                              In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 13-3416
EARL SIDNEY DAVIS,
                                                 Plaintiff-Appellee,

                                 v.



SETH C. WESSEL and GEORGE LAY,
                                            Defendants-Appellants.
                     ____________________

        Appeal from the United States District Court for the
           Central District of Illinois, Springfield Division.
      No. 3:09-cv-03336-SEM-BGC — Sue E. Myerscough, Judge.
                     ____________________

      ARGUED OCTOBER 3, 2014 — DECIDED JULY 7, 2015
                ____________________

   Before POSNER, ROVNER, and TINDER, Circuit Judges.
   TINDER, Circuit Judge. Earl Sidney Davis, a civil detainee,
sued security guards Seth Wessel and George Lay pursuant
to the substantive component of the Fourteenth Amend-
ment’s Due Process Clause and 42 U.S.C. § 1983, alleging
Wessel and Lay refused to remove Davis’s hand restraints
2                                                  No. 13-3416

while he used the restroom and then laughed as he strug-
gled to unzip his pants and urinate. A jury found in favor of
Davis and awarded him $1,000 in compensatory damages.
Wessel and Lay appeal, contending that the district court
erred in instructing the jury and denying their motion for
judgment as a matter of law. We vacate the judgment and
remand for a new trial.
    I.    BACKGROUND
    Davis is a civil detainee pursuant to the Sexually Violent
Persons Commitment Act (“SVP Act”), 725 ILCS 207/1–
207/99, in the custody of the Illinois Department of Human
Services, and housed at its high-security Rushville Treat-
ment and Detention Facility (“Facility”). The SVP Act per-
mits a person who has been convicted of a sexually violent
offense to be civilly detained beyond his criminal sentence,
possibly indefinitely but subject to periodic review, if he is
found to be “dangerous” because he “suffers from a mental
disorder that makes it substantially probable that [he] will
engage in acts of sexual violence” in the future. 725 ILCS
207/5(f), 9, 40, 55. Wessel and Lay worked at the Facility as
Security Therapy Aids, i.e., security guards.
    Davis, then proceeding pro se, filed a complaint in dis-
trict court under § 1983, alleging (as relevant here) that Wes-
sel and Lay refused to remove his “black box” hand re-
straints while he used a restroom in a Madison County, Illi-
nois courthouse, and watched and laughed as he struggled
to unzip his pants, urinate, and zip his pants, which caused
him psychological pain and physical pain in his wrists. After
the district court denied Wessel and Lay’s motion for sum-
mary judgment, the case proceeded to jury trial, with two
law students representing Davis. (The law students, Daniel
No. 13-3416                                                 3

Campbell and Adam Hearn of the University of Illinois Col-
lege of Law Federal Civil Rights Clinic, were provisionally
admitted to practice as attorneys for the purposes of this
case pursuant to Central District of Illinois Local Rule
83.5(A).)
    The jury heard evidence that, on May 22, 2008, Davis,
then 65-years-old and measuring 5’6’’ in height, appeared in
the courtroom of Madison County Judge James Hackett. Da-
vis was secured with leg shackles, a wrist chain, handcuffs,
and a black-box restraint. A black-box restraint fits over the
chain between handcuffs and a portion of the cuffs them-
selves, largely immobilizing the hands in front of the body
approximately two inches apart. A photo of handcuffs fitted
with a black-box restraint is below.




Wessel and Lay were the security guards assigned to
transport and guard Davis during his courthouse excursion.
(A third guard who assisted in transporting Davis is omitted
from this discussion because he is not relevant to the ap-
peal.)
   Davis testified as follows. During his hearing, Davis
asked Judge Hackett if he could use the restroom without
4                                                  No. 13-3416

