                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 17-2295

JOHN MCCOTTRELL and
DUSTIN S. CLAY,
                                               Plaintiffs-Appellants,

                                 v.


MARCUS WHITE and
LABARIN WILLIAMS,
                                              Defendants-Appellees.


        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 1:15-cv-03208 — Amy J. St. Eve, Judge.



     ARGUED OCTOBER 25, 2018 — DECIDED JULY 29, 2019


   Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
   ROVNER, Circuit Judge. The plaintiffs were inmates at
Stateville Correctional Center when they were struck by
buckshot fired by the defendant prison guards. The plaintiffs
sued under 42 U.S.C. § 1983, asserting that the guards violated
2                                                   No. 17-2295

their rights under the Eighth Amendment when they
discharged their shotguns over a crowded prison dining hall.
The guards countered that they fired the shots as a necessary
warning to two other inmates who were fighting with each
other and resisting the efforts of other guards who were trying
to break up the conflict. The district court granted summary
judgment in favor of the defendants. We vacate and remand.
                                 I.
    On summary judgment, we must construe the facts in favor
of the nonmovant, and may not make credibility
determinations or weigh the evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003). At the time of the November 6, 2013
incident, inmates John McCottrell and Dustin Clay were eating
lunch in the Stateville Correctional Center dining hall. Guards
Marcus White and Labarin Williams were stationed in a tower
some fifteen feet above the dining hall and overlooking the
area where inmates wait in line to enter the hall (a fenced space
which the parties call “the chute”) and the seating area. White
and Williams were armed with loaded shotguns. In the dining
hall, security staff are vastly outnumbered by inmates, who
enter the hall without hand or foot restraints. Guards on the
floor of the dining hall are armed only with pepper spray, and
as many as four hundred inmates may be in the dining hall at
a meal. Fights occur more frequently in the dining hall than in
any other part of the facility because mealtimes are one of the
few occasions where large groups of unrestrained inmates
interact. Fights may escalate quickly, and inmates are
sometimes armed with improvised weapons. Fights therefore
pose a serious security threat to staff and other inmates.
No. 17-2295                                                                 3

    On this occasion, a scuffle broke out between two inmates
(for security reasons, we will not name them) who were
entering the hall via the chute, approximately forty to fifty feet
from where the plaintiffs were seated. The brawling inmates
were not armed and were wrestling or tussling with one
another. Several correctional officers quickly intervened in the
confrontation. Both inmates initially resisted the staff but short
blasts of pepper spray from the officers on the floor brought
compliance from each. According to the plaintiffs, after the
inmates were separated and subdued, they were in the process
of being handcuffed when White and Williams simultaneously
discharged their shotguns over the dining hall.1 The ceiling of
the dining hall is equipped with a “shot box,” a device
intended to reduce the ricochet from warning shots. Neither
White nor Williams hit the shot box, instead discharging their
weapons either in the direction of the plaintiffs or into the
ceiling, as we will clarify in a moment. Along with two other
inmate bystanders, McCottrell and Clay were struck by
buckshot from the blasts. The entire incident lasted less than a
minute. Clay was wounded in his right arm above the elbow


1
  At his deposition, Clay testified that the guards “separated the individu-
als that was tussling, put cuffs on them, and then a shot rang out.” R. 75-3,
Tr. at 11. He also testified that, “Both inmates were separated. Both inmates
was in handcuffs, so there was no need to shoot.” R. 75-3, Tr. at 65. But he
also testified that the inmates were “being cuffed” at the moment the shot
rang out. R. 75-3, Tr. at 25–26. In response to the clarifying question, “They
were both handcuffed?” Clay responded, “They was being cuffed at that
time.” R. 75-3, Tr. at 25. That specific clarification governs our understand-
ing of the timing, although it is not necessary to the outcome to determine
whether the cuffs were in place or in the process of being applied when the
shots were fired.
4                                                             No. 17-2295

and the injury was serious enough to require stitches.
McCottrell was struck in the neck and the leg, and was given
bandages for his wounds. In addition to their physical injuries,
both men suffered mental health issues arising from the
incident.
    Before proceeding, we must clarify the summary judgment
record regarding the direction in which the shots were fired. In
the district court, the plaintiffs argued that the guards fired
toward the inmates in the dining hall, rather than into the
ceiling. R. 82, at 1–2. Both plaintiffs testified in their
depositions that, although they did not see where the guards
were aiming their guns, they both assumed that the guns must
have been pointed toward the inmates because of the number
of inmates who were hit by buckshot and because of their own
wounds. R. 75-3, Tr. at 34; R. 75-2, Tr. at 21. The guards averred
that they fired into the ceiling. In response to the defendants’
statement of uncontested facts, the plaintiffs’ lawyer contended
that it was unlikely that both guards had fired into the ceiling
because it was composed of acoustic tile and yet four inmates
were struck by buckshot.2 R. 84, at 10. But there is no evidence
in the record regarding the composition of the ceiling. Oral
Argument at 14:51–15:15 (defendants’ counsel confirming that
the record does not contain evidence regarding composition of
ceiling). The district court appropriately rejected as hearsay the

2
   The plaintiffs’ counsel argued that ricochet was unlikely in response to
the claim by the guards that they fired at the ceiling rather than directly at
the crowd. Having not seen the direction of fire, the plaintiffs argued in the
alternative that the guns were either pointed directly at the crowd or at the
ceiling and away from the shot boxes. We address the plaintiffs’ preserva-
tion of this claim infra at note 5 and accompanying text.
No. 17-2295                                                                   5

plaintiffs’ additional assertions that other inmates told them
that the guns were pointed toward the crowd.3 The court then
accepted as undisputed fact the defendants’ claims that they
aimed at the ceiling.
    But the direction of fire cannot be conclusively resolved on
this thin and disputed record. Circumstantial evidence
supports two possible paths for the buckshot to travel to the
plaintiffs. The plaintiffs’ assertion that the guns were pointed
toward the inmates is a reasonable inference drawn from
circumstantial evidence given that the buckshot penetrated the
clothing and the skin of multiple bystander inmates (including
the plaintiffs). One could argue that when A fires a gun and the
bullet ends up in B, the most natural inference is that the gun
was pointed at B. That inference in this case is supported by
the force with which the buckshot arrived (again, the shot
penetrated the clothing and skin of the plaintiffs and buckshot
remains embedded in Clay’s arm) and the number of persons
injured. The defendants’ alternate assertion that the buckshot
arrived indirectly, by ricochet, is also a reasonable inference,
given that the shotguns (devices designed to scatter the pellets


3
  We agree with the dissent that the district court correctly resolved the
hearsay issue but as we explain, hearsay was not the only evidence
supporting an inference that the guards fired in the direction of the inmates.
The district court did not address the plaintiffs’ circumstantial evidence on
this point. On summary judgment, the scope of our review is plenary.
Although we review the court’s ruling on the hearsay issue for abuse of
discretion, we review the grant of summary judgment de novo, granting no
deference to the district court. Haynes v. Indiana Univ., 902 F.3d 724, 730 (7th
Cir. 2018) (“We review a summary judgment de novo, … and we set aside
the district court’s evidentiary rulings only for an abuse of discretion[.]”).
6                                                             No. 17-2295

loaded in the shell) were fired indoors, in a crowded room, and
away from the device installed to reduce ricochet. That
inference is supported by the defendants’ affidavits, but those
affidavits do not conclusively resolve which competing
inference is correct.4
    Circumstantial evidence “is proof of a fact, or a series of
facts, that tends to show that some other fact is true.”Seventh
Circuit Pattern Jury Instructions - Civil § 1.12. For example, the
observation of someone entering a room carrying a wet
umbrella is circumstantial evidence that it is raining. Id.
Similarly, the presence of buckshot in a person’s body gives
rise to competing inferences that the shotgun was either
pointed in that person’s direction or pointed in a manner that
allowed the shot to arrive indirectly, by ricochet. Courts
routinely direct juries that the “law makes no distinction
between the weight to be given to either direct or
circumstantial evidence.” Id. That is so because
“[c]ircumstantial evidence is not only sufficient, but may also
be more certain, satisfying and persuasive than direct
evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)


