Prisoner’s rights: John McCottrell v. Marcus White
Plaintiffs John McCottrell and Dustin Clay were inmates at Stateville Correctional Center in Illinois. The two were eating lunch in the prison dining hall when two other inmates began to fight. Guards subdued the fighting men and were placing them in restraints when two other guards, defendants Marcus White and Labarin Williams, who were stationed in a “guard tower” overlooking the dining hall, fired their shotguns into the hall. Buckshot from the shotguns struck four inmates, including McCottrell and Clay, injuring them severely enough to require medical attention including sutures.
The firing of shotguns into the enclosed room was not in itself an issue; the room was built with “shot box” on the ceiling, made to absorb the ricochet from warning shots. The two inmates filed suit in federal court under Section 1983, alleging violation of their 8th Amendment rights. The suit claimed that the defendant guards did not shoot into the shot box, but rather in the plaintiffs’ general direction. The guards claim they shot into the ceiling itself (though not the shot box) and moved for summary judgment. The factual dispute over where the guards pointed their weapons was resolved by the district court in favor of the defendants’ version. The motion for summary judgment was granted, dismissing the lawsuit. The plaintiffs appealed, and the 7th Circuit vacated and remanded.
The appeals court’s analysis began with the rule that in deciding a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party, without making credibility determinations. The majority opinion faults the lower court for accepting the defendants’ contention that they shot into the ceiling, because the evidence in the record is insufficient to make that determination. It doesn’t matter, the Court notes; based on circumstantial evidence, there are two possible ways in which the buckshot could have hit the plaintiffs: either the guards shot in their direction, or the defendants were hit by ricochet from the guards aiming at the ceiling. In the Court’s view, without actual direct evidence in the record to support either contention, both are equally plausible, given the circumstantial evidence (that the inmates were struck by buckshot, which penetrated their clothes and skin), and both could potentially result in a jury verdict in the plaintiffs’ favor
The guards gave differing statements between the time of the incident, the investigation by prison authorities (who found them to have used unjustifiable force), and their affidavits in this case. While both denied shooting directly at the plaintiffs, the also both indicated that they shot into the ceiling but not into the shot box. The majority opinion notes that a jury could plausibly determine that the guards did not shoot into the material intended to catch the buckshot “because they did not want the buckshot to be caught.”
The Court also looked at the defendants’ assertions of why they fired the shots in the first place. The guards contended that they did so because the other guards down on the floor were in danger from the two brawling inmates. However, there are also statements on both sides to support the plaintiffs’ argument that the inmates were already apart, under control, and being handcuffed when the shots were fired. In sum, there exists in the case genuine issues of material fact. Because facts at the summary judgment stage should be viewed in the light most favorable to the non-moving party, the 7th Circuit concluded that summary judgment was improper. It should have been left to a jury to determine which version was more believable.
Amy Coney Barrett was the lone dissent on the court. She wrote that the plaintiffs have not argued that the defendants aimed their guns with intent to hit them with buck shot, thus cannot prove the guards acted “maliciously and sadistically”, and while it may have been “deliberate indifference”, that is not enough for an 8th amendment excessive force claim. Her argument rests on an assumption that purposely firing in a manner that is likely to rain down buckshot onto bystanders is not the functional equivalent of intending to hit them with buckshot.
The question to be asked about the defendants’ actions, in her opinion, is “was it to maintain discipline or for the satisfaction of hurting the prisoner?” But she fails to discuss the evidence contemplated by the majority about the timing of the shots. Instead she resumes analyzing the guards’ intentions, concluding that no evidence supports the theory that the guards intended for their shots to injure the plaintiffs.1 She takes the majority to task for their embrace of circumstantial evidence as support for the plaintiffs’ case, despite the fact that circumstantial evidence is not to be considered inferior to direct evidence (contrary to what you may have seen on Law & Order). She claims that “plaintiffs introduced no admissible evidence in support of the ‘direct hit’ theory,” because she dismisses the circumstantial evidence that they were, in fact, hit, which could have been the result of direct aim. In any event, that does not matter to the majority’s analysis, as they find it is possible for the plaintiffs to prevail before a jury on either theory, the direct hit or the ricochet.
