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Sticks and Stones May Break My Bones, but De Minimis Injuries Wont Preclude Me: Why the Eighth Circuit Correctly Decided Chambers v. Pennycook
BRITTANY PIERCE* ABSTRACT
Imagine that a man is visiting a relative at her home when the police suddenly enter with a search warrant. The man is immediately apprehended 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 times and calls him a liar. The man complains of pain and the officers transport him to the hospital. With his hands still cuffed behind his back, t he officers adjust the mans seat so it leans as far forward as possible while an officer kicks his seat. Meanwhile, the driver brakes and accelerates rapidly so the mans head repeatedly hits the dashboard. While the mans injuries 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 minimis and 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 the Fourth Amendment. Since a government officials use of excessive force is always a violation of a constitutionally protected right, Chambers correctly concluded that the relevant inquiry is whether the officers use of force was reasonable under the circumstances.

* Candidate for Juris Doctor, New England Law| Boston (2013). B.A., Psychology, magna cum lade, Elon 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 are sufficient to establish a Fourth Amendment excessive force claim.1 Kevin Chambers was injured when he was arrested and later complained of back pain.2 He brought a claim against the police officers that arrested him, alleging that they violated his right to be free from excessive force. 3 While 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 de minimis force had been used.4 Rather, the Court held that the focus should be on whether the officers use of force was objectively reasonable under the circumstances.5 This Comment argues that Chambers was correctly decided because the court considered that de minimis injuries are not necessarily indicative of de minimis force, because the same amount of force can produce different injuries when applied to different individuals. 6 Further, since both the Fourth and Eighth Amendments guarantee protection against the use of excessive force by government officials, the protections provided by each amendment should be the same.7 Therefore, in reaching the conclusion that de minimis injuries 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 that Chambers provides the correct 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 force claims 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

Chambers v. Pennycook, 641 F.3d 898, 904, 906 -08 (8th Cir. 2011). Id. at 901-02. 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.
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provided with less protection against excessive force than prisoners, and that 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 argues that 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 that the objective reasonableness of an officers use of force should be the major 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.10 The 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. 12 While the Constitution bestows upon law enforcement officers the power to arrest individuals against their will;13 the Fourth Amendment protects against the use of excessive force in making such arrests.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 whether the force used was reasonable.15 In Graham v. Connor, the plaintiff brought a 1983 claim against the arresting police officers, alleging that the officers had used excessive force.16 Graham alleged that the officers had shoved his face into the hood of a police car when he tried to speak and threw him into the backseat of the car.17 The district court applied a four part test set out in the prior case of Johnson v. Glick , and directed a verdict for the defendant officers.18 This holding was affirmed on appeal to the

42 U.S .C. 1983 (2000). Wyatt v. Cole, 504 U.S . 158, 161 (1992). 12 U.S . CONS T. amend. IV. 13 See, e.g. , S mith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982) (stating that the Constitution allows for all arrests as long as there is a properly issued warrant even if the defendant is later acquitted).
11 14 15 16 17 18

10

See, e.g., Graham v. Connor, 490 U.S . 386, 394-95 (1989). Id. at 396. Id. at 390. Id. at 389. Id. The S econd Circuit in Johnson established a four-factor test to determine whether

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Fourth Circuit.19 The Supreme Court granted certiorari, rejected the holding of the lower courts, and held that excessive force claims against law enforcement officers arising from a seizure should be examined under the Fourth Amendment.20 The Court held that in examining excessive force claims, courts must initially determine whether a police officer violated a constitutional right.21 Further, courts must evaluate the reasonableness of the seizure by examining: the severity of the crime; the immediate threat the suspect poses to officers or others; and the suspects active resistance of the arrest.22 The Court noted that the reasonableness of the force used during a seizure should be evaluated through the perspective of a reasonable 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 tense and fast-paced situations.24 The Supreme Court ultimately vacated the decision of the lower courts and remanded the case for consideration under the Fourth Amendment.25 Graham laid out the legal framework for circuit courts to use when evaluating a claim of excessive force under the Fourth Amendment. 26 The Supreme Court stated: Not every push or shove, even if it may later seem unnecessary in the peace of a judges chambers, violates the Fourth Amendment.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 force used in relation to how much was needed; (3) the severity of any injury; and (4) whether the force was applied in good faith, or maliciously in order to cause harm. Id. Graham , 490 U.S . at 391. Id. at 395. The Fourth 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 . CONS T. amend. IV. An arrest is considered a seizure under the Fourth Amendment, and this seizure continues for as long as a person is within the custody of the arresting officers. Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985). 21 Graham , 490 U.S . at 394. 22 Id. at 396; Bryan N. Georgiady, Note, An Excessively Painful Encounter: The Reasonableness of Pain and De Minimis Injures for Fourth Amendment Excessive Force Claims , 59 S YRACUS E L. REV. 123, 134 (2008).
20 19