4
   As the dissent notes, an internal investigation into the incident also
characterizes the injuries as occurring from the ricochet of warning shots.
But the report does not expressly analyze the issue of the direction of fire
and reaches no official conclusion on that issue. The part of the report
quoted by the dissent is based on “information” that initiated the investiga-
tion. The report then addresses various versions of the incident from staff
and inmate witnesses. The report assumes that the injuries occurred by
ricochet. In any case, the report presents nothing more than a competing
view of a contested fact, and it is not conclusive for summary judgment
purposes.
No. 17-2295                                                      7

(quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.1
(1957)). Indeed, circumstantial evidence is sufficient to
establish guilt beyond a reasonable doubt in criminal cases,
and deserves no less respect in civil matters. See Holland v.
United States, 348 U.S. 121, 139–40 (1954).
    The dissent’s assertion that the plaintiffs have “no evidence
that the officers shot into the crowd” is incorrect. The plaintiffs
possess circumstantial evidence that the gun was pointed in
their direction. In the dissent’s view, a court would be required
to conclusively credit a witness’s sworn statement that it was
not raining even in the face of the proverbial wet umbrella. But
in the face of circumstantial evidence, a jury would not be
required to credit the defendants’ statements here, and that
would leave the two competing inferences that the shot arrived
either directly or indirectly. On summary judgment, a “‘court
may not assess the credibility of witnesses, choose between
competing inferences or balance the relative weight of
conflicting evidence; it must view all the evidence in the record
in the light most favorable to the non-moving party and
resolve all factual disputes in favor of the non-moving party.’”
Orton-Bell v. Indiana, 759 F.3d 768, 772–73 (7th Cir. 2014)
(quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir.
2005)). And if a jury not only rejected the defendants’ assertion
but also concluded that the defendants affirmatively lied about
the direction of fire, that lie would be additional circumstantial
evidence supporting the inference that the shot was aimed
toward the plaintiffs. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147 (2000) (in the employment discrimination
setting, proof that the defendant’s purportedly
nondiscriminatory explanation for its actions is “unworthy of
8                                                               No. 17-2295

credence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite
persuasive.”).
    Contrary to the dissent’s charge that we have given the
plaintiffs “an assist,” the plaintiffs’ arguments below and on
appeal encompass both the possibility that the shots were fired
into the ceiling, as the defendants claim, or toward the inmates,
as may be inferred from the injuries sustained. See R. 82, at 1–2
(characterizing the defendants’ actions as “[f]iring shotguns
into a crowd of innocent bystanders …” and asserting that
defendants “were aiming at them when they fired”).5 Having
preserved the issue in the district court, the plaintiffs do not
expressly concede on appeal that the shots were directed at the
ceiling (as the defendants claim), instead arguing that the

5
  Indeed, even the defendants extensively referenced the plaintiffs’ theory
that the shots were fired in their direction in their Statement of Uncontested
Facts. R. 75, at 5, ¶¶ 24–29. Paragraph 27 specifies, “Plaintiff McCottrell
admits that the only reason he believes that the gun was aimed at him when
he was shot is the fact that he was hit.” The plaintiffs, in turn, admitted that
assertion in their Response. R. 84, at 6. The defendants argued in their
Memorandum of Law in Support of Their Motion for Summary Judgment
that the plaintiffs’ injuries were not sufficient evidence of the defendants’
intent, and that there was no evidence supporting a claim that they fired
directly into the dining hall. R. 76, at 12. The plaintiffs then countered in
their response brief below that they both credibly believed that the
defendants were aiming at them when the shotguns were discharged. R. 82,
at 2. In their reply, the defendants argued that the plaintiffs’ injuries were
not evidence of the direction of fire, characterizing this circumstantial
evidence as an assertion of the plaintiffs’ “unsupported beliefs.” R. 90, at
3–4. But as we explain, it is reasonable to infer from the presence of
buckshot in a person’s body that the shooter was pointing the shotgun in
that person’s direction.
No. 17-2295                                                      9

district court “improperly credited Defendants’ version of the
facts.” Opening Brief at 3. On appeal, the plaintiffs focus
primarily on the guards’ avoidance of the shot box, but
contrary to the dissent’s assertion that the direction of the shots
is undisputed, there is a preserved fact question regarding the
direction of fire. See Opening Brief at 2 (“fired gunshots that hit
at least four bystander inmates”); at 4–5 (“fired buckshots that
hit four inmates”); at 6 (“failed to shoot the ‘shot box’”); at 11
(“neither Defendant shot the shotboxes”); at 20 (“extreme
response of firing gunshots into the ceiling of a crowded
area”); at 25 (“district court gave Defendants credit for
purportedly choosing to aim ‘at the ceiling and at the shot
board on the ceiling’”); at 26 (“A reasonable jury could instead
determine that Defendants’ decision to shoot in the first place
and their failure to hit the shot box intended to catch buckshot
was because they did not want the buckshot caught.”). In
addition to these references in the Opening Brief, the plaintiffs
expressly characterize the shots as being fired into a crowded
area or near a crowd in their Reply Brief. Reply Brief at 11–15.
As we explain above, that is a reasonable inference drawn from
circumstantial evidence. That there is a competing inference
and testimony to the contrary creates an issue for the jury. We
will also focus primarily on the claim that the shots were
aimed at the ceiling and away from the shot box, but the
plaintiffs are free to dispute the direction of fire on remand,
having never conceded the point. As we conclude below,
summary judgment is not appropriate in either scenario.
    White and Williams filed written Incident Reports with
prison authorities and submitted to interviews with an internal
affairs investigator from the Illinois Department of Corrections
10                                                   No. 17-2295

regarding the event. They also submitted affidavits with their
motion for summary judgment. White and Williams wrote the
Incident Reports within hours of the event, and the interviews
took place in the early afternoon of the same day. In his brief
Incident Report, Williams wrote that when staff rushed in to
separate the inmates, the inmates began to struggle with the
staff. He asserted that he believed the lives of the staff were in
danger and so he “fired a warning round into the ceiling.” He
wrote that staff members were then able to secure the inmates.
Williams told the investigator that he saw the inmates begin to
fight but did not see any weapons. The inmates were wrestling
up against a wall when staff rushed in to separate them.
Williams saw the staff separate the inmates but did not see
whether any officers on the ground used pepper spray. After
the inmates were pulled apart, he could see only one of the
inmates and that man was resisting and non-compliant but did
not strike any staff members. Williams claimed that he thought
the lives of the guards were in danger and so he fired a
warning shot into the ceiling. R. 86, at 52–53.
    In his Incident Report, White wrote that he saw the two
inmates striking each other in the face and head with closed
fists. He saw security staff respond to the scene and attempt to
break up the fight but the men continued to be combative and
would not stop fighting. At that point, White said, he believed
that lives were in imminent danger and so he fired one
warning shot into the ceiling. After the shot, the guards on the
floor were able to separate and restrain the brawling inmates.
White told the investigator that Williams directed his attention
to the chute where two inmates were “punching each other in
the face.” He saw “a bunch of staff” attempt to stop the fight
No. 17-2295                                                            11

but the inmates continued to scuffle. White reported that the
inmates were “still going at it” when he fired a warning shot
into the ceiling. He did not see a weapon and did not see the
inmates strike any staff member but would not rule out the
possibility that a staff member had been struck. White told the
investigator that he fired the warning shot because he felt that
the staff members were in imminent danger. Finally, White
said that he saw the staff members use pepper spray after he
fired the warning shot.
    After completing interviews and receiving reports from
staff and inmate witnesses, the investigator issued a report
concluding that both White and Williams “violated
Department Rules regarding Use of Excessive Force[.]” R. 86,
at 5. The investigator found that the shots were fired
immediately after one of the guards administered pepper
spray toward one of the brawling inmates. Both defendants
failed to note in their Incident Reports that the fighting inmates
had been separated before the warning shots were fired. Both
White and Williams also failed to give accurate depictions of
the incident in chronological order in their official reports. For
example, White’s claim that the inmates were “still going at it”
when he fired a warning shot conflicted with the video and
other evidence.6 Moreover, no staff members were punched or
struck during the altercation, and the video showed no signs
that anyone within view sustained injuries that could be


6
  The district court concluded that the factual findings from the internal
affairs report were admissible under Federal Rule of Evidence 803(8), and
the defendants have not challenged that conclusion. We discuss below the
use of the report in summary judgment proceedings.
12                                                            No. 17-2295

considered “great bodily harm.” R. 86, at 5. The report
concluded that “White and Williams used an unreasonable
amount of force (warning shot) outside the scope and not in
accordance with Departmental Rule 501.30 Justifiable Use of
Force.” R. 86, at 5.7
    McCottrell and Clay sued Williams and White under 42
U.S.C. § 1983, alleging that the guards violated their rights
under the Eighth Amendment by using excessive force when
they fired shotguns into the crowded dining hall after the
conflict was over.8 During the course of the litigation, some
three years after the internal affairs report was issued, White
and Williams signed affidavits describing the event somewhat
differently than they had on the day of the shooting. White’s
affidavit states, in relevant part:
      On November 6, 2013, I witnessed two offenders
      fighting within the dining hall. Correctional staff
      acted quickly to separate the offenders. However,
      one of the offenders continued to struggle with
      correctional staff and refused to comply.
      Correctional staff members were having difficulty
      restraining this offender. I discharged a warning
      shot into the ceiling.

