Johnsonv.

Glick

United States Court of Appeals, Second CircuitJun 29, 1973

481 F.2d 1028 (2d Cir. 1973)

FRIENDLY, Circuit Judge:

This appeal concerns an order of the District Court for the Southern District of New York
dismissing a complaint under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. §
1343(3), for failure to state a claim on which relief can be granted. The complaint was
brought against the Warden of the Manhattan House of Detention for Men and a
correction officer, described in the complaint only as Officer John, Badge No. 1765, but
now identified as John Fuller, by plaintiff Australia Johnson, who had been held in the
House of Detention prior to and during his trial in the state courts on felony charges. It
alleged that, while plaintiff was being checked back into the House of Detention, Officer
Fuller reprimanded Johnson and other men for a claimed failure to follow instructions;
that when Johnson endeavored to explain that they were doing only what another officer
had told them to do, Officer Fuller rushed into the holding cell, grabbed him by the collar
and struck him twice on the head with something enclosed in the officer's fist; that
during this incident the officer threatened him, saying "I'll kill you, old man, I'll break you
in half"; that Fuller than harassed Johnson by detaining him in the holding cell for two
hours before returning him to his cell; that when Johnson requested medical attention,
Fuller, who was called upon by another officer to escort Johnson to the jail doctor,
instead held him for another two hours in another cell before permitting him to see the
doctor; and that despite the "pain pills" given him by the doctor, Johnson has since
"been having terrible pains in his head."

Recognizing that there were numerous decisions in other circuits that would seem to
uphold the validity of the complaint as against the officer, as well as one to the contrary,
Judge Knapp nevertheless dismissed the complaint, saying "So far as I am aware no
decision in this circuit requires such a conclusion, and it is one at which I would arrive
only under constraint." Although we realize that upholding this complaint may well lead
to considerable further expansion of actions by state prisoners under 42 U.S.C. § 1983,
so long as they may bring their civil rights complaints directly to federal courts without
first presenting them to state courts, we think the ruling was in error so far as the officer
was concerned.
Apart from controlling Supreme Court authority, see Preiser v. Rodriguez, 411 U.S. 475,
477, 498-499, 93 [Link]. 1827, 36 [Link].2d 439 (1973), this would be a most inappropriate
case in which to require exhaustion of state judicial remedies. As a result of Johnson's
conviction of man-slaughter, and the consequent suspension of his civil rights, N.Y. Civil
Rights Law, McKinney's [Link], c. 6, § 79, he is presently unable to bring an
action in the state courts.

The longest line of authority for the proposition that a complaint alleging an unprovoked
attack on a prisoner by a state prison guard is within 42 U.S.C. § 1983 comes from the
Ninth Circuit. The first case in the line is Brown v. Brown, 368 F.2d 992 (9 Cir. 1966),
where, however, the complaint alleged other deprivations of civil rights. This was
followed by Dodd v. Spokane County, 393 F.2d 330, 333-334 (9 Cir. 1968), although the
complaint there alleged not brutality simpliciter but the administration of violence in an
effort to cause Dodd to testify falsely in another's criminal trial. Next came Wiltsie v.
California Department of Corrections, 406 F.2d 515 (9 Cir. 1968). Although this was a
case of beating pure and simple, the court, over Judge Chambers' dissent held it to be
"indistinguishable from Brown v. Brown," supra. To the same effect is Allison v.
California Adult Authority, 419 F.2d 822 (9 Cir. 1969), where the court followed Brown
despite its recognition "that frivolous Civil Rights suits by prison inmates have become a
matter of concern to district courts" and its belief that "Allison's allegations of physical
abuse stretch one's credulity."

Also, it may be that all the beatings alleged there were for the purpose of extracting a
confession from Brown, see 368 F.2d at 993-994 n. 2, in which case Fifth Amendment
protections would be implicated.

Several other circuits have reached the same result. Bethea v. Crouse, 417 F.2d 504
(10 Cir. 1969); Collum v. Butler, 421 F.2d 1257 (7 Cir. 1970); Tolbert v. Bragan, 451
F.2d 1020 (5th Cir. 1971); Howell v. Cataldi, 464 F.2d 272 (3 Cir. 1972). Still others,
though they apparently have not yet been faced with precisely the issue posed by this
complaint, have sustained civil rights actions involving closely related situations. Jenkins
v. Averett, 424 F.2d 1228 (4 Cir. 1970) (police brutality following arrest); Carter v.
Carlson, 144 [Link]. D.C. 388, 447 F.2d 358 (1971) (same), rev'd on other grounds
sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 [Link]. 602, 34 [Link].2d 613
(1973); Fitzke v. Shappell, 468 F.2d 1072 (6 Cir. 1972) (failure to provide medical care
for prisoner). Only one circuit is clearly to the contrary, Cole v. Smith, 344 F.2d 721 (8
Cir. 1965).
Aside from the weight of all this authority, we are not so certain as was the district
judge that the slate in this circuit is completely clean. In Martinez v. Mancusi, 443 F.2d
921 (2 Cir. 1970), we upheld a civil rights complaint against prison officials which was
read to allege "a deliberate indifference to, and defiance of, the express instructions of
the operating surgeons and the hospital attendants," 443 F.2d at 924; it seems hard to
draw a satisfactory legal distinction between such conduct and the deliberate infliction of
physical suffering in a non-medical setting. In Inmates of the Attica Correctional Facility
v. Rockefeller, 453 F.2d 12, 22-24 (2 Cir. 1971), we granted preliminary injunctive relief
where there had been a record of "beatings, physical abuse, torture, running of
gauntlets, and similar cruelty." While some emphasis was placed on the continuing and
systematic acts of the correctional officers, this was said more in justification of
issuance of an injunction than as a predicate for actionability. And, subsequent to Judge
Knapp's decision, we have stated in dictum:

We assume that brutal police conduct violates a right guaranteed by the due process
clause of the Fourteenth Amendment.

Rosenberg v. Martin, 478 F.2d 520, 526 (2 Cir. 1973).

The great weight of authority in favor of the assumption thus stated in Rosenberg has
not been accompanied by an equivalent amount of analysis. Many of the opinions,
including our own in Martinez and Inmates, rely on a passing reference to the "cruel and
unusual punishment" clause of the Eighth Amendment. The most extensive judicial
treatment of the subject, Judge Aldisert's opinion in Howell v. Cataldi, supra, 464 F.2d at
280-282, likewise relies on that clause.

A case like this, however, does not lie comfortably within the Eighth Amendment. The
text:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted suggests action taken, usually by a court, in carrying out a
legislative authorization or command. The language, as is well known, is practically a
verbatim copy of the tenth clause of the English Bill of Rights, 1 Wm. Mary, 2d sess., ch.
2 (1688), which, in turn, embodied a corresponding section of the Declaration of Rights
that was a cornerstone of the settlement of the Glorious Revolution. Although George
Mason, who drafted the similar clause in the Virginia Declaration of Rights, which was
the more immediate progenitor of the Eighth Amendment, may have been mistaken in
thinking that the provision was aimed merely at torturous rather than at excessive
punishments, there can be no disagreement that what sparked the English provision
was the conduct of judges under James II. The background of our own Bill of Rights,
however, makes clear that the Eighth Amendment was intended to apply not only to the
acts of judges but as a restraint on legislative action as well. See In re Kemmler, 136
U.S. 436, 446-447, 10 [Link]. 930, 34 [Link]. 519 (1890); Weems v. United States, 217
U.S. 349, 371-373, 378-379, 30 [Link]. 544, 54 [Link]. 793 (1910); Furman v. Georgia, 408
U.S. 238, 266-269, 92 [Link]. 2726, 33 [Link].2d 346 (1972) (concurring opinion of Mr.
Justice Brennan). Indeed, every decision of the Supreme Court striking down a
punishment under the Eighth Amendment has concerned a legislative act. Weems v.
United States, supra; Trop v. Dulles, 356 U.S. 86, 78 [Link]. 590, 2 [Link].2d 630 (1958)
(plurality opinion of Chief Justice Warren); Robinson v. California, 370 U.S. 660, 82
[Link]. 1417, 8 [Link].2d 758 (1962); Furman v. Georgia, supra.

See Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning,
57 [Link]. 839 (1969).

The history of the cruel and unusual punishment clause is lucidly recounted in Mr.
Justice Marshall's concurring opinion in Furman v. Georgia, supra, 408 U.S. at 316-322,
92 [Link]. 2726.

