Legal Officers Section
International Association of Chiefs of Police
Annual Conference
Minneapolis, MN - October 6, 2002
Prepared by Jeffrey Higginbotham, Esq.
Contents:
Thomas v. Chicago Park
District, 534 U.S. 316 (1/15/2002) (J. Scalia) (Organizers of events rallying for the
legalization of marijuana challenged a city ordinance requiring individuals to
obtain a permit before conducting large-scale events in public parks. The ordinance provides that the Park
District may deny a permit on any of 13 specified grounds, must process
applications within 28 days, and must explain its reasons for a denial. An unsuccessful applicant may appeal; first,
to the Park District's general superintendent and then to state court.
The event organizers contended
that if the permit was denied, it was the legal duty of the city to begin
litigation to seek judicial review of its decision, and that pending judicial
review, the status quo had to be maintained.
The Supreme Court disagreed. The
Court reasoned that the ordinance was a content-neutral permit scheme
regulating uses of a public forum and need not contain such procedural
safeguards. The Park District's
ordinance is not subject-matter censorship but a content-neutral, time, place,
and manner regulation for the use of a public forum.
“None of the grounds for
denying a permit has anything to do with the content of speech. Indeed, the ordinance is not directed at
communicative activity as such, but to all activity in a public
park...the object of the permit system...is not to exclude communication of a
particular content, but to coordinate multiple uses of limited space, to assure
preservation of the park facilities, to prevent uses that are dangerous,
unlawful, or impermissible under the Park District's rules, and to assure
financial accountability for damage caused by the event.”)
Republican Party of
Minnesota v. White, 122 S.Ct.
2528 (6/27/2002) (J. Scalia) (A
Minnesota state law and its attendant bar association rule that prohibits
candidates seeking election as judges from publicly announcing his/her view on
“disputed legal or political issues” violates the First Amendment. The restrictions imposed by the state's
Announce Clause “both prohibits speech on the basis of its content and burdens
a category of speech that is at the core of our First Amendment
freedoms--speech about the qualifications of candidates for public
office.” Because the limitation impact
political speech, it is subject to the strict-scrutiny test, and can survive
only if it is (1) narrowly tailored, to serve (2) a compelling state
interest.
The state's asserted
interests of impartiality of the judiciary and the appearance of impartiality
were not sufficient, however, to meet this test. “[E]lected judges, regardless of whether they have announced any
views beforehand--always face the pressure of an electorate who might
disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh
places his job much more at risk than the judge who (horror of horrors!)
reconsiders his previously announced view on a disputed legal issue.”)
Kirk v. Louisiana, 122 S.Ct. 2458 (6/24/2002) (Per Curiam) (Based on an anonymous tip that drug sales were
occurring at the defendant's residence, police conducted a surveillance and
observed several apparent drug sales.
One drug buyer was stopped within a block of the defendant's home. Based on the stop and the proximity to the
suspect's residence, police made a warrantless entry to the defendant's home,
arrested him, and searched his person finding drugs, and observed contraband in
plain view.
A search warrant was obtained
while the defendant was detained.
Because the entry occurred without a warrant and without a determination
by the courts that exigent circumstances existed, the search violated the rule
of Payton v. New York, 445 U.S. 573 (1980), that requires a warrant
before entry into the defendant's residence, absent consent or an
emergency. “[P]olice officers need
either a warrant or probable cause plus exigent circumstances in order to make
a lawful entry into a home.”)
United States v.
Drayton, 122 S.Ct. 2105
(6/17/2002) (J. Kennedy) (Drayton was
a passenger on a bus bound from Florida to Michigan. While at a stop in Tallahassee, three plain-clothed officers
boarded the bus as part of a drug
interdiction program. One remained
kneeling in the driver's seat, one went to and remained in the back of the bus,
and the third moved down the aisle asking passengers questions and seeking
consent to search. Drayton and a
companion were seated next to each other.
The officer first asked the
companion for consent to search a bag and then the companion's person. Consent was given, and when the officer felt
hard objects under the companion's clothes consistent, in the officer's
experience, with packages of drugs or contraband, he was arrested. The officer then turned to Drayton and
asked, “Mind if I check you?” Drayton
did not respond but lifted his hands away from his legs. The officer patted Drayton's legs and felt
hard objects. Believing Drayton was
carrying drugs, he, too, was arrested.
