                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-1487
MARCELLA RICHMAN, both individually and as special
  administrator of the estate of Jack B. Richman,
  deceased,
                                         Plaintiff-Appellee,
                           v.


MICHAEL SHEAHAN, et al.,
                                             Defendants-Appellants.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 98 C 7350—Joan B. Gottschall, Judge.
                          ____________
    ARGUED NOVEMBER 2, 2007—DECIDED JANUARY 7, 2008
                          ____________


  Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
  POSNER, Circuit Judge. Eighteen deputy sheriffs of Cook
County, sued under 42 U.S.C. § 1983 for violating the
federal constitutional rights of the plaintiff, and of her
son who died resisting arrest, appeal from the denial
of their motion for summary judgment on grounds of
official immunity. The district judge ruled that they had
immunity from the Fourth Amendment claim on the
2                                               No. 07-1487

son’s behalf, but not from the Eighth Amendment claim
(which is solely on behalf of the son) or from the Fourth
Amendment claim on the plaintiff’s own behalf.
  The case, before us for the second time, is very old. We
ruled the first time that the defendants were not entitled
to the absolute immunity from tort suits that judges
enjoy, merely because they committed the alleged torts
in the course of carrying out the judge’s order to remove
the plaintiff’s son from the courtroom. 270 F.3d 430 (7th
Cir. 2001). The judge did not order them to commit a tort,
and, even if he had done so, to clothe them with judicial
immunity would be as absurd as ruling that the judge
would have been immune from liability had he brained
the plaintiff’s son with his gavel. But the defendants
may be entitled to qualified immunity; let us see.
  The event giving rise to the suit occurred in Skokie in
1997 when the plaintiff, an elderly woman who walks
with a cane, and her son, Jack Richman, a grossly obese
34 year old—6 feet 2 inches and weighing 489 pounds—
who also walked with a cane, were waiting in the court-
room of an Illinois state court for her case (she was fight-
ing a traffic ticket) to be called. At 4 p.m., the end of the
court day, the judge told the Richmans that he was con-
tinuing the case to the next day. Both Richmans were
irate, and protested vigorously. The judge listened to
them for a while and then told them to be quiet, on pain
of being held in contempt of court. When Jack Richman
continued protesting, the judge pushed the panic button
on his bench to summon deputy sheriffs, who provide
security in the court; there were none in the courtroom at
the time. Two of the deputies responded. The judge told
Richman to leave the court with them. He refused, and the
judge declared him in contempt, ordered the deputies to
No. 07-1487                                                 3

arrest Richman, and, with Richman continuing to refuse
to leave peaceably, jacked up his jail sentence for con-
tempt, in stages, until it reached 120 days.
  But when the two deputies tried to remove Richman
forcibly, he clung to the podium and they could not
dislodge him. Additional deputies—the other defendants
in this case—now entered the courtroom and tried to
seize Richman. Mrs. Richman began screaming and
waving her cane. Three female deputies dragged her out
of the courtroom and took her cane away. She tried to
reenter but was blocked by another deputy. The three
female deputies thrust her into a wheelchair and wheeled
her down the hall to another courtroom, where they
detained her briefly.
  Back in the courtroom the struggle between the dep-
uties and Jack Richman continued for a few minutes
until the deputies managed to drag him from the podium
to the floor, where he lay prone, his face down, but con-
tinued to struggle with what by now was a swarm of
deputies. They tried to handcuff him and eventually
succeeded. By then, several of them were on Richman’s
back. (Meanwhile the judge had left the courtroom.)
Richman screamed that he couldn’t breathe. Then he fell
quiet and the deputies noticed that he had urinated and
defecated and that his skin had turned blue. He was dead.
  The autopsy report stated that he had died as a result
of coronary artery disease to which “restraint hypoxia,”
or, as more commonly termed, “positional asphyxia,” due
to his morbid obesity had contributed. Hypoxia means a
shortage of oxygen in the blood, a condition that people
typically experience at high altitudes, where the air is thin.
But it can also be induced by compressing the lungs, which
the weight of several persons on one’s back can do. So
4                                                   No. 07-1487