wearing the handcuffs and black-box restraint. Judge Hack-
ett in turn asked Wessel and Lay “if they had a problem with
that and they said no.” After the hearing, Wessel and Lay
escorted Davis to a restroom in a non-public corridor behind
the courtroom, which Davis had used more than 15 times
before. The restroom, which was 8’x5’, had a sink with a
metal toilet attached to it, a trash can, a small ceiling vent,
and no windows.
    Once they arrived at the restroom, Wessel and Lay did
not remove Davis’s hand restraints. Davis asked “them if
they were going to take [the hand restraints] off and they
said no.” Davis told them that he had a written order from
Judge Hackett in his legal folder in their possession stating
that “all restraints” were to be removed when he used the
restroom at the courthouse. Davis told them that he only
wanted the hand restraints removed “so [he] can use the
bathroom.” Wessel and Lay “refused to look at [his] legal
material” and “said they didn’t care.” With the restraints in
place, Davis struggled to unzip his pants, urinate, and zip
his pants while Wessel and Lay held the door open,
watched, and laughed. Davis got urine “all over” his pants
and fingers, and he could not reach the sink to wash his
hands. Using the restroom while wearing the handcuffs
caused pain in Davis’s wrists, and he felt “[h]umiliated” and
“degraded.” Davis had to defecate as well, but because he
was in restraints, he had “no choice” but “to hold it” until he
returned to the Facility over three hours later, which hurt his
stomach.
   Davis identified a February 13, 2001 order from Judge
Hackett as the written order he referenced to Wessel and
Lay. The order states in its entirety: “Shackles shall be re-
No. 13-3416                                                  5

moved [at] courthouse in order to allow [Davis] to utilize
restroom (handcuffs, too).” The attorney representing Davis
in the proceedings before Judge Hackett testified that he un-
derstood this to be a standing order. The parties stipulated
to the following facts based upon the district judge’s conver-
sation with Judge Hackett during a trial recess: Judge Hack-
ett had no specific recollection of any occurrences on May
22, 2008 (over four years earlier); he sometimes allowed de-
tainees to use the restroom behind his second-floor court-
room; he recalled that Davis had a problem with his wrists,
and he usually ordered a detainee’s restraints removed
while they were in his courtroom; he usually did not enter
standing orders, but had done so before; and he usually left
security matters to security personnel.
    Wessel and Lay both testified that they did not specifical-
ly recall the events of May 22, 2008, although they stipulated
that they did not remove Davis’s hand restraints while he
used a restroom at the courthouse. Both testified that they
“always” took detainees to use the restroom on the first floor
of the courthouse, rather than the one behind the second-
floor courtroom. Both recognized that Facility directives
permitted them to remove restraints “[w]ithin a secure facili-
ty in order to utilize the restroom” and “[p]er orders of the
presiding judge while the [detainee] is in the courtroom.”
Both testified that the courthouse restrooms were not within
a “secure facility.”
    Lay testified that when he is outside the Facility he
“leave[s] all [detainees] in restraints, no matter who they
are.” Wessel similarly testified that if a detainee “requested
that [Wessel] remove [the] hand restraints so that [the de-
tainee] could use the restroom,” his “answer would be no”
6                                                  No. 13-3416

because of “security protocol.” Wessel testified that he had
observed detainees urinate while wearing black-box re-
straints, and he believed detainees had defecated while
wearing them as well. Wessel said that his practice is not to
hold the door wide open while a detainee uses the restroom,
but instead to leave the door “cracked” open so he can have
an “eye on their presence in the room and their movement.”
Wessel denied ever laughing at a detainee using the re-
stroom or ever witnessing any other guard laughing at a de-
tainee using the restroom.
    The district judge instructed the jury that “[t]o succeed
on his due process claims against Defendants Lay or Wes-
sel,” Davis had the burden of proving that the defendant
under consideration “subjected [Davis] to bodily restraint
which was not rationally related to legitimate security pur-
poses, or was excessive in relation to those purposes, or was
done in a manner which amounted to harassment for the
purpose of humiliating and inflicting psychological pain on
[Davis] for no legitimate reason.” Wessel and Lay had ob-
jected to this instruction and instead proposed a liability in-
struction stating that Davis had to prove that they “mali-
ciously and sadistically” refused to remove the restraints.
The judge also declined to give an instruction proposed by
Wessel and Lay that stated: “You have heard evidence about
whether the conduct of one or more defendants may have
violated a court order. You may consider this evidence in
your deliberations. But remember that the issue is whether
the defendants used excessive force against the plaintiff, not
whether a court order might have been violated.”
    The jury returned a verdict in favor of Davis as to his
“claim of unconstitutional restraints,” awarding Davis
No. 13-3416                                                      7

