Posted by By Oliver J. Collins ’23
I’d like to start this post by thanking Francis and Cindy Letro for their generosity in donating the University at Buffalo School of Law Summer Public Interest Funding & Fellowship Program that supported me this summer. Public interest work is rewarding but can be difficult for those who are not financially stable. Their contribution allowed me to work and learn at my internship without having to worry about my finances. Thank you.
At my internship in the District Court for the Northern District of New York, I got familiar with 42 U.S.C. § 1983 (2018) (“§ 1983”), the civil cause of action for deprivation of rights. It encompasses a huge swath of law, but in Utica, New York, § 1983 is overwhelmingly “code” for an excessive force claim against corrections officers. Prisons litter the vast countryside of upstate New York. Sometimes entire small towns are symbiotically shaped around them; the citizens get work, and the prison gets staff.
When I learned that I would be able to see two § 1983 trials in my time at the District Court, I was hopeful. Like many in my generation, the phrase ‘excessive force’ brings to mind George Floyd, Breonna Taylor, and the mass movements that grew out of holding the police to account. I hoped if I was lucky, I’d get to see some justice being done. Both trials found against the inmates’ claims and the officers were let off the hook. The reality is, proceeding on a §1983 claim is very difficult. I’d like to take this blog post as an opportunity to explore why that is.
Section 1983: What you need to know
In conducting legal research around §1983 claims, the phrase that comes up a lot is “the Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” (this is a blog post not a memo, but I feel the uncontrollable compulsion to say this is from Farmer v. Brennan). The question becomes: at what point does a prison become inhumane? There’s an entire body of law attempting to answer this question, which is partially why there is an accepted standard for the amount of human feces that are constitutionally allowed to be in a prison cell.
What’s relevant for excessive force claims is that corrections officers have two legal duties: 1) the duty to refrain from using excessive force and 2) the duty to intervene if one of their fellow officers is using excessive force. To prove that an officer used excessive force, an attorney must prove that the use of force was done “maliciously and sadistically” for the purposes of causing harm rather than restoring discipline. To prove a failure to intervene, the attorney has to prove that the officer acted with “deliberate indifference” to a serious risk of harm. Other than that, the classic tort rules apply. The attorney must prove duty, breach of duty, causation, and damages.
So how do you collect evidence of your injury if you’re an inmate?
You usually don’t. Cell phones aren’t allowed, neither are cameras. An inmate is entitled to medical care where they may have pictures taken of them, but a common refrain from abused inmates is that they are denied medical care when requested. It’s also common to hear that when the nurses are called, they look at the damage done by the abusers, and write ‘no injury’ on their charts. Attorneys for the corrections officers then take out these charts at trial and imply that it’s ludicrous to suggest that there’s a conspiracy of nurses and officers working to deny inmates medical care.
In the first case I viewed, the plaintiff, M.S., offered evidence of his alleged assault by bringing his father in to testify. His father had visited him shortly after the assault and testified that he had seen chain-shaped bruises on his son’s body and burn marks on his face. The defense attorneys on the cross-examination implied that there was no way his father could have known with certainty that those marks had come from a corrections officer. They dug into M.S.’s mental health history to insinuate that the burns had been self-inflicted. Anyone familiar with the psychology of self-harm would likely feel that burning oneself on one’s face two times and then never again would be highly unusual.
In the second case I viewed, the plaintiff, R.D., actually had pictures. They were taken in a dimly lit cell roughly two weeks after an alleged assault where he was thrown against a wall of steel mailboxes and beaten. His attorney cast the pictures for the jury to see, I remember only viewing them for 30 seconds before they were taken down. This was largely a strategic move because there was very little evidence of any bruising. Of course, it was hard to tell from a grainy photograph taken in a dim cell. R.D.’s attorney asked him why there wasn’t any bruising. He replied that most of the damage had been internal. As he sat on the stand, he had a thick support belt wrapped around his midsection to support a damaged back. When it came to cross examination and closing arguments, the defense attorneys pointed to the pictures as clear evidence that no assault had occurred.
These stories demonstrate the first barrier to a successful §1983 claim. How can you prove that you’ve been injured if you have limited means of collecting evidence of your injuries?
Another strategy R.D. employed was his writing. The day of his assault he asked other inmates for pen and paper and wrote everything down. He sent letter after letter to different officials, even the governor, detailing the assault. The defense attorneys implied that he had done this because he was planning for a lawsuit, creating a paper trail for his own self-interest. But if you don’t have a camera, and you’re being denied medical care, and maybe you don’t have visitors very often (and even if you do maybe they aren’t willing to testify), what are you as an inmate supposed to do?
How as an inmate can you make yourself more credible than corrections officers?