The majority discussed the report of the internal investigation, which apparently assumes as fact that the guards shot at the ceiling. In a footnote in the dissent, Barrett notes that the report does not identify any evidence that the guards shot directly at the inmates. But she does not acknowledge, as the majority does, that the report does not rely on any specific evidence to support the assumption that the guards shot at the ceiling (this is relevant to Barrett’s opinion that a shot at the ceiling could not have been an intentional shot at the inmates, but not to the majority, who believed shooting at the ceiling in a way that causes ricochet to hit inmates could be deemed intentional.) Here, Barrett gives the guards the benefit of the doubt in a way that is in conflict with the court’s responsibility not to weigh evidence or credibility in a summary judgment motion. (Note that conceding that the plaintiffs’ version of facts could be believed by a jury is not the same as accepting them as true; it is only an acknowledgment that a question of fact exists.)
Barrett would require the plaintiffs to show proof that, even if the guards shot at the ceiling and intentionally did not shoot at the shot boxes, they did so knowing that the ceiling was made of material that would make dangerous ricochet likely. The existence of the shot box, in my view, would suggest to a reasonable person that it is the safe place to shoot, leading to a logical assumption that the area outside the shot boxes is not. Otherwise, why do the boxes exist? It seems like something a jury could consider, which should be the main question in the analysis.
Barrett’s dissent seems to rely on the inverse of the criticisms she lobs at the majority: giving the benefit of the doubt to one party over the other. While a jury may very well see it her way and decide that the actions of the guards were not intended to cause harm, they may also see it as the plaintiffs do, based on the available evidence, statements, and undisputed facts, making summary judgment inappropriate.
Sentencing Reform: U.S. v. Uriarte
In 2013, Hector Uriarte was sentenced to 50 years in prison for various drug, firearm, and racketeering charges. This included 2 counts of using a firearm during the commission of a kidnapping (Uriarte was a gang member, who kidnapped other drug dealers to rob them.) The sentence was above the mandatory minimum of 42 years but less than the guidelines would recommend. Specifically, the mandatory minimums to which he was subject were 10 years for drug and racketeering charges, 5 years for the kidnapping plus 2 years for the use of a firearm, and for the second firearm charge, 25 years. The second kidnapping with a firearm charge carries a heftier sentence than the first because of sentence enhancement provisions for second or subsequent charges of that crime.
Uriarte appealed his sentence and won, because the finding of use of a firearm was to have been made by a jury; in Uriarte’s case, it was made by the court. His sentence was vacated, and he was to be resentenced.
While he awaited resentencing, the First Step Act of 2018 passed. Under the Act, the 25 year enhancement would only apply to a second charge after a person was convicted of a first. In other words, because both his first and second offenses were contained within the same indictment and he was convicted of both counts at the same time, the enhancement for the second offense would not apply. Importantly, the First Step Act was retroactive to any case for which a person had not yet been sentenced.
When Uriarte was resentenced, the district court determined that the First Step Act applied to Uriarte and did not impose the enhancement. The government disagreed with the court’s finding and appealed to the 7th Circuit.
The majority considered Uriarte as unsentenced at the time of the First Step Act’s passage. His original sentence was vacated, which they consider the same as if it had never happened, meaning he was eligible for the new sentencing guidelines. The government took the position that he had already been sentenced once, and the vacating of his sentence did not erase the fact that it had happened, making him ineligible for the Act’s provisions. The relevant language of the Act is as follows:
APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this
section, shall apply to any offense that was committed before the date of enactment of this
Act, if a sentence for the offense has not been imposed as of such date of enactment.
The court noted that typically, sentencing law changes are not retroactive. Here, where congress made such retroactivity explicit, the majority sees no question of their intent. When a sentence is vacated, the slate is clean, and the original sentence annulled. The court describes this as a well settle fact of the legal landscape in which congress drafted the statute. Nevertheless, as the majority concedes, not everyone has seen it this way. The 3rd Circuit disagreed, finding an initial sentence the appropriate place to draw the line; otherwise, the law would unfairly benefit those whose appeals just took longer. But the 7th Circuit considers this a policy position that is not within the province of the Court to make.
The government, and Amy Coney Barrett’s dissent, rest their argument to the contrary on an indefinite article. The statute says “if a sentence for the offense has not been imposed…”, which, they argue, is not the same as “a final sentence.” In Uriarte’s case, Barrett and the judges who joined her dissent say, a sentence had been imposed. That it had been vacated at the time of the Act’s passage is not relevant. The Act only applies if, “as a matter of historical fact”, no sentence has been imposed.
