Pierce: Sticks and Stones May Break My Bones, but De Minimis Injuries Won’t Preclude Me

8/14/2019 Pierce: Sticks and Stones May Break My Bones, but De Minimis Injuries Wont Preclude Me

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Sticks and Stones May Break My Bones,but De MinimisInjuries Wont Preclude

Me: Why the Eighth Circuit CorrectlyDecided Chambers v. Pennycook

BRITTANY PIERCE*

ABSTRACT

Imagine that a man is visit ing a relative at her home when the police

suddenly enter with a search warrant. The man is immediatelyapprehended and officers hold him down on the floor while handcuffing

him behind his back. After the man states that he is simply visiting, an

officer kicks him multiple t imes and calls him a liar. The man complains ofpain and the officers transport him to the hospital. With his hands still

cuffed behind his back, t he officers adjust the mans seat soit leans as far

forward as possible while an officer kicks his seat. Meanwhile, the driverbr akes and accelerates rapidly so the mans head repeatedly hits the

dashboard. While the mans inj uries are minor, he believes that the officers

use of force was unjust and files suit against the arresting officers.Unfortunately, his injuries are considered de minimisand he is foreclosed

from bringing a successful claim of excessive force under the Fourth

Amendment. As a result, the man has no form of redress.

This was the state of affairs in the Eighth Circuit until Chambers v.Pennycook. This Comment argues that in Chambers, the Eighth Circuit Court

of Appeals correctly concluded that the presence of de minimis injuries does

not automatically preclude an arrestees excessive force claim under theFourth Amendment. Since a government officials use of excessive force is

always a violation of a constitut ionally protected right, Chamberscorrectly

concluded that the relevant inquiry is w hether the officers use offorce wasreasonable under the circumstances.

* Candidate for Juris Do ctor, New England Law| Boston (2013). B.A., Psychology , magna

cum lade, Elo n University (2010). I would like to thank my family and the New England Law

Review staff for their support throughout the writing process.


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INTRODUCTION

n June 2011, the Eighth Circuit answered a question that had perplexed

circuit judges for over a decade: whether de minimis injuries aresufficient to establish a Fourth Amendment excessive force claim.1

Kevin Chambers was injured when he was arrested and later complained

of back pain.2He brought a claim against the police officers that arrested

him, alleging that they violated his right to be free from excessive force.3While his resulting minor back pain was considered de minimis, the Eighth

Circuit concluded that he was not foreclosed from alleging a constitutional

violation, because a de minimis injury did not necessarily indicate that deminimis force had been used.4Rather, the Court held that the focus should

be on whether the officers use of force was obj ectively reasonable under

the circumstances.5

This Comment argues that Chambers was correctly decided because the

court considered that de minimisinjuries are not necessarily indicative of deminimis force, because the same amount of force can produce different

injuries when applied to different individuals.6 Further, since both theFourth and Eighth Amendments guarantee protection against the use of

excessive force by government officials, the protections provided by each

amendment should be the same.7Therefore, in reaching the conclusion thatde minimisinjuries are sufficient to bring an excessive force claim, Chambers

correctly provided arrestees with the same protection afforded prisoners

under the Eighth Amendment.8 Finally, this Comment asserts thatChambersprovides the corr ect legal inquiry regarding the constitutionality

of excessive force claims: whether the force used against an arrestee was

reasonable.9

Part I of this Comment discusses the development of excessive forceclaims under the Fourth and Eighth Amendments. Part II describes the

facts of Chambers and discusses the holding and analysis of the Eighth

Circuit. Part III of this Comment argues that free citizens should not be

1 Chambers v. Pennycook, 641 F.3d 898, 904, 906-08 (8th Cir. 2011).2 Id. at901-02.3 Id. at 903.4 Id. at 902, 906-08.5 Id. at 906.6 Id. ; see infra Part IV.7 See Graham v. Connor, 490 U.S . 386, 395 (1989); Whitley v . Albers, 475 U.S. 312, 327

(1986); infra Part III.8 Chambers, 641 F.3d at 906-08; see infra Part III.9 See infra Part V.

I


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2013 Chambe rs v. Pe nnycook 1073

provided with less protection against excessive force than prisoners, andthat the results of excessive force claims brought under the Fourth and

Eighth Amendments should be similar. Additionally , it is argued th at force

used against an arrestee who is not resisting is excessive. Part IV arguesthat an officers use of excessive force is a violation of a constitutionally

protected right, even where only de minimis injury results. Finally, Part V

asserts t hat the obj ective reasonableness of an officers use of force shouldbe the maj or focus of a Fourth Amendment excessive force claim.

I. Excessive Force Claims Brought Under 42 U.S.C. 1983

Under 42 U.S.C. 1983 ( 1983 claim) an individual is provided with

a remedy for the deprivation of rights guaranteed under the U.S.Constitution.10The purpose of the statute is to ensure that state officials do

not abuse their authority by depriving citizens of their constitutionally

protected rights.11 The right of persons to be free from unreasonable

searches and seizures is guaranteed by the Fourth Amendment.12While theConstitution bestows upon law enforcement officers the power to arrest

individuals against their will;13the Fourth Amendment protects against theuse of excessive force in making such arr ests.14

A. Arrestees Excessive Force Claims Under the Fourth Amendment

Claims of excessive force brought under the Fourth Amendment are

analyzed by examining the specific facts of each case to determine whetherthe force used was reasonable.15 In Graham v. Connor, the plaintiff

br ought a 1983 claim against the arrest ing police officers, alleging that the

officers had used excessive force.16 Graham alleged that the officers hadshoved his face into the hood of a police car when he tried to speak and

threw him into the backseat of the car. 17The distr ict court applied a four-part test set out in the prior case of Johnson v. Glick, and dir ected a verdictfor the defendant officers.18 This holding was affirmed on appeal to the

10 42 U.S.C. 1983 (2000).11 Wyatt v. Cole, 504 U.S. 158, 161 (1992).12 U.S. CONST. amend. IV.13 See, e.g., Smith v. Go nzales, 670 F.2d 522, 526 (5th Cir. 1982) (stating that the Co nstitution

allows for all arrests as long as there is a properly issued warrant even if the defendant is later

acquitted).