A subsequent full search
disclosed Drayton had two bundles of cocaine taped to his thighs. The issue before the Court was whether the
officers were constitutionally obligated to advise Drayton that he did not have
to consent to the search. The Court
reiterated earlier holdings regarding the legality of police interdiction
programs involving bus passengers: “Law
enforcement officers do not violate the Fourth Amendment's prohibition of
unreasonable seizures merely by approaching individuals on the street or in
other public places and putting questions to them if they are willing to
listen...
Even when law enforcement officers
have no basis for suspecting a particular individual, they may pose questions,
ask for identification, and request consent to search luggage--provided they do
not induce cooperation by coercive means...If a reasonable person would feel
free to terminate the encounter, then he or she has not been seized.” In this case, the Court concluded that no
seizure of the passengers occurred: “The officers gave the passengers no reason
to believe that they were required to answer the officers' questions.
When Officer Lang approached
respondents, he did not brandish a weapon or make any intimidating movements.
He left the aisle free so that respondents could exit. He spoke to passengers
one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable
person that he or she was barred from leaving the bus or otherwise terminating
the encounter...There was no application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no blocking of exits, no
threat, no command, not even an authoritative tone of voice.”
The Supreme Court then
rejected the lower court's ruling that police were required to inform
passengers of their right not to cooperate.
“The Court has rejected in specific terms the suggestion that police
officers must always inform citizens of their right to refuse when seeking
permission to conduct a warrantless consent search...While knowledge of the
right to refuse consent is one factor to be taken into account, the government
need not establish such knowledge as the sine qua non of an effective
consent.” As for various indicia of
coercion, the Court said, “[We previously] rejected the claim that the
defendant was seized when an officer approached him in an airport, showed him
his badge, and asked him to answer some questions....
And while neither Lang nor
his colleagues were in uniform or visibly armed, those factors should have
little weight in the analysis. Officers are often required to wear uniforms and
in many circumstances this is cause for assurance, not discomfort. Much the
same can be said for wearing sidearms. That most law enforcement officers are
armed is a fact well known to the public. The presence of a holstered firearm
thus is unlikely to contribute to the coerciveness of the encounter absent
active brandishing of the weapon....
The arrest of one person does
not mean that everyone around him has been seized by police. If anything,
Brown's arrest should have put Drayton on notice of the consequences of
continuing the encounter by answering the officers' questions. Even after
arresting Brown, Lang addressed Drayton in a polite manner and provided him
with no indication that he was required to answer Lang's questions.”)
United States v.
Knights, 534 U.S. 112
(12/10/2001) (J. Rehnquist) (Knights
was sentenced to probation for a drug violation. As a condition of his probation, Knights agreed that he would “[s]ubmit
his... person, property, place of residence, vehicle, personal effects, to
search at anytime, with or without a search warrant, warrant of arrest or
reasonable cause by any probation officer or law enforcement officer.” Three days after he began his probation, he
became a suspect for criminal vandalism against the local utility company
totally $1.5 million.
A detective established
surveillance on Knights' truck, and after observing suspicious activity and
items, and knowing the search terms of Knights' probation, searched Knights'
residence and found evidence of his criminal activity. The Supreme Court granted certiorari to
decide “whether the Fourth Amendment limits searches pursuant to this probation
condition to those with a 'probationary' purpose.”
The Court applied the
Reasonableness Clause of the Fourth Amendment and concluded the search was
lawful. “Just as other punishments for
criminal convictions curtail an offender's freedoms, a court granting probation
may impose reasonable conditions that deprive the offender of some freedoms
enjoyed by law-abiding citizens...
The State has a dual concern
with a probationer. On the one hand is
the hope that he will successfully complete probation and be integrated back
into the community. On the other is the
concern, quite justified, that he will be more likely to engage in criminal
conduct than an ordinary member of the community. The view of the Court of Appeals in this case would require the
State to shut its eyes to the latter concern and concentrate only on the
former.
But we hold that the Fourth
Amendment does not put the State to such a choice. Its interest in apprehending violators of the criminal law,
thereby protecting potential victims of criminal enterprise, may therefore justifiably
focus on probationers in a way that it does not on the ordinary citizen. We hold that the balance of these
considerations requires no more than reasonable suspicion to conduct a search
of this probationer's house. The degree
of individualized suspicion required of a search is a determination of when
there is a sufficiently high probability that criminal conduct is occurring to
make the intrusion on the individual's privacy interest reasonable...