As further support for her interpretation, she cites a previous 7th Circuit case, US v. Pierson. In that case, Pierson’s appeal was pending at the time the Act passed. His sentence had not been vacated and was a valid, active sentence on that date. The court ruled then that the act did not apply to Pierson. The difference here is that Uriarte was under no valid sentence at the time. Barrett argues that if congress had intended the result the majority advocates, they could have made the statute say “the sentence” or “the final sentence”. However, the majority points out, if they intended the result the dissent urges, they likewise could have used the phrase “any sentence”
Barrett turns from her textualist approach to an analysis of fairness, comparing Uriarte to his co-defendant who also had his sentence vacated. While both appeals were decided at the same time, the co-defendant, Tony Sparkman, had already been resentenced by the time the Act passed. Uriarte, on the other hand, had pushed back his resentencing hearing several times, and by his delay put himself in a more favorable position than his co-defendant. As a result, Uriarte will have a sentence that is 20 years lighter than Sparkman’s.
Admittedly, I am not a strict textualist, and I tend to find this argument more compelling than Barrett’s reliance on the definite article. In my view, as a matter of solid fact, Uriarte was under no sentence at the time of the Act. By the inclusion of the retroactive provision, it is clear to me that the intention was to make all defendants who were sentenced from the date of passage forward subject to its provisions.
Conclusion
I am not willing to say that these cases suggest to me that Barrett will be unduly deferential to government in matters involving the criminal justice system; in fact, I have read other decisions in which she found in favor of the criminally accused, including a good 4th amendment decision in which she finds a search of a home was illegal, because the officers did not have consent. The officers were let in the house by a woman in a bathrobe, but did not ask her whether she lived in the home or otherwise had standing to consent to the search. The government relied on the mere fact that she was in a bathrobe as proof of their good faith; Barrett was not impressed with their argument and found the search was constitutionally invalid.
Nevertheless, I find her reasoning in both of these cases rather flimsy and a bit of a reach outside of common sense. I therefore dissent from both of Amy Coney Barrett’s dissents.
* * *
Part 1 covering Disciplinary hearings for sexual assault allegations on campus: John Doe v. Purdue University and Gun rights for felons: Rickey Kanter v. William Barr can be found here
Part 3 covering Federal Tort Claims: Chronis v. The United States and three cases involving the Fourth Amendment can be read here
Part 4 covering interviews and extrajudicial writings that have made news can be found here
Nevertheless, I find her reasoning in both of these cases rather flimsy and a bit of a reach outside of common sense. I therefore dissent from both of Amy Coney Barrett’s dissents.
I agree.Report
Thanks for this Em. Very interesting read.Report
She really does seem to be giving the guards every reasonable doubt. Again, I come back to, “What would the court do if I had fired a warning shot that injured someone because I did not take care where the shot went?”
If the court does not apply that analysis to the actions of government agents, then they are, IMHO, reaching awful hard to protect bad actors.Report
You can really see her as a student of Scalia in these cases. That’s how a lot of his criminal decisions read, maybe with the exception of Crawford and its progeny.Report
Very much so. The logical gymnastics she goes through to defend agents of LE/CJ is very much in that same vein. It was certainly one of Scalia’s glaring blind spots.Report
From my perspective as a layman, conservative judicial theory always seems to hew to the Wilhoit principle, which is just a modern coining of the idea of class hierarchy.
That the law isn’t blind, but that it operates differently depending on the group or person. If you are a disfavored group like prisoners, then no action by the government can be too harsh, no burden too heavy.
But if you are a favored group like the Little Sisters, any government request, even if merely to fill out a piece of paper, is an undue burden and must be struck down.
This holds true throughout conservative theory, which is why what seems like bizarre hypocrisy or inconsistency (say, about the flickering commitment to federalism or religious freedom) is actually a consistent political theory where the favored class always wins.Report
I’m still not a fan of the Without principle because it seems to pert. Our side might say they believe that all groups should treat all groups equally but I can’t shake the feeling that liberals believe some groups are more equal than others. There seems to be more romantic reverence for various indigenous groups living a traditional life style than there is for the Amish despite the similar rejection on modernity. The only difference being that liberals imagine that indigenous groups as being more egalitarian and they associate the Amish with Patriarchal Christianity or something. Likewise, very observant Muslims are given more romantic reverence than Ultra-Orthodox Jews. It’s why the hijab is almost fetishized as a sign of inclusion while the dress codes of Orthodox Judaism are seen as anti-feminist and to be destroyed despite both having the same reasons behind them. Is its hard for me to take the idea that our side is really invested in true equality between all groups when you have these sorts of differences based on romantic reverence.Report
That’s a fair point.