We do not suggest, however, that the cruel and unusual punishment clause must
necessarily be read as limited to acts of legislatures in authorizing sentences or of
judges imposing them. It can fairly be deemed to be applicable to the manner in which
an otherwise constitutional sentence, as the death penalty was then thought to be, is
carried out by an executioner, see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459,
67 [Link]. 374, 91 [Link]. 422 (1947), or to cover conditions of confinement which may
make intolerable an otherwise constitutional term of imprisonment, see Holt v. Sarver,
442 F.2d 304 (8 Cir. 1971). On a parity of reasoning, we find no difficulty in considering
the cruel and unusual punishment clause to be applicable to such systems of prison
discipline as solitary confinement, see Wright v. McMann, 387 F.2d 519 (2 Cir. 1967)
(reversing dismissal of complaint), 460 F.2d 126 (2 Cir.) (upholding award of damages),
cert. denied, 409 U.S. 885, 93 [Link]. 115, 34 [Link].2d 141 (1972); Sostre v. McGinnis,
442 F.2d 178, 190-194 (2 Cir. 1971), cert. denied, 404 U.S. 1049, 92 [Link]. 719, 30
[Link].2d 740 (1972); Novak v. Beto, 453 F.2d 661 (5 Cir. 1971), cert. denied, 409 U.S.
968, 93 [Link]. 279, 34 [Link].2d 233 (1972), or corporal punishment, see Jackson v.
Bishop, 404 F.2d 571 (8 Cir. 1968). The thread common to all these cases is that
"punishment" has been deliberately administered for a penal or disciplinary purpose,
with the apparent authorization of high prison officials charged by the state with
responsibility for care, control, and discipline of prisoners. In contrast, although a
spontaneous attack by a guard is "cruel" and, we hope, "unusual," it does not fit any
ordinary concept of "punishment."

This is particularly clear in a case like the present where the plaintiff had not yet been
found liable to "punishment" of any sort. We have considerable doubt that the cruel and
unusual punishment clause is properly applicable at all until after conviction and
sentence. See Anderson v. Nosser, 456 F.2d 2d 835 (5 Cir.) (en banc), cert. denied,
409 U.S. 848, 93 [Link]. 53, 34 [Link].2d 89 (1972) modifying 438 F.2d 183 (5 Cir. 1971);
Hamilton v. Love, 328 [Link]. 1182, 1191 ([Link]. 1971); but see Rhem v. McGrath,
326 [Link]. 681, 690 (S.D.N.Y. 1971). Yet it would be absurd to hold that a pre-trial
detainee has less constitutional protection against acts of prison guards than one who
has been convicted.

The solution lies in the proposition that, both before and after sentence, constitutional
protection against police brutality is not limited to conduct violating the specific
command of the Eighth Amendment or, as in Monroe v. Pape, 365 U.S. 167, 81 [Link].
473, 5 [Link].2d 492 (1961), of the Fourth. Rochin v. California, 342 U.S. 165, 72 [Link].
205, 96 [Link]. 183 (1952), must stand for the proposition that, quite apart from any
"specific" of the Bill of Rights, application of undue force by law enforcement officers
deprives a suspect of liberty without due process of law. If Rochin suffered such a
violation of his constitutional rights by the police as to be entitled to invalidation of a
conviction obtained as a consequence, he also was the victim of a violation sufficient to
sustain an action under the Civil Rights Act. The same principle should extend to acts
of brutality by correctional officers, although the notion of what constitutes brutality may
not necessarily be the same. This, apparently, was the view taken by the Seventh
Circuit in Collum v. Butler, supra, 421 F.2d at 1259-1260, by the Fifth in Tolbert v.
Bragan, supra, 451 F.2d 1020, and by the Ninth in Wiltsie v. California Department of
Corrections, supra, 406 F.2d at 517. See also Jenkins v. Averett, supra, 424 F.2d at
1232, Fitzke v. Shappell, supra, 468 F.2d at 1076. And most of the courts faced with
challenges to the conditions of pre-trial detention have primarily based their analysis
directly on the due process clause. See Anderson v. Nosser, supra, 456 F.2d 835;
Hamilton v. Love, supra, 328 F. Supp. 1182; Jones v. Wittenberg, 323 [Link]. 93
([Link] 1971), aff'd, 456 F.2d 854 (6 Cir. 1972); Brenneman v. Madigan, 343 [Link].
128 ([Link]. 1972).

We note also that in Williams v. United States, 341 U.S. 97, 71 [Link]. 576, 95 [Link]. 774
(1951), the Supreme Court had little difficulty in upholding a conviction of a law
enforcement officer under 18 U.S.C. § 242, the criminal counterpart of 42 U.S.C. §
1983, finding due process to be violated "where police take matters in their own hands,
seize victims, [and] beat and pound them until they confess." 341 U.S. at 101, 71 [Link].
at 579. The indictment charged that the victim had been deprived of

the right and privilege not to be deprived of liberty without due process of law, the right
and privilege to be secure in his person while in the custody of the State of Florida, the
right and privilege not to be subjected to punishment without due process of law, the
right to be immune, while in the custody of persons acting under color of the laws of the
State of Florida, from illegal assault and battery by any person exercising the authority
of said State

as well as the right to be tried in accordance with due process of law, 341 U.S. at 103,
71 [Link]. at 580, and the trial judge charged the jury that it could find Williams guilty if he
beat the victim "for the purpose of imposing illegal summary punishment upon him" as
well as if the beating was "for the purpose of forcing him to make a confession". 341
U.S. at 104, 71 [Link]. at 580. See also United States v. Price, 383 U.S. 787, 793, 86
[Link]. 1152, 16 [Link].2d 267 (1966).

While the Rochin test, "conduct that shocks the conscience," 342 U.S. at 172, 72 [Link].
205, is not one that can be applied by a computer, it at least points the way. Certainly
the constitutional protection is nowhere nearly so extensive as that afforded by the
common law tort action for battery, which makes actionable any intentional and
unpermitted contact with the plaintiff's person or anything attached to it and practically
identified with it, see Prosser, Torts § 9 (4th ed. 1971); still less is it as extensive as that
afforded by the common law tort action for assault, redressing "Any act of such a nature
as to excite an apprehension of battery," id. § 10, at 38. Although "the least touching of
another in anger is a battery," Cole v. Turner, 6 Mod. 149, 87 [Link]. 907, 90
[Link]. 958 (K.B. 1704) (Holt, C. J.), it is not a violation of a constitutional right
actionable under 42 U.S.C. § 1983. The management by a few guards of large numbers
of prisoners, not usually the most gentle or tractable of men and women, may require
and justify the occasional use of a degree of intentional force. Not every push or shove,
even if it may later seem unnecessary in the peace of a judge's chambers, violates a
prisoner's constitutional rights. In determining whether the constitutional line has been
crossed, a court must look to such factors as the need for the application of force, the
relationship between the need and the amount of force that was used, the extent of
injury inflicted, and 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.
Taking this view, and reading the complaint with the generosity required in pro se civil
rights actions, Haines v. Kerner, 404 U.S. 519, 520-521, 92 [Link]. 594, 30 [Link].2d 652
(1972), we think it stated a claim against Officer Fuller.
The standard gains added content from other language in the opinion. The acts must do
more than "offend some fastidious squeamishness or private sentimentalism about
combating crime too energetically"; they must be such as "to offend even hardened
sensibilities," 342 U.S. at 172, 72 [Link]. at 209, or constitute force that is "brutal" and
"offensive to human dignity." 342 U.S. at 174, 72 [Link]. 205.

Even at common law "mere words, however violent, are held not to amount to an
assault," Id. § 10, at 39.

On the other hand, even on a charitable reading, we see no basis for sustaining the
complaint against the warden. The rule in this circuit is that when monetary damages
are sought under § 1983, the general doctrine of respondeat superior does not suffice
and a showing of some personal responsibility of the defendant is required. Thus in
Martinez v. Mancusi, supra, 443 F.2d at 924, we conditioned a conclusion of liability of
the warden on a finding that he was personally "responsible for what the guards did."
Again, in Wright v. McMann, supra, 460 F.2d at 134-135, in upholding a damage award
as against Warden McMann, we stressed that "there is every reason to believe that he
was aware of segregation cell conditions," and that "responsibility for permitting such
conditions to exist was ultimately, in any event, squarely his." See also Harty v.
Rockefeller, 338 F. Supp. 367 (S.D.N.Y. 1972); (Gurfein, J.). Adams v. Pate, 445 F.2d
105, 107 n. 2 (7 Cir. 1971), and a dictum in Dunham v. Crosby, 435 F.2d 1177, 1180 (1
Cir. 1970), are in accord. We reaffirm our position here, though we are aware that
Anderson v. Nosser, 438 F.2d 183, 199-200 n. 13 (5 Cir. 1971), modified, 456 F.2d 835
(5 Cir. 1972) (en banc), left the question open; that Hesselgesser v. Reilly, 440 F.2d 901
(9 Cir. 1971), held that § 1983 liability might be predicated on a specific state statute
making a sheriff liable for the acts of his deputies; and that Carter v. Carlson, 144
[Link].D.C. 388, 447 F.2d 358, 370 n. 39, rev'd on other grounds, 409 U.S. 418, 93
[Link]. 602, 34 [Link].2d 613 (1973), went all the way, holding respondeat superior to be
fully applicable to actions under § 1983.