Although the Fourth Amendment
ordinarily requires the degree of probability embodied in the term 'probable
cause,” a lesser degree satisfies the Constitution when the balance of
governmental and private interests makes such a standard reasonable...Those
interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion
that a probationer subject to a search condition is engaged in criminal
activity, there is enough likelihood that criminal conduct is occurring that an
intrusion on the probationer's significantly diminished privacy interests is
reasonable.”)
United States v. Arvizu, 534 U.S. 266 (1/27/2001) (J. Rehnquist) (A border patrol agent working a checkpoint in a
sparsely populated and remote area of Arizona was notified that an electronic
sensor had detected a vehicle moving on roads sometimes used by drug or alien
smugglers at about the time agents shifted checkpoint areas. The agent drove to the area and located
Arvizu, driving a minivan-a common car for smugglers. As the minivan approached the agent's car, it slowed markedly,
from 50-55 mph to 25-30 mph. Inside,
the agent observed two adults and three children. The driver sat rigidly and did not look at the agent, as would
most people.
The children in the back seat
sat as if their feet were elevated and propped on something on the floor. As the agent followed the minivan, the
children began waving, but without looking back at the agent's car. When the car turned on the last road that
would avert the checkpoint, the border patrol agent radioed for a registration
check and determined the car was registered to a person residing in a
neighborhood in nearby Douglas, Arizona, known for drug and alien
smuggling. At that point, the agent
stopped the minivan and asked for consent to search. The resulting search discovered 128.5 pounds of marijuana.
The defendant moved to
suppress on the ground that the border patrol agent lacked reasonable suspicion
to make the stop. Although the motion
was denied by the District Court, the Court of Appeals agreed with the defendant
and held that, as a matter of law, certain facts-including the slowing of the
vehicle, the failure of the driver to acknowledge the agent, the children's
unusual waving, and the children's knee position-could not be considered in
establishing the requisite reasonable suspicion. In overturning the Court of Appeals, the Supreme Court noted that
the concept of reasonable suspicion was not a precise standard, but that the
Court had avoided establishing a “neat set of legal rules.”
Rather, the Court affirmed
its totality-of-the-circumstances approach, and rejected the lower court's
interpretation that every fact that had an explanation as equally innocent as
criminal could not be used in the reasonable suspicion calculus. Moreover, the Court instructed that
appellate courts should review the findings of the trial courts using an “abuse
of discretion” standard, and should not undertake a de novo review
of the facts. Accordingly, the Court
reversed the Court of Appeals and affirmed the District Court's finding that
reasonable suspicion existed to support the border patrol agent's stop of the
defendant's vehicle.)
Department of Housing
and Urban Development v. Rucker,
122 S.Ct. 1230 (3/26/2002) (J. Rehnquist) (Congress passed the Anti-Drug Abuse Act which provides that each
“public housing agency shall utilize leases which...provide that any criminal
activity that threatens the health, safety, or right to peaceful enjoyment of
the premises by other tenants or any drug-related criminal activity on or off such
premises, engaged in by a public housing tenant, any member of the tenant's
household, or any guest or other person under the tenant's control, shall be
cause for termination of tenancy.”
The law and leases were
challenged on the ground that “innocent” tenants could not be evicted. The Supreme Court disagreed. It held that “...that 42 U. S. C.
§1437d(l)(6) unambiguously requires lease terms that vest local public housing
authorities with the discretion to evict tenants for the drug-related activity
of household members and guests whether or not the tenant knew, or should have
known, about the activity...Congress' decision not to impose any qualification
in the statute, combined with its use of the term 'any' to modify 'drug-related
criminal activity,' precludes any knowledge requirement.”)
Board of Education of
Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (6/27/2002) (J. Thomas) (The school district
adopted the Student Activities Drug Testing Policy which requires students to
take a drug test before participating in an extracurricular activity, submit to
random drug testing while participating in that activity, and agree to be
tested at any time upon reasonable suspicion. The urinalysis tests are designed
to detect only the use of illegal drugs, including amphetamines, marijuana,
cocaine, opiates, and barbiturates, not medical conditions or the presence of
authorized prescription medications. The Policy was challenged as unconstitutional by two students who
participated as members of the show choir, the marching band, the Academic
Team, and the National Honor Society.
