Prison Guards Immune From Tear-Gassing Suit, 10th Circuit Finds

(CN) – Utah State Prison officials did not violate the constitutional rights of prisoners by dropping tear gas that vented into the cellblock, a 10th Circuit panel ruled Friday.

The decision stems from a 2013 class action filed by five prisoners over their exposure to CS gas, commonly called tear gas.

In the 2011 incident, prison guards were trying to subdue a prisoner who had locked himself in the outdoor recreation yard and dropped tear gas in the yard.

According to court documents, the unruly prisoner “took off his glasses and began sharpening them on the wall.

“He declared he would ‘stick or cut the first pig that came out there,’ paced aggressively, swung his arms in the air, swore, and spit at prison officials,” Chief Circuit Judge Timothy Tymkovich wrote in the 24-page opinion.

The gas went through the ventilation system and circulated through the inside of the Olympus wing, which housed at least 150 prisoners with “physical and mental health conditions,” according to the complaint.

“Immediately upon being exposed to the gas, prisoners felt burning in their eyes, lungs, and skin. The prisoners began desperately trying to get the attention of prison officials by, among other things, kicking, screaming, and repeatedly pressing their emergency response buttons,” the complaint said.

“However, no response was made to prisoners’ emergency calls. Many of the prisoners thought they were going to die. Adding to the prisoners’ distress, prison officials came into the Olympus wing wearing gas masks and at least one official laughed at the prisoners’ inability to breathe.”

Prison officials then evacuated some of the prisoners, and lead officer and defendant Robert Powell told them the following, according to the complaint:

“If any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility.”

The prisoners argued that in deploying the tear gas, the officials had violated their Eighth Amendment rights protecting them from cruel and unusual punishment.

A federal judge granted the defendants summary judgment on the basis of qualified immunity. The 10th Circuit panel agreed.

“The record reveals the defendants inadvertently – not intentionally or maliciously – exposed the prisoners to CS gas,” Tymkovich wrote. “And accidently deploying force is antithetical to deploying that force maliciously or sadistically.”

The panel also concluded that the use of force was necessary to subdue the unruly prisoner, who was not complying with orders and was threatening prison officials with violence.

And Powell did not act with “deliberate indifference” by delaying the evacuation by 10 minutes, the panel found.

“After all, not only did the HVAC unit drawing in gas surprise Powell, but he also had a more pressing problem to deal with – securing Hill. Once Hill was secured, Powell ordered the evacuation.”

Circuit Judges David Ebel and Carlos Lucero joined Tymkovich’s opinion.

 

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