$1,000 in compensatory damages and no punitive damages.
Wessel and Lay appealed after the district court denied their
motion for judgment as a matter of law or new trial.
   II.      DISCUSSION
    Wessel and Lay press three arguments on appeal. First,
they contend that the district court committed prejudicial
error by failing to instruct the jury that the standard for lia-
bility requires a showing of intent. Next, they contend that
the district court committed prejudicial error by declining to
give their proposed “court order” instruction, quoted above.
Finally, they contend that the district court erred in denying
their motion for judgment as a matter of law.
         A. Elements Instruction
    “We review jury instructions as a whole, ‘analyzing them
deferentially to determine whether they accurately state the
law and do not confuse the jury.’” Johnson v. Gen. Bd. of Pen-
sion & Health Benefits of United Methodist Church, 733 F.3d 722,
732–33 (7th Cir. 2013) (quoting Rapold v. Baxter Int’l Inc., 718
F.3d 602, 609 (7th Cir. 2013)), cert. denied, 135 S. Ct. 92 (2014).
“[I]n order to obtain a new trial based on an incorrect jury
instruction, [an appellant] must establish both that the in-
structions failed to properly state the law and that he was
prejudiced by the error because the jury was likely to be mis-
led or confused.” Rapold, 718 F.3d at 609.
    Wessel and Lay argue that they are entitled to a new trial
because the district court erroneously instructed the jury on
the elements necessary for Davis to prevail, and this error
caused them prejudice. They contend that the court’s in-
structions allowed the jury to hold them liable without any
finding of intent. Before the district court, they primarily ad-
8                                                   No. 13-3416

vocated for the intent standard governing Eighth Amend-
ment claims, and they proposed jury instructions stating that
liability depended on the jury finding that Wessel and Lay
acted “maliciously and sadistically” to harm Davis. Cf. Hud-
son v. McMillian, 503 U.S. 1, 6–7 (1992) (“[W]henever prison
officials stand accused of using excessive physical force in
violation of the [Eighth Amendment’s] Cruel and Unusual
Punishments Clause, the core judicial inquiry is … whether
force was applied in a good-faith effort to maintain or re-
store discipline, or maliciously and sadistically to cause
harm.”). Davis objected to their proposed instructions on the
basis that such intent was not required to prove his claims,
and the district court agreed with Davis.
    Before turning to the district court’s elements instruction,
we must identify the nature of Davis’s claims against Wessel
and Lay, and the legal standard governing those claims.
While the parties agree that Davis, as a civil detainee, pur-
sued claims pursuant to the Due Process Clause of the Four-
teenth Amendment, they dispute the precise nature of the
claims. Davis characterizes his claims against Wessel and
Lay as being for “excessive use of restraints,” as recognized
in Youngberg v. Romeo, 457 U.S. 307, 321 (1982) (discussing
“the rights of the involuntarily committed to … freedom
from unreasonable restraints”), and May v. Sheahan, 226 F.3d
876, 884 (7th Cir. 2000) (referring to a plaintiff’s “freedom
from bodily restraint claim,” and stating that “[t]he Due Pro-
cess Clause of the Fourteenth Amendment prohibits the use
of bodily restraints in a manner that serves to punish a pre-
trial detainee”). Wessel and Lay, meanwhile, argue stead-
fastly that Davis’s claims against them allege excessive force,
and not unlawful conditions of confinement (or its subspe-
cies, excessive use of restraints). They assert that, “[a]s mas-
No. 13-3416                                                  9