police are warned not to sit on the back of a person they are
trying to restrain, especially if he is obese. National Law
Enforcement Technology Center, “Positional Asphyxia—
Sudden Death” (U.S. Dept. of Justice, Office of Justice
Programs, June 1995); Chicago Police Department,
Training Bulletin: Positional Asphyxia (Feb. 1995),
www.chicagoreporter.com/index.php/c/Web_Extras/ d/
Chicago_Police_Training_Bulletin_on_Positional_Asphyxia
(visited Dec. 5, 2007); see LeBlanc v. City of Los Angeles, 2006
WL 4752614, *13 (C.D. Cal. 2006); Reindl v. City of
Leavenworth, 443 F. Supp. 2d 1222, 1232-33 (D. Kan. 2006);
Ashworth v. Round Lake Beach Police Department, 2005 WL
1785314, at *4-*6 (N.D. Ill. 2005) (and cases cited in id. at *6).
For the obese are especially susceptible to hypoxia, and
shortage of oxygen can and apparently in this case did
precipitate a fatal heart attack. American Medical Associa-
tion, Complete Medical Encyclopedia 913 (Jerrold B. Leikin &
Martin S. Lipsky eds. 2003); Ronald L. O’Halloran & Janice
G. Frank, “Asphyxial Death During Prone Restraint
Revisited,” 21 Am. J. of Forensic Medicine & Pathology 39, 49
(2000); Derrick Ounder, “Acute Excited States and Sudden
Death: Death After Restraint Can Be Avoided,” 316 British
Medical J. 1171 (1998).
  The theory behind the Eighth Amendment claim is that
the deputies were punishing Richman for his contempt of
court. Of that the main evidence is merely that the
judge had held him in contempt before they swarmed
on him. So the claim comes perilously close to the errone-
ous proposition that any infliction of excessive force by
public officers on a person after he has been convicted
is “punishment” and therefore, not conforming to the
regular, prescribed procedures for imposing punish-
ment (and thus “unusual”), and being severe (and thus
“cruel”), violates the Eighth Amendment.
No. 07-1487                                                  5

  It is one thing if officers escorting a newly convicted
defendant gratuitously beat him en route, thus adding to
the punishment to which he has been sentenced. Cf. Valdes
v. Crosby, 450 F.3d 1231, 1237-39 (11th Cir. 2006). But
suppose an escaped prisoner is caught and in subduing
him the officers use excessive force. Is that punishment?
Or suppose that Richman had left the court quietly in
company with the deputies after the judge sentenced
him to jail but en route had broken away from the dep-
uties and they seized him. Even if they used excessive
force, it would be odd to describe what they did as the
imposition of “punishment.” There have to be grounds
for an inference “that the purpose of the governmental
action [complained of] is punishment.” Bell v. Wolfish, 441
U.S. 520, 538 (1979).
  Analysis is complicated by the fact that purpose to
punish is not required when the prisoner’s Eighth Amend-
ment complaint is of severe neglect, as when a prison fails
to provide a prisoner with essential medical care or to
protect him against the violence of other prisoners. Wilson
v. Seiter, 501 U.S. 294, 296-302 (1991). In such cases the
test is deliberate indifference to the prisoner’s welfare,
rather than a punitive purpose. Id. at 296-97; Estelle v.
Gamble, 429 U.S. 97, 104 (1976). That may seem a looser
standard than when a punitive purpose is alleged. But it
is not; often it demands more proof by the plaintiff. If
a criminal defendant is sentenced to be stretched on the
rack, no state of mind need be proved to establish the
violation of the Eighth Amendment. It is only when the
classification of an act as punishment is ambiguous that
state of mind must be proved, in order to disambiguate
the act. Cf. Bell v. Wolfish, supra, 441 U.S. at 535. Employing
excessive force to arrest or otherwise seize a convicted
6                                               No. 07-1487

defendant is in the ambiguous category; it may be punish-
ment, but it may not be; so proof of purpose, and not
merely of the practice (such as imprisonment pursuant to
a judicial sentence), is required. The plaintiff in such a
case “must establish that prison officials acted wantonly
or, stated another way ‘maliciously and sadistically for
the very purpose of causing harm.’ ” Harper v. Albert, 400
F.3d 1052, 1065 (7th Cir. 2005), quoting Wilson v. Seiter,
supra, 501 U.S. at 296. Or as we put it in Hill v. Shelander,
992 F.2d 714, 718 (7th Cir. 1993), the “test in eighth amend-
ment excessive force cases . . . [is] whether force was
applied in a good faith effort to maintain or restore disci-
pline or maliciously and sadistically for the very purpose
of causing harm.” We found in that case that the plaintiff
had “produced evidence going beyond only the amount of
force applied by [the defendant,] . . . evidence from
which a finder of fact could infer that [the defendant had]
applied force with the intent to punish.” Id. at 717.
  There is some evidence of this kind in the present
case—evidence of bad blood between Richman and the
Skokie deputy sheriffs arising from his having been a
vociferous public opponent—once in the very same
courthouse—of mosquito spraying in Skokie. He had
disrupted at least one public meeting on the issue and been
sued—by a deputy sheriff, no less—in an effort to bar him
from attending future meetings. The deputies’ hostility to
Richman, combined with the brutality with which they
treated him on the fatal day, could (if just barely) allow
a jury to infer that they were trying to punish him, and
not merely trying to arrest him, when after pulling him
down from the podium they piled on top of him. Cf. Ayers
v. Coughlin, 780 F.2d 205, 209-10 (2d Cir. 1985); Sharp v.
Kelsey, 918 F. Supp. 1115 (W.D. Mich. 1996). If so, they
No. 07-1487                                                7

