Force Isn't the Test for Violated Inmate Rights

     CHICAGO (CN) - A man can advance claims that a Wisconsin jail guard sexually assaulted him during a pat-down and strip search, the 7th Circuit ruled.
     Officer John Hively searched James Washington as the pretrial detainee returned to the Waukesha County Jail from court in April 2008.
     Hively allegedly fondled Washington's genitals through his clothing during the pat-down and touched the inmate's testicles during a strip search.
     Washington sued for $10 million to cover psychological harm caused by the alleged incident, which Hively denied ever transpired.
     U.S. District Judge Rudolph Randa sided with the guard at summary judgment, but the 7th Circuit reversed Monday after finding that Rand had applied the wrong legal standard.
     Randa's decision noted that Washington "had 'presented evidence of only de minimis injury,' had 'suffered at most an assault and battery,' and [not demonstrated that Hively had] 'grabbed the plaintiff's genitals in a way that was not related to penological interests,'" according to the federal appeals court.
     This drew upon inapplicable excessive-force doctrine in using the terms "de minimis injury" and "assault and battery," Judge Richard Posner wrote for a three-member panel. Though prisoner complaints of excessive force are normally rejected if the force use was slight, exempting all "de minimis uses of physical force" would be overbroad.
     "If a guard restrains a prisoner by poking the prisoner's cheek with the lighted end of a cigarette, the cigarette's momentum is negligible yet the modest force exerted causes a more painful injury than if the guard had dragged the prisoner into a cell, even though he'd have had to exert much greater force to accomplish that," Posner wrote.
     "The doctrine de minimis non curat lex (the law takes no account of trifles) is concerned with harm rather than with force; it is therefore time that the formula 'de minimis uses of physical force' was retired," the decision states later.
     "In tort law, any unconsented and offensive touching is a battery," Posner added. "An unwelcome tickle with a feather can lead to an award of damages. ... Sexual offenses forcible or not are unlikely to cause so little harm as to be adjudged de minimis, that is, too trivial to justify the provision of a legal remedy," Posner wrote. They tend rather to cause significant distress and often lasting psychological harm."
     The decision notes there would be no constitutional violation if Hively's search "was merely overzealous."
     But subjective intent (a redundancy: intent is a mental state, hence subjective), unless admitted, has to be inferred rather than observed; judges and jurors are not mind readers."