ter of his complaint, Davis may have been able to frame his
claims against Wessel and Lay as either involving his condi-
tions of confinement or excessive force (or both),” but Davis
chose excessive force, and he should now be bound by that
choice.
    As relevant to the claims against Wessel and Lay, Davis’s
pro se complaint simply recounted factual allegations and
cited only § 1983 as legal authority. In opposition to defend-
ants’ motions for summary judgment, Davis, still proceeding
pro se, referred to his claims as challenging “unconstitution-
al conditions of confinement,” and argued that “the proper
standards for evaluating [his] claims are articulated in
Youngberg v. Romeo, 457 U.S. 307, 324 (1982)….” However,
elsewhere in the summary-judgment opposition, Davis re-
fers to claims for “excessive force,” and it is unclear whether
he is referring to his claims against all defendants (including
Wessel and Lay) or just the defendants who are not part of
this appeal (the claims against the other defendants unques-
tionably allege excessive force). The district court’s orders
denying Wessel and Lay’s two motions for summary judg-
ment refer to Davis’s claim against Wessel and Lay as the
“restroom claim” which challenges “conditions of confine-
ment,” and the district court relied upon May in denying the
motions. In the final pretrial order, jointly submitted by all
defendants and Davis (now represented by law students),
one of the contested issues of law is listed as “[w]hether De-
fendants Wessel and Lay used excessive force when they re-
quired Plaintiff to remain in ‘black box’ restraints while us-
ing the restroom on May 22, 2008.”
   However, any confusion occasioned by the reference to
“excessive force” in the final pretrial order should have been
10                                                  No. 13-3416

dispelled by the district court’s jury instructions, including
the preliminary instructions. In those instructions, the judge
consistently referred to Davis’s claims against Wessel and
Lay as Davis’s “due process claims against Defendants Lay
and Wessel.” In the final instructions, the judge first set forth
the elements of Davis’s “claim of excessive force” against the
defendants who are not part of this appeal, and then a sepa-
rate instruction stated the elements of Davis’s “due process
claims against Defendants Lay and Wessel.” The verdict
form consisted of three pages—two pages addressing Da-
vis’s claims for excessive force against the other defendants,
and a separate page addressing Davis’s “claim of unconsti-
tutional restraints against Defendants George Lay and Seth
Wessel.” We think it should have been adequately clear to
Wessel and Lay at trial that they were defending against due
process claims of “freedom from unreasonable restraints,” as
recognized by Youngberg, 457 U.S. at 321.
    Now we turn to the appropriate legal standard govern-
ing Davis’s claims against Wessel and Lay. The standard
finds its origin in Bell v. Wolfish, 441 U.S. 520 (1979), wherein
the Supreme Court said that the proper question to guide
determination of the legality of conditions of confinement in
pretrial detention pursuant to the Due Process Clause is
“whether those conditions amount to punishment of the de-
tainee.” Id. at 535. (Although Bell involved a claim by a pre-
trial detainee rather than a civilly committed plaintiff such
as Davis, the difference is immaterial for our purposes. See
Youngberg, 457 U.S. at 321 (applying Bell to a claim by a civil-
ly committed plaintiff); Allison v. Snyder, 332 F.3d 1076, 1079
(7th Cir. 2003) (same; plaintiffs detained pursuant to the SVP
Act).) The Bell Court “explained that such ‘punishment’ can
consist of actions taken with an ‘expressed intent to pun-
No. 13-3416                                                   11