14 See, e.g., Graham v. Co nnor, 490 U.S. 386, 394 -95 (1989).15 Id. at 396.

16 Id. at 390.17 Id. at 389.18 Id. The S ec ond Circuit inJohnson established a four-factor tes t to determine whether


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Fourth Circuit.19

The Supreme Court granted certiorari, rejected the holding of the lowercourts, and held that excessive force claims against law enforcement

officers arising from a seizure should be examined under the FourthAmendment.20 The Court held that in examining excessive force claims,courts must initially determine whether a police officer violated a

constitutional right.21Further, courts must evaluate the reasonableness of

the seizure by examining: the severity of the crime; the immediate threatthe suspect poses to officers or others; and the suspects active resist ance of

the arrest.22 The Court noted that the reasonableness of the force used

during a seizure should be evaluated through the perspective of areasonable officer on the scene, rather than with the 20/20 vision of

hindsight.23 Thus, an assessment of reasonableness should take into

account the quick decisions police officers often have to make during tenseand fast-paced situations.24 The Supreme Court ultimately vacated the

decision of the lower courts and remanded the case for consideration underthe Fourth Amendment.25

Graham laid out the legal framework for circuit courts to use whenevaluating a claim of excessive force under the Fourth Amendment. 26The

Supreme Court stat ed: Not every push or shove, even if it may later seem

unnecessary in the peace of a judges chambers, violates the FourthAmendment.27 Lower courts interpreted this statement to imply that

force used by an officer was excessive under the Constitution. Johnson v. Glick, 481 F.2d 1028,1033 (2d Cir. 1973). These factors included: (1) the need for force; (2) the amount of forc e used

in relation to how much was needed; (3) the se verity of any injury; and (4) whether the force

was applied in go od faith, o r maliciously in order to cause harm. Id.19 Graham, 490 U.S . at 391.20 Id. at 395. The Fo urth Amendment provides that [t]he right of the people to be secure in

their persons . . . against unreasonable searches and seizures shall not be violated. U.S.CONST. amend. IV. An arrest is considered a seizure under the Fourth Amendment, and this

seizure continues for as long as a perso n is within the c ustody of the arresting office rs. Robins

v. Harum, 773 F.2d 1004, 10 10 (9 th Cir. 1985).21 Graham, 490 U.S . at 394.22 Id. at 396 ; Bryan N. Ge orgiady, Note,An Excessively Painful Encounter: The Reasona bleness

of Pain and De Minimis Injures for Fourth Amendment Excessive Force Cla ims, 59 SYRACUSE L.

REV. 123, 134 (2008).

23 Graham, 490 U.S . at 396.24 Id. at 396-97.25 Id. at 399.

26 Georgiady, supra note 22, at 131.27 Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 197 3))

(internal quotation marks omitted).


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minimal or de minimisuses of force do not give rise to an excessive forceclaim.28 The extent of the claimants injuries is often an important factor

courts consider in evaluating such claims.29Circuit courts have reached

differing conclusions as to whether a claim involving only de minimisinjuries may be sustained.30 While no specific definition of de minimis

injuries exists, courts have included injuries that evidence little to no

physical markings, and those that heal without medical attention in thedefinition.31 The presence of de minimis injuries remains an issue of

contention among the different circuits.32

In recent decisions the First, Sixth, and Eleventh Circuits held that deminimis injuries alone do not automatically defeat an excessive force claimunder the Fourth Amendment.33 In reaching this conclusion, the circuits

noted that a Fourth Amendment excessive force claim may be adequately

supported by evidence of police misconduct, even though the claimant didnot sustain substantial injuries.34Therefore, the extent of the injury is not

the focus of an excessive force claim; rather, courts should focus on thereasonableness of the officer under the circumstances.35

28 See, e.g., Nolin v. Isbell, 207 F.3d 1253 , 1257 (11th Cir. 200 0) ([T]he application of deminimis force, without more, will not support a claim for e xcessive force in violation of the

Fourth Amendment.). Courts have reasoned that as so me degree of physical force is typically

involved in carrying out a lawful seizure, this minimal use of force incident to making an

arrest cannot satisfy the excessive force needed to establish a violation of Fourth

Amendment rights. SeeGraham, 490 U.S . at 396.29 See, e.g., Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006).30 Georgiady, supra note22,at 137. Compare Morrison v. Bd. of Trs., 583 F.3d 394, 407 (6th

Cir. 2009) (holding that the extent of injuries is not crucial to an excessive force claim), with

Wertish, 433 F.3d at 1067 (holding that minor sc rapes and bruises were de minimisinjuries thatindicated excessive force was not used).

31 See, e.g., Wertish, 433 F.3d at 1067 (noting that minor scrapes and bruises were de minimis

injuries) ; Marshall v. Odom, 156 F. Supp. 2d 525, 530 (D. Md. 2001) (noting that the prese nce

of temporary swe lling and irritation co nstitute de minimisinjuries).32 Georgiady, supra note 22, at 137.33 See, e.g., Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002) (holding that the district court

erred by instructing the jury that serious injury was required for an exce ssive force c laim); Lee

v. Ferraro, 284 F.3d 1188, 1200 (11thCir. 2002) (holding that the o ffice rs actions in slamming

plaintiffs head against the trunk of the car after plaintiff was secured in handcuffs was

unreasonable, and plaintiffs lack of serious injury did not render such force de minimis);

Kostrzewa v. City of Troy, 247 F.3d 633, 640-41 (6th Cir. 2001) (holding that the officers erratic

and rec kless driving with plaintiff in the backseat was sufficient evidence for plaintiff to bring

an excessive force claim, as he experienced pain as a result, despite the fact that he only

suffered red, painful, and swollen wrists).34 See, e.g., Bastien, 279 F.3d at 14-16.35 See, e.g., id. at 16.


