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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-8018

RAUL JOSE VALENCIA
Plaintiff-Appellee,
versus
GARRY D. WIGGINS
Defendant-Appellant,

Appeal from the United States District Court
for the Western District of Texas

(January 18, 1993)
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
This appeal results from a pretrial detainee's civil
rights suit against a county jailer. The district court found
that the jail official used force greatly in excess of that
which was reasonable under the circumstances. The court also
found that the official acted maliciously toward the pretrial
detainee with the intention to punish him, and that qualified
immunity was not available. A money judgment was rendered in
favor of the detainee. Concluding that the district court's
findings of fact were not clearly erroneous, we find the jail
official not entitled to qualified immunity. And, agreeing

with the district court that the jail official used force
maliciously and sadistically with the intent to punish the
pretrial detainee, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. THE JAILHOUSE INCIDENTS
As a result of an undercover police operation conducted
by Defendant-Appellant Gary D. Wiggins, Plaintiff-Appellee
Raul Jose Valencia was arrested on drug charges. On July 3,
1987, Valencia was committed to Brewster County (Texas) Jail.
Shortly thereafter, Wiggins ceased work as an undercover agent
and became Acting Chief Deputy of Brewster County Jail,
responsible for, among other things, supervision of the jail.
One evening three weeks into his pretrial detention,
Valencia took part in a jail disturbance in which the inmates
made excessive noise and threw objects out of cells. The next
day, the inmates, including Valencia, again created a distur-
bance by singing and making noise. Jailer Joaquin Jackson
requested that the inmates quiet down. When they refused,
Jackson summoned Wiggins, who reiterated Jackson's command.
Unlike most other inmates, however, Valencia and his cellmate,
Gilbert "Bebo" Espinosa, continued to make noise. Wiggins
then ordered Valencia out of his cell. Valencia refused to
come out, and instead asked why he was being singled out. At
that point, Wiggins entered Valencia's cell to enforce his
order. Participants and witnesses give quite different
accounts of what transpired next. Valencia contends that
2

Wiggins grabbed him by the hair and bashed his head repeatedly
against the cell bars. Wiggins asserts, on the other hand,
that Valencia's head accidentally hit the bars during this
altercation. Espinosa testified, in what perhaps is a third
version of events, that Valencia's head hit the bars when he
stiffened his body to resist removal from the cell. Irrespec-
tive of those conflicting reasons, there is general agreement
on what happened next: Wiggins applied a choke hold that left
Valencia momentarily unconscious. After getting him to the
floor, Wiggins put Valencia in handcuffs.
Wiggins and the other jailer then took Valencia down-
stairs to the drunk tank. Valencia testified that, after
Wiggins ordered the other jailer to close the door and wait,
he (Wiggins) went into the drunk tank with Valencia and struck
him at least three times while he was handcuffed and on his
knees. Not surprisingly, Wiggins's version of events is quite
different. He testified that he and the other jailer escorted
Valencia to the drunk tank, removed the handcuffs, shut the
door, and left Valencia alone in the cell. Wiggins claims
that he never struck Valencia.
Two days after this incident, and for reasons that are
not stated in the record, Valencia was moved to the Pecos
County Jail. But because that jail had no room, Valencia was
moved once again, this time to the Law Enforcement Center.
There, the interviewing jailer noted that Valencia had visible
injuries, including bruises on his face and scratches and cuts
3

on his throat, but concluded that these injuries did not
require immediate medical attention. Several days later,
Valencia was visited by an attorney who also noticed the
bruises and scratches. Although Valencia testified that his
voice was damaged permanently as a result of the choke hold
applied by Wiggins in the upstairs incident, both his cousin
and a jailer at the Brewster County Jail (who was also a
friend of Valencia's family), testified that they noticed no
change.
B. THE DISTRICT COURT'S DECISION
Valencia filed this civil rights action, under 42 U.S.C.
� 1983, complaining that Wiggins and another jailer violated
his constitutional rights by using excessive force during his
incarceration in the Brewster County Jail.1 Subsequently,
Wiggins filed a motion for summary judgment on the basis of
qualified immunity. Rather than ruling immediately on
Wiggins's motion, however, the trial judge carried it with the
case.
After a bench trial, the district court found for
Valencia, and ordered Wiggins to pay damages to Valencia in
the amount of $2,500.2 The district court made the following
factual findings: Valencia refused to come out of his cell;
1The complaint originally named as defendants the County of Brewster, the District Attorney whose
district included Brewster County, the Sheriff of Brewster County, the Head Jailer of Brewster County,
another jailer of the Brewster County Jail, a Deputy Sheriff of Brewster County, the Brewster County Judge,
and the Brewster County Attorney. Valencia later amended his complaint to remove claims against the County
Judge, County Attorney, and the District Attorney.
2Upon motion, the district court involuntarily dismissed claims against the head jailer, sheriff,
deputy sheriff, and Brewster County.
4