ish.’” Kingsley v. Hendrickson, --- S. Ct. ----, 2015 WL 2473447,
at *6 (U.S. June 22, 2015) (quoting Bell, 441 U.S. at 538).
“[T]he Bell Court went on to explain that, in the absence of
an expressed intent to punish, a pretrial detainee can never-
theless prevail by showing that the actions are not ‘rationally
related to a legitimate nonpunitive governmental purpose’
or that the actions ‘appear excessive in relation to that pur-
pose.’” Id. (quoting Bell, 441 U.S. at 561). The “freedom from
unreasonable restraints” cases, Youngberg and May, rely up-
on this standard. See Youngberg, 457 U.S. at 320; May, 226
F.3d at 884 (“The Due Process Clause of the Fourteenth
Amendment prohibits the use of bodily restraints in a man-
ner that serves to punish a pre-trial detainee. The use of bod-
ily restraints constitutes punishment in the constitutional
sense if their use is not rationally related to a legitimate non-
punitive government purpose or they appear excessive in
relation to the purpose they allegedly serve.”) (citing, inter
alia, Youngberg, 457 U.S. at 316; Bell, 441 U.S. at 535–37).
    We next turn to the elements instruction given by the dis-
trict court, which states: “Plaintiff has the burden of proving
that the Defendant under consideration subjected Plaintiff to
bodily restraint which was [1] not rationally related to legit-
imate security purposes, or [2] was excessive in relation to
those purposes, or [3] was done in a manner which amount-
ed to harassment for the purpose of humiliating and inflict-
ing psychological pain on Plaintiff for no legitimate reason.”
(emphasis and numbers added). By using the disjunctive
“or,” the instruction permitted the jury to hold Wessel and
Lay liable on any one of three grounds. The first two
grounds closely track the language in Bell applicable when
liability attached in the “absence of an expressed intent to
punish.” Kingsley, 2015 WL 2473447, at *6. The third ground
12                                                  No. 13-3416

allows the jury to find liability if they were to find that Wes-
sel or Lay had an “expressed intent to punish.” Bell, 441 U.S.
at 538. It could be argued that the third ground requires
something more than simply an “intent to punish,” but we
need not concern ourselves with this point since any error in
this regard would have favored Wessel and Lay—and, not
surprisingly, Wessel and Lay mount no challenge to the
third ground in their appellate briefing. Therefore, we will
focus on the first two grounds of the elements instruction,
which Wessel and Lay do challenge.
    The first two grounds, as we have said, represent ave-
nues by which a plaintiff such as Davis may hold a defend-
ant liable when the defendant has no expressed intent to
punish. But this does not mean that Davis had no burden to
prove any intent whatsoever. A plaintiff such as Davis must
prove that the defendant “possess[ed] a purposeful, a know-
ing, or possibly a reckless state of mind” with respect to the
defendant’s actions (or inaction) toward the plaintiff. Kings-
ley, 2015 WL 2473447, at *5. (There was great debate between
the parties as to whether Kingsley—which originated from
our circuit—controls in this case. Although Kingsley was an
excessive force due process case, unlike Davis’s case, its dis-
cussion is instructive to our due process analysis.) Stated dif-
ferently, “liability for negligently inflicted harm is categori-
cally beneath the threshold of constitutional due process.”
County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see
Daniels v. Williams, 474 U.S. 327, 331 (1986) (“Historically,
this guarantee of due process has been applied to deliberate
decisions of government officials to deprive a person of life,
liberty, or property”). Consequently, the Supreme Court has
“rejected claims that the Due Process Clause should be in-
terpreted to impose federal duties that are analogous to
No. 13-3416                                                     13

those traditionally imposed by state tort law.” Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 128 (1992). Instead, the
Court has repeatedly “spoken of the cognizable level of ex-
ecutive abuse of power as that which shocks the conscience.”
Lewis, 523 U.S. at 846 (collecting cases). Similarly, we have
stated that, “[i]f the act involves the gratuitous infliction of
pain or suffering it is deemed to be punishment, and as long
as the act was intended it is a violation of the prisoner’s consti-
tutional right even if the act was not intended as punish-
ment.” Hart v. Sheahan, 396 F.3d 887, 892 (7th Cir. 2005) (em-
phasis added); see Slade v. Bd. of Sch. Dirs. of City of Milwau-
kee, 702 F.3d 1027, 1033 (7th Cir. 2012) (“Shouldn’t it be
enough to say that it violates the due process clause for a
government employee acting within the scope of his em-
ployment to commit a reckless act that by gratuitously en-
dangering a person results in an injury to that person?”). For
instance, “if an officer’s Taser goes off by accident or if an
officer unintentionally trips and falls on a detainee, causing
him harm, the pretrial detainee cannot prevail on an exces-
sive force claim.” Kingsley, 2015 WL 2473447, at *5.
    In Davis’s case, if the jury believed that the guards simp-
ly did not consider the issue of whether to remove Davis’s
hand restraints before he used the restroom, then the guards
cannot be liable under the Due Process Clause. For example,
the jury may have disbelieved Davis’s uncorroborated testi-
mony that he requested that the restraints be removed while
he was in the courtroom and just prior to using the restroom.
Or the jury may have believed the guards’ testimony indicat-
ing that they would never laugh at a detainee using the re-
stroom and they thought a detainee such as Davis could suc-
cessfully navigate the restroom process with the restraints
attached. In either case, the jury may have nonetheless
14                                                  No. 13-3416