As the first day of M.S.’s trial came to a close, and plaintiff’s attorney had presented all the evidence they had, I felt confident he would win. I eyed the three corrections officers with suspicion, picturing the stories of abuse M.S. had detailed on the stand. The following day the defense called Sergeant O. to the stand. O. was older, a large man with a burly white mustache. M.S. claimed that O. interrogated him after a prison riot, punched him several times, and instructed another officer to burn M.S. on his face.
I expected when O. finally spoke it would be with the booming voice of a Sergeant. “Can you state your name for the record?” the attorney asked. “M.O.,” he said.
Part of me was startled. His voice wasn’t what I expected, instead of a bass he was clearly a tenor. At first, he spoke so quietly that the court reporter had to remind him to speak into the microphone. And thus began the process of walking back M.S.’s picture of the corrections officers. When each officer testified, their attorney extensively asked them about their employment history and training. They had each spent decades in law enforcement or corrections. They kept their composure like old pros. Another common feature of §1983 claims are repeat offenders. Officers are frequently brought in to testify and are given time with their attorneys to be thoroughly prepped.
The strategy of the plaintiff’s attorney on cross-examination is to get the officers mad. The defense will spend all their time trying to build up the officers’ image as public servants, who have put themselves in danger for decades to protect others. It’s the plaintiff’s attorney’s job to shatter that image. Get them to lash out. Get them to raise their voice, to get flustered and frustrated so the jury can see the extent of their temper. But if you’re an officer who’s been in the system for decades, you’ve probably spent your fair share of time in a courtroom and on the stand. Getting an experienced officer to lose their cool is a task and hounding the officers can often backfire.
After O., the attorney brought up C.O. Ow. C.O. Ow. was in his late sixties at least. He wore a golf polo and khaki shorts with sneakers. While M.S. gave his testimony where he claimed Ow. had beat him up, Ow. sat back in his chair with his hands relaxed behind his head like he was stretched out on a beach chair in Jamaica. He didn’t even look like he realized he was in court being accused of assault. When he took the stand, I felt a sense of excitement. If any of the officers was going to crack, I had my money on Ow.
The Plaintiff’s attorney started their cross exam and immediately started putting on the pressure. Where were you on this date? You don’t remember? You don’t remember M.S. even though you worked with him several times a week for months?
My favorite moment was when the Plaintiff’s attorney asked Ow. when he learned he was a part of this lawsuit.
“This morning,” Ow. said.
“This morning? But sir, this is the second day of trial.”
It’s the little things. But I digress.
The Plaintiff’s attorney pressed Ow. and gradually he became more and more flustered. I found myself on the edge of my seat, were we going to get the outburst plaintiff’s attorney was hoping for?
“Heh, I’m sorry, I’m… I’m a little slow…” Ow. said finally. And that was the moment the Plaintiff’s attorney lost the exchange. Now if he continued to press Ow. and work him towards fury he would come across as picking on an old, slow man. The Plaintiff’s attorney ended cross.
In summation, the strategies that any plaintiff’s attorney has at their disposal to attack the credibility of the officers are limited and capable of backfiring. If a plaintiff’s attorney were to openly attack the officers too much, it would likely read to the jury as being disrespectful. The defense attorney, however, does not have this issue.
§1983 litigation as it applies to corrections officers always puts plaintiff’s credibility at a disadvantage. In order to have been abused by corrections officers, you have to have been in prison. To be in prison, you have to have been convicted of a crime. A plaintiff’s attorney is always going to be working against the notion that if you’re a criminal, you deserve some level of pain and suffering while in prison. This is the element that really sinks a lot of § 1983 claims. As a plaintiff’s attorney, you have two options as to how to deal with your client’s criminal history: try to gloss over it or get out ahead of it. R.D.’s attorney chose the former.
When R.D. took the stand, his attorney asked him to go over his criminal history. R.D. stated that he was originally incarcerated for a theft charge, then later convicted of an assault charge that for which he claimed he was innocent. The attorney moved on after that brief explanation. The defense leapt at the opportunity to put concrete language to the vague assault charge.
“So you were convicted of rape, right?”
In the average case, this might be the moment where any plaintiff would lose. The jury is placed in a tough position: are they going to allow relief to compensate the pain and suffering of a convicted rapist? It’s hard to be unbiased towards someone who’s been convicted of such a terrible crime. It’s even harder to believe what they say if they don’t have a lot of physical evidence. If the choice is between believing three police officers or a rapist, for most people the answer is obvious.
The broader point is that inmates often are not as collected and polished as long-time corrections officers. While officers are heavily trained to not lose their cool, inmates often are not as restrained.