Here the complaint alleged only that Warden Glick was in charge of all the correctional
officers employed at the House of Detention. It did not allege that the warden had
authorized the officer's conduct, see Martinez v. Mancusi, supra, 443 F.2d at 924, or
even that there had been a history of previous episodes requiring the warden to take
therapeutic action, cf. Wright v. McMann, supra, 460 F.2d at 134-135; it alleged a single
spontaneous incident, unforeseen and unforeseeable by higher authority. While
appellant's counsel urged that we permit him to develop further facts that might
implicate the warden, the better course is to affirm the dismissal of the complaint
against the warden without prejudice to an application for leave to amend if a factual
basis for this should appear. We request that counsel assigned by the judge to take this
appeal shall continue to act for Johnson in the district court.

Reversed with respect to Officer Fuller; affirmed with respect to Warden Glick. No costs.

U.S. Supreme Court

Graham v. Connor, 490 U.S. 386 (1989)

Graham v. Connor

No. 87-6571

Argued February 21, 1989

Decided May 15, 1989

490 U.S. 386

CERTIORARI TO THE UDNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Syllabus

Petitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience
store to purchase orange juice to counteract the onset of an insulin reaction. Upon
entering the store and seeing the number of people ahead of him, Graham hurried out
and asked Berry to drive him to a friend's house instead. Respondent Connor, a city
police officer, became suspicious after seeing Graham hastily enter and leave the store,
followed Berry's car, and made an investigative stop, ordering the pair to wait while he
found out what had happened in the store. Respondent backup police officers arrived
on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat
Graham's condition. During the encounter, Graham sustained multiple injuries. He was
released when Conner learned that nothing had happened in the store. Graham filed
suit in the District Court under 42 U.S.C. § 1983 against respondents, alleging that they
had used excessive force in making the stop, in violation of "rights secured to him under
the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983."
The District Court granted respondents' motion for a directed verdict at the close of
Graham's evidence, applying a four-factor test for determining when excessive use of
force gives rise to a § 1983 cause of action, which inquires, inter alia, whether the force
was applied in a good faith effort to maintain and restore discipline or maliciously and
sadistically for the very purpose of causing harm. Johnson v. Glick, 481 F.2d 1028. The
Court of Appeals affirmed, endorsing this test as generally applicable to all claims of
constitutionally excessive force brought against government officials, rejecting Graham's
argument that it was error to require him to prove that the allegedly excessive force was
applied maliciously and sadistically to cause harm, and holding that a reasonable jury
applying the Johnson v. Glick test to his evidence could not find that the force applied
was constitutionally excessive.

Held: All claims that law enforcement officials have used excessive force -- deadly or
not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen
are properly analyzed under the Fourth Amendment's "objective reasonableness"
standard, rather than under a substantive due process standard. Pp. 490 U. S. 392-399.

(a) The notion that all excessive force claims brought under § 1983 are governed by a
single generic standard is rejected. Instead, courts must identify the specific
constitutional right allegedly infringed by the challenged application of force, and then
judge the claim by reference to the specific constitutional standard which governs that
right. Pp. 490 U. S. 393-394.

(b) Claims that law enforcement officials have used excessive force in the course of an
arrest, investigatory stop, or other "seizure" of a free citizen are most properly
characterized as invoking the protections of the Fourth Amendment, which guarantees
citizens the right "to be secure in their persons . . . against unreasonable seizures," and
must be judged by reference to the Fourth Amendment's "reasonableness" standard.
Pp. 490 U. S. 394-395.

(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are
"objectively reasonable" in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation. The "reasonableness" of a
particular use of force must be judged from the perspective of a reasonable officer on
the scene, and its calculus must embody an allowance for the fact that police officers
are often forced to make split-second decisions about the amount of force necessary in
a particular situation. Pp. 490 U. S. 396-397.

(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper
Fourth Amendment analysis. The suggestion that the test's "malicious and sadistic"
inquiry is merely another way of describing conduct that is objectively unreasonable
under the circumstances is rejected. Also rejected is the conclusion that, because
individual officers' subjective motivations are of central importance in deciding whether
force used against a convicted prisoner violates the Eighth Amendment, it cannot be
reversible error to inquire into them in deciding whether force used against a suspect or
arrestee violates the Fourth Amendment. The Eighth Amendment terms "cruel" and
"punishment" clearly suggest some inquiry into subjective state of mind, whereas the
Fourth Amendment term "unreasonable" does not. Moreover, the less protective Eighth
Amendment standard applies only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions. Pp. 490 U. S. 397-399.

827 F.2d 945, vacated and remanded.

Whitley v. Albers, 475 U.S. 312 (1986)

Whitley v. Albers

No. 84-1077

Argued December 10, 1985

Decided March 4, 1986

475 U.S. 312

Syllabus

During the course of a riot at the Oregon State Penitentiary, a prison officer was taken
hostage and placed in a cell on the upper tier of a two-tier cellblock. In an attempt to
free the hostage, prison officials worked out a plan that called for the prisoner security
manager to enter the cellblock unarmed, followed by prison officers armed with
shotguns. The security manager ordered one of the officers to fire a warning shot and to
shoot low at any inmates climbing the stairs to the upper tier, since he would be
climbing the stairs to free the hostage. One of the officers, after firing a warning shot,
shot respondent in the left knee when he started up the stairs. Respondent
subsequently brought an action in Federal District Court against petitioner prison
officials pursuant to 42 U.S.C. § 1983, alleging, inter alia, that they had deprived him of
his rights under the Eighth and Fourteenth Amendments. At the conclusion of the trial,
the District Court directed a verdict for petitioners. The Court of Appeals reversed and
remanded for a new trial on respondent's Eighth Amendment claim.

Held:

1. The shooting of respondent did not violate his Eighth Amendment right to be free
from cruel and unusual punishments. Pp. 475 U. S. 318-326.

(a) It is obduracy and wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual Punishments Clause,
whether that conduct occurs in connection with establishing conditions of confinement,
supplying medical needs, or restoring control over a tumultuous cellblock. The infliction
of pain in the course of a prison security measure, therefore, does not amount to cruel
and unusual punishment simply because it may appear in retrospect that the degree of
force authorized or applied for security purposes was unreasonable, and hence
unnecessary in the strict sense. The general requirement that an Eighth Amendment
claimant establish the unnecessary and wanton infliction of pain should also be applied
with due regard for differences in the kind of conduct involved. Thus, where a prison
security measure is undertaken to resolve a disturbance, such as occurred in this case,
that poses significant risks to the safety of inmates

Page 475 U. S. 313

and prison staff, the question whether the measure taken inflicted unnecessary and
wanton pain and suffering ultimately turns on whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and sadistically for the purpose of
causing harm. Pp. 475 U. S. 318-322.

(b) Viewing the evidence in the light most favorable to respondent, as must be done in
reviewing the decision reversing the trial court's directed verdict for petitioners, it does
not appear that the evidence supports a reliable inference of wantonness in the infliction
of pain under the above standard. Evidence arguably showing that the prison officials
erred in judgment when they decided on a plan that employed potentially deadly force
falls far short of a showing that there was no plausible basis for their belief that this
degree of force was necessary. In particular, the order to shoot, qualified by an
instruction to shoot low, falls short of commanding the infliction of pain in a wanton and
unnecessary fashion. Nor was the failure to provide for a verbal warning, in addition to a
warning shot, so insupportable as to be wanton, since any inmate running up the stairs
after the prison security manager could reasonably be thought to pose a threat to the
rescue attempt. And the failure to take into account the possibility that respondent might
climb the stairs in an effort to return to his cell does not rise to the level of an Eighth
Amendment violation. Assuming that the prison officer shot at respondent, rather than at
the inmates as a group, does not establish that the officer shot respondent knowing that
it was unnecessary to do so. Under all these circumstances, the shooting was part and
parcel of a good faith effort to restore prison security. Pp. 475 U. S. 322-326.

2. In this case, the Due Process Clause of the Fourteenth Amendment cannot serve as
an alternative basis for affirmance, independently of the Eighth Amendment. In the
prison security context, the Due Process Clause affords respondent no greater
protection than does the Cruel and Unusual Punishments Clause. Pp. 475 U. S. 326-
327.

