You can't just smack inmates around

It's true. You can't just smack inmates around. The Constitution protects inmates from the excessive use of force. The courts have outlined a way to resolve these cases, sensitive to the fact that jails need to maintain order and some pushing and shoving is inevitable.

The case is Abreu v. Nicholls, decided on March 3. Abreu won this appeal pro se, by the way. It all started when he was a new inmate, and Correction Officer Nicholls told Abreu to stop looking at him.

Nicholls then took out a rubber-headed “hammer” from an office desk and stood in front of Abreu. Nicholls said, “Didn’t I tell you not to look at me,” to which Abreu responded, “I’m not from this prison, I come from the state.” ... Nicholls then “began to press the hammer to [his] forehead.”

While the hammer was pressed to his head, Nicholls told Abreu, “Come on, do what ever you want,” but Abreu did not respond because the other inmates urged him to stay silent. Nicholls pressed the hammer into his head between one and five times and his head went “half way” backwards. After one to two minutes, Nicholls removed the hammer from his forehead and put it back into the desk.

This testimony is enough for Abreu to win the case, so the Court of Appeals (Calabresi, Katzmann and Chin [D.J.]), reverses summary judgment in a summary order. In the early 1970's, the Court of Appeals held that not every push or shove at the jailhouse is actionable under the Eighth Amendment's prohibition against cruel and unusual punishment. But the Supreme Court has also ruled that the issue is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” The extent of the inmate's injury is a relevant factor, but it is not dispositive. Summing up the legal standard, the Court of Appeals notes that "Where a prison official acts 'maliciously and sadistically,' 'contemporary standards of decency always are violated. This is true whether or not significant injury is evident.' But even when a prison official acts maliciously or sadistically, 'not every push or shove ... violates a prisoner’s constitutional rights.' '[T]he Eight Amendment’s prohibition against cruel and unusual punishment does not extend to de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.'”

It doesn't look like Nicholls used force against Abreu for any good reason, certainly not "any proper penal purpose," the Second Circuit holds. Rather, it looks like a "calculated effort to apply a moderate amount of force in a way that threatened the use of significantly greater force." Using a rubber-headed hammer to bend Abreu's head "half way backwards" does not seem kosher, either.