Or suppose that Richman had left the court quietly in company with the deputies after the judge sentenced him to jail but en route had broken away from the deputies and they seized him. Even if they used excessive force, it would be odd to describe what they did as the imposition of "punishment." There have to be grounds for an inference "that the purpose of the governmental action [complained of] is punishment." Bell v. Wolfish, 441 U.S. 520, 538 (1979).
Analysis is complicated by the fact that purpose to punish is not required when the prisoner's Eighth Amendment complaint is of severe neglect, as when a prison fails to provide a prisoner with essential medical care or to protect him against the violence of other prisoners. Wilson v. Seiter, 501 U.S. 294, 296-302 (1991). In such cases the test is deliberate indifference to the prisoner's welfare, rather than a punitive purpose. Id. at 296-97; Estelle v. Gamble, 429 U.S. 97, 104 (1976). That may seem a looser standard than when a punitive purpose is alleged. But it is not; often it demands more proof by the plaintiff. If a criminal defendant is sentenced to be stretched on the rack, no state of mind need be proved to establish the violation of the Eighth Amendment. It is only when the classification of an act as punishment is ambiguous that state of mind must be proved, in order to disambiguate the act. Cf. Bell v. Wolfish, supra, 441 U.S. at 535. Employing excessive force to arrest or otherwise seize a convicted defendant is in the ambiguous category; it may be punishment, but it may not be; so proof of purpose, and not merely of the practice (such as imprisonment pursuant to a judicial sentence), is required. The plaintiff in such a case "must establish that prison officials acted wantonly or, stated another way 'maliciously and sadistically for the very purpose of causing harm.' " Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005), quoting Wilson v. Seiter, supra, 501 U.S. at 296. Or as we put it in Hill v. Shelander, 992 F.2d 714, 718 (7th Cir. 1993), the "test in eighth amendment excessive force cases . . . [is] whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." We found in that case that the plaintiff had "produced evidence going beyond only the amount of force applied by [the defendant,] . . . evidence from which a finder of fact could infer that [the defendant had] applied force with the intent to punish." Id. at 717.
There is some evidence of this kind in the present case-evidence of bad blood between Richman and the Skokie deputy sheriffs arising from his having been a vociferous public opponent-once in the very same courthouse-of mosquito spraying in Skokie. He had disrupted at least one public meeting on the issue and been sued-by a deputy sheriff, no less-in an effort to bar him from attending future meetings. The deputies' hostility to Richman, combined with the brutality with which they treated him on the fatal day, could (if just barely) allow a jury to infer that they were trying to punish him, and not merely trying to arrest him, when after pulling him down from the podium they piled on top of him. Cf. Ayers v. Coughlin, 780 F.2d 205, 209-10 (2d Cir. 1985); Sharp v. Kelsey, 918 F. Supp. 1115 (W.D. Mich. 1996). If so, they violated the Eighth Amendment, and because the unlawfulness of such conduct under the Eighth Amendment was clearly established when they acted, they had, as we held in Hill v. Shelander, supra, 992 F.2d at 718, no defense of immunity. See also Martinez v. Stanford, 323 F.3d 1178, 1183-84 (9th Cir. 2003); Skrtich v. Thornton, 280 F.3d 1295, 1301, 1303-05 (11th Cir. 2002).
The plaintiff's brief mentions the Fourth Amendment only in passing, but does make clear that she continues to believe, despite the district court's contrary ruling, that she has, both on her own and on her son's behalf, a valid claim under that amendment. We do not treat the insouciance in her brief as a waiver or forfeiture of the Fourth Amendment claims. Neither party seems to think it makes a difference which amendment the sufficiency of the plaintiff's claims is tested under. That is wrong, as we are about to see, but inconsequential, because, although never mentioning the Fourth Amendment, the defendants argue at great length that they did not use excessive force in trying to ...