7
  There is no “Rule 501.30 Justifiable Use of Force,” and so the reference to
Rule 501.30 may have been in error. Rule 501.30 covers “Resort to Force,”
and Rule 501.40 is titled “Justifiable Use of Force.” Both rules would
arguably apply to the incident at issue here.

8
  The plaintiffs initially raised a number of additional claims against the
guards and the prison’s health care providers but the only claim that is on
appeal is the one against White and Williams for excessive force.
No. 17-2295                                                      13

R. 75-5, at 2. Williams’ affidavit repeats this language word for
word, adding the phrase, “toward the nearest shot-box” to the
end of the final sentence. R. 75-4, at 2. White added to his
affidavit that he shot into the ceiling as opposed to the shot box
because he had been advised that it would decrease the risk of
ricochet and he wished to minimize that risk. Thus, contrary to
their earlier reports, they acknowledged during the litigation
that the inmates had been separated and that only a single
inmate purportedly continued to struggle at the time the shots
were fired. Williams had not previously reported that his
firearm was directed toward the shot box, and White had not
previously claimed that he believed the ceiling to present less
of a risk of ricochet than the shot box. Both guards averred that
they believed that warning shots were necessary to restore
safety and order in the dining hall, that the struggling offender
posed a serious threat to the correctional staff attempting to
subdue him, that they did not know whether the offender
possessed a weapon, and that they did not fire their weapons
with the intent to injure anyone.
    The district court granted summary judgment in favor of
the defendants after concluding that the plaintiffs lacked
evidence that the officers’ use of force was wanton or
unnecessary. Noting the statements of White and Williams that
they fired the shots in order to restore order, the court found
that the defendants’ belief that the shots were necessary was
reasonable given that prison fights often escalate quickly and
inmates sometimes use makeshift weapons. Crediting the
defendants’ statements that the shots were fired toward the
ceiling rather than in the direction of the plaintiffs, the district
court found that the direction of the shots indicated an attempt
14                                                             No. 17-2295

to temper the severity of the response. The court also noted
that neither officer knew the plaintiffs or harbored any
personal ill will toward them. After reviewing a blurry
surveillance video of the dining hall, the court concluded that
the shots were fired while one of the inmates continued to
struggle with the officers, and the court found that it was
therefore reasonable to believe that the warning shot was
necessary to restore order.9 Because the plaintiffs lacked


9
   Like the district court, we too have reviewed the video. The quality of the
blurred black and white video is extremely poor and there is no audio track.
It is difficult to distinguish one individual from another in the area where
the fight took place, and it is only from the reactions of the seated bystand-
ers that one could hazard a guess as to when the shots were fired. Although
there is a counter/time index included with the video, the parties could not
agree during Clay’s deposition whether the index represented seconds
elapsed. R. 75-3, Tr. at 31. The jerky motion of the persons moving in the
video suggests that more than one second has elapsed between frames or
that perhaps only one image was taken each second; it is simply impossible
to tell. It is also impossible to determine when the pepper spray was
applied. We cannot discern from the video if the fighting inmates were
continuing to struggle with officers at the time the shots were fired. But the
internal affairs investigator who cited the video had the benefit of inter-
viewing the persons depicted in it and appears to have drawn conclusions
about the video based on those interviews as well as on the video itself. A
person who participated in the event might be able to identify the blurry
figures and the actions taken but we are not able to do so. The district court
made no express ruling on the admissibility of the video. The defendants
made no attempt in the record to lay a foundation for the video, and so we
have no idea if the view presented in the video is the same view that the
guards had of the situation. Nor do we know whether the video has been
altered in any way. We will not draw independent factual conclusions from
it. To the extent that the district court’s interpretation of the poor quality
                                                                 (continued...)
No. 17-2295                                                                15

evidence that the defendants acted “maliciously and
sadistically,”10 the court granted judgment in favor of the
defendants. McCottrell and Clay appeal.
                                       II.
    On appeal, McCottrell and Clay assert that there are
genuine issues of material fact regarding the intent of the
defendant officers when they fired the shots over the dining
hall. They argue that the court should have applied the five-
factor test set forth by the Supreme Court in Hudson v.
McMillian, 503 U.S. 1 (1992), and Whitley v. Albers, 475 U.S. 312
(1986), in determining the officers’ intent, and that application
of those factors would have made clear that the key question
of intent was disputed. Instead, they maintain, the court
inappropriately resolved disputed fact questions in favor of the
defendants. We review the district court’s grant of summary
judgment de novo, examining the record in the light most
favorable to the plaintiffs and construing all reasonable


9
  (...continued)
video conflicts with the testimony of the plaintiffs or the conclusions of the
investigator who interviewed the persons involved in the incident, we must
credit the plaintiffs’ version of events on summary judgment. Cf Scott v.
Harris, 550 U.S. 372, 380–81 (2007) (where a reliable videotape clearly
captures an event in dispute and blatantly contradicts one party’s version
of the event so that no reasonable jury could credit that party’s story, a
court should not adopt that party’s version of the facts for the purpose of
ruling on a motion for summary judgment).

10
  As we will discuss below, in Whitley v. Albers, 475 U.S. 312, 320–21 (1986),
the Supreme Court set this as the standard for liability in Eighth Amend-
ment excessive force claims related to prison security measures.
16                                                    No. 17-2295

inferences from the evidence in their favor. Anderson, 477 U.S.
at 255; Lapre v. City of Chicago, 911 F.3d 424, 430 (7th Cir. 2018).
Summary judgment is appropriate when there are no genuine
disputes of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477
U.S. at 247–48; Lapre, 911 F.3d at 430.
                                  A.
    The Eighth Amendment forbids the imposition of “cruel
and unusual punishments” against persons convicted of
crimes. Whitley, 475 U.S. at 318. In Whitley, prison personnel
were faced with a riot instigated by drunken inmates who took
a guard hostage. One inmate was armed with a homemade
knife and had threatened to kill the hostage if prison officials
sent in an assault squad to end the conflict. After assessing the
situation, officials decided to send in the armed assault team
with directions to fire a warning shot and then aim low at any
prisoners taking a staircase that led to the area where the
hostage was being held. The assault squad was successful in
retrieving the hostage and capturing the inmate who was
armed with a knife. But in the course of the rescue, an inmate
uninvolved in the fracas was shot when he attempted to take
the staircase back to his cell. 475 U.S. at 314–16.
    The bystander inmate sustained severe injuries to his leg as
well as mental and emotional distress. Like McCottrell and
Clay, he brought suit under 42 U.S.C. § 1983, claiming violation
of his rights under the Eighth Amendment. Although the
district court granted summary judgment to the defendants,
the court of appeals reversed. The court of appeals relied on
evidence that the disturbance was subsiding at the time that
No. 17-2295                                                    17

prison officials sent in the assault squad. Moreover, the
plaintiff had presented expert evidence concluding that the
amount of force employed was excessive under the
circumstances. But the Supreme Court determined that the
court of appeals had “effectively collapsed the distinction
between mere negligence and wanton conduct … implicit in
the Eighth Amendment.” Whitley, 475 U.S. at 322. Although the
general disturbance had died down, the situation remained
dangerous and volatile; the safety of the guard being held
hostage was still in question and an inmate was armed. As for
the expert opinion:
     At most, this evidence, which was controverted by
     petitioners’ experts, establishes that prison officials
     arguably erred in judgment when they decided on
     a plan that employed potentially deadly force. It
     falls far short of a showing that there was no
     plausible basis for the officials’ belief that this
     degree of force was necessary. Indeed, any such
     conclusion would run counter to common sense, in
     light of the risks to the life of the hostage and the
     safety of inmates that demonstrably persisted
     notwithstanding repeated attempts to defuse the
     situation. An expert's after-the-fact opinion that
     danger was not “imminent” in no way establishes
     that there was no danger, or that a conclusion by the
     officers that it was imminent would have been
     wholly unreasonable.
Whitley, 475 U.S. at 323. Ultimately the Court concluded that
the prison officials did not violate the plaintiff’s Eighth
18                                                 No. 17-2295