violated the Eighth Amendment, and because the unlaw-
fulness of such conduct under the Eighth Amendment
was clearly established when they acted, they had, as
we held in Hill v. Shelander, supra, 992 F.2d at 718, no
defense of immunity. See also Martinez v. Stanford, 323
F.3d 1178, 1183-84 (9th Cir. 2003); Skrtich v. Thornton,
280 F.3d 1295, 1301, 1303-05 (11th Cir. 2002).
  The plaintiff’s brief mentions the Fourth Amendment
only in passing, but does make clear that she continues
to believe, despite the district court’s contrary ruling,
that she has, both on her own and on her son’s behalf,
a valid claim under that amendment. We do not treat
the insouciance in her brief as a waiver or forfeiture of
the Fourth Amendment claims. Neither party seems to
think it makes a difference which amendment the suffi-
ciency of the plaintiff’s claims is tested under. That is
wrong, as we are about to see, but inconsequential, be-
cause, although never mentioning the Fourth Amend-
ment, the defendants argue at great length that they did not
use excessive force in trying to effectuate the judge’s order
to remove Richman from the courtroom. The plaintiff
argues the contrary with equal vigor. If she is right, the
defendants violated the Fourth Amendment.
  The Eighth Amendment is about punishment, so a
punitive purpose must be shown in an excessive-force
case litigated under that amendment—hence the language
about malice and sadism that we quoted. The issue under
the Fourth Amendment “is ‘whether the officers’ actions
[were] objectively reasonable in light of the facts and
circumstances confronting them.’ ” Smith v. Ball State
University, 295 F.3d 763, 770 (7th Cir. 2002), quoting Graham
v. Connor, 490 U.S. 386, 397 (1989); see also Saucier v.
Katz, 533 U.S. 194, 201-02 (2001). The officers’ intent in
8                                              No. 07-1487

using force is irrelevant in a Fourth Amendment case.
Graham v. Connor, supra, 490 U.S. at 397; Phelps v. Coy,
286 F.3d 295, 299-301 (6th Cir. 2002). Only its reasonable-
ness matters—which means whether it was excessive in
the circumstances, because if it was, it was unreason-
able—and reasonableness is the focus of the briefs of both
sides in this case.
   But can a Fourth Amendment and an Eighth Amendment
claim of excessive force be raised in the same case? Often
no. If you are beaten to a pulp before you are convicted,
your remedy is under the Fourth Amendment; after,
under the Eighth Amendment. But when as in this case
it is uncertain whether the act complained of is punish-
ment, deciding which remedy is available must wait
upon the determination of the facts. If the officers were
removing Jack Richman from the courtroom because
he refused to leave under his own steam, the Fourth
Amendment governs; if they were punishing him for
his contempt of court (an inference for which there is
some evidence, as we have just seen), the Eighth.
   What counts as excessive force in a particular case
is of course relative to circumstances, and two circum-
stances are critical so far as Jack Richman’s Fourth Amend-
ment claim is concerned. The first is his extreme obesity,
which was obvious to the deputies, and the second is the
lack of urgency to remove him from the courtroom. The
first factor, though not the second, was present in Estate
of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir.
1997), another case of positional asphyxia, but with crit-
ical differences, including danger to the police from the
person they were struggling with, a lesser use of force,
and the nonobviousness of the victim’s vulnerabilities.
No. 07-1487                                                 9