awarded compensatory damages based upon the district
court’s instruction because they thought making a relatively
old, frail, and diminutive detainee such as Davis use the re-
stroom in hand restraints “was excessive in relation to [legit-
imate security] purposes.” Indeed, this scenario would ex-
plain the jury’s decision to award a relatively small amount
of compensatory damages while declining to award any pu-
nitive damages; the latter decision indicates that the jury did
not find that either guard’s conduct was, in the words of the
punitive damages instruction, “malicious or in reckless dis-
regard of Plaintiff’s rights.” In short, the jury may well have
found Wessel and Lay liable for being negligent or making
an accidental mistake, and that is constitutionally insuffi-
cient. See, e.g., Lewis, 523 U.S. at 849.
    We find that the district court’s elements instruction
failed to properly state the law. No other instruction clarified
the issue or otherwise rectified the error. And as we have
discussed, Wessel and Lay were prejudiced because the jury
was likely to have been misled or confused. A new trial is
required. See Cotts v. Osafo, 692 F.3d 564, 570 (7th Cir. 2012)
(holding that erroneous and confusing instruction which
went to the elements of plaintiff’s claim prejudiced defend-
ant and necessitated a new trial).
    In an effort to salvage the verdict, Davis argues that Wes-
sel and Lay have failed to preserve any argument regarding
any intent standard other than the Eighth Amendment’s
“malicious and sadistic” standard. Federal Rule of Civil Pro-
cedure 51 provides that any party wishing to contest a jury
instruction must distinctly state “the matter objected to and
the grounds for the objection.” Fed. R. Civ. P. 51(c)(1). “The
objection must be specific enough that the nature of the error
No. 13-3416                                                   15

is brought into focus. … There are no formal requirements,
but pragmatically speaking the district court must be made
aware of the error prior to instructing the jury, so that the
judge can fix the problem before the case goes to the jury.”
Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 729–30 (7th Cir.
2002) (citation omitted). “Consistency is required as well; to
preserve the objection, the party must state the same
grounds when objecting to the jury instruction as it does in
its motion for a new trial or on appeal.” Id. at 730. Through-
out the case (including on appeal), Wessel and Lay argued
that the Eighth Amendment’s “malicious and sadistic” intent
standard should apply. However, they also argued to the
district court during the instructions conference, “in any
event, both the Seventh Circuit and U.S. Supreme Court
ha[ve] consistently required mens rea of some sort.” In their
motion for new trial, they said the district court’s instruc-
tions “allowed the jury to return a verdict for Plaintiff with-
out a finding of mens rea.” In both instances, they called the
district court’s attention to the Supreme Court’s decision in
Lewis. It is clear that Wessel and Lay consistently advocated
for some level of intent to be shown, which is the same ar-
gument raised on appeal. We find that Wessel and Lay ade-
quately preserved their objections regarding the lack of any
intent requirement in the district court’s jury instructions.
       B. Rejected Instruction
    Wessel and Lay contend that the district court abused its
discretion by refusing to give their proposed instruction
which stated: “You have heard evidence about whether the
conduct of one or more defendants may have violated a
court order. You may consider this evidence in your deliber-
ations. But remember that the issue is whether the defend-
16                                                No. 13-3416