Amendment right to be free from cruel and unusual
punishment. Whitley, 475 U.S. at 326.
    In reaching this conclusion, the Court reasoned that Eighth
Amendment claims must be analyzed “with due regard for
differences in the kind of conduct against which an Eighth
Amendment objection is lodged.” Whitley, 475 U.S. at 320. For
example, claims regarding deliberate indifference to a
prisoner’s serious medical needs or harsh conditions of
confinement do not present the same institutional concerns as
those relating to the amount of force needed to maintain or
restore order to the prison. Id. As the Court pointed out, the
jailer’s “responsibility to attend to the medical needs of
prisoners does not ordinarily clash with other equally
important governmental responsibilities.” Id.
     But, in making and carrying out decisions involving
     the use of force to restore order in the face of a
     prison disturbance, prison officials undoubtedly
     must take into account the very real threats the
     unrest presents to inmates and prison officials alike,
     in addition to the possible harms to inmates against
     whom force might be used.
Whitley, 475 U.S. at 320. For that reason:
     Where a prison security measure is undertaken to
     resolve a disturbance … that indisputably poses
     significant risks to the safety of inmates and prison
     staff, … the question whether the measure taken
     inflicted unnecessary and wanton pain and suffering
     ultimately turns on “whether force was applied in a
     good faith effort to maintain or restore discipline or
No. 17-2295                                                     19

     maliciously and sadistically for the very purpose of
     causing harm.”
Whitley, 475 U.S. at 320–21 (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973) (Friendly, J.)).
     The ultimate determination of the intent of the person
applying the force in an excessive force claim involving prison
security measures depends upon a number of factors,
including: (1) the need for the application of force; (2) the
relationship between the need and the amount of force that
was used; (3) the extent of injury inflicted; (4) the extent of the
threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of the facts
known to them; and (5) any efforts made to temper the severity
of a forceful response. Whitley, 475 U.S. at 321. See also Hudson,
503 U.S. at 7 (listing the five factors); Lewis v. Downey, 581 F.3d
467, 477 (7th Cir. 2009) (same); Fillmore v. Page, 358 F.3d 496,
504 (7th Cir. 2004) (same). “From such considerations
inferences may be drawn as to whether the use of force could
plausibly have been thought necessary, or instead evinced such
wantonness with respect to the unjustified infliction of harm as
is tantamount to a knowing willingness that it occur.” Whitley,
475 U.S. at 321.
   Deference must be accorded to prison administrators in the
adoption and execution of policies and practices that are
needed to preserve order and ensure institutional security.
Whitley, 475 U.S. at 321–22. The Court intended that this
deference be extended to a particular security measure taken
in response to an actual prison disturbance as well as to
preventative measures:
20                                                 No. 17-2295

     [That deference] does not insulate from review
     actions taken in bad faith and for no legitimate
     purpose, but it requires that neither judge nor jury
     freely substitute their judgment for that of officials
     who have made a considered choice. Accordingly, in
     ruling on a motion for a directed verdict in a case
     such as this, courts must determine whether the
     evidence goes beyond a mere dispute over the
     reasonableness of a particular use of force or the
     existence of arguably superior alternatives. Unless it
     appears that the evidence, viewed in the light most
     favorable to the plaintiff, will support a reliable
     inference of wantonness in the infliction of pain
     under the standard we have described, the case
     should not go to the jury.
Whitley, 475 U.S. at 322.
   Although Whitley involved a prison riot that included a
guard being held hostage, the Court later remarked that the
concerns underlying the holding of Whitley apply whenever
guards use force to keep order:
     Whether the prison disturbance is a riot or a lesser
     disruption, corrections officers must balance the
     need “to maintain or restore discipline” through
     force against the risk of injury to inmates. Both
     situations may require prison officials to act quickly
     and decisively. Likewise, both implicate the
     principle that “‘[p]rison administrators ... should be
     accorded wide-ranging deference in the adoption
     and execution of policies and practices that in their
No. 17-2295                                                    21

     judgment are needed to preserve internal order and
     discipline and to maintain institutional security.’” In
     recognition of these similarities, we hold that
     whenever prison officials stand accused of using
     excessive physical force in violation of the Cruel and
     Unusual Punishments Clause, the core judicial
     inquiry is that set out in Whitley: whether force was
     applied in a good-faith effort to maintain or restore
     discipline, or maliciously and sadistically to cause
     harm.
Hudson, 503 U.S. at 6–7 (citations omitted).
    In Hudson, the Court also made clear that not “every
malevolent touch by a prison guard gives rise to a federal
cause of action.” 503 U.S. at 9. Instead, the Eighth
Amendment’s prohibition against cruel and unusual
punishments excludes from constitutional recognition de
minimis uses of force that are not of the kind that would be
“repugnant to the conscience of mankind.” Hudson, 503 U.S. at
9–10 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But the
Court also clarified that “[w]hen prison officials maliciously
and sadistically use force to cause harm, contemporary
standards of decency always are violated. This is true whether
or not significant injury is evident.” Hudson, 503 U.S. at 9. The
extent of injury is relevant to the Eighth Amendment inquiry
because it provides some indication of the amount of force
applied, and because it may suggest whether the use of force
was plausibly necessary in a particular situation; but the
absence of serious injury is not the end of the analysis. Wilkins
v. Gaddy, 559 U.S. 34, 37 (2010).
22                                                      No. 17-2295

                                   B.
    In this case, the threshold question of whether the force
applied was more than de minimis is easily answered. The
firing of two shotguns toward the crowd, or into the ceiling of
a crowded dining hall no doubt qualifies as more than a de
minimis use of force, as the district court found. See McCottrell
v. Correctional Officers, No. 1:15-cv-03208, slip. op. at 9 (N.D. Ill.
May 22, 2017) (finding that discharging a firearm is plainly
more than a de minimis use of force). The prison itself had
installed a “shot box” device on the ceiling to minimize the
known risks of ricochet from warning shots discharged in that
space, and both defendants aimed away from this safety
device. The resulting injuries and the pain inflicted confirm
that the force was significant. See Lewis, 581 F.3d at 475 (pain is
the barometer by which we measure claims of excessive force,
and the use of a stun gun, which sends an electric pulse
through the body causing immobilization, disorientation, loss
of balance, and weakness, is more than a de minimis application
of force).
    Setting aside for a moment the plaintiffs’ claim that the
guards may have fired directly toward the crowd, the dissent
suggests that firing two shotguns loaded with buckshot into
the ceiling of a crowded dining hall cannot be deemed to be
malicious and sadistic or even characterized as an intentional
application of force without a showing that a guard “intended
to hit or harm someone with his application of force.” That
standard is met here. A jury may infer intent to make physical
contact from the nature of the act taken, and spraying buckshot
into a crowded room, either directly towards people or by the
known force of ricochet, is circumstantial evidence that gives
No. 17-2295                                                   23