  Although very large, Richman was very frail. Like many
morbidly obese people (Richman’s Body Mass Index
was 62.8; normal is 18 to 25 and anything over 30 is
deemed obese), he could walk only with great difficulty;
and a reasonably trained police officer would know
that compressing the lungs of a morbidly obese person
can kill the person. Compare Price v. County of San
Diego, 990 F. Supp. 1230, 1238-39 (S.D. Cal. 1998). So the
deputies had to use care in removing him from the court-
room, unless there was some compelling need for haste.
But there was not. Court was over for the day. From the
effort of the first two deputies to seize Richman to his
death, only seven minutes elapsed. There was no reason to
endanger his life in order to remove him with such haste.
A reasonable jury could find that the deputies used
excessive force. This conclusion, since the legal standard
governing excessive-force claims is well established,
e.g., Sallenger v. Oakes, 473 F.3d 731, 741-42 (7th Cir.
2007); Clash v. Beatty, 77 F.3d 1045, 1047-48 (7th Cir. 1996);
Cruz v. City of Laramie, 239 F.3d 1183, 1187-90 (10th Cir.
2001), and clearly applicable to a situation in which
officers suffocate an obviously vulnerable person,
scotches the immunity defense.
  The defendants make two further arguments. The first
is that the cause of Richman’s death was not the force
used against him but his preexisting vulnerability due
to his obesity and his coronary artery disease. Had he
not been so obese and therefore so especially vulnerable
to hypoxia, and had he not had coronary artery disease,
he would not have died or, in all likelihood, even sus-
tained serious injury as a result of the swarm, for the
force was not that excessive; the autopsy did not reveal
any traumatic injuries, such as contusions or broken ribs.
10                                                No. 07-1487

  In addition, had he not been obese but instead had
had some hidden vulnerability, such as advanced heart
disease with no external signs, this would undermine the
plaintiff’s case that the defendants had used excessive
force. What is excessive is, as we said, relative to circum-
stances, but more precisely to circumstances as a reason-
able police officer would perceive them. E.g., Graham v.
Connor, supra, 490 U.S. at 396; McKinney v. Duplain, 463
F.3d 679, 684 (7th Cir. 2006); Dean v. City of Worcester,
924 F.2d 364, 367-68 (1st Cir. 1991). But we are over that
hurdle, because Jack Richman’s vulnerability was patent;
and once over it, the nature and extent of the injury are
irrelevant both to liability and to damages.
  The tortfeasor takes his victim as he finds him. That is
the “eggshell skull” rule, see, e.g., Brackett v. Peters, 11
F.3d 78, 81 (7th Cir. 1993); Gibson v. County of Washoe,
290 F.3d 1175, 1192-93 (9th Cir. 2002), which like most
principles of the common law of torts is applicable to a
constitutional tort case brought under 42 U.S.C. § 1983.
Gibson v. County of Washoe, supra, 290 F.3d at 1193; Figueroa-
Torres v. Toledo-Davila, 232 F.3d 270, 275-76 (1st Cir. 2000);
see City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687, 709-10 (1999). So if you kick someone
and unbeknownst to you he has a serious infection at the
spot in which you kick him and as a result he dies of
septicemia, you are fully liable for his death even though
you could not have foreseen such a consequence from the
kick. Because of his infirmities, Richman did not have a
normal life expectancy. But the force used against him by
the swarm of deputies accelerated his death; how soon
he would have died from causes unrelated to the use of
that force is relevant only to damages. E.g., Stoleson v.
United States, 708 F.2d 1217, 1223-24 (7th Cir. 1983); Sauer v.
No. 07-1487                                                11

Burlington Northern R.R., 106 F.3d 1490, 1495 (10th Cir.
1996).
   The defendants also argue that the plaintiff has failed
to correlate specific harm to Jack Richman with specific
acts of particular defendants. The first two deputies
grabbed ineffectually at Richman; they did not compress
his lungs. Some of the deputies never touched him but
merely watched the mêlée from the sidelines. The plain-
tiff, the defendants argue, has not tried to establish a
causal relation between any of them and Richman’s death.
  There are four possibilities in a tort case with multiple
defendants, such as this. The first is that each defendant’s
act makes the injury to the plaintiff a little worse and it
is the combination of the acts of separate defendants
that does him in. Then each defendant is liable only for
the increment in harm that he caused. United States v.
Burlington Northern & Santa Fe Ry., 502 F.3d 781, 796-
97 (9th Cir. 2007); Becker v. Poling Transportation Corp., 356
F.3d 381, 390-91 (2d Cir. 2004); United States v. Alcan
Aluminum Corp., 315 F.3d 179, 186-88 (2d Cir. 2003). An
example would be several polluters of the same stream,
and if one of them had not discharged pollutants the
aggregate pollution would have been less severe. This
may have been the situation with regard to the deputies,
more than one, who sat on Richman, compressing his
lungs and thus inducing hypoxia.
  Second, each defendant might by his own act have
inflicted the entire injury, in the sense that, had he not
committed the act, the injury would have been no less
grave than it was, as when two persons shoot a third and
each wound would have been fatal by itself. Again, both
would be liable, but this time jointly and severally.
Navigazione Libera Triestina Societa Anonima v. Newtown
12                                              No. 07-1487