Graham , 490 U.S . at 396. 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. 1973)) (internal quotation marks omitted).
24

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minimal or de minimis uses of force do not give rise to an excessive force claim.28 The extent of the claimants injuries is often an important factor courts consider in evaluating such claims. 29 Circuit courts have reached differing conclusions as to whether a claim involving only de minimis injuries 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 the definition.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 de minimis injuries alone do not automatically defeat an excessive force claim under 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 did not sustain substantial injuries.34 Therefore, the extent of the injury is not the focus of an excessive force claim; rather, courts should focus on the reasonableness of the officer under the circumstances. 35

28 See, e.g. , Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) ([T]he application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.). Courts have reasoned that as some 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. See Graham , 490 U.S . at 396.

See, e.g., Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006). Georgiady, supra note 22, 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 scrapes and bruises were de minimis injuries that indicated excessive force was not used).
30 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 presence of temporary swelling and irritation co nstitute de minimis injuries). 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 excessive force claim); Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (holding that the officers 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 reckless 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 35

29

See, e.g., Bastien, 279 F.3d at 14-16. See, e.g., id. at 16.

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Specifically, the Sixth Circuit held in Morrison v. Board of Trustees that the 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 excessive force 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 police officer 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 of excessive 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 excessive force across the circuits.41 B. Prisoners Excessive Force Claims Under the Eighth Amendment The Eighth Amendment is the controlling amendment when evaluating a pri soners excessive force claim.42 Courts evaluate excessiveness by looking at whether the prison official used force in good faith to maintain order or used force maliciously to cause harm.43 In

See Morrison v. Bd. of Trs., 583 F.3d 394, 407 (6th Cir. 2009). See id. 38 See id. at 406-07. 39 See, e.g. , Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) ([H]is relatively minor scrapes and bruises and the less-than-permanent aggravation of a prio r shoulder condition were 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 allege any degree of physical harm greater than de minimis from the handcuffing, we find that he has not satisfied the injury requirement of a 1983 claim.).
37

36

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 resolved the question of whether an excessive force claim requires a minimum level of injury. Copeland v. Locke, 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 evaluating his excessive force claim, the S upreme Court held that since the Eighth Amendment focuses on unnecessary inflictions of pain, it provided the best source of protection for prisoners against excessive force. Id. at 316, 327.
43 Hudson v. McMillian, 503 U.S . 1, 7 (1992); see Robyn D. Hoffman, Note, Adding Insult to Injury?: The Untoward Impact of Requiring More than De Minimis Injury in an Eighth Amendment

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Hudson v. McMillian, prison officials beat inmate Hudson which resulted in minor 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 cruel and unusual punishment against him.45 The 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 determinin g the reasonableness 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 of the threat as reasonably per ceived 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 Circuit erred in dismissing Hudson s Eighth Amendment claim of excessive force.48 Additionally, the Court stated that the lack of serious injuries was relevant 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 Courts holding in Hudson, recognizing that de minimis injuries alone may be enough to bring an excessive force claim under the Eighth Amendment. 50 These 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 force was malicious or sadistic.51 The courts reasoned that if de minimis injuries 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. , S mith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) ([I]njuries are only one of several factors that a court must consider . . . .); 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. Goord, 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 violated when there is a malicious infliction of pain); United S tates 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, without redress.52 Additionally, courts have noted that the analysis of Eighth Amendment claims should focus on the infliction of pain, not on the resulting injury thus, conduct by a prison official that causes pain but does 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 the amount of force used by a prison official is more important than the prisoners injury in the analysis of an Eighth Amendment excessive force claim.54 The Court explained that [a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.55 The Supreme Court held that circuits like the Fourth Circuit misinterpreted Hudson when they concluded a plaintiff could not prevail on an excessive force claim if his injuries were de minimis.56 The extent of injuries may be relevant in determining how much force was actually used or in calculating damages; however, the presence of de minimis injuries does not automatically defeat a prisoners excessive force claim.57 The Supreme Courts holding in Wilkins established the current standard for evaluating excessive force claims under the Eighth Amendment.58 This new standard replaced the law set out in earlier Fourth Circuit cases.59 Prior 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 minimis force had been used.60 The Supreme Court in Wilkins rejected this interpretation, thus creating a new body of law for

Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000). See, e.g., Hendrickson v. Cooper, 589 F.3d 887, 891 (7th Cir. 2009) (holding that recurring back pain a prisoner endured after being thrown up against a wall and slammed onto the floor by a prison official established excessive force).
53

52

130 S . Ct. 1175, 1178 (2010). 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 S upreme Court recently clarified that the extent of any resulting injury, while material to the question of damages and informative as to the likely degree of force applied, is not in and of itself a threshold requirement for proving this type of Eighth Amendment claim. ).
55

54

See, e.g., Norman v. Taylor, 25 F.3d 1259, 1259, 1262 -63 (4th Cir. 1994). See, e.g., id. at 1259, 1262-64; see also Taylor v. McDuffie, 155 F.3d 479, 483-84 (4th Cir. 1998) (applying the holding of Norman to a pretrial detainees excessive force claim brought under the Due Process Clause of the Fourteenth Amendment).
60

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circuits to follow.61 Following the Supreme Courts holding, the Eighth Circuit applied the new standard to a prisoners Eighth Amendment excessive force claim in Williams v. Jackson.62 In Williams, prison officials removed the protective shield of an ultraviolet lamp exposing Williams and other prisoners to radiation for at least fourteen hours.63 As a result, Williams experienced red eyes, blurry vision, facial swelling, and migraine headaches. 64 Williams brought an Eighth Amendment claim of excessive force against the prison officials, 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.66 In reaffirming the Supreme Courts reasoning, the Eighth Circuit affirmed the denial of qualified immunity despite 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. 68 Chambers alleged that while police placed him in handcuffs, they held him on the floor and jammed guns into his back.69 Additionally, he testified that police kicked him on both sides of his body and stepped on him.70 After complaining of back pain, police transported Chambers to the hospital and allegedly reclined Chamberss seat so far forward that his face almost touched the

Wilkins, 130 S . Ct. at 1179. See Williams, 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 protects [g]overnment officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Williams, 600 F.3d at 1012 (alteration in original).
62 68 69 70

61

Chambers v. Pennycook, 641 F.3d 898, 901 (8th Cir. 2011). Id. at 902. Id.

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dashboard.71 Chambers stated that officer Van Mierlo drove erratically, accelerating and braking suddenly so that [he] would be jerked back and forth in his seat.72 Chambers also asserted that officer Pennycook kicked his seat and choked him from behind throughout the ride. 73 Once Chambers arrived at the hospital, the doctor instructed him to take over the- counter pain medications for his back contusion.74 Chambers later brought a 1983 claim against the three arresting police officers, St. Louis County, and the St. Louis County Drug Task Force.75 He alleged that the defendants violated his Fourth Amendment rights because officers used excessive force during his arrest.76 The district court granted each of the defendants motions to dismiss. 77 On appeal, the court reversed the dismissal of the claims against the three arresting officers and the case was remanded.78 The district court granted summary judgment in favor of the arresting officers on remand.79 The district court noted that Chambers did not suffer serious or lasting injuries and since he could only prove de minimis injuries, he did not establish a valid Fourth Amendment claim of excessive force.80 The Eighth Circuit Court of Appeals granted Chambers s petition for rehearing to determine whether a plaintiff must suffer a minimum amount of injury to succeed on a Fourth Amendment excessive force claim under 42 U.S.C. 1983. 81 B. The Eighth Circuits Opinion The U.S. Court of Appeals for the Eighth Circuit initially determined that the district court properly examined the case under Fourth Amendment jurisprudence.82 In reaching this decision, the court relied on prior decisions that held that incidents occurring just after arrest or during booking and transportation properly fall under the Fourth Amendment. 83 Next, the court reasoned that the presence of de minimis injuries did not

71 72 73 74 75 76 77 78 79 80 81 82 83

Id. Id. Id. Chambers, 641 F.3d at 902-03. Id. at 901, 903. Id. at 901. Id. at 903. Id. Id. Chambers, 641 F.3d at 903. Id. Id. at 905. Id.