to enforce his order, Wiggins entered the cell; "[a] wrestling
match ensued during which Wiggins hit Valencia's head against
the jail bars and applied a 'choke hold' rendering Valencia
momentarily unconscious"; Wiggins's methods of enforcing jail
discipline were "unreasonable and clearly excessive"; Wiggins
went into the drunk tank with Valencia and shut the door;
"Wiggins then struck Valencia while he was cuffed and on his
knees at least three times"; and Valencia's scratches, cuts,
and bruises were serious, but did not require medical atten-
tion.
As to the applicable law, the district court concluded
that because Valencia was a pretrial detainee, the case
involved the Fourteenth Amendment's protection against summary
punishment, not the Fourth Amendment's prohibition of "unrea-
sonable seizures" or the Eighth Amendment's prohibition of
"cruel and unusual punishments." And finding Wiggins's use of
force to be both excessive and malicious and Valencia's
physical injuries to be "severe," the district court concluded
that Valencia met his burden under Shillingford v. Holmes,3
the case which, at the time of the incident, articulated this
court's substantive due process standard for claims of
excessive use of official force. Additionally, the court
found that Wiggins was not entitled to qualified immunity,
3634 F.2d 263 (5th Cir. 1981).
5

presumably because this court stated in Stevens v. Corbell,4
that immunity is not available in excessive force cases.
Finally, in a supplemental order entered two months after
trial, the district court granted Valencia approximately
$27,600 in attorney's fees and costs.
Wiggins appealed to this court.
II. ANALYSIS
A. CONSTITUTIONAL BASIS
Wiggins argued in this pretrial detainee excessive force
case that the district court should have used the Fourth
Amendment's excessive force standard, set forth by the Supreme
Court in Graham v. Connor,5 and adopted with modification by
this court in Johnson v. Morel.6 Valencia, on the other hand,
urged this court to continue using Shillingford,7 which
articulates a substantive due process standard derived from
Johnson v. Glick,8 the Second Circuit's seminal decision for
4832 F.2d 884, 890 (5th Cir. 1987) (finding it "well-settled in this Circuit that knowing use of
excessive force in booking an arrestee violates the arrestee's constitutional rights").
5490 U.S. 386 (1989).
6876 F.2d 477 (5th Cir. 1989) (en banc) (per curiam). Under Morel, a plaintiff
alleging excessive force in violation of the Fourth Amendment had
to prove three elements: "(1) a significant injury, which (2)
resulted directly and only from the use of force that was clearly
excessive to the need; and the excessiveness of which was (3)
objectively unreasonable." Id. at 480. Knight v. Caldwell, 970
F.2d 1430, 1432 (5th Cir. 1992), recently determined that the
Supreme Court's decision in Hudson v. McMillian, 112 S. Ct. 995
(1992), overturned Morel's significant injury element.
7634 F.2d at 263.
8481 F.2d 1028 (2d Cir. 1973).
6

excessive force claims.
We do not believe that the Fourth Amendment provides an
appropriate constitutional basis for protecting against
deliberate official uses of force occurring, as in this case,
after the incidents of arrest are completed, after the
plaintiff has been released from the arresting officer's
custody, and after the plaintiff has been in detention
awaiting trial for a significant period of time. Our reasons
for so deciding are threefold. First, we believe that the
Fourth Amendment itself provides weak textual support for such
an extension. As the Fourth Amendment protects against
unreasonable "seizures," it seems primarily directed to the
initial act of restraining an individual's liberty,9 such as
an investigatory stop or arrest. (Graham itself offers no
explicit suggestion as to when a Fourth Amendment seizure
comes to an end, although its facts indicate that a seizure
under the Fourth Amendment does not end the moment the police
gain custody and control over a suspect.10)
9See Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir. 1989)
("A natural although not inevitable interpretation of the word
'seizure' would limit it to the initial act of seizing, with the
result that subsequent events would be deemed to have occurred
after rather than during the seizure."). But see, e.g., Justice
v. Dennis, 834 F.2d 380, 387-88 and n. 12 (4th Cir. 1987) (en
banc) (Phillips, J., dissenting) (arguing that "seizure" does not
relate only to the event of "arrest," but applies as well when
individuals already in custody suffer further restrictions on
their liberty), vacated 104 L.Ed.2d 982 (1989).
10Graham applied the Fourth Amendment's objective reason-
ableness standard even though the plaintiff was handcuffed--and
thus securely in police custody--during the time in which the
police allegedly tormented and beat him. See, e.g., Henson v.
7

