48. Use of force.

U.S. District Court EXCESSIVE FORCE

Gallardo v.Dicarlo, 203 F.Supp.2d 1160 (C.D.Cal. 2002). A state prisoner brought a [section] 1983 action against a prison warden alleging Fifth Amendment and state law claims. The district court found that the prisoner stated an Eighth Amendment excessive force claim against the warden and that the warden was not entitled to qualified immunity. The prisoner alleged that the warden encouraged the use of excessive force, and that he sustained physical injuries from officers' use of force on him that required a 31-day hospitalization and resulted in permanent physical injuries. (California State Prison, Chino)

U.S. Appeals Court STUN BELT

U.S.v. Durham, 287 F.3d 1297 (11th Cir. 2002). A defendant challenged the use of an electric "stun belt" on him during his trial; his motion was denied by the district court. The defendant was subsequently convicted and appealed. The appeals court vacated and remanded, finding that the district court had abused its discretion by failing to make findings sufficient to justify the use of the stun belt during the trial. According to the court, physical restraints upon a criminal defendant at trial should be used as rarely as possible because their use tends to erode the presumption of innocence that is an integral part of a fair trial. The court held that use of the belt may have had an adverse impact on the defendant's ability to follow the proceedings and to take an active interest in the presentation of his case. The appeals court held that the novelty of the technology employed in the stem belt will likely cause the need for factual findings about the operation of the device, addressing issues such as the criteria for triggering the belt and potential for accidental discharge, to assess the need for its use as compared to less restrictive methods of restraint. The appeals court noted that the district court did not, on the record, consider any less restrictive alternatives to prevent escape and to ensure courtroom safety. The defendant had attempted to escape from a jail and had managed to slip out of a set of leg irons using a key he had concealed on his person. The defendant's attorney argued that the defendant would be "more concerned about...