Fifth Circuit Upholds Qualified Immunity for Texas Prison Guard Who Beat Prisoner’s Arm With Baton Until It Broke
by Matt Clarke
On August 31, 2022, the U.S. Court ofAppeals for the Fifth Circuit upheld a district court’s grant of qualified immunity (QI) to a Texas prison guard who used his baton to beat and break the arm of a prisoner protruding from the bottom of a dogpile of guards. While a loss for Robert A. Byrd, his case is instructive in laying out the factors that a court uses to determine the “subjective intent” of defendant prison officials in a civil rights case.
While held by the state Department of Corrections and Rehabilitation (TDCJ) at its Coffield Unit in May 2014, Byrd claimed that guards beat up a fellow prisoner, and Byrd threw water on one of them to get a guard supervisor to come to the scene and provide the victim medical help. Instead, as the federal court for the Eastern District of Texas later recalled, Sgt. Tony Harrell “came to Byrd’s cell and gassed him” when he refused to submit to a strip-search.
Byrd reportedly wrapped his face in a jacket and towels to ward off the chemical spray, and then he “hollered, ‘Is that all you got?’” Harrell led a five-man cell-extraction team to Byrd’s cell and repeated the demand for the prisoner to submit to a strip-search. When Byrd again refused, Harrell ordered the cell door opened. Byrd pushed out of the cell and into the team’s shields. The team pushed back, and Harrell struck Byrd’s legs with a riot baton, dropping him to the floor. With his backswing, the guard hit a handheld video camera that was recording the incident, disabling its video. But the camera continued to record audio. The incident was also captured on surveillance video.
As Byrd struggled on the ground with the guards, his arm protruded from beneath their bodies piled atop him. Harrell swung his baton repeatedly at Byrd’s protruding arm, breaking it and rendering him unconscious. In a post-incident report, Harrell said he struck Byrd’s arm because Byrd was holding a weapon. A crudely-made wooden shank was produced as proof, though surveillance video did not show Byrd was holding anything in his hand.
In response to Byrd’s grievances, a use-of-force inspector issued a report that found Harrell had used excessive force. But that conclusion was overruled by TDCJ’s Office of the Inspector General.
Byrd filed a federal civil rights complaint pro se in the district court against Harrell and the prison’s grievance counselor, Kellie Ward, alleging excessive use of force, failure to protect, and failure to provide medical treatment. Though the district court assumed Byrd did not have a weapon, it nevertheless found defendants entitled to QI and granted them summary judgment. Byrd appealed.
Reviewing the decision de novo, the Fifth Circuit also assumed Byrd had no weapon. The Court said here “the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm,” quoting Hudson v. McMillian, 503 U.S. 1 (1992). It then used a five-factor test laid out in that ruling to examine Defendants’ “subjective intent.”
The first of those factors was the extent of the injury suffered; “[a]ll agree Byrd suffered more than a de minimis injury,” the Court said.
Next it looked at the need for the application of force, finding that “officers faced a violent inmate who had previously told Ward that he ‘will kill before [he] get[s] killed.’”
The third factor, the relationship between that need and the amount of force used, “is a closer call,” the Court allowed. Since Byrd was already immobilized by the guards piled atop him, the force Harrell used “cannot be justified by the need to neutralize an armed prisoner.” But coming as it did “at the culmination of a violent encounter with a prisoner determined to fight through chemical spray and riot shields,” the Court said it could not “micro-manage the force necessary to quell such volatile situations.” Instead, recalling the Supreme Court’s admonition in Bell v. Wolfish, 441 U.S. 520, (1979) it must “accord prison officials ‘wide-ranging deference.’”
The fourth factor is where the Court took a hard line. Asking whether the use of force was deployed in response to a reasonably perceived threat, the Court didn’t spend much time wondering how a man subdued under a pile of guards could threaten anyone; rather, it said that Byrd started the fracas when he threw water and refused to comply with guards’ strip-search command – so whatever happened after that was essentially his fault, too.
As to the final factor – whether guards made any effort “to temper the severity” of their use of force, the Court said video showed Harrell stopped hitting Byrd’s arm when he stopped moving it – so again, in essence, the Court blamed Byrd for the severity of his injury because he didn’t stop moving his arm sooner.
The Court also said that Byrd failed to show the grievance counselor had anything to do with the alleged denial of pepper-spray decontamination or medical treatment. Therefore, both defendants were entitled to QI and summary judgment for them was affirmed. See: Byrd v. Harrell, 48 F.4th 343 (5th Cir. 2022).
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