In deciding whether the
Policy violated the Fourth Amendment, the Court noted that: “the Fourth
Amendment imposes no irreducible requirement of [individualized]
suspicion...[I]n certain limited circumstances, the Government's need to
discover such latent or hidden conditions, or to prevent their development, is
sufficiently compelling to justify the intrusion on privacy entailed by
conducting such searches without any measure of individualized suspicion...
Therefore, in the context of safety and administrative regulations, a search
unsupported by probable cause may be reasonable when special needs, beyond the
normal need for law enforcement, make the warrant and probable-cause
requirement impracticable.”
Moreover, the Court stated
that “...special needs inhere in the public school context...While
schoolchildren do not shed their constitutional rights when they enter the
schoolhouse, Fourth Amendment rights are different in public schools than
elsewhere; the reasonableness inquiry cannot disregard the schools custodial
and tutelary responsibility for children.
In particular, a finding of individualized suspicion may not be
necessary when a school conducts drug testing.” The Court found the drug testing policy was constitutional.
The students voluntarily
participated in the extracurricular activities and, thus, had a reduced expectation
of privacy. In addition, the testing
method was relatively unobtrusive, the records were kept confidential and the
only consequence for a positive drug test was disqualification from the
extracurricular event. Thus, balanced
against the school's interest in preventing drug use among its students, the
Policy was lawful under the Fourth Amendment.)
McKune v. Lile, 122 S.Ct. 2017 (6/10/2002) (J. Kennedy) (While serving time in prison for a rape and
kidnapping charge, Lile was ordered to attend a Sexual Abuse Treatment
Program. “[P]articipating inmates are
required to complete and sign an 'Admission of Responsibility' form, in which
they discuss and accept responsibility for the crime for which they have been
sentenced.
Participating inmates also
are required to complete a sexual history form, which details all prior sexual
activities, regardless of whether such activities constitute uncharged criminal
offenses. A polygraph examination is used to verify the accuracy and
completeness of the offender's sexual history.” Lile was told that if he refused to sign the forms, provide then
sexual history and participate, he would lose certain privileges at the prison
and be transferred to a four-prisoner cell in the maximum security part of the
prison.
Lile refused to participate
on the ground that his forced admission of responsibility, in contrast to his
trial testimony, subjected him to a charge of perjury and, therefore, violated
his Fifth Amendment privilege against self-incrimination. The Court disagreed. Noting that the Fifth Amendment prohibits
the compulsion of self-incriminating testimony, the Court found “[t]he
consequences in question here--a transfer to another prison where television
sets are not placed in each inmate's cell, where exercise facilities are not
readily available, and where work and wage opportunities are more limited--are
not ones that compel a prisoner to speak about his past crimes despite a desire
to remain silent.
The fact that these
consequences are imposed on prisoners, rather than ordinary citizens, moreover,
is important in weighing...[the] constitutional claim...The compulsion inquiry
must consider the significant restraints already inherent in prison life and
the State's own vital interests in rehabilitation goals and procedures within
the prison system.
A prison clinical
rehabilitation program, which is acknowledged to bear a rational relation to a
legitimate penological objective, does not violate the privilege against
self-incrimination if the adverse consequences an inmate faces for not
participating are related to the program objectives and do not constitute
atypical and significant hardships in relation to the ordinary incidents of
prison life.”)
Dusenbery v. United
States, 534 U.S. 161
(1/8/2002) (J. Rehnquist) (Dusenbery
pleaded guilty to distribution of cocaine.
Following his imprisonment, the FBI sought to forfeit cash and other
items found pursuant to a search warrant following Dusenbery's arrest. Pursuant to regulations that require notice
be sent to parties of interest to the forfeiture, the FBI mailed a certified
letters to Dusenbery in prison, his last known address, and the address of his
mother in another town.
In addition, the FBI
published notice of its forfeiture action in the appropriate newspaper. Five years later, Dusenbery filed suit
claiming a violation of his due process rights because of inadequate notice of
the FBI's intent to forfeit his property.
Testimony established that the certified letter was received at the
prison, but there was no proof that Dusenbery actually received the
letter. Nonetheless, the lower courts
upheld the forfeiture and the FBI's actions as satisfying Dusenbery's due
process rights.