Its like my criticisms of white liberals whose policy choices always seem to reinforce segregation. Its a lot easier to preach a creed than to live it.
What I see in conservative theory though is that they have dropped even the creed of inclusiveness and now openly speak of hierarchy and minority rule.Report
I don’t see as much dropping of pretense, but I do see it an awful lot of motte & bailey behavior.
E.g. We need guns to protect ourselves from the government, but when the actions of the government (i.e. LE) are criticized, suddenly the government needs to be protected from criticism.
So I do think that Wilhoit is right in his claim, I wouldn’t necessarily call that the definition of conservatism, but rather a it’s condition of our current political system.Report
I see that as more of a problem of politics and culture than anything specific to the judiciary. It’s also worth remembering that a consistent civil libertarianism is something that requires defending. There are plenty of philosophies in the market place for which it is not a priority and some that reject it altogether.
There are also legitimate reasons for courts to be cautious about treating everything as a constitutional issue. But it isn’t like there aren’t alternatives. Legislatures can always pass laws setting rules and standards around these things, they just tend not to because so few fight for it.Report
Yeah, I’m not saying it’s a problem of the judiciary, per se, but rather how politics makes everyone dumb in predictable ways.Report
Republicans aren’t Libertarians, just like Democrats aren’t. And while both have issues that that they care about in that direction, they both have huge blind spots. LE is the rights, unfortunately.Report
Where does she openly speak of hierarchy and minority rule? If it’s open, if she espouses a creed of exclusion, it should be easy to cite specific text with, not merely implied bias or a weighting of priorities you object to, but explicit embrace of hierarchy.Report
Where do white liberals speak of preferring segregated schools?
It’s just a coincidence that their kids end up there, you can’t prove nuthin.Report
If you can’t prove nuthin, then make all the accusations you want to except saying that people are speaking openly.Report
Trump and the Republican Party speak openly of hierarchy and minority rule.
Their judicial picks exist to clothe that philosophy in the robes of objectivity.Report
Thank you Lee, I was going to say something very similar.Report
“Disparate Impact” used to be a thing. Maybe it should be again.Report
It remains a thing, to those who know what it means.Report
In my neighborhood, we have both hijab wearers and women who dress in Orthodox Jewish garb. Nobody seems to be worked up about about it. I grew up in the ’60s and ’70s, so I have no standing to take others to task for dressing funny. Even if they are dressing funny.
No doubt there’s Somebody Somewhere who whoops it up for the hijab while claiming that the traditional Orthodox Jewish female garb is something to be “destroyed.” I do know some people who say the opposite, which means that the hijab wearers need to be defended where the Orthodox Jewish women do not, but that’s a matter of local circumstance, not of general pro-hijab principle or “romantic reverence.”Report
This is a fair point but there does seem to be a large part of this county that is always about to go into full breakdown as it gets less white, less Christian (especially for Protestant Evangelicalism), etc. The fever dreams have happened before but they seem to be in full force now especially as polling shows that people under 40 are increasingly secular and do not come back once they have kids unlike previous generationsReport
On the other hand, the polls were done before This Year.
One of the big reasons that people don’t move home is that they can’t get health insurance coverage without their job, and their job is in the town where they had their kids, and their job insisted that it HAD to be done IN THE OFFICE, so, there you are. And now employers have been forced by circumstance to admit that maaaaaaaybe you don’t HAVE to be in the office to do your job, maybe you can do it anywhere that has an internet connection, and so maybe we’ll see more people saying “this city sucks, childcare is expensive, my hometown is nice and my parents will watch the kid for free…”Report
We’re going to have people moving to The Sticks and Amazon will serve them very well for 60% of their stuff but they’ll have to go to Wally World for the rest of it.
And there will be some of them that will make a new community in their new homes in The Sticks.