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Specifically, the Sixth Circuit held in Morrison v. Board of Trustees thatthe seriousness of an injury is not determinative of a Fourth Amendment

excessive force claim.36 The significance of an injury may provide a basis

for holding that officers utilized excessive force; however, an excessiveforce claim may be brought even where the alleged force did not produce

lasting physical damage.37 Based on this reasoning, the court in Morrison

held that the minor scratches sustained by the plaintiff when a policeofficer repeatedly forced her face into the ground when she tried to speak

did not defeat her claim of excessive force.38

Other circuits, however, such as the Fifth Circuit and Eighth Circuit,have held that de minimis injuries are not sufficient to sustain a claim ofexcessive force.39 According to these circuits, a plaintiff must suffer a

significant physical injury to bring a 1983 claim.40 These differing

analyses have resulted in various results for similar claims of excessiveforce across the circuits.41

B. Prisoners Excessive Force Claims Under the Eighth Amendment

The Eighth Amendment is the controlling amendment when

evaluating a prisoners excessive force claim.42 Courts evaluateexcessiveness by looking at whether the prison official used force in

good faith to maintain order or used force maliciously to cause harm. 43In

36 SeeMorrison v. Bd. of Trs., 583 F.3d 394, 407 (6th Cir. 2009).37 Seeid.38 Seeid. at 406-07.39 See, e.g., Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) ([H]is relative ly minor

scrapes and bruises and the less-than-permanent aggravation of a prior shoulder conditionwere de minimis injuries that support the conclusion that Krueger did not use excessive

force.); Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005) (As Tarver does not alleg e

any degree of physical harm greater than de minimisfrom the handcuffing, we find that he has

not satisfied the injury requirement of a 1983 claim.).40 See, e.g., Wertish, 433 F.3d at 1067; Tarver, 410 F.3d at 751-52. Recently, the Eighth Circuit

noted that it had not yet reso lved the question of whether an excessive force claim requires a

minimum level of injury. Co peland v. Lo cke, 613 F.3d 875, 881 (8th Cir. 2010).41 See Georgiady, supra note 22, at 137-41.42 Whitley v. Albers, 475 U.S. 312, 327 (1986). The Eighth Amendment provides that

[e]xcessive bail shall not be required, . . . nor cruel and unusual punishments inflicted. U.S.CONST.amend. VIII. In Whitley, prison inmate Albers was shot in the knee by a guard during a

prison riot. 475 U.S . at 316. Upon e valuating his excessive force claim, the S upreme Court held

that since the Eighth Amendment foc uses on unnecessary inflictions o f pain, it prov ided the

best so urce of protec tion for prisoners against excessive force. Id. at 316, 327.43 Hudson v. Mc Millian, 503 U.S. 1, 7 (1992); see Robyn D. Hoffman, Note, Adding Insult to

Injury?: The Untoward Impact of Requiring More tha n De Minimis Injury in an Eighth Amendment


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Hudson v. McMillian, pr ison officials beat inmate Hudson which resulted inminor bruising, swelling of his face, loosened teeth, and a cracked dental

plate.44 Hudson brought an excessive force claim against the officers

alleging that they violated his Eighth Amendment rights by using crueland unusual punishment against him.45The Fifth Circuit held that while

the force of the officers was unreasonable, Hudsons Eighth Amendment

claim failed because he only sustained minor injuries.46

On appeal, the Supreme Court held that in determining thereasonableness of force courts should consider: (1) the seriousness of the

inmates injuries; (2) the need for the use of force; (3) the relationship

between how much force was needed and the force used; (4) the extent ofthe threat as reasonably perceived by the officers; and (5) the officers

efforts to reduce the need for a forceful response.47 The Court concluded

that Hudsons injuries were not de minimis, and therefore the Fifth Circuiterred in dismissing Hudsons Eighth Amendment claim of excessive

force.48

Additionally, the Court st ated that the lack of serious injuries w asrelevant to an excessive force claim under the Eighth Amendment,however, it was not determinative.49

In recent years, circuits have kept in line with the Supreme Courtsholding in Hudson, recognizing that de minimis injuries alone may be

enough to bring an excessive force claim under the Eighth Amendment. 50These circuits noted that the absence of any significant injury . . . does not

end the Eighth Amendment inquiry, for our standards of decency are

violated even in the absence of such injury if the defendants use of forcewas malicious or sadistic.51The courts reasoned that if de minimisinjuries

were not sufficient to bring an excessive force claim, a prisoner could be

Excessive Force Case, 77 FORDHAM L.REV.3163, 3177 (2008).44 Hudson, 503 U.S . at 4.45 Id. 46 Id. at 5; Hoffman, supra note 43, at 3177.47 Hudson, 503 U.S . at 7.48 Id. at 10, 12 .49 Id. at 7.50 See, e.g., Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) ([I]njuries are only o ne of

several factors that a co urt must c onsider . . . .); Griffin v. Crippen, 193 F.3d 89, 91 -92 (2d Cir.

1999) (holding that a prisoners bruised shin and swelling were sufficient to state an excessive

force claim).51 Wright v. Go ord, 554 F.3d 255, 270 (2d Cir. 2009); see also Williams v . Curtin, 631 F.3d

380 , 383 (6th Cir. 2011) (holding that the Eighth Amendment is always vio lated when there is

a malicious infliction of pain); United States v. LaVallee, 439 F.3d 670, 687 (10th Cir. 2006)(explaining that the Eighth Amendment protects against cruel and unusual punishment

generally, and is not limited to punishment that causes significant injury).


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attacked maliciously, for the sole purpose of causing harm, withoutredress.52 Additionally, courts have noted that the analysis of Eighth

Amendment claims should focus on the infliction of pain, not on the

resulting injurythus, conduct by a prison official that causes pain butdoes not leave a physical injury is a valid basis for an excessive force

claim.53

Recently, in Wilkins v. Gaddy, the Supreme Court held that t he amountof force used by a prison official is more important than the prisonersinjury in the analysis of an Eighth Amendment excessive force claim.54The

Court explained that [a]n inmate who is gratuitously beaten by guards

does not lose his ability to pursue an excessive force claim merely becausehe has the good fortune to escape without serious injury.55The Supreme

Court held that circuitslike the Fourth Circuitmisinterpreted Hudson

when they concluded a plaintiff could not prevail on an excessive forceclaim if his inj uries were de minimis.56The extent of injuries may b e relevant

in determining how much force was actually used or in calculatingdamages; however, the presence of de minimis injuries does notautomat ically defeat a prisoners excessive force claim.57

The Supreme Courts holding in Wilkins established the currentstandard for evaluating excessive force claims under the Eighth

Amendment.58This new standard replaced the law set out in earlier FourthCircuit cases.59Prior to Wilkins, the Fourth Circuit concluded that a plaintiff

with a de minimis injury could not prevail because a de minimis injury

indicated that only de minimisforce had been used.60The Supreme Court inWilkins rejected this interpretation, thus creating a new body of law for

52 Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000).53 See, e.g.,Hendrickson v. Cooper, 589 F.3d 887, 891 (7th Cir. 2009) (holding that rec urring

back pain a prisoner endured after be ing thrown up against a wall and slammed onto the

floo r by a prison official established excessive force).

