24-b-1 The Legal Concept of Assault

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

24-B-1. The Legal Concept of Assault

Many people confuse the legal term "assault" with the legal term "battery." They do not mean the same thing in legal language. "Battery" means a violent physical attack.⁸ "Assault" means any act-including a threat, verbal abuse, or harassment-that makes a person afraid of a physical attack from another person.⁹ For example, an assault and battery charge means you are charged with both making someone afraid that you will attack him (assault) as well as actually physically attacking him (battery). Both assault and battery are torts.

Outside prison, most threats, unwanted touching, and uses of force are torts and are therefore illegal. But in prison, tort law allows (or "privileges") prison staff to use some force that would not be allowed outside. Therefore, most courts will not find that prison officials violated your rights if they only threatened or harassed you with words. Courts will generally only find that an assault violated your rights (that the act against you was illegal and an actionable tort) if you were physically attacked. For more on torts and assault under state tort law, see Part B of Chapter 17 of the JLM on tort actions.

Constitutional law is similar to tort law in this respect. Verbal threats by prison staff generally do not violate the Constitution.¹⁰ But if a staff member says words or takes some action that makes you believe that the person will seriously hurt you, courts might find a constitutional violation.¹¹ Even then, under the Prison Litigation Reform Act ("PLRA"), you cannot sue for compensatory damages¹² (and, in some circuits, punitive damages¹³) in federal court for mental or emotional injury unless you were also physically injured.¹⁴ See JLM Chapter 14, "The Prison Litigation Reform Act," for information on the PLRA's physical injury requirement.

(a) You Must Prove That Your Attacker Intended to Touch or Harm You

(i) State Torts and Intent

Assault and battery are state law torts. State courts use a variety of different tests to decide whether someone's use of force against you was wrongful (whether that person has committed the torts of assault and battery against you).¹⁵ All states require you to show that the defendant meant to act against you in some way. They take different approaches to the other requirements. In some states, you will have to show that the defendant either acted unlawfully or meant to harm you.¹⁶ In others, you must show that the defendant deliberately ignored your rights.¹⁷ In a few states, you will only need to add that the defendant touched you without your permission.¹⁸ In New York, courts use the "intentional touching" standard.¹⁹

All state courts believe that sometimes prison officials have to use force in order to maintain safety and order in the prisons. Therefore, courts often think that a prison official's choice to use physical force on a prisoner is not wrongful, even if the same use of force outside prison would be illegal.

In New York, to prove the tort of battery (physical assault), you must show that the defendant meant to do a certain action, but you do not have to show that the defendant specifically meant to harm you.²⁰ Let's say a prison official handcuffed you very tightly, permanently injuring your wrists and hands. To prove this was battery, you must show that the guard meant to handcuff you, but you do not have to show that the guard meant to hurt you when he handcuffed you.

(ii) Constitutional Torts and Intent

Proving that an assault violated your constitutional rights under the Eighth Amendment is much more difficult than proving that the assault was a tort in most states. To prove that an assault against you violated your constitutional rights, you must show that your attacker meant to both handcuff you andmeant to hurt you. See Part B(2)(a)(i) below for a full description of what you need to prove to show that an assault violated your rights under the Eighth Amendment. Under state tort law, if you were injured when prison staff intentionally touched you, you could bring a successful claim of assault and battery-even if you could not prove that the official specifically meant to hurt you. But, if you think you can show the official intended to harm you, you can claim that the official committed both a constitutional violation and the state torts of assault and battery in your suit.

(b) Suing the Prison if You Were Assaulted by Other Prisoners

(i) State Tort of Negligence

If you were physically attacked by another prisoner and believe that prison officials were partly responsible for the attack, you may also be able to sue the prison and/or the prison officials. But here, you cannot claim assault and battery because the prison officials did not actually attack you.²¹ Instead, you can use the law of "negligence."²² Negligence is different from assault and battery under state tort law; it means that a person did not do enough to fulfill his duty toward you, but not necessarily that he meant to hurt you.²³ If another prisoner is attacking you, prison officials are supposed to try to stop the attack. If they do not, you could sue them for negligence. To prove the prison officials' negligence in such a situation, you must show the court that the officials "failed to exercise [or use] reasonable care" in allowing the attack to happen-in other words, you must show that the officials did not act like reasonably careful people to prevent the attack.²⁴ You will need evidence that:

(1) the officials knew (or reasonably should have known) that you would be harmed or that there was a big ("substantial") risk that you would be harmed,²⁵ and

(2) the officials did not act to prevent it.²⁶

Winning a negligence claim against prison officials for an assault by another prisoner is difficult.²⁷ Courts have found negligence in only a few situations: when the attacker is a prisoner whom officials knew or should have known was violent;²⁸ when officials placed the plaintiff (the prisoner bringing the suit) near a mentally ill prisoner;²⁹ when officials placed the plaintiff near an armed prisoner;³⁰ when the plaintiff was exposed to a disturbed prisoner overseer or "trustee";³¹ when the plaintiff was exposed to a prisoner who had a grudge against him or who had threatened him;³² or occasionally when the prison did not have enough supervisory staff on duty.³³

(ii) Constitutional "Tort" of Deliberate Indifference

If another prisoner assaulted...