In the

     United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 22-2870
ANTONIO M. SMITH,
                                                Plaintiff-Appellant,
                                 v.

JOHN KIND, et al.,
                                             Defendants-Appellees.
                     ____________________
          Appeal from the United States District Court for
                  the Eastern District of Wisconsin.
         No. 2:18-cv-01569-PP — Pamela Pepper, Chief Judge.
                     ____________________

     ARGUED DECEMBER 6, 2024 — DECIDED MAY 30, 2025
                ____________________

   Before HAMILTON, SCUDDER, and LEE, Circuit Judges.
    SCUDDER, Circuit Judge. Nearly 50 days into a hunger
strike, Antonio Smith refused a correctional officer’s order to
exit his cell for a daily wellness check. So for three days, offic-
ers entered Smith’s cell, assisted him into a wheelchair, and
transported him to the prison’s health unit—all without inci-
dent. But perhaps frustrated by the noncompliance, Captain
Jay Van Lanen changed course on day four by resorting to
pepper spray for the extraction, knowing that Smith had a
2                                                  No. 22-2870

medical contraindication to the spray. Smith reacted to the
spray by gasping for breath for about eight minutes, only then
to find himself placed naked in a cold cell for the next 23
hours. Because we conclude that a jury could find that both
actions—using pepper spray and housing Smith in the frigid
cell—lacked a legitimate penological purpose and thus vio-
lated the Eighth Amendment, we disagree with the district
court’s grant of summary judgment for the defendants on that
ground. But in the end, troubled though we are by what Smith
endured, the principle of qualified immunity leads us to af-
firm.
                               I
                               A
    At the summary judgment stage, we view the facts in the
light most favorable to the nonmoving party, here Antonio
Smith. See Anderson v. Liberty Lobby, Inc., 

(1986). By his telling, the situation unfolded as follows.
    In October 2017 Smith began a prolonged hunger strike to
protest prison conditions at Green Bay Correctional Institu-
tion in Wisconsin. Pursuant to prison policy, Smith had re-
ported to the prison’s health unit for 45 days, each time de-
clining to submit to a wellness check. On day 46, however, he
declined to leave his cell, believing that prison policy allowed
a nurse to come to him. A nurse did indeed go to Smith’s cell
that day to document his refusal to submit to the wellness
check.
    The following day correctional officers once again di-
rected Smith to leave his cell to go to the health unit. Having
received authorization to use force to gain Smith’s compli-
ance, a correctional officer entered the cell with a taser drawn
No. 22-2870                                                    3

as Smith lay prone on his bed in a so-called “surrendering rit-
ual”—hands behind his back, legs crossed at the ankles, and
facing the wall. An extraction team followed closely behind
and placed Smith in handcuffs and leg restraints before sitting
him in a mobile restraint chair, essentially a wheelchair,
which allowed them to transport him to the health unit. Smith
continued to refuse orders to leave his cell, so the team fol-
lowed this same procedure the next day. And when Smith re-
fused for the fourth time, a new correctional officer, Captain
Jay Van Lanen, took charge of the extraction and repeated the
same process.
   But on November 28, 2017, when Smith refused to walk to
the health unit for the fifth time, the process changed again.
For reasons not clear in the record, the officers elected to vid-
eotape this extraction. So although we continue to view gen-
uine factual disputes in favor of Smith, we will defer to the
video footage if it “firmly settles a factual issue.” Horton v.
Pobjecky, 

 (7th Cir. 2018).
    Captain Van Lanen gathered a four-man extraction team
outside the restrictive housing unit where Smith was housed.
He stated that the extraction techniques used the previous
three days were no longer suitable. Elaborating, Van Lanen
said that Smith had “an extensive violent history with assign-
ing hits on the streets to have people killed, assault[ing]
within the prison system, and assault[ing] in general through-
out his prison career.” Smith had also grown accustomed to
the previous extraction method, Van Lanen observed, and the
team had no way of knowing whether he had a weapon in his
cell. Finally, Van Lanen explained that, because Smith was on
a hunger strike, it was important to observe whether he could
walk to the health unit, rather than be wheeled in a restraint
4                                                   No. 22-2870

chair. On that basis, he believed it necessary to alter their ap-
proach for this extraction, adding that, although Smith had a
medical contraindication to pepper spray, Security Director
John Kind had authorized its use.
   Donning full tactical gear, the extraction team entered the
housing unit and approached Smith’s cell. Lying on his bed,
Smith removed his blanket to allow the officers to see his full
body and assumed the so-called surrendering ritual. For five
minutes, Captain Van Lanen urged Smith to come to the cell
door. Smith ignored the instruction.
    Van Lanen then informed Smith of his intent to use pepper
spray to gain compliance and reminded him about his contra-
indication to the spray. When Smith did not budge, Van
Lanen deployed a burst of the spray through his cell window,
immediately triggering Smith’s asthma. The video shows
that, for eight minutes, Smith had difficulty breathing,
seemed disoriented, and was drooling, coughing, spitting,
and moaning. While Smith continued to gasp for air, Van
Lanen ordered him to remove his clothes and comply with a
strip search. Although he struggled to compose himself,
Smith obeyed the order.
    After handcuffing Smith, still naked, the extraction team
covered his genitals with a towel. They then helped him to his
feet and walked with him down the hallway to the health unit
where he refused a shower and wellness check. Instead of re-
turning Smith to his cell, as done the three previous days, the
officers placed him in a “control cell” used for disruptive in-
mates. Van Lanen informed Smith he could request a shower
and soap at any time and said he would return to discuss
“clothing and stuff.” This discussion occurred around noon
on November 28.
No. 22-2870                                                    5