R.D. had other credibility problems outside of his criminal history. He was asked by his attorney to recount from start to finish the circumstances surrounding the alleged assault. He recounted being taken from his cell by two officers, then joined by a third. They took him to a room with a wall of steel mailboxes and was placed facing the wall.
“Then one of the officers – I didn’t see which one – sucker punched me.”
“And Mr. R.D., what exactly is a sucker punch?” his attorney asked. R.D. blinked in surprise.
“A sucker punch? Well, uh…a sucker punch is a sucker punch. A sucker punch…it’s a sucker punch. A sucker punch is a sucker punch! A sucker punch is a sucker punch! A sucker punch…” His attorney had to cut him off. With each recitation his voice got louder, his gestures more agitated. It felt like he had got himself stuck in a loop, so frustrated that he had to explain what a sucker punch was that he couldn’t stop. Wide-eyed looks were exchanged around the courtroom. I imagine this defense was laughing to themselves thinking there’s no way a jury is going to find for this guy.
This situation speaks to how little prep inmates are given before trial versus the prep available to the officers. That R.D. was so caught off guard by a simple question indicates that not only had he not been prepped to answer that question, but that had no idea it was even going to be asked.
Other aspects of R.D.’s court behavior demonstrate the same point. He testified that one of the officers who had beaten him had tattoos on his forearms. While still on the stand he requested that one of the officers show the jury his forearms. The officer didn’t move.
“No Mr. R.D, you are on the stand. Your job is the answer the questions put to you.” Judge H. said from the bench. “Move on, counselor.”
R.D. also grew agitated when the officers testified. He whispered frantically to his attorney while the officers claimed that they had never hit R.D. and that they had never even interacted with him. When the answer his attorney whispered back didn’t satisfy him, R.D.’s hand shot up. This happened several times. Each time his attorney yanked his hand back down. Judge H. didn’t acknowledge it, but there was no way the jury didn’t notice. I don’t see these little acts of self-sabotage as R.D.’s fault. I read it more that R.D’s likely did not have a lot of experience in civil trials and hadn’t quite understood the rules. But the officers did. The officers in both R.D.’s and M.S.’s cases sat quietly with their hands folded on their laps, their expressions unreadable.
In conclusion to this point, credibility in a §1983 case is an uphill battle for inmates where the officers are already at the top.
Let’s wrap this up
During this post I’ve given the benefit of the doubt to the plaintiffs in these cases. This is to illustrate the point that even if the officers were guilty, these roadblocks still affect any plaintiff’s case. They would still be forced to confront the difficulty of collecting evidence and have to grapple with credibility issues.
The §1983 claims that do succeed have a couple elements in common. 1) Pictures or video evidence. Although DOCCS facilities have cameras, getting DOCCS to hand over footage of certain days is a battle, since their interests are served by not giving it up. The cases that succeed have the pictures or video to prove either injuries from an assault, or the assault itself. 2) Horrifying injuries. Remember that one of the elements for excessive force is the “malicious and sadistic” intent requirement. Even if the inmate has pictures, if the injuries are minimal then any plaintiff’s attorney will still have to struggle over the hurdle of proving the assault was done maliciously rather than for any legitimate penological purpose. Broken bones and long-lasting disabilities are more likely to cultivate an award because they are more indicative of maliciousness.
At the end of these trials, questions remain. Why does M.S. flinch at the sound of dangling keys? How did R.D. damage his back so severely he later required surgery? The plaintiffs sat quietly after hearing the verdict, likely thinking of the years of effort they put in at the prison library, preparing themselves for this case. Or they’re thinking about how the officers get to stand and shake each other’s hands and smile after all the pain they’ve caused. Maybe the plaintiffs are thinking about the money. Years in prison leave many inmates indignant, a payout from a lawsuit could go a long way towards helping them rebuild their lives post-incarceration.
§1983 is a means of allowing inmates recourse against abusive corrections officers. If we don’t acknowledge the realities that inmates face in pursuing these claims, attempts at reform are impossible.
I want to take a minute to thank my federal court family at the District Court for allowing me the opportunity to witness these trials. It’s one thing to read case law, but it’s so much more informative to see the process by which it is formed. And a final thank you to the donors who made my summer experience possible.
Name: Olivia Collins ‘23
Name of Fellowship: Francis M. Letro ’79& Cindy Abbott Letro Fellowship
Placement: District Court for the Northern District of New York
Location: Albany, NY
One important lesson I have learned from this fellowship: “§1983 is a means of allowing inmates recourse against abusive corrections officers. If we don’t acknowledge the realities that inmates face in pursuing these claims, attempts at reform are impossible.”
UB School of Law Responds 