743 F.2d 1372, reversed.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and
WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting
opinion, in which BRENNAN and BLACKMUN, JJ., joined, and in all but n. 2 of which
STEVENS, J., joined, post, p. 475 U. S. 328.
Page 475 U. S. 314

U.S. Supreme Court

Tennessee v. Garner, 471 U.S. 1 (1985)

Tennessee v. Garner

No. 83-1035

Argued October 30, 1984

Decided March 27, 1985*

471 U.S. 1

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT

Syllabus

A Tennessee statute provides that, if, after a police officer has given notice of an intent
to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all
the necessary means to effect the arrest." Acting under the authority of this statute, a
Memphis police officer shot and killed appellee-respondent Garner's son as, after being
told to halt, the son fled over a fence at night in the backyard of a house he was
suspected of burglarizing. The officer used deadly force despite being "reasonably sure"
the suspect was unarmed and thinking that he was 17 or 18 years old, and of slight
build. The father subsequently brought an action in Federal District Court, seeking
damages under 42 U.S.C. § 1983 for asserted violations of his son's constitutional
rights. The District Court held that the statute and the officer's actions were
constitutional. The Court of Appeals reversed.

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of

deadly force against, as in this case, an apparently unarmed, nondangerous fleeing
suspect; such force may not be used unless necessary to prevent the escape and the
officer has probable cause to believe that the suspect poses a significant threat of death
or serious physical injury to the officer or others. Pp. 7-22.
[2]

(a) Apprehension by the use of deadly force is a seizure subject to the Fourth
Amendment's reasonableness requirement. To determine whether such a seizure is
reasonable, the extent of the intrusion on the suspect's rights under that Amendment
must be balanced against the governmental interests in effective law enforcement. This
balancing process demonstrates that, notwithstanding probable cause to seize a
suspect, an officer may not always do so by killing him. The use of deadly force to
prevent the escape of all felony suspects, whatever the circumstances, is
constitutionally unreasonable. Pp. 7-12.

(b) The Fourth Amendment, for purposes of this case, should not be construed in light
of the common law rule allowing the use of whatever force is necessary to effect the
arrest of a fleeing felon. Changes in the legal and technological context mean that that
rule is distorted almost beyond recognition when literally applied. Whereas felonies
were formerly capital crimes, few are now, or can be, and many crimes classified as
misdemeanors, or nonexistent, at common law are now felonies. Also, the common law
rule developed at a time when weapons were rudimentary. And, in light of the varied
rules adopted in the States indicating a long-term movement away from the common
law rule, particularly in the police departments themselves, that rule is a dubious
indicium of the constitutionality of the Tennessee statute. There is no indication that
holding a police practice such as that authorized by the statute unreasonable will
severely hamper effective law enforcement. Pp. 12-20.

(c) While burglary is a serious crime, the officer in this case could not reasonably have
believed that the suspect -- young, slight, and unarmed -- posed any threat. Nor does
the fact that an unarmed suspect has broken into a dwelling at night automatically mean
he is dangerous. Pp. 20-22.

710 F.2d 240, affirmed and remanded.

SEPARATE OPINIONS (GRAHAM V. CONOR CASE) – summary of cases discussing
about excessive force

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This case requires us to decide what constitutional standard governs a free citizen's
claim that law enforcement officials used excessive force in the course of making an
arrest, investigatory stop, or other "seizure" of his person. We hold that such claims are
properly analyzed under the Fourth Amendment's "objective reasonableness" standard,
rather than under a substantive due process standard.

In this action under 42 U.S.C. § 1983, petitioner Dethorne Graham seeks to recover
damages for injuries allegedly sustained when law enforcement officers used physical
force against him during the course of an investigatory stop. Because the case comes
to us from a decision of the Court of Appeals affirming the entry of a directed verdict for
respondents, we take the evidence hereafter noted in the light most favorable to
petitioner. On November 12, 1984, Graham, a diabetic, felt the onset of an insulin
reaction. He asked a friend, William Berry, to drive him to a nearby convenience store
so he could purchase some orange juice to counteract the reaction. Berry agreed, but
when Graham entered the store, he saw a number of people ahead of him in the
checkout

Page 490 U. S. 389

line. Concerned about the delay, he hurried out of the store and asked Berry to drive
him to a friend's house instead.

Respondent Connor, an officer of the Charlotte, North Carolina, Police Department, saw
Graham hastily enter and leave the store. The officer became suspicious that something
was amiss, and followed Berry's car. About one-half mile from the store, he made an
investigative stop. Although Berry told Connor that Graham was simply suffering from a
"sugar reaction," the officer ordered Berry and Graham to wait while he found out what,
if anything, had happened at the convenience store. When Officer Connor returned to
his patrol car to call for backup assistance, Graham got out of the car, ran around it
twice, and finally sat down on the curb, where he passed out briefly.

In the ensuing confusion, a number of other Charlotte police officers arrived on the
scene in response to Officer Connor's request for backup. One of the officers rolled
Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring
Berry's pleas to get him some sugar. Another officer said:

"I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing
wrong with the M.F. but drunk. Lock the S.B. up."
App. 42. Several officers then lifted Graham up from behind, carried him over to Berry's
car, and placed him face down on its hood. Regaining consciousness, Graham asked
the officers to check in his wallet for a diabetic decal that he carried. In response, one of
the officers told him to "shut up" and shoved his face down against the hood of the car.
Four officers grabbed Graham and threw him headfirst into the police car. A friend of
Graham's brought some orange juice to the car, but the officers refused to let him have
it. Finally, Officer Connor received a report that Graham had done nothing wrong at the
convenience store, and the officers drove him home and released him.

Page 490 U. S. 390

At some point during his encounter with the police, Graham sustained a broken foot,
cuts on his wrists, a bruised forehead, and an injured shoulder; he also claims to have
developed a loud ringing in his right ear that continues to this day. He commenced this
action under 42 U.S.C. § 1983 against the individual officers involved in the incident, all
of whom are respondents here, [Footnote 1] alleging that they had used excessive force
in making the investigatory stop, in violation of "rights secured to him under the
Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983."
Complaint � 10, App. 5. [Footnote 2] The case was tried before a jury. At the close of
petitioner's evidence, respondents moved for a directed verdict. In ruling on that motion,
the District Court considered the following four factors, which it identified as "[t]he
factors to be considered in determining when the excessive use of force gives rise to a
cause of action under § 1983": (1) the need for the application of force; (2) the
relationship between that need and the amount of force that was used; (3) the extent of
the injury inflicted; and (4) "[w]hether the force was applied in a good faith effort to
maintain and restore discipline or maliciously and sadistically for the very purpose of
causing harm." 644 [Link]. 246, 248 (WDNC 1986). Finding that the amount of force
used by the officers was "appropriate under the circumstances," that "[t]here was no
discernible injury inflicted," and that the force used "was not applied maliciously or
sadistically for the very purpose of causing harm," but in "a good faith effort to maintain
or restore order in the face of a potentially explosive

Page 490 U. S. 391

situation," id. at 248-249, the District Court granted respondents' motion for a directed
verdict.

A divided panel of the Court of Appeals for the Fourth Circuit affirmed. 827 F.2d 945
(1987). The majority ruled first that the District Court had applied the correct legal
standard in assessing petitioner's excessive force claim. Id. at 948-949. Without
attempting to identify the specific constitutional provision under which that claim arose,
[Footnote 3] the majority endorsed the four-factor test applied by the District Court as
generally applicable to all claims of "constitutionally excessive force" brought against
governmental officials. Id. at 948. The majority rejected petitioner's argument, based on
Circuit precedent, [Footnote 4] that it was error to require him to prove that the allegedly
excessive force used against him was applied "maliciously and sadistically for the very
purpose of causing harm." [Footnote 5] Ibid. Finally, the majority held that a reasonable
jury applying the four-part test it had just endorsed

Page 490 U. S. 392

to petitioner's evidence "could not find that the force applied was constitutionally
excessive." Id. at 949-950. The dissenting judge argued that this Court's decisions
in Terry v. Ohio, 392 U. S. 1 (1968), and Tennessee v. Garner, 471 U. S. 1 (1985),
required that excessive force claims arising out of investigatory stops be analyzed under
the Fourth Amendment's "objective reasonableness" standard. 827 F.2d at 950-952. We
granted certiorari, 488 U.S. 816 (1988), and now reverse.

Fifteen years ago, in Johnson v. Glick, 481 F.2d 1028 (CA2), cert. denied, 414 U.S.
1033 (1973), the Court of Appeals for the Second Circuit addressed a § 1983 damages
claim filed by a pretrial detainee who claimed that a guard had assaulted him without
justification. In evaluating the detainee's claim, Judge Friendly applied neither the
Fourth Amendment nor the Eighth, the two most textually obvious sources of
constitutional protection against physically abusive governmental conduct. [Footnote 6]
Instead, he looked to "substantive due process," holding that,

"quite apart from any 'specific' of the Bill of Rights, application of undue force by

Page 490 U. S. 393

law enforcement officers deprives a suspect of liberty without due process of law."