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necessarily mean that de minimis force was used.84 The court explained that the same amount of force applied to different individuals might result in a more serious injury to one individual than to the other. 85 Therefore, the determination of whether the force used was constitutional could solely be based on the sensitivity of the plaintiff.86 The Eighth Circuit concluded that courts should not rely on such an unpredictable rule. 87 Instead, the Court stated that the relevant inquiry is whether the conduct of the officer and the force used were reasonable under the circumstances. 88 Courts should measure reasonableness from the objective viewpoint of a reasonable officer at the scene when the force was used. 89 Applying this newly clarified 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 the Fourth Amendment.90

ANALYSIS
III. Both the Eighth Amendment and the Fourth Amendment Provide the Same Protection The Right to be Free From Excessive Force. The Eighth Circuit correctly decided Chambers v. Pennycook in holding that de minimis injuries did not automatically preclude an arrestee from bringing a claim of excessive force under the Fourth Amendment. 91 According to the Supreme Court, a minimum level of injury is not required for 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

Id. at 906. 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. However, 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 believed that as long as they did not cause more than de minimis injuries, their actions were constitutional. Chambers, 641 F.3d at 908-09.
85 91 See McClennon v. Kipke, 821 F. S upp. 2d 1101, 1106 (D. Minn. 2011) (applying the holding of Chambers to an arrestees Fourth Amendment excess ive 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 an excessive 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 this Eighth Amendment reasoning should apply to claims arising under the Fourth Amendment as well.95 The [U.S.] Constitution is a written agreement to which all citizens are parties.96 Therefore, individuals become parties to this agreement when they are either born as U.S. citizens, or, if foreign born, when they swear allegiance to the Constitution.97 The Bill of Rights enumerates individual rights of the people that must be respected by the Federal Government. 98 Among 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. 100 The Supreme Court held that when a plaintiff brings an excessive force claim under 42 U.S.C. 1983, courts must determine whether the act ors infringed on a plaintiffs constitutional right.101 The Fourth Amendments application to the People 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, becaus e the Fourth Amendment governs the seizures of free citizens, it is applicable in an excessive force claim brought by an arrestee.103 The Eighth Amendment, on the other hand, applies to prisoners bringing an excessive force claim because of its prohibition against cruel and unusual punishment, which properly applies in penal institutions. 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 excessive force claim under the Eighth Amendment, he must prove that the assault occurred and that it was carried out in a malicious and sadistic fashion); see generally Chambers, 641 F.3d at 901.

See Graham v. Connor, 490 U.S . 386, 394 (1989); Whitley v. Albers, 475 U.S . 312, 327 (1986); see also Georgiady, supra note 22, at 127. 95 See Chambers, 641 F.3d at 906-07 & n.3. 96 ROLAND A DICKES , T HE UNITED S TATES CONSTITUTION AND CITIZENS RIGHTS : T HE INTERPRETATION AND M IS-INTERPRETATION OF THE A MERICAN CONTRACT FOR G OVERNANCE 8 (2001).
97 98 99 100 101 102 103 104

94

Id. Id. at 15. U.S . CONST. amend. IV . U.S . CONST. amend. VIII. Graham v. Connor, 490 U.S . 386, 393 (1989). WILLIAM W. G REENHALGH, THE FOURTH A MENDMENT HANDBOOK 6 (3d ed. 2010). Graham , 490 U.S . at 394. Whitley v. Albers, 475 U.S . 312, 327 (1986).

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they both provide protection from excessive force administered by government officials.105 The similarities between prison guards and police officials provide an underlying reason for the protection against the use of excessive force in both 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 citizens both outside and inside prisons creates the need to protect against this abuse of power through the use of excessive force. 108 Although guaranteed under different amendments, citizens merely arrested and accused of a crime should receive just as much protection as prisoners 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 more diminished capacity.110 Prisoners and free citizens are guaranteed the same constitutional rights, but with these rights applying to pr isoners in a more limited sense, it does not follow that prisoners should be afforded stronger protection against the use of excessive force than free citizens. 111 In both instances an individual must prove that the officials use of force violated a constitutionally protected right.112 Therefore, it is not acceptable to require a free-citizen-arrestee to allege a minimum level of injury to sustain 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 also Georgiady, supra note 22, at 127 (discussing how both the Fourth and Eighth Amendments have been interpreted as constitutional rights against excessive force).

