Robert Byrd was serving concurrent life and 99-year sentences for capital murder and organized crime convictions in a Texas prison. On July 15, 2014, Byrd threw water on two officers in separate incidents. Later that day, a five-member force team, led by Sergeant Tony Harrell, attempted to gain compliance from Byrd for a strip search. This was a prison-authorized restraint process that was being recorded by both a handheld and a hallway video camera.
Byrd refused to submit, and Harrell sprayed a chemical agent into his cell. Byrd avoided the spray by placing towels and a jacket over his face. He also yelled at the officers, “Is that all you got?” Harrell asked Byrd again to comply, but he refused. The chemical agent failed to induce compliance and Harrell ordered his team to attempt a cell entry. Byrd responded by moving forward and pushing into the officers’ shields. Officers pushed back and Harrell swung his riot baton at Byrd’s legs. [1]
Harrell stepped back and for the next 20 seconds, watched his force team wrestle with Byrd, trying to control him. Harrell moved back “toward the dogpile and swung a baton at Byrd’s arm.” The baton strike fractured Byrd’s arm and he fell unconscious. Byrd was subsequently restrained with arm and leg shackles and walked to the infirmary.
A report filed after the incident reflected a claim that Harrell spotted Byrd in possession of a weapon during the struggle and photos in the incident file display a “crude wooden shank.” Byrd denied that he had a weapon during the struggle.
The Byrd lawsuit
Byrd filed a pro se civil rights lawsuit against Sergeant Harrell in federal court and alleged Eighth Amendment violations for excessive force. [2] Harrell asserted a defense of qualified immunity and claimed that he used reasonable force in response to Byrd’s display of a weapon. The federal district court (lower court) assumed that Byrd did not have a weapon during the struggle and ruled in favor of Harrell regardless, finding no constitutional violation. Byrd filed an appeal with the Federal Court of Appeals for the Fifth Circuit.
The Fifth Circuit affirmed the lower court’s exoneration of Harrell. [3] The court looked to the U.S. Supreme Court’s decision in Hudson v. McMillian [4] for guidance and direction in its ruling. The court observed that the Supreme Court ruled in Hudson that “[w]hen prison officials use force to maintain or restore order in a prison, ‘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.’” [5] Further, the Fifth Circuit observed that in Hudson, the Supreme Court ruled that in deciding whether a prison official has used excessive force, judicial officials must focus on the official’s “subjective intent” and determine it by applying the so-called “Hudson factors.”
The court set forth the Hudson factors as follows: “(1) the extent of the injury suffered, (2) the need for the application of force, (3) the relationship between that need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful response.”
The court next applied the Hudson factors to the facts of the instant matter. The court applied the first two Hudson factors and determined that Byrd’s injury was not serious and that the force applied here was obviously needed. The court remarked, “Byrd’s determined resistance required determined force in response.”
The court applied the third Hudson factor by examining whether striking Byrd’s arm with the baton was needed. The court concluded that this factor weighs in Byrd’s favor, “if only modestly.” Nevertheless, the court took notice of the fact that the final baton strike that broke Byrd’s arm, “came at the culmination of a violent encounter with a prisoner determined to fight through chemical spray and riot shields.”
The court noted that in prison use of force cases, “The Supreme Court has told judges not to micro-manage the force necessary to quell such volatile situations. We are to accord prison officials ‘wide-ranging deference’ in ‘prison security measures taken in response to an actual confrontation with riotous inmates.’” [6]
The court next examined the fourth Hudson factor and asked whether “Harrell subjectively perceived a reasonable threat when he struck Byrd or instead acted maliciously to cause harm.” [7] Byrd claimed that Harrell acted with malice in retaliation for his accusing another officer of using excessive force, which resulted in the officer’s resignation on the day before this matter occurred. The court described Byrd’s allegation as speculation without factual support. The court ruled in favor of Harrell on this factor and stated, “There is no dispute that Harrell faced as he puts it, a ‘hostile, combative, utterly noncompliant’ prisoner who was committed to violent resistance.”
The court applied the fifth Hudson factor and ruled that Harrell displayed restraint in his application of force upon Byrd. The court observed that video evidence showed that Byrd continued to violently resist the efforts of several officers trying to control him. “Harrell struck his arm with the baton and then stopped … the moment Byrd stopped resisting.” This satisfied the court that Harrell attempted to temper his use of force against Byrd.
Conclusion
The Byrd decision contains many valuable lessons for prison officials to consider:
- Before physical force was used against Byrd to obtain compliance, he was requested to submit to a strip search and refused. If possible, potential use of force matters should begin in this manner.
- When the compliance request was rejected, officers did not immediately attempt to physically restrain Byrd but instead deployed an intermediate step by using a chemical agent to gain compliance. Only when the chemical agent failed and a second compliance request was rejected, was the decision made to employ physical force. Again, these intermediate steps demonstrate a reasonable effort to reduce the potential of a violent confrontation.
- Prison use of force cases involving convicted inmates are controlled by the cruel and unusual punishment clause of the Eighth Amendment. Accordingly, force applied by prison officials against convicted inmates must be deployed in a good-faith effort to maintain or restore discipline.
- In the convicted prisoner context, force can never be applied maliciously or sadistically for the purpose of causing harm or punishment.
- Cases involving allegations of excessive force against a prison inmate require proof that prison officials used force with the subjective intent/state of mind to maliciously inflict punishment upon the inmate.
- Prison authorities should use the Hudson case and its five factors in training and retraining officers who may be confronted with situations in which the application of physical force becomes necessary.
- Prison authorities should learn from the Fifth Circuit’s emphasis on Sergeant Harrell’s immediate termination of his use of force when it was no longer required.
References
1. At this time, the handheld camera video malfunctioned but continued to record the sound of the action. The hallway camera continued to function properly.
2. Byrd v. Harrell, (No. 17-40996) (5th Cir. 2022).
3. The circuit court likewise decided this case by assuming the absence of a weapon in possession of Byrd.
4. 503 U. S. 1 (1972).
5. (Quoting Hudson, 503 U.S.at 7).
6. (Quoting Whiteley v. Albers, 475 U.S. 312, 321-322 (1986)).
7. The Supreme Court in Hudson made clear that force used by prison officials can never be applied maliciously or sadistically with the intent to punish or cause harm.