481 F.2d at 1032. As support for this proposition, he relied upon our decision in Rochin
v. California, 342 U. S. 165 (1952), which used the Due Process Clause to void a state
criminal conviction based on evidence obtained by pumping the defendant's stomach.
481 F.2d at 1032-1033. If a police officer's use of force which "shocks the conscience"
could justify setting aside a criminal conviction, Judge Friendly reasoned, a correctional
officer's use of similarly excessive force must give rise to a due process violation
actionable under § 1983. Ibid. Judge Friendly went on to set forth four factors to guide
courts in determining "whether the constitutional line has been crossed" by a particular
use of force -- the same four factors relied upon by the courts below in this case. Id. at
1033.

In the years following Johnson v. Glick, the vast majority of lower federal courts have
applied its four-part "substantive due process" test indiscriminately to all excessive force
claims lodged against law enforcement and prison officials under § 1983, without
considering whether the particular application of force might implicate a more specific
constitutional right governed by a different standard. [Footnote 7] Indeed, many courts
have seemed to assume, as did the courts below in this case, that there is a generic
"right" to be free from excessive force, grounded not in any particular constitutional
provision, but rather in "basic principles of § 1983 jurisprudence." [Footnote 8]
We reject this notion that all excessive force claims brought under § 1983 are governed
by a single generic standard. As we have said many times, § 1983 "is not itself a

Page 490 U. S. 394

source of substantive rights," but merely provides "a method for vindicating federal
rights elsewhere conferred." Baker v. McCollan, 443 U. S. 137, 443 U. S. 144, n. 3
(1979). In addressing an excessive force claim brought under § 1983, analysis begins
by identifying the specific constitutional right allegedly infringed by the challenged
application of force. See id. at 443 U. S. 140 ("The first inquiry in any § 1983 suit" is "to
isolate the precise constitutional violation with which [the defendant] is charged").
[Footnote 9] In most instances, that will be either the Fourth Amendment's prohibition
against unreasonable seizures of the person or the Eighth Amendment's ban on cruel
and unusual punishments, which are the two primary sources of constitutional
protection against physically abusive governmental conduct. The validity of the claim
must then be judged by reference to the specific constitutional standard which governs
that right, rather than to some generalized "excessive force" standard. See Tennessee
v. Garner, supra, at 471 U. S. 7-22 (claim of excessive force to effect arrest analyzed
under a Fourth Amendment standard); Whitley v. Albers, 475 U. S. 312, 475 U. S. 318-
326 (1986) (claim of excessive force to subdue convicted prisoner analyzed under an
Eighth Amendment standard).

Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one invoking the
protections of the Fourth Amendment, which guarantees citizens the right "to be secure
in their persons . . . against unreasonable . . . seizures" of the person. This much is
clear from our decision in Tennessee v. Garner, supra. In Garner, we addressed a claim
that the use of deadly force to apprehend a fleeing suspect who did not appear to be
armed or otherwise dangerous violated the suspect's constitutional rights,
notwithstanding the existence of probable cause to arrest.

Page 490 U. S. 395

Though the complaint alleged violations of both the Fourth Amendment and the Due
Process Clause, see 471 U.S. at 471 U. S. 5, we analyzed the constitutionality of the
challenged application of force solely by reference to the Fourth Amendment's
prohibition against unreasonable seizures of the person, holding that the
"reasonableness" of a particular seizure depends not only on when it is made, but also
on how it is carried out. Id. at 471 U. S. 7-8. Today we make explicit what was implicit
in Garner's analysis, and hold that all claims that law enforcement officers have used
excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other
"seizure" of a free citizen should be analyzed under the Fourth Amendment and its
"reasonableness" standard, rather than under a "substantive due process" approach.
Because the Fourth Amendment provides an explicit textual source of constitutional
protection against this sort of physically intrusive governmental conduct, that
Amendment, not the more generalized notion of "substantive due process," must be the
guide for analyzing these claims. [Footnote 10]

Page 490 U. S. 396

Determining whether the force used to effect a particular seizure is "reasonable" under
the Fourth Amendment requires a careful balancing of "the nature and quality of the
intrusion on the individual's Fourth Amendment interests'" against the countervailing
governmental interests at stake. Id. at 471 U. S. 8, quoting United States v. Place, 462
U. S. 696, 462 U. S. 703 (1983). Our Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop necessarily carries with
it the right to use some degree of physical coercion or threat thereof to effect it. See
Terry v. Ohio, 392 U.S. at 392 U. S. 22-27. Because "[t]he test of reasonableness under
the Fourth Amendment is not capable of precise definition or mechanical
application," Bell v. Wolfish, 441 U. S. 520, 441 U. S. 559 (1979), however, its proper
application requires careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471
U.S. at 471 U. S. 8-9 (the question is "whether the totality of the circumstances justifie[s]
a particular sort of. . . seizure").

The "reasonableness" of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See
Terry v. Ohio, supra, at 392 U. S. 20-22. The Fourth Amendment is not violated by an
arrest based on probable cause, even though the wrong person is arrested, Hill v.
California, 401 U. S. 797 (1971), nor by the mistaken execution of a valid search
warrant on the wrong premises, Maryland v. Garrison, 480 U. S. 79 (1987). With respect
to a claim of excessive force, the same standard of reasonableness at the moment
applies: "Not every push or shove, even if it may later seem unnecessary in the peace
of a judge's chambers," Johnson v. Glick, 481 F.2d at 1033, violates the Fourth
Amendment. The calculus of reasonableness must embody

Page 490 U. S. 397

allowance for the fact that police officers are often forced to make split-second
judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about
the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an

excessive force case is an objective one: the question is whether the officers' actions
are "objectively reasonable" in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation. See Scott v. United States, 436
U. S. 128, 436 U. S. 137-139 (1978); see also Terry v. Ohio, supra, at 392 U. S. 21 (in
analyzing the reasonableness of a particular search or seizure, "it is imperative that the
facts be judged against an objective standard"). An officer's evil intentions will not make
a Fourth Amendment violation out of an objectively reasonable use of force; nor will an
officer's good intentions make an objectively unreasonable use of force
constitutional. See Scott v. United States, supra, at 436 U. S. 138, citing United States
v. Robinson, 414 U. S. 218 (1973).

Because petitioner's excessive force claim is one arising under the Fourth Amendment,
the Court of Appeals erred in analyzing it under the four-part Johnson v. Glick test. That
test, which requires consideration of whether the individual officers acted in "good faith"
or "maliciously and sadistically for the very purpose of causing harm," is incompatible
with a proper Fourth Amendment analysis. We do not agree with the Court of Appeals'
suggestion, see 827 F.2d at 948, that the "malicious and sadistic" inquiry is merely
another way of describing conduct that is objectively unreasonable under the
circumstances. Whatever the empirical correlations between "malicious and sadistic"
behavior and objective unreasonableness may be, the fact remains that the "malicious
and sadistic" factor puts in issue the subjective motivations of the individual officers,
which our prior cases make clear has no bearing on whether a particular seizure is
"unreasonable" under the Fourth Amendment. Nor do we agree with the

Page 490 U. S. 398

Court of Appeals' conclusion, see id. at 948, n. 3, that, because the subjective
motivations of the individual officers are of central importance in deciding whether force
used against a convicted prisoner violates the Eighth Amendment, see Whitley v.
Albers, 475 U.S. at 475 U. S. 320-321, [Footnote 11] it cannot be reversible error to
inquire into them in deciding whether force used against a suspect or arrestee violates
the Fourth Amendment. Differing standards under the Fourth and Eighth Amendments
are hardly surprising: the terms "cruel" and "punishment" clearly suggest some inquiry
into subjective state of mind, whereas the term "unreasonable" does not. Moreover, the
less protective Eighth Amendment standard applies "only after the State has complied
with the constitutional guarantees traditionally associated with criminal
prosecutions." Ingraham v. Wright, 430 U. S. 651, 430 U. S. 671,

Page 490 U. S. 399

n. 40 (1977). The Fourth Amendment inquiry is one of "objective reasonableness" under

the circumstances, and subjective concepts like "malice" and "sadism" have no proper
place in that inquiry. [Footnote 12]

Because the Court of Appeals reviewed the District Court's ruling on the motion for
directed verdict under an erroneous view of the governing substantive law, its judgment
must be vacated and the case remanded to that court for reconsideration of that issue
under the proper Fourth Amendment standard.

It is so ordered.

Page 490 U. S. 399

[Footnote 1]

Also named as a defendant was the city of Charlotte, which employed the individual
respondents. The District Court granted a directed verdict for the city, and petitioner did
not challenge that ruling before the Court of Appeals. Accordingly, the city is not a party
to the proceedings before this Court.