rise to an inference that the guards intended to injure the
persons seated below. As we discuss infra, both defendants
averred that they fired into the ceiling, avoiding the device
intended to minimize ricochet. That action of purposely
avoiding the shot box gives rise to an inference that the guards
intended to make physical contact. That they might not have
cared which particular inmate (or how many inmates) they hit
is not relevant to the question of whether they intentionally
applied force. Discharging shotguns loaded with buckshot in
a crowded dining hall was a “force applied” that was more
than de minimis. From consideration of the Whitley factors,
“inferences may be drawn as to whether the use of force could
plausibly have been thought necessary, or instead evinced such
wantonness with respect to the unjustified infliction of harm as
is tantamount to a knowing willingness that it occur.” Whitley,
475 U.S. at 321. See also Farmer v. Brennan, 511 U.S. 825, 835–36
(1994) (in a claim for excessive force during a prison
disturbance, the claimant must show that officials applied force
maliciously and sadistically for the very purpose of causing
harm, or that officials used force with a knowing willingness
that harm occur). Firing a shotgun into the ceiling and away
from the shot boxes in a crowded dining hall gives rise to an
inference that the guards used force with a “knowing
willingness” that harm would occur. Whitley, 475 U.S. at 321.
    Although Whitley afforded deference to prison officials
during a disturbance, the Court did “not insulate from review
actions taken in bad faith and for no legitimate purpose.” 475
U.S. at 322. A warning shot taken when there is no need to
warn arguably has no legitimate purpose, and one purposely
aimed away from a safety device raises an inference of bad
24                                                    No. 17-2295

faith. But under the dissent’s version of the test, a guard could
blindly unload a shotgun above a crowd of bystanders with
impunity because making contact is not a certainty. Nothing in
Whitley requires targeting. Whitley instead refers to a “security
measure … undertaken to resolve a disturbance” and directs
us to consider “whether the measure taken inflicted
unnecessary and wanton pain and suffering,” a calculus that,
in the prison disturbance setting, turns 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.” Whitley, 475 U.S. at 321. Firing buckshot toward a
crowd of bystanders or into the ceiling above them (and away
from the devices intended to reduce ricochet) may be
comfortably characterized as a force applied during a security
measure. See also Gomez v. Randle, 680 F.3d 859, 861–62, 864–65
(7th Cir. 2012) (bystander prisoner struck by buckshot fired
into inmate population by guard on catwalk as guards on the
ground sought to break up a fight between two unarmed
inmates stated a claim for excessive force under the Eighth
Amendment).
    The dissent also asserts that, in order to show that the
guards intentionally shot the plaintiffs (as opposed to
recklessly disregarding the risk of ricochet), the plaintiffs could
have introduced evidence regarding the composition of the
ceiling in order to demonstrate that ricochet was “very likely.”
In that event, the dissent continues, “firing into the ceiling
would be the functional equivalent of firing into the crowd.”
Infra, at 6. There is no evidence in the record regarding the
composition of the ceiling but there is evidence that the prison
regarded the ceiling as a dangerous target: the prison itself
No. 17-2295                                                      25

installed shot boxes throughout the facility to reduce ricochet
from warning shots. The installation of those boxes is evidence
that the prison itself considered ricochet to be “very likely.” A
jury may infer from the presence of the shot boxes that the
guards were aware that a shotgun blast to the ceiling would
ricochet into the crowd below.
     As we discuss below, in analyzing the fifth Whitley factor
(efforts made to temper the severity of the force), the plaintiffs
contend that “failure to hit the shot box might have been
malicious.” Opening Brief at 26. The plaintiffs argued that the
guns were either directed at the crowd or at the ceiling. They
maintained that if the shots were fired into the ceiling, a
reasonable jury could infer that the guards’ “failure to hit the
shot box intended to catch buckshot was because they did not
want the buckshot caught.” Opening Brief at 26. The plaintiffs
also argued that a jury could find that the guards’ claims
regarding the shot box (including their inability to hit it or their
decisions to aim elsewhere, purportedly for safety reasons)
were not credible, especially in light of their other misleading
statements. Id. Thus, the plaintiffs do in fact cite circumstantial
evidence that shooting at the ceiling (and away from the shot
box) was functionally equivalent to sending buckshot into the
crowd. This is more than recklessness, as the dissent asserts; a
jury could conclude that this application of force “evinced such
wantonness with respect to the unjustified infliction of harm as
is tantamount to a knowing willingness that it occur.” Whitley,
475 U.S. at 321. It is obviously easier for the plaintiffs to prove
that the guards met this standard if the guns were pointed at
the crowd instead of the ceiling. But it is possible to prove that
the standard was met even if the guns were pointed at the
26                                                               No. 17-2295

ceiling and purposefully away from the shot box. From the
evidence presented, the jury could infer both intent to make
contact and malice.
                                         C.
    So we turn to the five factors that the Supreme Court set
forth in Whitley, the controlling test for determining intent
when more than de minimis force is applied in a prison
disturbance.11 See Lewis, 581 F.3d at 476 (once the court has
determined that the force applied was more than de minimis,
the inquiry turns to the mind set of the individual applying the
force).
                                         1.
   The first factor is the need for the application of force, and
on this point, there are material disagreements of fact. The
plaintiffs produced evidence that the fight was nothing more
than a minor shoving match between two unarmed
combatants, and that the tussling inmates had been separated

11
   The district court suggested that, in Fillmore v. Page, 358 F.3d 496 (7th Cir.
2004), the Seventh Circuit had “distilled” the analysis of Whitley and Hudson
into a two-part inquiry of whether the force was more than de minimis, and
whether the actions of the defendant officers were designed expressly for
the purpose of punishing or humiliating the plaintiff inmates. Fillmore
appropriately identified those as the operative, overarching questions in a
case involving the use of force during a prison disturbance, but Fillmore did
not purport to distill the five-part test set forth in Whitley. Fillmore in fact
listed the five factors as the means of determining the officers’ intent and
purpose in such a case. 358 F.3d at 504. Fillmore faithfully applied Whitley
and Hudson when it affirmed a finding that the force applied was de
minimis. Because that threshold had not been met, there was no need to
progress through the five-part test to determine the officers’ intent.
No. 17-2295                                                    27

and subdued and were in the process of being handcuffed
when the shots were fired. In the plaintiffs’ view, there was no
need for the warning shots because the officers on the ground
had already successfully used pepper spray to secure the
situation. Some of the factual conclusions of the internal affairs
report bolster this view. The report found that the fighting
inmates had already been separated, that neither was armed
with a weapon, that no staff members had been struck, and
that the fighting inmates were brought to compliance with the
application of pepper spray before the shots were fired.
    The defendant guards, on the other hand, told an evolving
story about the sequence of events, at first reporting that the
inmates were fighting and struggling with staff members who
were trying to separate them at the moment the shots were
fired, then later stating that the inmates had been separated
before the shots were fired, and then finally that the inmates
had been separated and only one inmate continued to struggle
before the shots were then fired. A jury could infer from the
shifting stories told by the guards that they were not truthful
regarding the need for the application of force. See Reeves, 530
U.S. at 147; Ray v. Clements, 700 F.3d 993, 1025 n.7 (7th Cir.
2012) (witness’s changing story supports inference of lying).
    If the plaintiffs are correct about the sequence of events,
then there was arguably no need for warning shots at all. Lewis,
581 F.3d at 477 (where the exact sequence of events leading to
a stun gun’s use is strongly disputed, the court is required to
view the facts in the light most favorable to prisoner opposing
summary judgment). Unlike Whitley, there was no ongoing
dangerous and volatile situation. See Lewis, 581 F.3d at 477–78
(where an inmate asserts that he was merely lying on his bunk,
28                                                  No. 17-2295

weak and sluggish from a hunger strike, without sufficient
time to respond to an order to stand, the inmate displayed no
aggressive or threatening behavior that would have justified
application of a stun gun without warning). But if the
defendants’ various versions of the event can be reconciled and
are correct, then from the guards’ perspective, the force could
plausibly have been thought necessary. Whitley, 475 U.S. at 321;
Wilkins, 559 U.S. at 37. The evidence supports an inference that
the shots were fired after the fight on the floor was under
control. Only a jury can resolve the factual dispute regarding
the state of the conflict and the need for force at the time the
shots were fired. But, construing the facts in favor of the
plaintiffs, there was no need for any warning shots at the time
they were fired, which gives rise to an inference of malice and
sadism on the part of the guards.
                                 2.
    The second factor, the relationship between the need for
force and the amount of force employed, is closely tied to the
first factor. Obviously, if there was no need for the warning
shots, then those shots were significantly disproportionate to
the need for force. The guards on the floor were already
applying force, pulling the offenders apart and applying
pepper spray when they did not comply with handcuffing
procedures. Again, the stories told by the plaintiffs and the
guards are materially different, and the prison itself concluded
that the additional force applied by the defendants was not
needed to secure the situation. That is not to say that the
officers’ violation of prison policies regarding the use of force
was evidence of an unconstitutional amount of force. We have
found in the Fourth Amendment context, for example, that
No. 17-2295                                                     29