Subsequent to Graham, a number of circuits endorsed the
extension of the Fourth Amendment to the period between arrest
and charge,11 or through the period in which an arrestee
remains in the arresting officer's custody.12 But we have
discovered no case in which a court has ruled that the Fourth
Amendment continues to protect against the official use of
force in the attenuated stage of pretrial detention at issue
here.13 Therefore, without deciding whether the concept of
continuing seizure is appropriate in other contexts, we find
that the concept of "seizure" in the Fourth Amendment is not
so capacious or elastic as to cover pretrial detention three
weeks after the initial arrest, the period at issue in this
case.
Thezan, 717 F. Supp. 1330, 1335 (N.D. Ill. 1989) (Graham "appears
to undercut Wilkin's view that a seizure ends at the moment the
police gain custody and control over the suspect.").
11Austin v. Hamilton, 945 F.2d 1155, 1162 (10th Cir. 1991)
(holding that the Fourth Amendment's objective reasonableness
standard applies post-arrest up to the arrested suspect's first
judicial hearing); Hammer v. Gross, 884 F.2d 1200, 1204 (9th Cir.
1989), vacated en banc on other grounds, 932 F.2d 842 (1991)
(Fourth Amendment applies to force used to compel drunk driving
arrestee to consent to chemical tests because force constituted
search incident to arrest); and Calamia v. New York, 879 F.2d
1025, 1034-35 (2d Cir. 1989) (Fourth Amendment applies to search
incident to arrest).
12See, e.g., Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.
1989) ("Fourth Amendment standard probably should be applied at
least to the period prior to the time when the person arrested is
arraigned or formally charged, and remains in the custody (sole
or joint) of the arresting officer.").
13See, e.g., Titran v. Ackman, 893 F.2d 145, 147 (7th Cir.
1990) (assuming that arrestee's "presence in the jail and the
completion of the booking marked the line between 'arrest' and
'detention'").
8

Our second reason for not extending the Fourth Amendment
to cover this period of pretrial detention is that the Supreme
Court, in several recent cases, has been markedly unwilling to
concede that the Fourth Amendment protects inmates after
incarceration.14 For instance, in Bell v. Wolfish,15 the
Supreme Court refused to hold that a pretrial detainee has a
privacy interest in his person that is protected by the Fourth
Amendment. (The Court then proceeded to find that, even if
the Fourth Amendment were implicated, the institution's
practice of requiring detainees to expose their body cavities
for visual inspection after contact visits with persons from
outside the institution was reasonable). Similarly, in Hudson
v. Palmer,16 the Court concluded that the Fourth Amendment
protects neither a prisoner's privacy interest in his prison
cell nor his possessory interest in personal property con-
tained in his cell. We also find it significant that Whitley
v. Albers,17 which resolved that the Eighth Amendment is the
primary source of protection against the official use of force
for convicted prisoners, never even considered the Fourth
Amendment's prohibition against unreasonable seizures as an
14See Wayne R. LaFave, 4 Search and Seizure � 10.9, at 102-
27 (West 1987). But see Winston v. Lee, 470 U.S. 753 (1985)
(Fourth Amendment is implicated when state compels suspect to
undergo surgery to retrieve evidence).
15441 U.S. 520 (1979).
16468 U.S. 517 (1984).
17475 U.S. 312, 327 (1986).
9