[Footnote 2]

Petitioner also asserted pendent state law claims of assault, false imprisonment, and
intentional infliction of emotional distress. Those claims have been dismissed from the
case, and are not before this Court.

[Footnote 3]

The majority did note that, because Graham was not an incarcerated prisoner, "his
complaint of excessive force did not, therefore, arise under the eighth amendment." 827
F.2d at 948, n. 3. However, it made no further effort to identify the constitutional basis
for his claim.

[Footnote 4]

Petitioner's argument was based primarily on Kidd v. O'Neil, 774 F.2d 1252 (CA4 1985),
which read this Court's decision in Tennessee v. Garner, 471 U. S. 1 (1985), as
mandating application of a Fourth Amendment "objective reasonableness" standard to
claims of excessive force during arrest. See 774 F.2d at 1254-1257. The reasoning
of Kidd was subsequently rejected by the en banc Fourth Circuit in Justice v.
Dennis, 834 F.2d 380, 383 (1987), cert. pending, No. 87-1422.

[Footnote 5]

The majority noted that, in Whitley v. Albers, 475 U. S. 312 (1986), we held that the
question whether physical force used against convicted prisoners in the course of
quelling a prison riot violates the Eighth Amendment

"ultimately turns on '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.'"

827 F.2d at 948, n. 3, quoting Whitley v. Albers, supra, at 475 U. S. 320-321. Though
the Court of Appeals acknowledged that petitioner was not a convicted prisoner, it
thought it

"unreasonable . . . to suggest that a conceptual factor could be central to one type of

excessive force claim but reversible error when merely considered by the court in
another context."
827 F.2d at 948, n. 3.

[Footnote 6]

Judge Friendly did not apply the Eighth Amendment's Cruel and Unusual Punishments
Clause to the detainee's claim for two reasons. First, he thought that the Eighth
Amendment's protections did not attach until after conviction and sentence. 481 F.2d at
1032. This view was confirmed by Ingraham v. Wright, 430 U. S. 651, 430 U. S. 671, n.
40 (1977) ("Eighth Amendment scrutiny is appropriate only after the State has complied
with the constitutional guarantees traditionally associated with criminal prosecutions").
Second, he expressed doubt whether a "spontaneous attack" by a prison guard, done
without the authorization of prison officials, fell within the traditional Eighth Amendment
definition of "punishment." 481 F.2d at 1032. Although Judge Friendly gave no reason
for not analyzing the detainee's claim under the Fourth Amendment's prohibition against
"unreasonable . . . seizures" of the person, his refusal to do so was apparently based on
a belief that the protections of the Fourth Amendment did not extend to pretrial
detainees. See id. at 1033 (noting that "most of the courts faced with challenges to the
conditions of pretrial detention have primarily based their analysis directly on the due
process clause"). See n 10, infra.

[Footnote 7]

See Freyermuth, Rethinking Excessive Force, 1987 Duke L.J. 692, 694-696, and nn.
16-23 (1987) (collecting cases).

[Footnote 8]

See Justice v. Dennis, supra, at 382 ("There are . . . certain basic principles in section
1983 jurisprudence as it relates to claims of excessive force that are beyond question[,]
[w]hether the factual circumstances involve an arrestee, a pretrial detainee or a
prisoner").

[Footnote 9]

The same analysis applies to excessive force claims brought against federal law
enforcement and correctional officials under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388 (1971).

[Footnote 10]

A "seizure" triggering the Fourth Amendment's protections occurs only when

government actors have, "by means of physical force or show of authority, . . . in some
way restrained the liberty of a citizen," Terry v. Ohio, 392 U. S. 1, 392 U. S. 19, n. 16
(1968); see Brower v. County of Inyo, 489 U. S. 593, 489 U. S. 596 (1989).
Our cases have not resolved the question whether the Fourth Amendment continues to
provide individuals with protection against the deliberate use of excessive physical force
beyond the point at which arrest ends and pretrial detention begins, and we do not
attempt to answer that question today. It is clear, however, that the Due Process Clause
protects a pretrial detainee from the use of excessive force that amounts to
punishment. See Bell v. Woefish, 441 U. S. 520, 441 U. S. 535-539 (1979). After
conviction, the Eighth Amendment

"serves as the primary source of substantive protection . . . in cases . . . where the

deliberate use of force is challenged as excessive and unjustified."

Whitley v. Albers, 475 U.S. at 475 U. S. 327. Any protection that "substantive due
process" affords convicted prisoners against excessive force is, we have held, at best
redundant of that provided by the Eighth Amendment. Ibid.

[Footnote 11]

In Whitley, we addressed a § 1983 claim brought by a convicted prisoner, who claimed

that prison officials had violated his Eighth Amendment rights by shooting him in the
knee during a prison riot. We began our Eighth Amendment analysis by reiterating the
long-established maxim that an Eighth Amendment violation requires proof of the
""unnecessary and wanton infliction of pain."'" 475 U.S. at 475 U. S. 319,
quoting Ingraham v. Wright, 430 U.S. at 430 U. S. 670, in turn quoting Estelle v.
Gamble, 429 U. S. 97, 429 U. S. 103 (1976). We went on to say that, when prison
officials use physical force against an inmate

"to restore order in the face of a prison disturbance, . . . the question whether the
measure taken inflicted unnecessary and wanton pain . . . ultimately turns on '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.'"

475 U.S. at 475 U. S. 320-321 (emphasis added), quoting Johnson v. Glick, 481 F.2d at
1033. We also suggested that the other prongs of the Johnson v. Glick test might be
useful in analyzing excessive force claims brought under the Eighth Amendment. 475
U.S. at 475 U. S. 321. But we made clear that this was so not because Judge Friendly's
four-part test is some talismanic formula generally applicable to all excessive force
claims, but because its four factors help to focus the central inquiry in the Eighth
Amendment context, which is whether the particular use of force amounts to the
"unnecessary and wanton infliction of pain." See id. at 475 U. S. 320-321. Our
endorsement of the Johnson v. Glick test in Whitley thus had no implications beyond the
Eighth Amendment context.

[Footnote 12]

Of course, in assessing the credibility of an officer's account of the circumstances that

prompted the use of force, a factfinder may consider, along with other factors, evidence
that the officer may have harbored ill-will toward the citizen. See Scott v. United
States, 436 U. S. 128, 436 U. S. 139, n. 13 (1978). Similarly, the officer's objective
"good faith" -- that is, whether he could reasonably have believed that the force used did
not violate the Fourth Amendment -- may be relevant to the availability of the qualified
immunity defense to monetary liability under § 1983. See Anderson v. Creighton, 483 U.
S. 635 (1987). Since no claim of qualified immunity has been raised in this case,
however, we express no view on its proper application in excessive force cases that
arise under the Fourth Amendment.

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL

join, concurring in part and concurring in the judgment.

I join the Court's opinion insofar as it rules that the Fourth Amendment is the primary
tool for analyzing claims of excessive force in the prearrest context, and I concur in the
judgment remanding the case to the Court of Appeals for reconsideration of the
evidence under a reasonableness standard. In light of respondents' concession,
however, that the pleadings in this case properly may be construed as raising a Fourth
Amendment claim, see Brief for Respondents 3, I see no reason for the Court to find it
necessary further to reach out to decide that prearrest excessive force claims are to be
analyzed under the Fourth Amendment, rather than under a

Page 490 U. S. 400

substantive due process standard. I also see no basis for the Court's
suggestion, ante at 490 U. S. 395, that our decision in Tennessee v. Garner, 471 U. S.
1 (1985), implicitly so held. Nowhere in Garner is a substantive due process standard
for evaluating the use of excessive force in a particular case discussed; there is no
suggestion that such a standard was offered as an alternative and rejected.

In this case, petitioner apparently decided that it was in his best interest to disavow the
continued applicability of substantive due process analysis as an alternative basis for
recovery in prearrest excessive force cases. See Brief for Petitioner 20. His choice was
certainly wise as a matter of litigation strategy in his own case, but does not (indeed,
cannot be expected to) serve other potential plaintiffs equally well. It is for that reason
that the Court would have done better to leave that question for another day. I expect
that the use of force that is not demonstrably unreasonable under the Fourth
Amendment only rarely will raise substantive due process concerns. But until I am faced
with a case in which that question is squarely raised, and its merits are subjected to
adversary presentation, I do not join in foreclosing the use of substantive due process
analysis in prearrest cases.