See 1 M ICHAEL B. M USHLIN, RIGHTS OF P RISONERS 137-38 (3d ed. 2002). Id. 108 See Graham , 490 U.S . at 395; Ing raham v. Wright, 430 U.S . 651, 664 (1977). 109 Cf. Bolling v. S harpe, 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 lesser duty on the Federal Government. Id. at 500. 110 S andin v. Conner, 515 U.S . 472, 485 (1995); M USHLIN, supra note 106, at 21. 111 Cf. Bolling , 347 U.S. at 498-500 (recognizing that protections of citizens applicable to the states should apply to the Federal Government as well).
107

106

M USHLIN, supra note 106, at 128-29. Cf. Bolling , 347 U.S. at 500 (noting that it did not make sense for citizens to be protected from discrimination by the states but not by the Federal Government).
113

112

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constitutional protection against the use of excessive force by government officials 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 more than de minimis injuries in an excessive force claim.115 A. The Use of Force on a Non-Resisting Arrestee is Excessive The Supreme Court held t hat the examination of an officials malicious or sadistic intent is appropriate under an Eighth Amendment analysis because of the Amendments governance of cruel and unusual punishments.116 The words cruel and punishment within the Amendment require a s ubjective analysis of the officials intent to determine whether the officials actions were appropriate. 117 On 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.118 Despite 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 applicable under the Fourth Amendment s reasonableness standard, the wanton use of force against an arrestee is relevant to the determination of whether such force was objectively reasonable under the circumstances. 120 Circuits have held 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 where the injuries inflicted

114 Cf. id. at 498-500 (recognizing that constitutional protections should apply under the same circumstances regardless of whether the S tate or Federal Government is involved).

Chambers v. Pennycook, 641 F.3d 898, 901, 906 (8th Cir. 2011). 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 of an arresting police 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 was arrested, and there was no risk of danger or flight, was unnecessary to achieve any legitimate purpose).
116

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are de minimis.122 Where the suspect presents no threat to the officer or others, 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 Amendment objective 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 choking and 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.126 The similarities between the relevant considerations under each Amendment support this conclusion.127 In both instances, the court should consider the threat posed by the prisoner or arrestee and the need for the use of force.128 Additionally, 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;129 while under the Fourth Amendment an officer is similarly expected to use the least amount of force necessary to accomplish a seizure.130 Therefore, while the ultimate consideration under each Amendment is different malice versus objective reasonableness the substantive
122 123

Morrison, 583 F.3d at 407. See id. 124 See, e.g. , id. ; Lee, 284 F.3d at 1199; S ash v. United S tates, 674 F. S upp. 2d 531, 539 (S .D.N.Y. 2009) (holding that the officers conduct of tackling an arrestee and throwing him against a gate when he was not resisting was not objectively reasonable). Chambers v. Pennycook, 641 F.3d 898, 907-08 (8th Cir. 2011). Id. at 906. Compare Hudson v. McMillian, 503 U.S. 1, 7 (1992) (explaining that under an Eighth Amendment examination a court should conside r the need for the application of force, the threat perceived by the officer, and the efforts used to reduce the amount of force 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 crime, the threat posed by the suspect, and whether the suspect is resisting).
126 125

See Georgiady, supra note 22, at 128, 130, 133. See id. 129 Hudson, 503 U.S . at 7. 130 JEROME H. S KOLNICK & JAMES J. FYFE , A BOVE THE L AW: P OLICE AND E XCESSIVE USE OF FORCE 38 (1993).
128

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considerations are similar.131 In both the contexts of an arrest and maintaining order in a prison, courts recognize that officers are often required to make rapid judgments amidst chaos. 132 In such situations, it is often unclear how much force is appropriate and officers must make a snap judgment as to what level of force is necessary and reasonable. 133 Whether evaluating an excessive force claim under the Fourth Amendment or the Eighth Amendment, judges are tasked with assessing the need for the use of 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. 135 By virtue 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 when considering 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 of excessive 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.138 Case law traditionally held that de minimis uses of force was insufficient to sustain an excessive force claim.139 As a result, many circuits denied Fourth