additional source of substantive protection.
Third, and most importantly, the Supreme Court's deci-
sions in Graham and Bell indicate that the due process clause
in the Fifth (or Fourteenth) Amendment is the appropriate
constitutional basis for pretrial detainee excessive force
suits.18 Although Graham left open whether the Fourth
Amendment applies after arrest, it nevertheless made clear
that "the Due Process Clause protects a pretrial detainee from
the use of excessive force that amounts to punishment."19
Likewise, in Bell, the Court concluded that the Court of
Appeals had properly relied on the due process clause in
considering claims of pretrial detainees. Bell holds that
conditions and restrictions of pretrial detention amount to
deprivations of liberty without due process if those restric-
tions or conditions "amount to punishment of the detainee."20
Writing for the Court, then-Associate Justice Rehnquist
explained:
Not every disability imposed during pretrial detention
amounts to "punishment" in the constitutional sense,
however. . . . A court must decide whether the disability
is imposed for the purpose of punishment or whether it is
but an incident of some other legitimate governmental
purpose. Absent a showing of an expressed intent to
punish on the part of detention facility officials, that
determination generally will turn on "whether an alterna-
18See also Ingraham v. Wright, 430 U.S. 651, 671 n. 40
(1977) ("Where the State seeks to impose punishment without such
an adjudication, the pertinent constitutional guarantee is the
Due Process Clause of the Fourteenth Amendment.").
19490 U.S. at 395 n. 10.
20441 U.S. at 535.
10

tive purpose to which [the restriction] may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned
[to it]. Thus, if a particular condition or restriction
of pretrial detention is reasonably related to a legiti-
mate governmental objective, it does not, without more,
amount to "punishment." Conversely, if a restriction or
condition is not reasonably related to a legitimate goal-
-if it is arbitrary or purposeless--a court permissibly
may infer that the purpose of the governmental action is
punishment that may not constitutionally be inflicted
upon detainees qua detainees.21
Our conclusion that Graham and Bell indicate the Supreme
Court's intention that lower courts determine whether force
exerted against a pretrial detainee constitutes punishment
under the Due Process Clause is consistent with this Court's
decision in Ortega v. Rowe,22 and the Seventh Circuit's recent
pronouncement in Titran v Ackman.23
B. PRETRIAL DETAINEE EXCESSIVE FORCE STANDARD
In our determination of what standard of due process
applies to claims of excessive use of force brought by
pretrial detainees, we are first guided by Bell. Bell
concerned the constitutionality of conditions or restrictions
of pretrial detention and concluded that the proper inquiry is
whether these conditions amount to punishment of the detainee.
To determine if a condition or restriction amounts to "punish-
21Id. at 537-39 (internal citations omitted).
22796 F.2d 765, 767 (5th Cir. 1986) ("Bell first directs us
to the due process clause rather than the Eighth Amendment in
considering claims of pretrial detainees.").
23893 F.2d at 147 ("Did the state punish? . . . is the right question when a captive of the state
claims that she has been attacked by her jailors."). See also, Martin A. Schwartz
and John E. Kirklin, 1 Section 1983 Litigation, � 3.9, at 165-66
(Wiley 1991).
11

ment," a court must decide whether the disability is imposed
for the purpose of punishment or whether it is but an incident
of some other legitimate governmental purpose. Absent proof
of an official's expressed intent to punish, the determination
of whether a condition is "punishment" turns on whether an
alternative purpose to which the restriction may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned to
it.
While this inquiry works well for claims of improper
conditions or restrictions, it does not lend itself to
analysis of claims of excessive use of force in controlling
prison disturbances. In Bell, the Court stated that the
government must be able to take steps to maintain security and
that "[r]estraints that are reasonably related to the institu-
tion's interest in maintaining jail security do not, without
more, constitute unconstitutional punishment . . .."24 Bell
further noted that there is no reason to distinguish between
pretrial detainees and convicted inmates in reviewing chal-
lenged security practices because there is no basis to
conclude that pretrial detainees pose any lesser security risk
that convicted inmates.25
For these reasons, we conclude that excessive use of
force claims by pretrial detainees should not be analyzed
24441 U.S. at 540.
25Id. at 546 n. 28.
12