U.S. Supreme Court

Terry v. Ohio, 392 U.S. 1 (1968)

Terry v. Ohio
No. 67

Argued December 12, 1967

Decided June 10, 1968

392 U.S. 1

Syllabus

A Cleveland detective (McFadden), on a downtown beat which he had been patrolling

for many years, observed two strangers (petitioner and another man, Chilton) on a
street corner. He saw them proceed alternately back and forth along an identical route,
pausing to stare in the same store window, which they did for a total of about 24 times.
Each completion of the route was followed by a conference between the two on a
corner, at one of which they were joined by a third man (Katz) who left swiftly.
Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw
them rejoin the third man a couple of blocks away in front of a store. The officer
approached the three, identified himself as a policeman, and asked their names. The
men "mumbled something," whereupon McFadden spun petitioner around, patted down
his outside clothing, and found in his overcoat pocket, but was unable to remove, a
pistol. The officer ordered the three into the store. He removed petitioner's overcoat,
took out a revolver, and ordered the three to face the wall with their hands raised. He
patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's
outside overcoat pocket. He did not put his hands under the outer garments of Katz
(since he discovered nothing in his pat-down which might have been a weapon), or
under petitioner's or Chilton's outer garments until he felt the guns. The three were
taken to the police station. Petitioner and Chilton were charged with carrying

Page 392 U. S. 2

concealed weapons. The defense moved to suppress the weapons. Though the trial
court rejected the prosecution theory that the guns had been seized during a search
incident to a lawful arrest, the court denied the motion to suppress and admitted the
weapons into evidence on the ground that the officer had cause to believe that
petitioner and Chilton were acting suspiciously, that their interrogation was warranted,
and that the officer, for his own protection, had the right to pat down their outer clothing
having reasonable cause to believe that they might be armed. The court distinguished
between an investigatory "stop" and an arrest, and between a "frisk" of the outer
clothing for weapons and a full-blown search for evidence of crime. Petitioner and
Chilton were found guilty, an intermediate appellate court affirmed, and the State
Supreme Court dismissed the appeal on the ground that "no substantial constitutional
question" was involved.

Held:
1. The Fourth Amendment right against unreasonable searches and seizures, made
applicable to the States by the Fourteenth Amendment, "protects people, not places,"
and therefore applies as much to the citizen on the streets as well as at home or
elsewhere. Pp. 392 U. S. 8-9.

2. The issue in this case is not the abstract propriety of the police conduct, but the
admissibility against petitioner of the evidence uncovered by the search and seizure.
P. 392 U. S. 12.

3. The exclusionary rule cannot properly be invoked to exclude the products of

legitimate and restrained police investigative techniques, and this Court's approval of
such techniques should not discourage remedies other than the exclusionary rule to
curtail police abuses for which that is not an effective sanction. Pp. 392 U. S. 13-15.

4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed
here. Pp. 392 U. S. 16-20.

(a) Whenever a police officer accosts an individual and restrains his freedom to walk
away, he has "seized" that person within the meaning of the Fourth Amendment. P. 392
U. S. 16.

(b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find
weapons is a "search" under that Amendment. P. 392 U. S. 16.

5. Where a reasonably prudent officer is warranted in the circumstances of a given case

in believing that his safety or that of others is endangered, he may make a reasonable
search for weapons of the person believed by him to be armed and dangerous

Page 392 U. S. 3

regardless of whether he has probable cause to arrest that individual for crime or the
absolute certainty that the individual is armed. Pp. 392 U. S. 20-27.

(a) Though the police must, whenever practicable, secure a warrant to make a search
and seizure, that procedure cannot be followed where swift action based upon on-the-
spot observations of the officer on the beat is required. P. 392 U. S. 20.

(b) The reasonableness of any particular search and seizure must be assessed in light
of the particular circumstances against the standard of whether a man of reasonable
caution is warranted in believing that the action taken was appropriate. Pp. 392 U. S.
21-22.

(c) The officer here was performing a legitimate function of investigating suspicious
conduct when he decided to approach petitioner and his companions. P. 392 U. S. 22.
(d) An officer justified in believing that an individual whose suspicious behavior he is
investigating at close range is armed may, to neutralize the threat of physical harm, take
necessary measures to determine whether that person is carrying a weapon. P. 392 U.
S. 24.

(e) A search for weapons in the absence of probable cause to arrest must be strictly
circumscribed by the exigencies of the situation. Pp. 392 U. S. 25-26.

(f) An officer may make an intrusion short of arrest where he has reasonable
apprehension of danger before being possessed of information justifying arrest. Pp. 392
U. S. 26-27.

6. The officer's protective seizure of petitioner and his companions and the limited
search which he made were reasonable, both at their inception and as conducted.
Pp. 392 U. S. 27-30.

(a) The actions of petitioner and his companions were consistent with the officer's
hypothesis that they were contemplating a daylight robbery and were armed. P. 392 U.
S. 28.

(b) The officer's search was confined to what was minimally necessary to determine
whether the men were armed, and the intrusion, which was made for the sole purpose
of protecting himself and others nearby, was confined to ascertaining the presence of
weapons. Pp. 392 U. S. 29-30.

7. The revolver seized from petitioner was properly admitted into evidence against him,
since the search which led to its seizure was reasonable under the Fourth Amendment.
Pp. 392 U. S. 30-31.

Affirmed.
FOURTH AMENDMENT – basis of “reasonable requirement”

Fourth Amendment

Primary tabs

Overview

I. INTERESTS PROTECTED

The Fourth Amendment of the U.S. Constitution provides that "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."

The ultimate goal of this provision is to protect people’s right to privacy and freedom
from unreasonable intrusions by the government. However, the Fourth Amendment
does not guarantee protection from all searches and seizures, but only those done by
the government and deemed unreasonable under the law.

To claim violation of Fourth Amendment as the basis for suppressing a relevant

evidence, the court had long required that the claimant must prove that he himself was
the victim of an invasion of privacy to have a valid standing to claim protection under the
Fourth Amendment. However, the Supreme Court has departed from such
requirement, issue of exclusion is to be determined solely upon a resolution of the
substantive question whether the claimant's Fourth Amendment rights have been
violated, which in turn requires that the claimant demonstrates a justifiable expectation
of privacy, which was arbitrarily violated by the government.

In general, most warrantless searches of private premises are prohibited under the
Fourth Amendment, unless specific exception applies. For instance, a warrantless
search may be lawful, if an officer has asked and is given consent to search; if the
search is incident to a lawful arrest; if there is probable cause to search and there is
exigent circumstance calling for the warrantless search. Exigent circumstances exist in
situations where a situation where people are in imminent danger, where evidence
faces imminent destruction, or prior to a suspect's imminent escape.

On the other hand, warrantless search and seizure of properties are not illegal, if
the objects being searched are in plain view. Further, warrantless seizure of abandoned
property, or of properties on an open field do not violate Fourth Amendment, because it
is considered that having expectation of privacy right to an abandoned property or to
properties on an open field is not reasonable.

However, in some states, there are some exception to this limitation, where some state
authorities have granted protection to open fields. States can always establish higher
standards for searches and seizures protection than what is required by the Fourth
Amendment, but states cannot allow conducts that violate the Fourth Amendment.

Where there was a violation of one’s fourth amendment rights by federal officials, A
bivens action can be filed against federal law enforcement officials for damages,
resulting from an unlawful search and seizure. Under the Bivens action, the claimant
needs to prove that there has been a constitutional violation of the fourth amendment
rights by federal officials acting under the color of law.

However, the protection under the Fourth Amendment can be waived if one voluntarily
consents to or does not object to evidence collected during a warrantless search or
seizure.

II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT

The courts must determine what constitutes a search or seizure under the Fourth
Amendment. If the conduct challenged does not fall within the Fourth Amendment, the
individual will not enjoy protection under Fourth Amendment.

A. Search

A search under Fourth Amendment occurs when a governmental employee or agent of

the government violates an individual's reasonable expectation of privacy.
Strip searches and visual body cavity searches, including anal or genital inspections,
constitute reasonable searches under the Fourth Amendment when supported by
probable cause and conducted in a reasonable manner.

A dog-sniff inspection is invalid under the Fourth Amendment if the the inspection
violates a reasonable expectation of privacy. Electronic surveillance is also considered
a search under the Fourth Amendment.

B. Seizure of a Person

A seizure of a person, within the meaning of the Fourth Amendment, occurs when the
police's conduct would communicate to a reasonable person, taking into account the
circumstances surrounding the encounter, that the person is not free to ignore the police
presence and leave at his will.

Two elements must be present to constitute a seizure of a person. First, there must be
a show of authority by the police officer. Presence of handcuffs or weapons, the use of
forceful language, and physical contact are each strong indicators of authority. Second,
the person being seized must submit to the authority. An individual who ignores the
officer’s request and walks away has not been seized for Fourth Amendment purposes.