See Georgiady, supra note 22, at 128, 130, 133. See Whitley v. Albers, 475 U.S. 312, 320 (1986); Lawrence N. Bloom & Joseph M. Polisar, Why Things Go Wrong in Police Work, THE P OLICE CHIEF, July 2004, available at http://www.
132

131

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 P OLICE V IOLENCE : UNDERSTANDING AND CONTROLLING P OLICE A BUSE OF FORCE 23, 32 (William A. Geller & Hans Toch eds., 1996). 134 See B ARBARA B ELBOT & C RAIG HEMMENS , T HE L EGAL RIGHTS OF THE CONVICTED 106 (2010); Georgiady, supra note 22, at 128, 130, 133.

See Georgiady, supra note 22, at 128, 130, 133. Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011); cf. Wilkins v. Gaddy, 130 S . Ct. 1175, 1179 (2010) (recognizing that the significance of injury suffered by a claimant does not 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.
136 138 Wilkins, 130 S . Ct. at 1179 (holding that an inmate did not lose his right to bring a claim of excessive force merely because the force did not result in a serious injury ). 139

135

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

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Amendment excessive force claims because they reasoned that the presence of de minimis injuries indicates the use of de minimis force.140 Many courts, however, have recently held that the presence of de minimis injuries 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 varying severity. 142 To require a minimum level of physical injury to establish a Fourth Amendment excessive force claim would produce arbitrary and unjust results based on the characteristics of each victim and the injury sustained.143 Such a rule will unreasonably deny certain plaintiffs a claim based on an officers conduct, while allowing another plaintiff to pursue the same claim purely because of their physical characteristics.144 Additionally, under a standard requiring greater than de minimis injures, a police officer can purposely use excessive force to harm an arrestee as long as only de minimis injuries are produced.145 Therefore, an

force are insufficient to sustain an Eighth Amendment claim of excessive force). See, e.g., Williams v. S irmons, 307 F.Appx 354, 362 (11th Cir. 2009) (per curiam); Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005). 141 See, e.g. , Wilkins, 130 S . Ct. at 1178-79; Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009); S mith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002). 142 Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011). Compare S olomon v. Auburn Hills Police Dept, 389 F.3d 167, 171 (6th Cir. 2004) (describing the elbow 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 cracked 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 minimis and therefore precluded his excessive force claim), overruled by Wilkins, 130 S. Ct. 1175 (2010). 144 Compare Hudson, 503 U.S . at 4, 10 (holding that loosened teeth and a cracked dental plate were 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 minimis injuries that precluded an excessive force claim). While this issue is beyond the scope of this Comment, it is worth noting that the denial of constitutional rights based solely on an individuals physical characteristics may raise an equal protection argument. Cf. S cott Petersen, Comment, Discrimination Against Overweight People: Can Society Still Get Away with it? , 30 G ONZ. L. REV . 105, 111-12, 117-18 (1994) (discussing how the Equal Protection Clause should protect individuals from being denied employment based on a physical condition). If individuals with certain body types are less prone to actual injuries, a rule that requires greater than de minimis injuries be present for a Fourth Amendment excessive force claim would deny those individuals the equal protection of the laws guaranteed by the Fourteenth Amendment. Cf. id. 145 140

See Brooks 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 police officers use of force only left de minimis injuries on the victim.146 Such a rule provides police officers with the power to circumvent the requirements of the Constitution and subject free citizens to the use of excessive force without fear of punishment.147 As 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 This applies 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 been acceptable to the drafters, and is not acceptable today. 150 The Eighth Circuit in Chambers appropriately determined that a constitutional guarantee should not turn on whether an arrestee sustained a certain level of injury. 151 The Courts holding accurately no ted 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 than on the significance of injury suffered by the claimant. 153 Indeed, [i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.154 The Eighth Circuit in Chambers appropriately acknowledged denying excessive force claims based solely on the extent of the injury would not satisfy the Fourth Amendments protection against

than de minimis injury be present could result in a prisoner purposely being harmed by a guard as long as no visible injuries resulted). See Wright v. Goord, 554 F.3d 255, 270 (2d Cir. 2009). See Wilkins v. Gaddy, 130 S . Ct. 1175, 1178 (2010) (noting that a prison officials malicious use of force always violates standards of decency because otherwise, any physical punishment would be permitted as long as it did not result in a significant injury).
147 146