The Supreme Court reiterated
its long-standing precedent established as the test for the adequacy of notice
under the Due Process Clause-- is the method used “reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.”
According to the Court,
“...the Due Process Clause does not require...heroic efforts by the Government;
it requires only that the Government's effort be 'reasonably calculated' to
apprise a party of the pendency of the action...” In this case, the Court concluded the FBI had used adequate
procedures to satisfy the Due Process Clause.)
United States Postal
Service v. Gregory, 534 U.S. 1
(11/13/2001) (J. O'Connor) (A postal
employee had been disciplined on three separate occasions, and appealed each
through the grievance system available to her under her collective bargaining
agreement. While all three actions were
on appeal, a fourth disciplinary action arose.
The Postal Service decided to terminate the employee, relying on the
current conduct, as well as the history of past discipline, even though each
was still on appeal.
The Federal Circuit concluded
that “...prior disciplinary actions that are subject to ongoing proceedings may
not be used to support a penalty's reasonableness.” The Supreme Court disagreed and reversed. It ruled that the Merit System Protection
Board, which made an initial finding upholding the Postal Service's termination
decision, was acting within its authority when it independently reviewed the
final disciplinary offense together with the employee's prior disciplinary
record.)
United States v. Ruiz, 122 S.Ct. 2450 (6/24/2002) (J. Breyer) (After immigration agents found 30 kilograms of marijuana
in Ruiz' luggage, federal prosecutors offered her a fast track plea
bargain. That bargain, standard in that
district, asks a defendant to waive indictment, trial, and an appeal. In return, the Government agrees to
recommend to the sentencing judge a two-level departure downward from the
otherwise applicable United States Sentencing Guidelines sentence.
The bargain also requires the
government to disclose exculpatory evidence on a continuing basis, but requires
the defendant to waive access to “...impeachment information relating to any
informants or other witnesses, as well as the right to receive information
supporting any affirmative defense the defendant raises if the case goes to
trial.” Because Ruiz would not agree to
this waiver, the prosecutors withdrew their bargaining offer. Following indictment, and without a plea
bargain, Ruiz pleaded guilty. The issue
before the Court was “...whether the Fifth and Sixth Amendments require federal
prosecutors, before entering into a binding plea agreement with a criminal
defendant, to disclose 'impeachment information relating to any informants or
other witnesses.'”
In deciding that there is no
obligation under the Constitution, the Court reasoned that “the Constitution
insists, among other things, that the defendant enter a guilty plea that is
'voluntary' and that the defendant must make related waivers 'knowing[ly],
intelligent[ly], [and] with sufficient awareness of the relevant
circumstances...” Impeachment
information, said the Court, might aid the defendant in making a wise decision,
but does not affect the voluntary, knowing and intelligent waiver of
rights.
Moreover, “[a]t the same
time, a constitutional obligation to provide impeachment information during
plea bargaining, prior to entry of a guilty plea, could seriously interfere
with the Government's interest in securing those guilty pleas that are
factually justified, desired by defendants, and help to secure the efficient
administration of justice.”)
Alabama v. Shelton,
122 S.Ct. 1764 (5/20/2002) (J. Ginsburg)
(After representing himself at
a bench trial, Shelton was convicted of third-degree assault, a class A
misdemeanor carrying a maximum punishment of one year imprisonment and a $2000
fine. He invoked his right to a new
trial before a jury in Circuit Court where he again appeared without a lawyer
and was again convicted. The court repeatedly warned Shelton about the problems
self-representation entailed, but at no time offered him assistance of counsel
at state expense. The Circuit Court
sentenced Shelton to serve 30 days in the county prison, but suspended that
sentence and placed Shelton on two years unsupervised probation, conditioned on
his payment of court costs, a $500 fine, reparations of $25, and restitution in
the amount of $516.69.
In
earlier decisions, the Supreme Court ruled the Sixth Amendment right to counsel
requires that “...defense counsel must
be appointed in any criminal prosecution, whether classified as petty, misdemeanor,
or felony...that actually leads to imprisonment even for a brief period...[but]
drew the line at actual imprisonment, holding that counsel need not be
appointed when the defendant is fined for the charged crime, but is not
sentenced to a term of imprisonment.”