under Bell's conditions of confinement standard. Instead, we
are guided by the standard announced in Whitley and Hudson.
While these cases specifically addressed claims of excessive
use of force brought by convicted prisoners, it is impractical
to draw a line between convicted prisoners and pretrial
detainees for the purpose of maintaining jail security.
Moreover, the Court indicated in Hudson that many of its
concerns in Whitley were not limited to Eighth Amendment
claims but "arise whenever guards use force to keep order."26
It further observed that claims based on excessive force and
claims based on conditions of confinement are different in
kind.27
Therefore, when a court is called upon to examine the
amount of force used on a pretrial detainees for the purpose
of institutional security, the appropriate analysis is that
announced in Whitley and Hudson: whether the measure taken
inflicted unnecessary and wanton pain and suffering depends on
"whether force was applied in a good faith effort to maintain
or restore discipline, or maliciously and sadistically for the
very purpose of causing harm."28
Often, of course, there will be no evidence of the
detention facility official's subjective intent, and the trier
of fact must base its determination on objective factors
26112 S. Ct. at 998.
27Id. at 1000.
28Id. at 998, citing Whitley, 475 U.S. at 320-21.
13

suggestive of intent.29 The trier of fact would need to
examine "the need for the application of force," and the
"threat 'reasonably perceived" by the detention facility
official.'"30 When appropriate, the trier of fact must reflect
in this calculus that the detention facility official may have
had to act quickly and decisively. The trier of fact should
also consider "any efforts to temper the severity of a
forceful response."31 "[T]he extent of injury suffered by an
inmate is one factor that may suggest 'whether the use of
force could plausibly have been thought necessary' in a
particular situation, 'or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount
to a knowing willingness that it occur.'"32
Our conclusion that Whitley and Hudson provide the
29Our recent decision on remand in Hudson summarized some of
the relevant objective factors:
1. The extent of the injury suffered;
2. The need for the application of force;
3. The relationship between the need and the amount of
force used;
4. The threat reasonably perceived by the responsible
officials; and
5. Any efforts made to temper the severity of the
forceful response.
Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992).
30Hudson, 112 S. Ct. at 999.
31Id.
32Id., citing Whitley, 475 U.S. at 321.
14

correct standard for excessive force suits brought by pretrial
detainees means that this Circuit's test in Shillingford has
no continuing force.33 Neither Whitley nor Hudson requires
that a detention facility official's conduct be so excessive
and outrageous that it "shocks the conscience." And it is
clear that Shillingford's "severe" injury element did not
survive Hudson.

Here the district court found, as to the upstairs
incident, that Wiggins's use of the choke hold and other force
used to subdue a non-resisting Valencia and render him
temporarily unconscious was unreasonable and was an excessive
use of force. The district court further found that the force
Wiggins inflicted on Valencia in the drunk tank while Valencia
was handcuffed, kneeling, and non-resisting "was for no other
purpose than to punish him prior to any adjudication of wrong
doing[,] was clearly excessive and was not in good faith."
The court specifically found Wiggins's actions to be "exces-
sive, maliciously and sadistically applied."
As such, we have no difficulty finding that, in both the
upstairs and downstairs incidents, Wiggins used force mali-
ciously and sadistically to cause harm, not in a good-faith
effort to maintain or restore discipline. Neither do we have
difficulty deciding that the district court was not clearly
33The Seventh Circuit in Titran, 893 F.2d at 147-48, similarly over-
ruled Gumz v. Morrissette, 772 F.2d 1395 (7th Cir. 1985), its
substantive due process standard, which, like Shillingford,
derived from Glick.
15

erroneous in finding Wiggins's use of force grossly dispropor-
tionate to the need for action and inspired by malice. The
district court credited Valencia's testimony that he did not
resist Wiggins at any time, either in the cell or in the drunk
tank, and we see no basis for reversing that finding. The
same is true for the district court determination's that
Wiggins's malice is evident from the very excessiveness of his
conduct--this was no "careless or unwise excess of zeal," as
Wiggins now asserts.
C. QUALIFIED IMMUNITY
Qualified immunity shields government officials perform-
ing discretionary functions "from civil damages liability as
long as their actions could reasonably have been thought
consistent with the rights they are alleged to have
violated."34 Whether a defendant asserting qualified immunity
may be personally liable turns on the objective reasonableness
of the defendant's actions assessed in light of clearly
established law.35
In this case, Wiggins asserted the defense of qualified
immunity in a motion for summary judgment. But rather than
rule on the motion, the district court elected to carry it
with the case. Then, at close of trial, the court ruled
against Wiggins, stating without elaboration that "[u]nder the
circumstances of this case Wiggins is not entitled to quali-
34Anderson v. Creighton, 483 U.S. 635, 638 (1987).
35See id., 483 U.S. at 639.
16