Creek Towing Co., 98 F.2d 694, 696-97 (2d Cir. 1938) (L.
Hand, J.); Kingston v. Chicago & N.W. Ry., 211 N.W. 913,
914-15 (Wis. 1927). This, for all we may ever know, may
be a more accurate description of the consequences
of Richman’s being sat on by several deputies at once,
given his extreme vulnerability.
  Third, as in Summers v. Tice, 199 P.2d 1 (Cal. 1948), each
defendant might have committed an act that is a tort
when injury results (for there is no tort without an injury),
but it is unclear which defendant’s act was the one that
inflicted the injury—both shot at the plaintiff, one missed,
but we do not know which one missed. Again both are
jointly and severally liable. This too may have been the
case here with regard to the defendants or a subset of them.
  And fourth, one defendant might commit the act that
causes the harm yet the other be sued as well because he
could have prevented the harm but did not. Tort law
imposes no general duty of rescue, Stockberger v. United
States, 332 F.3d 479, 480-82 (7th Cir. 2003), and—the
same principle, really, but in the idiom of constitutional
law—the failure of a public officer to rescue a person
threatened with harm by a third party is not deemed a
deprivation of life or liberty without due process of law.
DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189, 195-97 (1989). But there is an exception for
the case in which the officer is responsible for creating
the peril that creates an occasion for rescue, as when,
having arrested a drunken driver, the officer removes
the key from the ignition of his car, as a result stranding
the passengers late at night in an unsafe neighborhood,
and he does nothing to protect them and they are robbed
by local marauders and sue him for battery or for having
deprived them of (a form of) liberty without due process
No. 07-1487                                                  13

of law. Wood v. Ostrander, 879 F.2d 583, 586-87 (9th Cir.
1989); see Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir. 1998).
  Suppose now that there are two arresting officers, and
both drive off together, abandoning the passengers to their
fate, though only one had removed the key from the
ignition of the arrested driver’s car. The other officer,
provided he knew or should have known what the first
officer had done, would be liable along with the first
officer as a participant in the conduct giving rise to the
peril. Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000);
Thompson v. Boggs, 33 F.3d 847, 856 (7th Cir. 1994); Byrd v.
Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972); Gaudreault v. Salem,
923 F.2d 203, 207 n. 3 (1st Cir. 1990). It is the same here
with regard to those deputies who just stood around
looking while Richman was being swarmed. If they
should have realized that their colleagues were using
excessive force they had a duty to intervene, for they
were part of the arresting force, awaiting a call to join the
swarm should it become necessary.
  But though the non-sitters can thus be culpable for fail-
ing to pull the sitters off the pile, this does not exhaust
the possibilities. We do not know that all the defendants
were even in the courtroom long enough to take effective
action to protect Richman; nor that none of the non-sitting
defendants tried to help him. These, however, are ques-
tions to be explored on remand; the district judge was
wrong to think that the defendants had immunity with
respect to the Fourth Amendment claim on behalf of
Jack Richman.
 That leaves for consideration Mrs. Richman’s Fourth
Amendment claim to have been subjected to excessive force
when she was seized. The judge denied summary judg-
ment for the defendants on that claim, but this was error.
14                                              No. 07-1487

We repeat that what is excessive in the way of force used to
seize a person is relative to circumstances, which in this
case include the situation facing the deputies and the
amount of force they used in trying to resolve it. It was
essential to get her out of the courtroom, less because she
was likely to cane a deputy than because her screaming
was likely both to distract the deputies who were trying to
arrest her son and to incite him to further struggles against
his would-be captors. When they pushed her out of the
courtroom she tried to force her way back in and at that
point they had no alternative to removing her forcibly to a
place out of earshot of the courtroom. Moving her by
wheelchair to another courtroom was a modest use of force
well suited to the situation (analogous to the gentle force
permitted to be used to expel a nonviolent but resisting
trespasser), and it inflicted not the slightest injury. She
claims emotional injury but that must have been due to
what the deputies were doing to her son rather than to her
short trip in a wheelchair.
  This lawsuit, a simple tort case, is in its tenth year. It
is high time the district judge, who has presided over it
from the beginning, grabbed it by the neck, gave it a good
shake, and placed it on the path to a speedy decision.
                                    AFFIRMED IN PART AND
                                        REVERSED IN PART.
No. 07-1487                                          15

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—1-7-08