54 130 S. Ct. 1175, 1178 (2010).55 Id. at 1178-79.56 See id. at 1179.57 See id. at 1178.58 See. Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010) (The Supreme Court

recently clarified that the extent of any resulting injury, while material to the question ofdamages and informative as to the likely degree of force applied, is not in and of itself athreshold requirement for proving this type of Eighth Amendment claim. ).

59 See, e.g., Norman v. Taylo r, 25 F.3d 1259, 1259, 1262 -63 (4 th Cir. 1994) .

60 See, e.g., id.at 125 9, 1262-64; see alsoTaylor v. McDuffie, 155 F.3d 479, 483-84 (4th Cir.

1998) (applying the ho lding of Normanto a pretrial detainees excessive force claim broughtunder the Due Process Clause of the Fourteenth Amendment).


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circuits to follow.61

Following the Supreme Courts holding, the Eighth Circuit applied thenew standard to a prisoners Eighth Amendment excessive force claim in

Williams v. Jackson.62 In Williams, prison officials removed the protect iveshield of an ultraviolet lamp exposing Williams and other prisoners toradiation for at least fourteen hours.63As a r esult, Williams experienced red

eyes, blurry vision, facial swelling, and migraine headaches.64 Williams

br ought an Eighth Amendment claim of excessive force against the prisonofficials, and after a denial of qualified immunity, the prison officials

appealed.65 On appeal, the Eighth Circuit noted that the Supreme Court

recently held that the analysis should focus on the application of force,rejecting the notion that the presence of de minimis injuries alone requires

dismissal of an excessive force claim.66In reaffirming the Supreme Courts

reasoning, the Eighth Circuit affirmed the denial of qualified immunitydespite the possible de minimis nature of Williamss injuries.67

II. Chambers v. Pennycook

A. Facts and Procedural History

Police arrested Kevin Chambers (Chambers) on August 4, 2005 while

Chambers visited his stepdaughter at her home, where police had obtained

a warrant to search for illegal drug paraphernalia.68Chambers alleged thatwhile police placed him in handcuffs, they held him on the floor and

jammed guns into his back.69Additionally, he testified that police kicked

him on both sides of his body and stepped on him.70After complaining ofback pain, police tr ansport ed Chambers to the hospita l and allegedly

reclined Chamberss seat so far forward that his face almost touched the

61 Wilkins, 130 S . Ct. at 1179 .62 SeeWilliams, 600 F.3d at 1012-14.63 Id. at 1010.64 Id. at 1010-11.65 Id. at 1010.66 Id. at 1012.67 Id. at 1014. Qualified immunity protec ts [g]overnment o fficials performing

discretionary functions . . . from liability for c ivil damages insofar as their conduct does notviolate clearly established statutory or constitutional rights of which a reasonable person

would have known. Williams, 600 F.3d at 1012 (alteration in original).

68 Chambers v. Pennycook, 641 F.3d 898, 901 (8th Cir. 2011).69 Id. at 902.70 Id.


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necessarily mean that de minimis force was used.84The court explained thatthe same amount of force applied to different individuals might result in a

more serious injury to one individual than to the other.85Therefore, the

determination of whether the force used was constitutional could solely b ebased on the sensitivit y of the plaint iff.86 The Eighth Circuit concluded that

courts should not rely on such an unpredictable rule.87Instead, the Court

stated that the relevant inquiry is whether the conduct of the officer andthe force used were reasonable under the circumstances.88Courts should

measure reasonableness from the objective viewpoint of a reasonable

officer at the scene when the force was used.89 Applying this newlyclarified legal test, the Eighth Circuit held that the officers conduct was not

objectively reasonable and that the evidence presented by Chambers

sufficiently established that the officers used excessive force under theFourth Amendment.90

ANALYSIS

III. Both the Eighth Amendment and the Fourth Amendment Provide the

Same ProtectionThe Right to be Free From Excessive Force.

The Eighth Circuit correctly decided Chambers v. Pennycook in holdingthat de minimis injuries did not automatically preclude an arrestee from

br inging a claim of excessive force under the Fourth Amendment .91

According to the Supreme Court , a minimum level of injury is not requiredfor a prisoner to bring a valid Eighth Amendment claim of excessive

force.92 In Chambers, the Eighth Circuit reiterated many of the same

concerns raised by the Supreme Court in reference to the Eighth

84 Id. at 906.85 Id.86 Chambers, 641 F.3d at 906.87 Id.88 Id. at 907.89 Id. at 906 & n.3.90 Id. at 907-08. Ho wever, despite the officers use of excessive force , the Court ultimately

held that they were entitled to qualified immunity because at the time of Chambers s arrest,the state of the law regarding whether de minimis injuries were sufficient to maintain an

excessive force claim was unsettled. Id. at 908-09. Therefore, the officers could have believedthat as long as they did not cause more than de minimis injuries, their actions were

constitutional. Chambers, 641 F.3d at 908-09.

91 See McClennon v. Kipke, 821 F. S upp. 2d 1101, 1106 (D. Minn. 2011) (applying theholding of Chambersto an arrestees Fourth Amendment excessive force claim).

92 See Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010).


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Amendment, and reached a similar holding when it considered anexcessive force claim brought under the Fourth Amendment.93 As both

prisoners and arrestees are guaranteed the right to be free from excessive

force under the Constitution,94

Chambers correctly recognized that thisEighth Amendment reasoning should apply to claims arising under the

Fourth Amendment as w ell.95

The [U.S.] Constitution is a written agreement to which all citizens areparties.96 Therefore, individuals become parties to this agreement whenthey are either born as U.S. citizens, or, if foreign born, w hen they swear

allegiance to the Constitution.97The Bill of Rights enumerates individual

rights of the people that must be respected by the Federal Government. 98Among these rights is the Fourth Amendment right to be free from

unreasonable searches and seizures 99 and the Eighth Amendment

protection against cruel and unusual punishments.100The Supreme Courtheld that when a plaint iff brings an excessive force claim under 42 U.S.C.