fied immunity."
We are not certain whether the district court decided
that Wiggins could not assert a qualified immunity defense
under Shillingford, or that Wiggins was not entitled to
qualified immunity because his behavior was objectively
unreasonable. In support of its ruling, the district court
cited dictum in Stevens v. Corbell,36 to the effect that "the
defense of qualified immunity is unavailable to a police
officer who the plaintiff has alleged thus used excessive
force."37 Later, in Brown v. Glossip,38 this court interpreted
Stevens as suggesting that the defense of qualified immunity
might not be available to an official accused of employing
excessive force under the Shillingford standard because
Shillingford's malice prong cannot be reconciled with the good
faith requirement of qualified immunity. After those deci-
sions were rendered, however, we concluded that "scienter is
not material to qualified immunity. . . . It is therefore
irrelevant whether the defendants in this case acted with
intent to injure as long as their conduct was objectively
reasonable."39 Wiggins, therefore, is not foreclosed from
36832 F.2d at 890.
37Id. at 890.
38878 F.2d 871, 873 n. 2 (5th Cir. 1989). See also Coon v. Ledbetter, 780
F.2d 1158, 1164 (5th Cir. 1986).
39Pfannstiel v. Marion, 918 F.2d 1178, 1182 (5th Cir. 1990),
citing Malley v. Briggs, 475 U.S. 335, 341 (1986) ("an allegation
of malice is not sufficient to defeat immunity if the defendant
acted in an objectively reasonable manner").
17

asserting qualified immunity. Whether he is entitled immunity
from liability, however, turns on whether his use of force was
objectively reasonable.
The objective reasonableness of Wiggins's conduct must be
measured with reference to the law as it existed at the time
of the conduct in question.40 The force which Valencia alleges
was applied to him excessively was used in 1987, at which time
Shillingford's substantive due process standard was the
clearly established law in this circuit for excessive force
claims brought by pretrial detainees. In Shillingford, as
noted earlier, we held that to maintain an excessive force
claim a plaintiff must prove that the defendant's action
"caused severe injuries, was grossly disproportionate to the
need for action under the circumstances and was inspired by
malice rather than merely careless or unwise excess of zeal so
that it amounted to an abuse of official power that shocks the
conscience . . .."41
Wiggins insists that he is immune from liability because
Valencia's injuries are not sufficiently "severe," as required
by Shillingford. While we acknowledge that there is case law
in this circuit suggesting that injuries such as those
sustained by Valencia might not constitute "severe" injury
under Shillingford, so too is there case law indicating that
such injuries are indeed "severe." Recitation in appellate
40See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
41634 F.2d at 265.
18

opinions of such subjective determinations as the relative
severity of an injury do not lend themselves to useful or
instructive comparison.42
42Perhaps this point is best made perhaps by a partial recapitulation of this court's decisions on
the element of injury. The following cases found injuries to be "severe" under Shillingford:
Shillingford, 634 F.2d at 266 (lacerated forehead, leaving a
scar, sustained when a police officer smashed a camera with a
nightstick while photographer was taking a picture); Roberts v.
Marino, 656 F.2d 1112, 1115 (5th Cir. 1981) (multiple bruises and
scars to the head and body, resulting from a severe beating);
Hinshaw v. Doffer, 785 F.2d 1260, 1267 (5th Cir. 1986) (multiple
contusions and lacerations resulting in a two day hospital stay
after a beating by an officer, continuing occasional numbness in
one arm); and Mouille v. Live Oak, 918 F.2d 548, 552 (5th Cir.
1990) (pinched nerve in the leg).
The following cases found injuries to be "significant" under
Morel: Morel, 876 F.2d at 480 (handcuffs causing scars and
resulting in disabling from employment for two weeks); Hay v.
Irving, 893 F.2d 796, 798 (5th Cir. 1990) (bruises to head and
shoulders, severe bruise to leg, extensive swelling of jaw with
medical testimony that injuries were severe, pinched nerve in the
leg); and Adams v. Hansen, 906 F.2d 194 (5th Cir. 1990) (lacer-
ated fingers requiring sutures).
In these cases, injuries were deemed not "severe" under
Shillingford: Raley v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984)
(bruises on arm, scrapes on face, welts raised by handcuffs,
choke hold with sore throat and hoarse voice for two weeks);
Mark v. Caldwell, 754 F.2d 1260, 1261 (5th Cir. 1985) (slaps to
the face); Mouille, 918 F.2d at 554 (one plaintiff: transient
fear for the safety of another; another plaintiff: small red
mark and fear for safety of unborn child); Pfannstiel, 918 F.2d
at 1185 (one plaintiff: neck strain requiring the wearing of a
collar for about a week; second plaintiff: scratches on arms and
hurt throat from being choked; third plaintiff: aggravation of
pre-existing high blood pressure and marks on wrists from hand-
cuffs).
In these cases, injuries were found not "significant" under
Morel: Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir.
1990) (two punches in the stomach and transient fear when officer
placed his gun in the arrestee's mouth and threatened to blow his
head off); Wesson v. Oglesby, 910 F.2d 278, 283 (5th Cir. 1990)
(choke hold causing plaintiff to briefly lose consciousness);
Wise v. Carlson, 902 F.2d 417, 417-28 (5th Cir. 1990) (bruises to
chest and forearm, hematoma on eyelid); Mouille, 918 F.2d at 554
(one plaintiff: transient fear for safety of another; another
19