An arrest warrant is preferred but not required to make a lawful arrest under the Fourth
Amendment. A warrantless arrest may be justified where probable cause and urgent
need are present prior to the arrest. Probable cause is present when the police officer
has a reasonable belief in the guilt of the suspect based on the facts and information
prior to the arrest. For instance, a warrantless arrest may be legitimate in situations
where a police officer has a probable belief that a suspect has either committed a crime
or is a threat to the public security. Also, a police officer might arrest a suspect to
prevent the suspect’s escape or to preserve evidence. A warrantless arrest may be
invalidated if the police officer fails to demonstrate exigent circumstances.

The ability to make warrantless arrests are commonly limited by statutes subject to the
due process guaranty of the U.S. Constitution. A suspect arrested without a warrant is
entitled to prompt judicial determination, usually within 48 hours.
There are investigatory stops that fall short of arrests, but nonetheless, they fall within
Fourth Amendment protection. For instance, police officers can perform a terry stop or a
traffic stop. Usually, these stops provide officers with less dominion and controlling
power and impose less of an infringement of personal liberty for individual stopped.
Investigatory stops must be temporary questioning for limited purposes and conducted
in a manner necessary to fulfill the purpose.

An officer’s reasonable suspicion is sufficient to justify brief stops and detentions. To

determine if the officer has met the standard to justify the seizure, the court takes into
account the totality of the circumstances and examines whether the officer has a
particularized and reasonable belief for suspecting the wrongdoing. Probable cause
gained during stops or detentions might effectuate a subsequent warrantless arrest.

C. Seizure of Property

A seizure of property, within the meaning of the Fourth Amendment, occurs when there
is some meaningful interference with an individual’s possessory interests in the
property.

In some circumstances, warrantless seizures of objects in plain view do not constitute

seizures within the meaning of Fourth Amendment. When executing a search warrant,
an officer might be able to seize an item observed in plain view even if it is not specified
in the warrant.

III. WARRANT REQUIREMENT

A search or seizure is generally unreasonable and illegal without a warrant, subject to

only a few exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must
demonstrate probable cause that a search or seizure is justified. A court-authority,
usually a magistrate, will consider the totality of circumstances to determine whether to
issue the warrant.
The warrant requirement may be excused in exigent circumstances if an officer has
probable cause and obtaining a warrant is impractical in the particular situation. For
instance, in State v. Helmbright, 990 N.E.2d 154, Ohio court held that a warrantless
search of probationer's person or his place of residence is not violation of the Fourth
Amendment, if the officer who conducts the search possesses “reasonable grounds” to
believe that the probationer has failed to comply with the terms of his probation.

Other well-established exceptions to the warrant requirement include consensual

searches, certain brief investigatory stops, searches incident to a valid arrest, and
seizures of items in plain view.

There is no general exception to the Fourth Amendment warrant requirement in national

security cases. Warrantless searches are generally not permitted in exclusively
domestic security cases. In foreign security cases, court opinions might differ on
whether to accept the foreign security exception to the warrant requirement generally
and, if accepted, whether the exception should extend to both physical searches and to
electronic surveillances.

IV. REASONABLENESS REQUIREMENT

All searches and seizures under Fourth Amendment must be reasonable. No excessive
force shall be used. Reasonableness is the ultimate measure of the constitutionality of
a search or seizure. Searches and seizures with the warrant must also satisfy the
reasonableness requirement.

On the other hand, warrantless searches and seizures are presumed to be

unreasonable, unless they fall within the few exceptions.

In cases of warrantless searches and seizures, the court will try to balance the degree
of intrusion on the individual’s right to privacy and the need to promote government
interests and special needs in exigent circumstances. The court will examine the totality
of the circumstances to determine if the search or seizure was justified. When
analyzing the reasonableness standard, the court uses an objective assessment and
considers factors including the degree of intrusion by the search or seizure and the
manner in which the search or seizure is conducted.

V. EXCLUSIONARY RULE

Under the exclusionary rule, any evidence obtained in violation of the Fourth
Amendment will be excluded from criminal proceedings. There are a few exceptions to
this rule.

VI. ELECTRONIC SURVEILLANCE

In recent years, the Fourth Amendment's applicability in electronic searches and

seizures has received much attention from the courts. With the advent of the internet
and increased popularity of computers, there has been an increasing amount of crime
occurring electronically. Consequently, evidence of such crime can often be found on
computers, hard drives, or other electronic devices. The Fourth Amendment applies to
the search and seizure of electronic devices.

Many electronic search cases involve whether law enforcement can search a company-
owned computer that an employee uses to conduct business. Although the case law is
split, the majority holds that employees do not have a legitimate expectation of privacy
with regard to information stored on a company-owned computer. In the 2010 case of
City of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an
expectation of privacy to text messages sent and received on an employer-owned
pager.

Lately, electronic surveillance and wiretapping has also caused a significant amount of
Fourth Amendment litigation.

VII. THE USA PATRIOT ACT

Following the September 11, 2001 attacks on the World Trade Center and the
Pentagon, Congress and the President enacted legislation to strengthen the intelligence
gathering community’s ability to combat domestic terrorism. Entitled the USA Patriot
Act, the legislation’s provisions aimed to increase the ability of law enforcement to
search email and telephonic communications in addition to medical, financial, and
library records.

One provision permits law enforcement to obtain access to stored voicemails by

obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic
search warrant requires a much lower evidentiary showing. A highly controversial
provision of the Act includes permission for law enforcement to use sneak-and-peak
warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay
notifying the property owner about the warrant’s issuance. In an Oregon federal district
court case that drew national attention, Judge Ann Aiken struck down the use of sneak-
and-peak warrants as unconstitutional and in violation of the Fourth Amendment. See
504 [Link].2d 1023 (D. Or. 2007).

The Patriot Act also expanded the practice of using National Security Letters (NSL). An
NSL is an administrative subpoena that requires certain persons, groups, organizations,
or companies to provide documents about certain persons. These documents typically
involve telephone, email, and financial records. NSLs also carry a gag order, meaning
the person or persons responsible for complying cannot mention the existence of the
NSL. Under the Patriot Act provisions, law enforcement can use NSLs when
investigating U.S. citizens, even when law enforcement does not think the individual
under investigation has committed a crime. The Department of Homeland Security has
used NSLs frequently since its inception. By using an NSL, an agency has no
responsibility to first obtain a warrant or court order before conducting its search of
records.

Another aspect of the Patriot Act, which has been highly confidential was the Telephone
Metadata program, which under § 215 of the Patriot Act, had allowed the NSA to collect
data about Americans’ telephone calls in bulk, was reviewed by the Second Circuit in
ACLU v. Clapper, in which the court held the Telephone Metadata program illegal under
the Congress’ original intent under the §215.

The Patriot Act has expired in mid-2015, and since June 2nd, 2015 has been
repackaged under the USA Freedom Act. Although it remains to be seen how the
Freedom Act will be interpreted, with respect to the Fourth Amendment protections, the
new Act selectively re-authorized the Patriot Act, while banning the bulk collection of
data of American’s telephone records and internet metadata and limited the
government’s data collection to the “greatest extent reasonably practical” meaning the
government now cannot collect all data pertaining to a particular service provider or
broad geographic region.

VIII. FORTH AMENDMENT AND SUPERVISED RELEASE/PAROLE

Probationers—convicted criminal offender who is released into the community under

supervision of a probation officer in lieu of incarceration; or parolees—convicts who
have served a portion of his judicially imposed sentence in penal institutions, and is
released for the remainder of the sentence under supervision of a parole officer for good
behavior—can also assert fourth amendment rights, creating a potential confrontation
between fundamental constitutional guarantee and the society’s legitimate interest in
correctional programs to prevent the convicts from lapsing back into a crime.

Traditionally, courts have struggled with various theories of parole and probation to
justify the complete denial of fourth amendment rights to the convicts on supervised
release or probation. The most prevalent of the theories was the “Custody Theory,”
under which an offender was said to be entitled to no more liberty than he would have
enjoyed had he been incarcerated. Recently, however, this rationale was rejected by
Morrissey v. Brewer, which emphasized that the parolee’s status more closely
resembles that of an ordinary citizen than a prisoner. While the Court noted that since
parole revocation only changed the type of penalty imposed on an already-convicted
criminal, the Court need not afford the parolees “the full panoply of rights” available
under the fourteenth amendment to a free man facing criminal prosecution, the Court
held that certain procedural protections must be guaranteed to the parolees facing
revocation of the parole. In general, the released offenders now have been afforded full
Fourth Amendment protection with respect to searches performed by the law
enforcement officials, and warrantless searches conducted by correctional officers at
the request of the police have also been declared unlawful.

However, in reviewing the searches undertaken by the correctional officers on their own
initiative, some courts have modified the traditional Fourth Amendment protections to
accommodate the correctional officers’ informational needs, developing a modified
“Reasonable Belief” standard, under which the correctional officer is permitted to make
a showing of less than probable cause in order to justify the intrusion of privacy into the
released offender.