1983, courts must determine whether the act ors infringed on a plaintiffsconstitutional right.101 The Fourth Amendments application to thePeople refers to the citizens of the United States who enter into a social

contract with the country and become members of its community.102

Therefore, because the Fourth Amendment governs the seizures of freecitizens, it is applicable in an excessive force claim brought by an

arrestee.103The Eighth Amendment, on the other hand, applies to prisoners

br inging an excessive force claim because of its prohibition against crueland unusual punishment, which properly applies in penal institut ions.104

Accordingly, while the amendments protect citizens in different contexts,

93 See id.at 1178-80 (stating that in order for a person to prevail on an exce ssive force claim

under the Eighth Amendment, he must prove that the assault o ccurred and that it was carriedout in a malicious and sadistic fashion); see generally Cha mbers, 641 F.3d at 901.

94 See Graham v. Connor, 490 U.S. 386, 394 (1989); Whitley v. Albers, 475 U.S. 312, 327

(1986); see alsoGeorgiady, supra note 22, at 127.95 See Chambers, 641 F.3d at 906-07 & n.3 .96 ROLAND ADICKES,THE UNITED STATES CONSTITUTION AND CITIZENSRIGHTS:THE

INTERPRETATION AND MIS-INTERPRETATION OF THE AMERICAN CONTRACT FOR GOVERNANCE 8

(2001).97 Id.98 Id. at 15.99 U.S.CONST.amend. IV.100 U.S.CONST.amend. VIII.101 Graham v. Connor, 490 U.S. 386, 393 (1989).

102 WILLIAM W.GREENHALGH, THE FOURTH AMENDMENT HANDBOOK 6 (3d ed. 2010).103 Graham, 490 U.S . at 394.104 Whitley v. Albers, 475 U.S. 312, 327 (1986).


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they both provide protection from excessive force administered bygovernment officials.105

The similarities between prison guards and police officials provide an

underlying reason for the protection against the use of excessive force inboth contexts.106 [P]rison guards occupy the role of police in prison and,therefore, have the same general authority to use force that is granted to

law enforcement personnel outside of prison.107 Officers ability to use

force against cit izens both outside and inside prisons creates t he need toprotect against this abuse of power through the use of excessive force.108

Although guaranteed under different amendments, citizens merely

arrested and accused of a cr ime should receive just as much protection asprisoners who received due process, were convicted, and are

incarcerated.109 While most rights enumerated in the Bill of Rights

continue to apply to a prisoner, these rights tend to exist in a morediminished capacity.110Prisoners and free citizens are guaranteed the same

constitutional rights, but with these rights applying to prisoners in a morelimited sense, it does not follow that prisoners should be afforded strongerprotection against the use of excessive force than free citizens.111

In both instances an individual must prove that the officials use offorce violated a constitutionally protected right.112 Therefore, it is not

acceptable to require a free-citizen-arrestee to allege a minimum level ofinjury to susta in a claim of excessive force, while allowing a prisoner, with

more limited rights, to bring an excessive force claim regardless of the

significance of the injury suffered.113 Courts should not deny arrestees

105 Graham, 490 U.S. at 394 -95 & n.10; see Whitley, 475 U.S . at 318, 327; see alsoGeorgiady,supra note 22, at 127 (discussing how both the Fourth and Eighth Amendments have been

interpreted as constitutional rights against excessive force).

106 See 1 M ICHAEL B.MUSHLIN,RIGHTS OF PRISONERS 137-38(3d ed. 2002).107 Id.108 SeeGraham, 490 U.S . at 395; Ingraham v. Wright, 430 U.S . 651, 664 (1977).109 Cf. Bolling v. Sharpe, 347 U.S. 497, 498 -500 (1954) (holding that the protection against

discrimination, guaranteed by the Equal Protection Clause of the Fourteenth Amendment and

applicable to the states, should apply to the Federal Government under the Fifth

Amendment). In view of our decision that the Constitution prohibits the states from

maintaining racially segregated public schools, it would be unthinkable that the same

Constitution would impose a lesse r duty o n the Federal Gov ernment. Id. at 500.110 Sandin v. Conner, 515 U.S. 472, 485 (1995) ; MUSHLIN,supra note106, at21.111 Cf. Bolling, 347 U.S. at 498 -500 (recognizing that protections of c itizens applicable to the

states should apply to the Federal Government as well).

112 MUSHLIN,supra note 106, at 128-29.113 Cf. Bolling, 347 U.S. at 500 (noting that it did not make sense for citizens to be protec ted

from discrimination by the states but not by the Federal Gove rnment).


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constitutional protection against the use of excessive force by governmentofficials simply because they do not experience lasting injuries, while

providing that protection to prisoners.114 Chambers resolved this

discrepancy by eliminating the requirement that an arrestee prove morethan de minimis injur ies in an excessive force claim.115

A. The Use of Force on a Non-Resisting Arrestee is Excessive

The Supreme Court held that t he examination of an officials malicious

or sadistic intent is appropriate under an Eighth Amendment analysisbecause of the Amendment s governance of cruel and unusual

punishments.116 The words cruel and punishment within the

Amendment require a subjective analysis of the officials intent todetermine whether the officials actions were appropriate.117On the other

hand, the word unreasonable in the Fourth Amendment forecloses an

analysis of an officers subjective intent when determining whether the use

of force was objectively reasonable.118Despite these differing standards,an officers motive is relevant in determining the validity of an excessive

force claim.119

While an officers malicious or sadistic intentions are not applicableunder the Fourth Amendment sreasonableness standard, the wanton use

of force agains t an arrestee is relevant to the determination of whether such

force w as objectively reasonable under the circumstances.120Circuits haveheld that the use of force is unnecessary after officers arrest and secure an

individual.121 Gratuitous violence used on a handcuffed and subdued

arrestee always constitutes excessive force, even w here the injur ies inflicted

114 Cf. id. at 498-500 (rec og nizing that constitutional protec tions should apply under thesame circumstances regardless of whether the State or Federal Government is involved).