Hudson, 503 U.S . at 9. Id. 150 Id. 151 Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011); see McClennon v. Kipke, 821 F. S upp. 2d 1101, 1106 (D. Minn. 2011). 152 Chambers, 641 F.3d at 907-08. 153 Id. at 907; see McClennon, 891 F. S upp. 2d at 1106. 154 Wilkins v. Gaddy, 130 S . Ct. 1175, 1178 (2010).
149

148

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unreasonable seizures.155 Therefore, in assessing a Fourth Amendment excessive force claim, Chambers determined that courts should focus on whether the force used by the officer was objectively reasonable under the circumstances.156 This objective standard requires court s to determine whether 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 seizure applies 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. 159 In considering 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. 160 Such 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 of force 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 to carry out their duties.163 But, an officers justified use of force in certain circumstances may be considered excessive in different circumstances.164 In

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 because the fortuity of the circumstances protected the plaintiff from suffering more severe physical harm.).

Chambers, 641 F.3d at 907; see Graham v. Connor, 490 U.S . 386, 396-98 (1989). See Terry 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 of the crime at issue, whether the suspect po ses an immediate threat to the safety of the officers or others, 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. OF JUST. (Jan. 20, 2012), http://www.nij.gov/topics/lawenforcement/officer-safety/use-of-force/welcome.htm. 163 Id. ; Use of Force, COPS: COMMUNITY O RIENTED P OLICING S ERVICES , U.S . D EPT OF JUST., http://www.cops.usdoj.gov/default.asp?item=1374 (last visited Feb. 15, 2013) [hereinafter Use of Force].
157 164 See Use of Force, supra note 163; e.g., William M. Macfadyen, Witnesses Say Santa Barbara Police Officer Used Excessive 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).

156

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fact, this further supports the conclusion that the court s inquiry should focus on the use of force, rather than the resulting injury, since an officers use of force that results in the same injury may be justified 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.166 The Supreme Court has held that this analysis does not rest on 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 minimis injuries 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 standard should apply in the Fourth Amendment context as well.169 Recently, circuits have suggested that psychological injuries may be sufficient for a Fourth Amendment excessive force claim, thus indicating that physical injury is not necessary. 170 This lack of a physical injury requirement 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 even where significant physical injuries did not result, the court in Chambers appropriately followed the developing legal trend. 172 When excessive force is used, courts should not prevent individuals from pursuing excessive force claims simply because they escaped serious injury.173

165 See Use of Force, supra note 163 (explaining that a police officer may reasonably use force under certain circumstances). 166 Hudson v. McMillian, 503 U.S . 1, 6-7 (1992); see supra text accompanying note 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 sufficient psychological injury for an excessive force claim, serious psychological 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 psychological injury can establish the injury requirement).

See Morrison v. Bd. of Trs., 583 F.3d 394, 407 (6th Cir. 2009). See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002); Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002). 173 See Wilkins, 130 S . Ct. at 1179.
172

171

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CONCLUSION
After years of uncertainty as to whether a Fourth Amendment excessive force claim requires a minimum level of injury, the Eighth Circuit finally put this question to rest in deciding Chambers v. Pennycook .174 The Court correctly held that de minimis injuries 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. 175 As the Fourth Amendment provides citizens with the guarantee to be free from an officials use of excessive force, Chambers correctly concluded that where such force is used, a constitutional right is violated, regardless of the severity of the injury.176 As many of the relevant factors in assessing the conduct of a police officer 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 should be relevant, but not conclusive.178 Therefore, Chambers correctly held that de minimis injuries are sufficient in a Fourth Amendment excessive force claim, and the focus should be whether the police officers use of force was objectively reasonable under the circumstances.179

174 175 176 177 178 179

Chambers, 641 F.3d at 904, 906. Id. See id. at 906. See Georgiady, supra note 22, at 128, 130, 133. See Flores v. City of Palacios, 381 F.3d 391, 398, 400 -01 (5th Cir. 2004). Chambers, 641 F.3d at 907-08.