“the violation of police regulations or even a state law is
completely immaterial as to the question of whether a violation
of the federal constitution has been established.” Thompson v.
City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006). But the
plaintiffs here are not attempting to equate a violation of
department policy with a constitutional transgression. Rather,
they are citing the factual conclusions of an official
investigation into this very incident as support for their
assertion that, because the fight had been resolved, there was
no further need for the use of force, including in particular the
warning shots fired by the defendants. See Daniel v. Cook
County, 833 F.3d 728, 740 (7th Cir. 2016).
    As we noted in footnote 6 above, the district court
concluded that the report was admissible under Federal Rule
of Evidence 803(8), as “factual findings from a legally
authorized investigation,” a conclusion that the defendants did
not contest on appeal. Thus, the plaintiffs are free to use the
factual findings of the report to demonstrate that there are
genuine issues of material fact that must be resolved at trial. It
is not the prison’s policies or the guards’ violations of those
policies that are relevant. Only the factual findings may be
considered, and those findings bolster the plaintiffs’ evidence
that the shots were fired after the conflict was over, at a time
when there may have been “no plausible basis for the officials’
belief that this degree of force was necessary.” Whitley, 475 U.S.
at 323. See also Lewis, 581 F.3d at 478 (in light of the absence of
any agitation or threat from an inmate, the short passage of
time between a single order and the application of a stun gun,
and a lack of warning as to the consequences of a failure to
comply with the order, summary judgment in favor of the
30                                                   No. 17-2295

defendant officer is not appropriate). Construing the facts in
favor of the plaintiffs, the force applied was grossly
disproportionate to the force that could plausibly have been
thought necessary, again giving rise to an inference of malice
and sadism.
                                 3.
    We next consider the extent of injury inflicted. McCottrell
and Clay each suffered physical and psychological wounds
caused by the buckshot. In Clay’s case, the wound had to be
closed with stitches and the buckshot remains in his arm.
McCottrell bled from the wounds in his neck and leg, and
required pain medication. Both men also suffered
psychological trauma from the event and sought treatment for
their emotional injuries. “Injury and force … are only
imperfectly correlated, and it is the latter that ultimately
counts.” Wilkins, 559 U.S. at 38. The defendant guards do not
dispute the extent of the injuries or the nature of the force
applied, and we can safely say that the injuries and the force
employed were significant enough to bring the case within the
constitutional realm.
                                 4.
    The fourth factor is the extent of the threat to the safety of
staff and inmates, as reasonably perceived by the responsible
individuals on the basis of the facts known to them. The
evidence on this point is also mixed. The guards presented
evidence that the dining hall is the site of frequent fights, that
makeshift weapons sometimes appear during these incidents,
that the guards on the floor are vastly outnumbered by the
inmates in the hall, and that prison fights can escalate quickly.
No. 17-2295                                                    31

No doubt even a shoving match between two inmates can
quickly turn into something much more serious. The
undisputed evidence demonstrated that even after guards
were able to pull the inmates apart, they continued to struggle
for some period of time until pepper spray brought about
compliance. From beginning to end, the entire incident lasted
less than a minute and the guards in the tower had to decide
very quickly whether the warning shots were necessary. Under
the standards set forth in Whitley, this factor initially appears
to favor White and Williams.
    At the same time, other witnesses reported that the fight
was over by the time the shots were fired, that no weapons had
materialized, that no other inmates joined the fracas, and that
no staff had been attacked. Unlike Whitley, there was no prison
riot, no hostage, and no armed agitator. In combination with
the finding that White and Williams gave inaccurate and
evolving accounts of the sequence of events, a jury could infer
that their perception of the threat was not reasonable. If the
defendants saw that the fight was over and that the guards on
the floor had the situation under control, then there was no
penological justification for firing warning shots, giving rise to
an inference of malice and sadism. Whitley, 475 U.S. at 322
(deference to prison officials does not insulate from review
actions taken in bad faith and for no legitimate purpose);
Fillmore, 358 F.3d at 504 (infliction of pain that is totally
without penological justification is per se malicious).
32                                                    No. 17-2295

                                  5.
    The fifth and final factor is whether any efforts were taken
to temper the severity of a forceful response. This factor is also
disputed. As we discussed above, there is a reasonable
inference that the guards fired directly toward the bystander
inmates. Supra at p.4–9. That would indicate that little or no
effort was taken to temper the severity of the force. Even the
defendants’ evidence, as construed in favor of the plaintiffs,
demonstrates that White and Williams purposely fired into the
ceiling rather than the shot box, the device intended to reduce
injuries from ricochet. Williams submitted an affidavit during
summary judgment proceedings in which he stated that he
“discharged a warning shot into the ceiling toward the nearest
shot-box.” R. 75-4, at 2. Williams did not indicate whether he
was trying to hit the shot box and missed, or purposely aimed
at the ceiling, but the evidence raises an inference that he
purposely shot at the ceiling. In his official “Incident Report,”
Williams wrote that he “fired one warning round into the
ceiling.” R. 85, at 54. In his interview with the investigator, he
also stated that he fired a round “into the ceiling.” R. 85, at 52.
Only in his affidavit did he add the detail that he fired the shot
“toward the nearest shot-box.” Construing this account in
favor of the plaintiffs, Williams chose the ceiling rather than
the shot box for the warning shot. As discussed above, the
plaintiffs also raised a reasonable inference that the shots were
directed toward the inmates.
    White conceded that he purposely “discharged a warning
shot into the ceiling,” rather than at the shot box. He claimed
that, prior to this incident, he “had been told by [his]
colleagues that shooting into the ceiling, as opposed to the shot
No. 17-2295                                                   33

box, decreased the chance of ricochet.” R. 75-5, at 2–3. He
asserted that he fired into the ceiling “in order to minimize the
chance that anyone would be struck by ricocheted buckshot.”
R. 75-5, at 3.
    In any event, this evidence, construed in favor of the
plaintiffs, indicates that both White and Williams purposely
fired into the ceiling rather than the shot box. If the jury
determines that the shots were directed at the ceiling instead
of toward the inmates, the jury must also assess the credibility
of White’s purported reason for his choice. Williams has yet to
explain why he did not fire into the shot box. Negligence (even
gross negligence) is not actionable but neither defendant has
claimed that he mistakenly missed the shot box. A jury could
conclude that purposely shooting toward the inmates or into
the ceiling of a crowded dining hall rather than the shot box
“evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness
that it occur.” Whitley, 475 U.S. at 321.
    Moreover, purposely avoiding the shot box served no
penological purpose. That is, a warning shot aimed at the shot
box fulfills the purpose of a warning shot, and no additional
penological value is gained by purposely avoiding this safety
device, again giving rise to an inference of malice and sadism.
See Fillmore, 358 F.3d at 504. Aiming a warning shot into the
shot box was the course for the guards if the purpose of the
shot was a good faith effort to restore order. As the plaintiffs
argue, purposely avoiding the shot box gives rise to an
inference that the guards “did not want the buckshot caught.”
Opening Brief at 26.
34                                                            No. 17-2295