115 Chambers v. Pennycook, 641 F.3d 898, 901, 906 (8th Cir. 2011).116 Graham v. Connor, 490 U.S. 386, 398 (1989); see Hoffman, supra note 43, at 3166-75.117 Graham, 490 U.S . at 398.118 Id. at 397-99.119 Contra id.(holding that the Fourth Amendment objective reasonableness standard does

not allow a police officers malicious intent to be considered). 120 Contra id. (holding that the malicious and sadistic intentions o f an arresting polic e

officer are not relevant to a Fourth Amendment excessive force determination).121 See, e.g., Morrison v. Bd. of Trs., 583 F.3d 394, 407 (6th Cir. 2009) (holding that pushing

an arrestees face into the ground when she was not resisting police was a violation of her

Fourth Amendment rights); Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (holding that

the officers conduct of slamming an arrestees head against the trunk of her car after she wasarrested, and there was no risk of danger or flight, was unnec essary to achieve any legitimate

purpose).


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are de minimis.122 Where the suspect presents no threat to the officer orothers, this use of force is merely humiliating physical abuse that is

objectively unreasonable under the Fourth Amendment and

unconstitutional.123

Therefore, even under the Fourth Amendmentobjective reasonableness standard, an officers motive is relevant to the

determination of whether the force used was excessive.124 The Eighth

Circuit in Chambers properly joined the legal trend in holding that chokingand kicking an arrestee who was not resisting, and intentionally driving

erratically to further jostle an arrestee, are sufficient to establish a

gratuitous use of violence and prove a Fourth Amendment violation.125

B. Similar Tests Require Similar Results

The Eighth Circuit in Chambers properly held that the examination of

an officials use of force, used under the Eighth Amendment, should apply

to claims of excessive force brought under the Fourth Amendment as

well.126The similarities between the relevant considerations under eachAmendment support this conclusion.127In both instances, the court should

consider the threat posed by t he prisoner or ar restee and the need for theuse of force.128Additionally, in determining excessiveness under the Eighth

Amendment courts must compare the force used by a prison official to the

amount of force that was necessary ;129while under the Fourth Amendmentan officer is similar ly expected to use the least amount of force necessary to

accomplish a seizure.130

Therefore, while the ultimate consideration under each Amendment isdifferentmalice versus objective reasonablenessthe substantive

122 Morrison, 583 F.3d at 407.123 Seeid.124 See, e.g.,id. ; Lee, 28 4 F.3d at 1199 ; S ash v. United S tates, 674 F. Supp. 2d 531, 539

(S .D.N.Y. 2009) (ho lding that the officers c onduct of tackling an arrestee and throwing himagainst a gate when he was not resisting was not objectively reasonable).

125 Chambers v. Pennycook, 641 F.3d 898, 907-08 (8th Cir. 2011).126 Id. at 906. Compare Hudson v. McMillian, 503 U.S. 1, 7 (1992) (explaining that under an

Eighth Amendment examination a c ourt should consider the need for the application of force ,

the threat perce ived by the officer, and the efforts used to reduce the amount of forc e used),

with Graham v. Connor, 490 U.S. 386, 396 (1989) (noting that under a Fourth Amendment

examination a court should consider the severity of the c rime, the threat posed by the suspec t,

and whether the suspect is resisting).127 SeeGeorgiady, supra note 22, at 128, 130, 133.128 Seeid.

129 Hudson, 503 U.S . at 7.130 JEROME H.SKOLNICK &JAMESJ.FYFE,ABOVE THE LAW:POLICE AND EXCESSIVE USE OF

FORCE 38 (1993).


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considerations are similar.131 In both the contexts of an arrest andmaintaining order in a prison, courts recognize that officers are often

required to make rapid judgments amidst chaos.132In such situations, it is

often unclear how much force is appropriate and officers must make a snapjudgment as to what level of force is necessary and reasonable.133Whether

evaluating an excessive force claim under the Fourth Amendment or the

Eighth Amendment, judges are tasked with assessing the need for the useof force and its appropriateness under the circumstances.134 Since this

examination of the use of force is so similar , it follows that consideration of

the level of injury suffered by a claimant should be similar as well. 135Byvirtue of considering the analysis behind an Eighth Amendment claim,

Chambers correctly held that an officers use of force should be examined

without placing significant weight upon the level of injury whenconsidering a Fourth Amendment claim.136

IV. The Use of Excessive Force Is a Violation of the Fourth Amendment

and Eighth Amendment, even if Only De Minimis Injury Results.

As established by the Fourth and Eighth Amendments, the use ofexcessive force is a violation of a constitutionally protected right. 137

Therefore, even if the use of force only results in de minimis injury, courts

should not automatically foreclose an excessive force claim. 138Case lawtraditionally held that de minimis uses of force was insufficient to sustain an

excessive force claim.139 As a result, many circuits denied Fourth

131 See Georgiady, supra note 22, at 128, 130, 133.132 See Whitley v. Albers, 475 U.S. 312, 320 (1986); Lawrence N. Bloom & Joseph M. Polisar,

Why Things Go Wrong in Police Work, THE POLICE CHIEF, July 2004, available athttp://www.

policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=336&issue_id=72004.

133 Robert E. Worden, The Causes of Police Brutality: Theory and Evidence on Police use of Force,in POLICE VIOLENCE:UNDERSTANDING AND CONTROLLING POLICE ABUSE OF FORCE23, 32(William A. Geller & Hans To ch e ds., 1996).

134 See BARBARA BELBOT &CRAIG HEMMENS,THE LEGAL RIGHTS OF THE CONVICTED 106(2010);Georgiady, supra note 22, at 128, 130, 133.

135 See Georgiady, supra note 22, at 128, 130, 133.136 Chambers v . Pennycook, 641 F.3d 898, 907 (8th Cir. 2011); cf. Wilkins v . Gaddy, 130 S .

Ct. 1175, 1179 (2010) (recog nizing that the significance of injury suffered by a claimant doe snot necessarily provide an indication of the level of force used).

137 See Graham v. Connor, 490 U.S. 386, 394 (1989); Whitley v. Albers, 475 U.S. 312, 327

(1986); Georgiady, supra note 22, at 127.