The trier of fact, in this case the trial judge, found
Valencia's injuries to be "severe." To the extent we can
productively compare the description of Valencia's injuries in
the record with the descriptions of injuries reported in
appellate opinions from other excessive force cases, we
conclude that the district court's findings of fact here do
not markedly deviate from those in other cases.43 Therefore,
applying the "clearly erroneous" standard of review, we refuse
to overturn on appeal the district court's finding of fact
that Valencia's injuries were "severe" under Shillingford.
III. CONCLUSION
When, as here, the incidents of arrest have long since
been completed and the pretrial detainee remains in detention,
it is the Due Process Clause that provides the appropriate
constitutional basis for determining whether a detention
official's use of deliberate force on such a detainee is
excessive.44 Neither the Unreasonable Search and Seizure
plaintiff: small red mark and fear for safety of unborn child).
43See cases cited at note 42.
44Precisely when the arrest mode ceases and the pretrial
detainment mode begins remains an unanswered question, albeit one
of increasingly diminishing importance in excessive force cases
given the continued convergence of the various tests under the
Fourth, Eighth and Fourteenth Amendments for maltreatment of
arrestees, detainees or convicted prisoners, respectively. Under
any test, the instant jailhouse altercations occurred well after
all incidents of Valencia's arrest had ceased, so an effort to
write a bright line of demarcation between arrest and detention
here would produce obiter dicta at best. We therefore leave to a
future panel the task of addressing that issue when the appropri-
ate factual setting presents itself.
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Clause of the Fourth Amendment nor the Cruel and Unusual
Punishment Clause of the Eighth Amendment is applicable.
In light of the Supreme Court's statements in Bell and
Graham that the appropriate question under the Due Process
Clause is whether the detention official's use of force was
with the intent to punish the pretrial detainee, and guided by
that Court's recent decisions in Whitley and Hudson on
excessive force claims in the context of prison disturbances,
we hold that this circuit's excessive force standard as
previously set forth in Shillingford is no longer the appro-
priate one for testing claims of excessive force brought by
pretrial detainees. Henceforth, the question in this circuit
for suits brought by pretrial detainees alleging excessive use
of force in the context of a prison disturbance, is that
stated in Hudson: whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm. The focus of this standard is on
the detention facility official's subjective intent to punish.
But, in determining such intent, the calculus of the trier of
fact must include such objective factors as the extent of
injuries suffered, the apparent need for the application of
force, the degree of force exerted, the threat reasonably
perceived by the detention facility official, and the need to
act quickly and decisively.
Here, the finding of the district court that the deliber-
ate force used against Valencia by Wiggins was excessive and
21

unreasonable under the circumstances, and was applied mali-
ciously and sadistically, was not clearly erroneous. As such,
the district court did not err in concluding that Wiggins
intended to punish Valencia--not to restore order or maintain
discipline in the jail. Neither did the district court err in
holding that Wiggins was not entitled to qualified immunity.
In all respects, therefore, the judgment of the district court
is
AFFIRMED.
22