In
this case, the Court held that: “A suspended sentence is a prison term imposed
for the offense of conviction. Once the
prison term is triggered, the defendant is incarcerated not for the probation violation,
but for the underlying offense. The
uncounseled conviction at that point result[s] in imprisonment...[and ends] up
in the actual deprivation of a persons liberty...This is precisely what the
Sixth Amendment...does not allow.”)
Mickens v. Taylor, 122
S.Ct. 1237 (3/27/2002) (J. Scalia)
(Mickens was convicted of murder and sentenced to death. He sought habeas relief on the grounds that
his trial counsel was also the counsel of record representing the victim on
juvenile charges pending at the time of Mickens' victim's death.
The
attorney did not disclose this fact to Mickens. “The question presented in this case is what a defendant must
show in order to demonstrate a Sixth Amendment violation where the trial court
fails to inquire into a potential conflict of interest about which it knew or
reasonably should have known.” The
Court noted that the general rule requires a defendant to “...demonstrate 'a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” But, it also noted that exceptions to that rule exist when the
magnitude of the circumstances require.
The
Court concluded, however, that in cases alleging counsel's conflict of
interest, a “...proposed rule of automatic reversal when there existed a
conflict that did not affect counsel's performance, but the trial judge failed
to make the... mandated inquiry, makes little policy sense. As discussed, the rule applied when the trial
judge is not aware of the conflict (and thus not obligated to inquire) is that
prejudice will be presumed only if the conflict has significantly affected
counsel's performance--thereby rendering the verdict unreliable, even though ...prejudice
cannot be shown.')
Ring v. Arizona, 122
S.Ct. 2428 (6/24/2002) (J. Ginsburg)
(Ring and others were involved in the robbery of an armored truck that also
resulted in the killing of one of the armored car drivers. A tip led the police to Ring as a suspect
and after determining that he and another suspect made large cash purchases
shortly after the robbery, the police wiretapped the suspects' telephones. Incriminating telephone conversations were
intercepted. Finally, a search of
Ring's house discovered a large amount of cash for which Ring provided
inadequate and false explanation.
The
jury convicted ring only of felony murder, finding the murder occurred during
the commission of a felony, but did not convict Ring of first degree
murder. At the sentencing hearing
before the trial judge, additional facts were adduced that established the
aggravating factors warranting the death penalty under Arizona law.
Ring
was subsequently sentenced to death and appealed on the ground that the
imposition of the death penalty by the judge violated his constitutional
rights. The Supreme Court held that the
Sixth Amendment guarantee of a jury trial invalidates a state's death penalty
process if the judge, not the jury, finds facts which warrant imposition of the
death penalty.)
Hope v. Pelzer, 122
S.Ct. 2508 (6//27/2002) (J. Stevens)
(A prison inmate who was handcuffed to a “hitching post” on two occasions for
disciplinary reasons suffered cruel and unusual punishment under the Eighth
Amendment. On the first occasion, the
prisoner was handcuffed for two hours on the post, and was offered drinking
water and a bathroom break every 15 minutes.
Because he was only slightly taller than the hitching post, his arms
were above shoulder height and grew tired from being handcuffed so high. Whenever he tried moving his arms to improve
his circulation, the handcuffs cut into his wrists, causing pain and
discomfort.
On
the second occasion, the prisoner was punished more severely. He was forced to take off his shirt, and he
remained shirtless all day while the sun burned his skin. He remained attached to the post for
approximately seven hours. During this 7-hour period, he was given water only
once or twice and was given no bathroom breaks. At one point, a guard taunted the prisoner about his thirst,
giving water to a dog then intentionally spilling it in front of the
prisoner. The Court made two important
rulings.
First,
the conduct alleged by the prisoner constituted cruel and unusual punishment: (1) “As the facts are alleged by Hope, the
Eighth Amendment violation is obvious. Any safety concerns had long since
abated by the time petitioner was handcuffed to the hitching post because Hope
had already been subdued, handcuffed, placed in leg irons, and transported back
to the prison. He was separated from his work squad and not given the
opportunity to return to work. Despite the clear lack of an emergency
situation, the respondents knowingly subjected him to a substantial risk of
physical harm, to unnecessary pain caused by the handcuffs and the restricted
position of confinement for a 7-hour period, to unnecessary exposure to the
heat of the sun, to prolonged thirst and taunting, and to a deprivation of
bathroom breaks that created a risk of particular discomfort and
humiliation.