138 Wilkins, 130 S. Ct. at 1179 (holding that an inmate did not lose his right to bring a claimof excessive force merely bec ause the force did not result in a serious injury).

139 Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (explaining that de minimisapplications of


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Amendment excessive force claims because they reasoned that thepresence of de minimis injuries indicates the use of de minimis force.140Many

courts, however, have recently held that the presence of de minimisinjuries

does not necessarily establish that officers used de minimis force.141

As correctly articulated in Chambers, the same amount of force used on

different individuals can result in injuries of vary ing severity .142To require

a minimum level of physical injury to establish a Fourth Amendment

excessive force claim would produce arbitrary and unjust results based onthe characteristics of each victim and the injury sustained.143Such a rule

will unreasonably deny certain plaintiffs a claim based on an officers

conduct, w hile allowing another plaintiff to pursue the same claim purelybecause of their physical characteristics.144

Additionally, under a standard requiring greater than de minimisinjures, a police officer can purposely use excessive force to harm an

arrestee as long as only de minimis injuries are produced.145Therefore, an

force are insufficient to sustain an Eighth Amendment claim of excessive force).

140 See, e.g., Williams v. S irmons, 307 F.Appx 354, 362 (11th Cir. 2009) (per c uriam);

Andrews v. Fuoss, 417 F.3d 813, 818 (8 th Cir. 2005).141 See, e.g.,Wilkins, 130 S . Ct. at 1178-79; Morrison v. Bd. of Trs. o f Green Twp., 583 F.3d

394, 407 (6th Cir. 2009); Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002).142 Chambers v . Pe nnycook, 641 F.3d 898, 906 (8th Cir. 2011). Compare Solomon v. Auburn

Hills Polic e Dept, 38 9 F.3d 167, 171 (6th Cir. 2004) (describing the e lbow fracture that resulted

from the police officer forcing plaintiffs arm behind her), with Lee v. Ferraro, 284 F.3d 1188,1191-92 (11th Cir. 2002) (describing the mild tenderness in plaintiffs wrists after having her

arm shoved behind her back by the police officer).

143 Compare Hudson, 503 U.S. at 4, 10 (holding that Hudsons injuries of loosened teeth and

a c racked dental plate were not de minimis), with Taylor v. McDuffie, 155 F.3d 479, 481, 483-84(4th Cir. 1998) (holding that Taylors swelling and irritation of the mouth and jaw we re de

minimisand therefore prec luded his excessive force claim), overruled byWilkins, 130 S. Ct. 1175

(2010).144 Compare Hudson, 503 U.S. at 4, 10 (holding that loosened tee th and a cracked dental

plate we re not de minimis injuries), with Taylor, 155 F.3d at 481, 483-84 (holding that irritation

and swelling of the mouth and jaw were de minimisinjuries that prec luded an excessive force

claim). While this issue is be yo nd the scope of this Comment, it is worth noting that the denial

of c onstitutional rights based so lely on an individuals physical c haracteristics may raise an

equal protec tion argument. Cf. Sc ott Petersen, Comment, Discrimination Against Overweight

People: Can Society Still Get Away with it?, 30 GONZ. L. REV . 105, 111-12, 117-18(1994)(discussing how the Equal Protection Clause should protec t individuals from being denied

employment based o n a physical co ndition). If individuals with ce rtain body types are le ss

prone to actual injuries,a rule that requires greater than de minimisinjuries be present for a

Fourth Amendment excess ive force claim would deny those individuals the equal protectionof the laws guaranteed by the Fourteenth Amendment. Cf. id.

145 See Broo ks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000) (noting that a law requiring greater


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arrestees constitutional rights would be violated even though the policeofficers use of force only left de minimis injuries on the victim.146Such a

rule provides police officers with the power to circumvent the

requirements of the Constitution and subject free citizens to the use ofexcessive force without fear of punishment.147As Justice OConnor noted in

Hudson, contemporary standards of decency always are violated when

force is used maliciously for the sole purpose of causing harm. 148 Thisapplies even when significant injuries are not present because otherwise,

the Constitution would permit the use of force no matter how diabolic or

inhuman.149 Justice OConnor argued that this would not have beenacceptable to the drafters, and is not acceptable today.150The Eighth Circuit

in Chambers appropriately determined that a constitutional guarantee

should not turn on w hether an arrestee sustained a certain level of injury.151The Courts holding accurately noted that the use of excessive force during

an arrest is always a violation of the Fourth Amendments guarantee to be

free from unreasonable seizures.152

V. An Officers Use of Force Is the Main Consideration in an Excessive

Force Claim.

Chambers properly held that a Fourth Amendment excessive force

analysis should focus on the amount of force used by the officer rather thanon the significance of injury suffered by the claimant. 153Indeed, [i]njury

and force . . . are only imperfectly corr elated, and it is the latter that

ultimately counts.154 The Eighth Circuit in Chambers appropriatelyacknowledged denying excessive force claims based solely on the extent of

the injury would not satisfy the Fourth Amendments protection against

than de minimisinjury be present could result in a prisoner purposely being harmed by aguard as long as no visible injuries resulted).

146 See Wright v. Goord, 554 F.3d 255, 270 (2d Cir. 2009).147 See Wilkins v . Gaddy, 130 S. Ct. 1175, 1178 (2010) (noting that a prison officials

malicious use o f forc e always v iolates standards of dec ency bec ause otherwise, any physical

punishment would be permitted as long as it did not result in a significant injury).148 Hudson, 503 U.S . at 9.149 Id.150 Id.151 Chambers v . Pe nnycook, 641 F.3d 898, 906 (8th Cir. 2011); see Mc Clennon v. Kipke, 821

F. Supp. 2d 1101, 1106 (D. Minn. 2011).

152 Chambers, 641 F.3d at 907 -08.153 Id. at 907; see McClennon, 891 F. Supp. 2d at 1106.154 Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010).