ants used excessive force against the plaintiff, not whether a
court order might have been violated.” Wessel and Lay con-
tend that they were prejudiced by the district court’s refusal
because there was trial testimony that Wessel and Lay vio-
lated a standing order by the state court judge and an oral
statement by the same judge that the restraints were to be
removed when Davis used the restroom in the courthouse.
    The district court said that it rejected the proposed in-
struction because the use of the term “excessive force” was
confusing in the context of the bodily restraint claim raised
by Davis, and the proposed instruction was unnecessary be-
cause the court’s instructions set forth the legal standard.
The district court stated that “[a]dmission of the court order
was relevant to whether the security reasons given by De-
fendants for not removing the restraints were legitimate or
pretextual. The jury was not confused that the court order
automatically meant that the restraints were excessive.”
    Because we have determined that we must remand for a
new trial based upon the elements instruction, we will not
dwell on Wessel and Lay’s contention regarding the rejected
“court order” instruction. We note, however, that the pro-
posed instruction was flawed; as the district court observed,
it confusingly referred to Davis’s claims against them as be-
ing for “excessive force.” However, a modified version of the
instruction would have placed the evidence of Judge Hack-
ett’s purported standing order in proper context. The district
judge gave a similar instruction that helpfully placed the ev-
idence of the Facility directives in the proper context. Ulti-
mately, whether such an instruction would be appropriate in
a retrial will depend upon the evidence and argument pre-
sented at that retrial.
No. 13-3416                                                     17




       C. Motion for Judgment as a Matter of Law
     Finally, Wessel and Law argue that a retrial should not
be necessary, because the district court erred in denying
their motion for judgment as a matter of law. Our review of
this issue is de novo. Venson v. Altamirano, 749 F.3d 641, 646
(7th Cir. 2014). We “examine the evidence presented, com-
bined with any reasonably drawn inferences, and determine
whether that evidence sufficiently supports the verdict when
viewed in the light most favorable to the non-moving par-
ty.” E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir.
2013). “[W]e do not make credibility determinations or
weigh the evidence. Instead, we reverse the verdict only if
no rational jury could have found for the prevailing party.”
Id. (quotation and citation omitted).
    Wessel and Lay contend that they are entitled to judg-
ment as a matter of law on the basis of qualified immunity.
The doctrine of qualified immunity provides that “[p]ublic
officials are immune from suit under 42 U.S.C. § 1983 unless
they have violated a statutory or constitutional right that
was clearly established at the time of the challenged con-
duct.” City & Cnty. of San Francisco v. Sheehan, --- U.S. ----, 135
S. Ct. 1765, 1774 (2015) (quotation omitted). “An officer can-
not be said to have violated a clearly established right unless
the right’s contours were sufficiently definite that any rea-
sonable official in his shoes would have understood that he
was violating it, meaning that existing precedent placed the
statutory or constitutional question beyond debate.” Id.
(quotations omitted). “This exacting standard gives govern-
ment officials breathing room to make reasonable but mis-
18                                                No. 13-3416

taken judgments by protecting all but the plainly incompe-
tent or those who knowingly violate the law.” Id. (quotation
omitted).
    Wessel and Lay contend that the intent requirement for a
substantive due process claim was unsettled at the time of
the restroom incident. They argue that a reasonable official
could have believed at the time that the Eighth Amend-
ment’s “malicious and sadistic” excessive-force standard
applied to a due process claim such as that asserted by Da-
vis. Cf. Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)
(“[W]henever prison officials stand accused of using exces-
sive physical force in violation of the [Eight Amendment’s]
Cruel and Unusual Punishments Clause, the core judicial
inquiry is … whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and sadisti-
cally to cause harm.”). They assert that “[t]here was insuffi-
cient evidence for a reasonable jury to infer that Wessel and
Lay acted with the requisite subjective intent.”
    In making this determination, we must view the evidence
in the light most favorable to Davis. See Fox v. Hayes, 600
F.3d 819, 832 (7th Cir. 2010). Viewing the evidence in that
light, a reasonable jury could have found that Wessel and
Lay knew that Davis could not effectively use the restroom
while wearing the hand restraints; they refused to remove
the hand restraints despite knowing that Davis was old,
frail, and not a security risk while in the windowless re-
stroom; and they laughed at Davis as he urinated on himself
and then refused to allow him to clean himself. (Wessel and
Lay challenged all of these points, but, as we have said, we
are required to view the evidence in the light most favorable
to Davis.) Taken together, these findings allowed the jury to
No. 13-3416                                                   19