But many of the rest will continue to live on the Reddit and complain about their backwards neighbors and the People Of Walmart and they’ll be miserable. Or more miserable.Report
Complaining about your neighbors being dorks is a time-honored small-town tradition, though. And it feels more like talking about family, and less like being angry at imaginary people on the internet–who can be as horrible as you need them to be to justify your anger-gasm. Like, with family, yeah you’ll tell the funny story about what your brother did, but you won’t say “and he probably did that as an expression of support for White Supremacy”, because you know your brother and you know damn well he isn’t like that.Report
I think this is part of it but I also think that there are elements of existential dread and/or ideological dread that are more interesting to unpack. Religion is on the wane in America, Americans under 45 or so are secular in ways that previous generations were not. And the evidence shows that having kids does not bring them back to religion as was previously assumed. Religious conservatives are terrified of this. Religious liberals do not like either but are not in full panic over forcing religion because they are liberal. They are more sad/resigned perhaps. I think a lot of religious conservatives sincerely believe that they can reverse the clock on secular America. But they all seem to imagine themselves as the last pastor or parishoner.
On the economic front, I keep on thinking of the famous Lewis Powell speech from the early 1970s where he declares that the American System of Free Enterprise is under attack. There seem to be a significant number of Americans who only see freedom and liberty through the lenses of business, commerce, and economics. All other freedoms either are secondary and/or flow from the first three. Now they are confronted with at least two generations of people who do not remember the Reagan 80s and liberalism on the wane but are still relatively young (the youngest are probably in their mid to late 40s) and are freaking out about how under 40 America is more open to the welfare state and regulation and going against everything they were told to hold dear.Report
Something to consider: The Late Catholics considered the Early Protestants to be heretics. It took the Peace of Westphalia to reach an accord of sorts (and there were troubles that lasted a loooooooooooong time after that).
The new Wokism is a new heresy.
So when you say “Religion is on the wane”, I am looking out and seeing that business is picking up.Report
and when I say there’s gonna be a Christian revival in this country, I don’t mean Baptist, and I don’t mean Mainline Protestant, and I don’t mean Catholic. I mean, like, Twelve Apostles Christianity, Sermon On The Mount Christianity, “breaking bread with tax collectors and whores” Christianity.Report
Nothing would devastate modern conservative theory more, than regarding “wokism” as a religion.Report
Yes, one thing would: Twelve Apostles Christianity, Sermon On The Mount Christianity, “breaking bread with tax collectors and whores” Christianity.Report
eh. Modern conservatives would be exactly as devastated by a Christian revival movement as the Roman Empire was: not at all for a very long time, certainly longer than the social attitudes the movement was reacting to.Report
Just like nothing devastated middle Catholicism more than regarding Protestantism as one.Report
“If the law were supposed to apply here, it would say ‘the sentence’ instead of ‘a sentence'”. Seriously? It’s the Bible Code as applied to jurisprudence. The description of when the new sentencing guidelines should apply is not precise; it wasn’t written to describe this exact circumstance. Pretending that it was in order to reach the conclusion she favors is classic textualism.Report
I am pretty sure that “deliberate indifference” is the standard for an 8th Amendment violation, having just researched this issue about six weeks ago in a prison conditions habeas corpus case I am handling. Granted, I’m in the 9th Circuit. Is the standard different in 7th Circuit jurisprudence? (And those guards sure seem deliberately indifferent to me.)Report
It is the standard for cases involving prison conditions, but not an 8th amendment excessive force claim, which is the claim here. She cites Farmer v. Brennan (https://www.oyez.org/cases/1993/92-7247):
“The Court emphasized, however, that “‘application of the deliberate indifference standard is inappropriate’ in one class of prison cases: when ‘officials stand accused of using excessive physical force.'”Report
Another great post EM. But I wouldn’t mind hearing more about that 4th amendment case, just to get a holistic look at her jurisprudence.Report
Stay tuned for part 3.Report
Em – I keep thinking that Barrett’s possible term is for a while, maybe longer if I do. Thanks for that.Report
She’s 48, so probably upwards of 30 years. That’s one of her qualifications for the job.Report
LOL. Excellent. I’m pleased that you- and Schilling- got the joke.Report
Good stuff, Em. Thank you.Report
https://www.cnn.com/2020/10/01/politics/amy-coney-barrett-abortion-rights/index.html
“Her views on abortion rights are of immense speculation as she is set to replace the late Justice Ruth Bader Ginsburg on the court and could be a pivotal vote in potential challenges to Roe.”
1. Her views on abortion rights are not subject to immense speculation unless someone is a dense and too cute by half idiot.
2. I don’t know why the media plays these games.Report
The press doesn’t understand the difference between personal convictions and judicial actions. They maybe have noticed that all these arch-conservative hard right opponents of women’s rights haven’t actually overturned Roe, but they don’t think through what that might mean.Report