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unreasonable seizures.155 Therefore, in assessing a Fourth Amendmentexcessive force claim, Chambers determined that courts should focus on

whether the force used by the officer was objectively reasonable under t he

circumstances.156

This objective standard requires courts to determinewhether a reasonable person in the officers position would have felt that

the action taken was appropriate given the facts available to him at the

time of the seizure.157 The meaning of the reasonableness of a seizureapplies to how that seizure is carried out.158 Therefore, in a Fourth

Amendment excessive force claim the proper inquiry is whether the force

used by the officer was reasonable given the specific facts of the case.159Inconsidering these standards, the court must judge the use of force from the

perspective of a reasonable officer at the scene of the arrest, rather than

from the perspective of the court absent the immediacy of the situation.160Such an examination is crucial because the failure of police officers to

adhere to the objectively reasonable standard would invite intrusions

upon constitutionally guaranteed rights.161

The examination of a police officers objectively reasonable use offorce must recognize that officers are authorized to use force under

appropriate circumstances.162 Where a suspect is uncooperative and

resisting, the application of force may be necessary in order for police tocarry out their duties.163But, an officers justified use of force in certain

circumstances may be considered excessive in different circumstances.164In

155 See Chambers, 641 F.3d at 907-08; Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002)

([O]bjectively unreasonable force does not become reasonable simply be cause the fortuity ofthe circumstances protec ted the plaintiff from suffering more sev ere physical harm.).

156 Chambers, 641 F.3d at 907 ; seeGraham v. Connor, 490 U.S. 386, 396-98 (1989).157 SeeTerry v. Ohio, 392 U.S. 1, 21-22 (1968).158 Graham, 490 U.S . at 395.159 Id. at 396. This requires taking into account the severity o f the c rime at issue, whether

the suspec t poses an immediate threat to the safety o f the office rs or o thers, and whether he is

actively resisting arrest or attempting to evade arrest by flight. Id.160 Id.161 Terry, 392 U.S . at 22.162 Police Use of Force, NATL INST.OFJUST.(Jan. 20, 2012), http://www.nij.gov/topics/law-

enforcement/officer-safety/use-of-force/welco me.htm.163 Id .; Use of Force, COPS: COMMUNITY ORIENTED POLICING SERVICES,U.S.DEPT OFJUST.,

http://www.c ops.usdoj.gov/default.asp?item=1374 (last visited Feb. 15, 2013) [hereinafter Use

of Force].

164 See Use of Force, supra note163;e.g., William M. Macfadyen, Witnesses Say Santa Barbara

Police Officer Used Exc essive Force During Traffic Stop, NOOZHAWK(Oct. 22, 2011, 9:22 AM),http://www.noozhawk.com/article/102311_santa_barbara_police_incident/ (reporting an

incident where police punched and tasered a man who allegedly was not resisting).


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fact, this further supports the conclusion that the court s inquiry shouldfocus on the use of force, rather than the resulting injury, since an officers

use of force that results in the same injury may b e just ified under certain

circumstances but not others.165

Similarly, when a plaintiff brings an excessive force claim against a

prison official under the Eighth Amendment, the court examines whether

the official used force in good faith to maintain order, or maliciously to

cause harm.166The Supreme Court has held that this analysis does not reston the significance of injury suffered by the prisoner because even in the

absence of injury, force used with a malicious intent to cause harm violates

the standards of decency.167 Therefore, the presence of only de minimisinjuries does not defeat an Eighth Amendment excessive force claim where

the force used by the official is administered with a malicious intent and is

thus excessive.168 Chambers appropriately concluded that this standardshould apply in the Fourth Amendment context as w ell.169

Recently, circuits have suggested that psychological injuries may besufficient for a Fourth Amendment excessive force claim, thus indicating

that physical injury is not necessary.170 This lack of a physical injuryrequirement supports the contention that although the level of injury to a

claimant is relevant, the force used by an officer should be the main

consideration.171 Thus, by recognizing that force may be excessive evenwhere significant physical injuries did not result, the court in Chambers

appropriately followed the developing legal trend.172When excessive force

is used, courts should not prevent individuals from pursuing excessiveforce claims simply because they escaped serious injury.173

165 See Use of Force, supra note163(explaining that a polic e o fficer may reasonably use force

under certain circumstances).166 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see supra text acc ompanyingnote 47.167 Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010).168 Id. at 1179.169 See Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011).170 See Cortez v. McCauley, 478 F.3d 1108, 1148 (10th Cir. 2007) (Gorsuch, J., concurring in

part, dissenting in part) (suggesting that although brief intimidation during arrest is not

sufficie nt psyc hological injury for an excessive force claim, serious psyc hologic al injury may

be sufficient); Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005) (reiterating that

psychological injuries can be sufficient to support a Fourth Amendment excessive force

claim); Flores v. City of Palacios, 381 F.3d 391, 398, 400 (5th Cir. 2004) (holding that significant

psyc hologic al injury can establish the injury requirement).

171 See Morrison v. Bd. of Trs., 583 F.3d 394, 407 (6th Cir. 2009).

172 See, e.g.,Lee v . Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002); Bastien v. Goddard, 279F.3d 10, 14 (1st Cir. 2002).

173 See Wilkins, 130 S . Ct. at 1179.


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CONCLUSION

After years of uncertainty as to whether a Fourth Amendment

excessive force cla im requires a minimum level of injury, the Eighth Circuitfinally put this question to rest in deciding Chambers v. Pennycook.174 TheCourt correctly held that de minimisinjuries do not automatically foreclose

a Fourth Amendment claim and that courts should instead focus on the

reasonableness of a police officers use of force in assessing such a claim.175As the Fourth Amendment provides citizens w ith the guarantee to be free

from an officials use of excessive force, Chamberscorrectly concluded that

where such force is used, a constitutional right is violated, regardless of theseverity of the injury.176

As many of the relevant factors in assessing the conduct of a policeofficer and a prison official are the same, it follows that a similar inquiry is

required for both.177 Thus, like Eighth Amendment claims of excessive

force, physical injury considerations under the Fourth Amendment shouldbe relevant, but not conclusive.178Therefore, Chambers correctly held that de

minimis injuries are sufficient in a Fourth Amendment excessive forceclaim, and the focus should be whether the police officers use of forcewas

objectively reasonable under the circumstances.179

174 Chambers, 641 F.3d at 904 , 906.175 Id. 176 See id. at 906.

177 See Georgiady, supra note 22, at 128, 130, 133.178 See Flores v. City of Palacios, 381 F.3d 391, 398, 400-01 (5th Cir. 2004).179 Chambers, 641 F.3d at 907 -08.

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