conclude that Wessel and Lay refused to remove Davis’s
hand restraints for the purpose of humiliating and causing
psychological pain to Davis, and not for any legitimate secu-
rity reason.
    At the time of the incident at issue, it was clearly estab-
lished that the Due Process Clause of the Fourteenth
Amendment prohibited the unreasonable use of bodily re-
straints in a manner that serves to punish a civilly commit-
ted individual. See Youngberg, 457 U.S. at 321–22. Likewise, it
was “clear that Youngberg applies to civil detainees who
have committed criminal acts.” West v. Schwebke, 333 F.3d
745, 749 (7th Cir. 2003). In May, we said that “[t]he use of
bodily restraints constitutes punishment in the constitutional
sense if their use is not rationally related to a legitimate non-
punitive government purpose or they appear excessive in
relation to the purpose they allegedly serve.” 226 F.3d at 884
(citing Bell, 441 U.S. at 561); see id. (stating that, while
around-the-clock “shackling [of] all hospital detainees re-
duces the risk of a breach of security and thus furthers a le-
gitimate non-punitive government purpose,” “[s]uch a poli-
cy is plainly excessive in the absence of any indication that
the detainee poses some sort of security risk”) (citing Bell,
441 U.S. at 539 n.20). In May, we denied qualified immunity,
stating that we would not “characterize[e] the relevant con-
stitutional right in a way that essentially demands precedent
involving an almost identical factual scenario,” and “[i]t is
enough that precedent establishes that pretrial detainees
may not be shackled without a good penological or medical
reason.” Id. The evidence viewed in the light most favorable
to Davis demonstrates that Wessel and Lay violated the
clearly established law governing substantive due process
claims for excessive use of restraints.
20                                                  No. 13-3416

    Even under the Eighth Amendment standard advocated
by Wessel and Lay, the evidence viewed in the light most
favorable to Davis demonstrates that Wessel and Lay violat-
ed clearly established law by refusing to remove Davis’s
hand restraints for the purpose of humiliating and ridiculing
Davis. See Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003)
(holding strip search “conducted in a harassing manner in-
tended to humiliate and inflict psychological pain” states an
Eighth Amendment claim); see also Hudson v. Palmer, 468 U.S.
517, 530 (1984) (indicating that the Eighth Amendment pro-
tects against “calculated harassment unrelated to prison
needs”).
     Wessel and Lay take refuge behind the Facility directive
that they maintain permitted them to remove restraints only
“[w]ithin a secure facility in order to utilize the restroom.”
But there was conflicting testimony as to whether the corri-
dor behind the courtroom was “secure.” Moreover, the same
directive allowed Wessel and Lay to call their supervisor for
permission to remove the restraints, and a reasonable jury
could find that they chose not to do so for the purpose of
humiliating Davis. It must be remembered that Davis would
have had no means of escape from the windowless restroom
other than by force through Wessel and Lay (while Davis
still wore leg shackles), and Wessel and Lay were each con-
siderably larger, younger, and healthier than Davis. And fi-
nally, even if the directive meant what Wessel and Lay con-
tend, “[a] jail cannot shield a cruel and unusual punishment
from legal challenge simply by imposing it on everyone
equally. That would serve only to magnify the constitutional
problem.” King v. McCarty, 781 F.3d 889, 898–99 (7th Cir.
2015).
No. 13-3416                                             21

    The district court properly denied Wessel and Lay’s mo-
tion for judgment as a matter of law.
   III.   CONCLUSION
    The judgment is VACATED and the case is REMANDED for
further proceedings consistent with this opinion.