                                       D.
    There are a number of contested issues of material fact that
preclude the entry of summary judgment at this stage. To
summarize, a finder-of-fact must first determine whether the
guards intended to hit the inmates with buckshot when they
discharged their shotguns over the crowded dining hall, a
calculus that depends in part on the disputed direction of fire.
Whether the guards fired in the direction of the inmates or at
the ceiling, there are genuine disputes of material fact for
virtually every factor in the Supreme Court’s five-part test, and
we must vacate the judgment and remand for further
proceedings.12
    The facts, construed in favor of the plaintiffs, support an
inference that the defendants acted maliciously and sadistically
rather than in good faith to restore order. If the jury found
both that the brawling inmates were subdued before the shots
were fired and that the defendants perceived as much, then the
jury could find that by purposely discharging shotguns toward
the crowd or into the ceiling (rather than toward the shot box),
the defendants acted maliciously and sadistically for the
purpose of causing harm, and did so at a time when there was
no need for any force. The jury would have to focus on what
the defendants could see and actually did see before they
discharged their firearms. But on this record, we cannot rule


12
   In the final sentence of their brief on appeal, the defendants also assert
that they were “at least entitled to qualified immunity.” Defendants’ Brief
at 31. Perfunctory and undeveloped arguments are waived, and we need
not consider this single-sentence argument further. Tobey v. Chibucos, 890
F.3d 634, 652 (7th Cir. 2018).
No. 17-2295                                                      35

out the possibility that the defendants saw that the fight was
over, and that the combatants had been separated and
subdued before the shots were fired. Failing to accurately
depict the event in official reports and failing to aim for the
very device intended to protect bystanders are facts that weigh
in favor of the plaintiffs’ view that the officers’ actions were not
a good faith effort to restore order but rather were undertaken
maliciously and sadistically for the very purpose of causing
harm. Hudson, 503 U.S. at 6; Whitley, 475 U.S. at 320–21. A jury
would not be compelled to find that the officers acted with that
intent, but it could so find.
                                  III.
    We acknowledge that the Supreme Court called for
deference to prison officials making split-second decisions
during disturbances. But a jury must determine whether the
shots were fired during an ongoing struggle that threatened
staff and other prisoners, or after the struggle was over.
Whitley, 475 U.S. at 320–21. See also Lewis, 581 F.3d at 478
(although it is not difficult to imagine any number of scenarios
that would justify the immediate and unadvertised use of
summary force, where the inmate’s version of the facts calls
into question the guard’s state of mind at the time force is
applied, summary judgment is not appropriate). And a jury
must determine why the officers chose to fire toward the
crowd or into the ceiling rather than the shot box. In short,
there are significant factual disputes that affect the analysis of
every one of the five Whitley factors. We may not simply credit
the claims of White and Williams that they believed the shots
were necessary to restore order and defer to that claim when
there is evidence that appears to contradict their assertion of
36                                                     No. 17-2295

good faith. See McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir.
2004) ("It is rarely appropriate on summary judgment for a
district court to make a finding on state of mind."); Stumph v.
Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985)
(“‘Summary judgment is notoriously inappropriate for
determination of claims in which issues of intent, good faith
and other subjective feelings play dominant roles.’”) (quoting
Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 185 (8th
Cir.1976), cert. denied, 429 U.S. 1040 (1977)). Summary judgment
is not appropriate when there is evidence in the record that
could support a reasonable jury finding that the defendants
acted maliciously and sadistically for the very purpose of
causing harm rather than in a good faith effort to restore order.
Anderson, 477 U.S. at 255–56; Whitley, 475 U.S. at 320–21.
                                 VACATED AND REMANDED.
No. 17-2295                                                   37

    BARRETT, Circuit Judge, dissenting. As the plaintiffs briefed
and argued this case, they would have lost it. They argued
that the defendants violated the Eighth Amendment by dis-
charging their weapons into the ceiling, rather than into the
shot box, immediately after the fight had been broken up and
there was no plausible need for that use of force. But they did
not argue—and had no evidence to prove—that the defend-
ants intentionally hit anyone. That deficit should have been
fatal, because if the officers did not intend to hit anyone, they
could not have done so “maliciously and sadistically,” as
Whitley v. Albers requires. 475 U.S. 312, 320 (1986). The guards
may have acted with deliberate indifference to inmate safety
by firing warning shots into the ceiling of a crowded cafeteria
in the wake of the disturbance. In the context of prison disci-
pline, however, “deliberate indifference” is not enough.
    The Supreme Court has drawn a clear distinction between
the standard applicable to claims challenging the conditions
of confinement and the standard applicable to claims chal-
lenging the use of excessive force. In Farmer v. Brennan, it ex-
plained that prisoners challenging the conditions of their con-
finement must show that officials were deliberately indiffer-
ent to an excessive risk to inmate health or safety, and that
“deliberate indifference to a substantial risk of serious harm
to a prisoner is the equivalent of recklessly disregarding that
risk.” 511 U.S. 825, 836 (1994). Put differently, deliberate in-
difference means criminal recklessness. Id. at 839–40 (“[S]ub-
jective recklessness as used in the criminal law is a familiar
and workable standard that is consistent with the Cruel and
Unusual Punishments Clause as interpreted in our cases, and
38                                                    No. 17-2295

we adopt it as the test for ‘deliberate indifference’ under the
Eighth Amendment.”).
    The Court emphasized, however, that “‘application of the
deliberate indifference standard is inappropriate’ in one class
of prison cases: when ‘officials stand accused of using exces-
sive physical force.’” Id. at 835 (citation omitted); see also Whit-
ley, 475 U.S. at 320 (holding that the “deliberate indifference”
standard does not apply in the context of prison security). In
that context, “the question whether the measure taken in-
flicted unnecessary and wanton pain and suffering ultimately
turns 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.’” Whitley, 475 U.S. at
320–21 (citation omitted). The Court has described this as a
“very high state of mind” requirement—one much higher
than the criminal recklessness necessary to show deliberate
indifference. Farmer, 511 U.S. at 836. The Whitley factors are
designed to evaluate this “very high state of mind” by smok-
ing out why the guard inflicted harm: was it to maintain dis-
cipline or for the satisfaction of hurting the prisoner? A guard
who injures a prisoner by using force in the absence of a rea-
sonable belief that a threat exists and without any effort to
temper the severity of the force can be thought to knowingly
will “the unjustified infliction of harm.” Whitley, 475 U.S. at 321
(emphasis added). In other words, those circumstances sup-
port an inference that the guard acted in extreme bad faith
rather than “in a good faith effort to maintain or restore disci-
pline.” Id. at 320.
No. 17-2295                                                               39

    An inmate cannot satisfy the “malicious and sadistic”
standard without showing that a guard intended to hit or
harm someone with his application of force. After all, if the
guard did not intentionally apply force to a prisoner, how
could he have had a malicious and sadistic intent to cause him
pain? In the absence of an intent to exert force on someone,
there is nothing for the Whitley factors to probe.1 That is pre-
sumably why the cases treat the intent to make physical con-
tact as a given—I have been unable to find any case, in either
the Supreme Court or our circuit, in which an excessive force
claim did not involve force directly and intentionally applied
to the plaintiff. (That is true, incidentally, of both successful
and unsuccessful claims.) In Whitley, a guard deliberately shot
the plaintiff in the knee, following orders to “shoot low at any
prisoners climbing the stairs” behind an officer engaged in an
effort to free a hostage. 475 U.S. at 316. In Hudson v. McMillian,
the guard “punched Hudson in the mouth, eyes, chest, and
stomach while [another guard] held the inmate in place and
kicked and punched him from behind.” 503 U.S. 1, 4 (1992).
See also Wilkins v. Gaddy, 559 U.S. 34, 35 (2010) (the officer
“slammed [the plaintiff] onto the concrete floor” and “pro-
ceeded to punch, kick, knee, and choke [him].”). Our own ex-
cessive-force cases have been brought against officers who

1 That is not to say that the guard must intend to exert force on the partic-
ular inmate who is injured. See Gomez v. Randle, 680 F.3d 859, 862, 864–65
(7th Cir. 2012) (reversing the dismissal of a claim against a guard who fired
into a crowd rather than at one specific inmate). The point is that the guard
must maliciously and sadistically exert force on someone. And the officer
in Gomez, who fired “into the inmate population,” id. at 862, exerted force
on the inmates at whom he fired.
40                                                     No. 17-2295

intentionally shot, tasered, physically assaulted, or pepper
sprayed prisoners. See, e.g., Rice ex rel. Rice v. Corr. Med. Servs.,
675 F.3d 650, 668 (7th Cir. 2012) (pepper spray); Lewis v.
Downey, 581 F.3d 467, 475–78 (7th Cir. 2009) (taser); Fillmore v.
Page, 358 F.3d 496, 501–05 (7th Cir. 2004) (assault); Kinney v.
Indiana Youth Center, 950 F.2d 462, 464–65 (7th Cir. 1991) (gun-
shot).
    Faced with this hole in the plaintiffs’ case, the majority
gives them an assist by changing the case. It offers two theo-
ries of why the plaintiffs can show that the guards intended
to shoot the inmates. First, it insists that the guards might
have shot directly into the crowd of inmates, rather than at
the ceiling. Second, it suggests that the guards might have in-
tentionally tried to hit the inmates by bouncing buckshot off
of the ceiling. Yet the plaintiffs did not raise the first argument
at all before us, and the second argument consists of one
oblique sentence in their brief. And in any event, there is in-
sufficient evidence in the record to permit a reasonable juror
to draw either conclusion.
    In the district court, the plaintiffs relied on the hearsay tes-
timony of two other inmates to support the claim that the
guards shot directly into the crowd. The defendants, in con-
trast, swore in their affidavits that they aimed at the ceiling.
The district court resolved that issue against the plaintiffs. It
stated:
       Plaintiffs have speculated that the Officer De-
       fendants were aiming at them, but it is undis-
       puted that they did not see where the Officer
       Defendants were aiming and there is no
No. 17-2295                                                    41

       admissible evidence that would create a genu-
       ine factual dispute regarding where the Officer
       Defendants aimed. … Plaintiffs have attempted
       to create a factual dispute by asserting that two
       inmates, identified only as “Rico” and “Fuzz,”
       told McCottrell that they observed one of the
       Officer Defendants aiming at the inmates. This
       statement, however, is inadmissible hearsay,
       and the Court may not consider it at the sum-
       mary judgment stage. As a result, there is no ev-
       idence suggesting that the Officer Defendants
       aimed at the inmates.
Memorandum Opinion and Order at 12 (record citations
omitted).
    The plaintiffs have not challenged either the district
court’s evidentiary ruling or its conclusion that the plaintiffs
had failed to create a factual dispute on this issue. That was a
prudent choice. The district court’s resolution of the hearsay
issue was plainly correct, and without that testimony, the
plaintiffs have no evidence that the officers shot into the
crowd. It bears emphasis that this is so even if the officers lied
in their affidavits about the direction of the shots. A plaintiff
cannot discharge her burden simply by tearing the defend-
ant’s case down; “[i]nstead, the plaintiff must present affirm-
ative evidence in order to defeat a properly supported motion
for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
   Although the plaintiffs do not ask us to reverse this ruling,
the majority, reading between the lines of the brief, maintains
42                                                            No. 17-2295

that “the plaintiffs’ arguments … encompass both the possi-
bility that the shots were fired into the ceiling ... or toward the
inmates.” Maj. Op. at 8. Yet in the absence of an explicit fac-
tual assertion that the officers fired into the crowd, much less
an explicit request that we reverse the district court, it is safe
to say that the plaintiffs have waived this argument on ap-
peal. The majority resurrects the issue on its own, and—fault-
ing the district court for failing to appreciate the significance
of circumstantial evidence—concludes that the plaintiffs can
rest on the fact that shots hit them to prove that the guards
fired at them. That argument should have lost even if the
plaintiffs had made it. One can draw two plausible inferences
from the circumstantial evidence of the plaintiffs’ injury: the
buckshot hit them either directly or by ricochet. The officers’
affidavits and the prison’s internal affairs report, which as-
serts that the “[i]nmates were struck with pellets from the ric-
ochet” of warning shots, support the ricochet theory.2 The
plaintiffs introduced no admissible evidence in support of the



2 The majority minimizes the report’s repeated statements that the plain-
tiffs were injured by ricochet, asserting that these statements reflect no
more than an assumption about the direction of the shots. Maj. Op. at 6
n.4. It was not an assumption. The report concludes by stating that “[a]fter
a total review of the evidence, statements, reports, and all available facts,”
the investigators determined that White and Williams “used an unreason-
able amount of force (warning shot)” in violation of Department policy.
(Emphasis added). A “warning shot” is one intentionally aimed away
from people. The report does not identify a single piece of evidence sug-
gesting that there was direct fire, and such evidence would have been im-
portant, to say the least, in an investigation of whether the officers used
unreasonable force.
No. 17-2295                                                                 43

“direct hit” theory.3 There is therefore insufficient evidence to
permit a reasonable juror to find that fact in the plaintiffs’ fa-
vor.
    As for the claim that the guards indirectly aimed at the
plaintiffs by intentionally bouncing buckshot off the ceiling
and into the crowd: this too is an argument that the plaintiffs
do not develop and that the evidence does not support. To be
sure, the plaintiffs contend that the guards fired into the ceil-
ing and that the buckshot then ricocheted and hit them. But
to show that the guards intentionally shot them—as opposed
to recklessly disregarding the risk that the buckshot would
ricochet—the plaintiffs needed to introduce some evidence
that guards were intentionally, albeit indirectly, aiming to hit



3 According to the majority, my view is that “a court would be required to

conclusively credit a witness’s sworn statement that it was not raining
even in the face of the proverbial wet umbrella.” Maj. Op. at 7. That is
certainly not my view. The overwhelming inference raised by the circum-
stantial evidence of a wet umbrella is that it was raining outside; the infer-
ence is nowhere close to as powerful here. I’m also unsure why the major-
ity invokes “the force with which the buckshot arrived … and the number
of persons injured” as additional circumstantial evidence that the guards
aimed at the prisoners rather than at the ceiling. Maj. Op. at 5. As an initial
matter, the record contains no evidence about the force with which the
bullets hit the inmates, and the incident report, which determined that the
inmates’ injuries were “minor,” is inconsistent with the proposition that
the shots hit the inmates with great force. Moreover, the force of the hit
and the number of injuries support the “direct hit” theory only if those
two factors would be different with a hit from ricochet. Maybe they would
be. To carry their burden on summary judgment, though, the plaintiffs
would have had to introduce evidence to support that.
44                                                          No. 17-2295

them.4 For example, the plaintiffs could have introduced evi-
dence that the ceiling was composed of a material that made
ricochet very likely; in that event, firing into the ceiling might
be the functional equivalent of firing into the crowd. Rather
than introducing such evidence, however, plaintiffs made the
opposite argument: they insisted (as part of their effort to
show that the guards shot directly into the crowd) that it is
“‘unlikely that both defendants fired into [the] ceiling’ be-
cause the ceiling is acoustic tile and would not have caused a
ricochet.” Memorandum Opinion and Order at 5 n.3.
    The most that the plaintiffs say to support a “deliberate
ricochet” theory is that “a reasonable jury could [] determine
that Defendants’ decision to shoot in the first place and their
failure to hit the shot box intended to catch buckshot was be-
cause they did not want the buckshot caught.” The guards’
failure to hit the shot box is certainly evidence in the plaintiffs’
favor. But without any evidence of how likely ricochet was
from the ceiling, the comparatively lower risk of ricochet from
the shot box would not permit a reasonable jury to find that


4 The majority says that under my reading of Whitley, “a guard could
blindly unload a shotgun above a crowd of bystanders with impunity be-
cause making contact is not a certainty.” Maj. Op. at 24. But those facts—
a guard emptying his shotgun above a crowd of bystanders—raise an in-
ference that the guard intended for a bullet to hit someone. The facts in
this case—two guards each firing a warning shot into the ceiling—do not,
standing alone, raise the same inference. It is also worth observing that a
guard who shoots a gun outside the context of prison discipline is subject
to the “criminal recklessness” standard of Farmer v. Brennan, and there is
no doubt that unloading a shotgun above a crowd of bystanders would be
criminally reckless. 511 U.S. 825, 839-40 (1994).
No. 17-2295                                                  45

the officers pinballed buckshot off the ceiling with the intent
to hit a prisoner.
    If the plaintiffs could win by showing that the guards reck-
lessly put them at risk by firing warning shots into the ceiling
after the fight on the floor was under control, I would agree
that they could survive summary judgment. But because that
is not the standard, I respectfully dissent.