    Smith offered evidence that the control cell was very cold
the night of November 28. By his account, the heating vent
blew air equivalent to the outside temperature, which, during
his stay in the cell, ranged from 25 to 57 degrees Fahrenheit.
All the while, the control cell had no mattress or bedding, and
Smith no clothes. And although Captain Van Lanen’s past
practice involved placing a smock, clothing, and other permit-
ted property in a security box attached to the cell regardless
of whether an inmate requests such items, he did not do so for
Smith.
    Three and a half hours after being placed in the cell, Smith
requested clothing, bedding, and a mattress from Lieutenant
Timothy Retzlaff. He also complained of the cold and asked
to be moved to a warmer cell. Retzlaff informed Smith that he
needed to check with Captain Van Lanen. Twelve hours later,
another officer approached Smith and proposed an offer: if
Smith submitted to future medical evaluations, he could have
a smock; if not, he would remain naked and cold. Smith de-
clined the offer.
    Smith continued waiting for Lieutenant Retzlaff to return
with word from Captain Van Lanen. But word never came. So
day turned to night. And night turned to day. And 23 hours
after Van Lanen placed him in the control cell, there Smith
remained, naked and freezing. He described his time in the
cell as painful, adding that he could not sleep and spent most
of the 23 hours on his feet.
                               B
   In time Smith invoked 

 and filed a com-
plaint in federal court alleging that various correctional offic-
ers violated his constitutional rights. After screening, the
6                                                  No. 22-2870

district court allowed him to proceed on his Eighth Amend-
ment excessive force claims against Captain Van Lanen for
using pepper spray and Security Director John Kind for au-
thorizing its use; an Eighth Amendment conditions-of-con-
finement claim against Van Lanen and Lieutenant Retzlaff
stemming from Smith’s night in the control cell; and an Eighth
Amendment excessive force claim against officers Alexander
Bonis, John Diedrick, and Cole Meyer for alleged misconduct
during their escort of Smith to the health unit following the
use of pepper spray. The defendants moved for summary
judgment on each claim, and the district court, seeing no
Eighth Amendment violations, granted their motion in its en-
tirety.
    Smith now appeals.
                               II
    Summary judgment is appropriate when there is “no gen-
uine dispute as to any material fact,” and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
In reviewing the district court’s summary judgment ruling,
we proceed on “a clean slate, drawing all reasonable infer-
ences from the record in favor of [Smith] as the non-movant.”
Xiong v. Bd. of Regents of Univ. of Wis. Sys., 

, 353
(7th Cir. 2023).
    Smith alleges three Eighth Amendment violations. A via-
ble Eighth Amendment claim contains both an objective and
subjective component. See Farmer v. Brennan, 

(1994). The objective component requires Smith to show that
the officers’ actions were “objectively ‘harmful enough’ to es-
tablish a constitutional violation.” Hudson v. McMillian, 

 (1992) (quoting Wilson v. Seiter, 

, 303
No. 22-2870                                                      7

(1991)). As for the subjective component, Smith must establish
that the defendants “acted wantonly and with a sufficiently
culpable state of mind.” Lunsford v. Bennett, 

(7th Cir. 1994) (citing Wilson, 

).
    The defendants urge us to affirm the district court’s ruling
that they acted at all times in good faith, without wantonness
and within constitutional bounds. They also invite us to af-
firm on the alternative ground of qualified immunity. We
travel the latter path.
     “The doctrine of qualified immunity” is an affirmative de-
fense that “shields officials from civil liability so long as their
conduct ‘does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.’” Mullenix v. Luna, 

, 11 (2015) (quoting Pear-
son v. Callahan, 

 (2009)). Once a defendant
raises the defense, “it becomes the plaintiff’s burden to defeat
it.” Jewett v. Anders, 

 (7th Cir. 2008).
    To overcome qualified immunity, Smith must clear two
hurdles. First, he must show that the officers violated his con-
stitutional rights. Second, he must demonstrate that those
rights were clearly established at the time of the violation. See
Pearson, 

. Courts have discretion to begin with
the second step to refrain from ruling on potentially difficult
constitutional questions. See 

. This approach, the Su-
preme Court has explained, aligns with principles of consti-
tutional avoidance and can save “substantial expenditure of
scarce judicial resources on difficult questions that have no
effect on the outcome of the case.” 

 at 236–37.
   But skipping the first question has its drawbacks. Contin-
ued avoidance of constitutional questions, the Supreme Court
8                                                   No. 22-2870

likewise has recognized, stunts the development of constitu-
tional precedent. See 

 (recognizing that following
“the two-step procedure promotes the development of consti-
tutional precedent and is especially valuable with respect to
questions that do not frequently arise in cases in which a qual-
ified immunity defense is unavailable”); Camreta v. Greene,

, 704–06 (2011) (observing that constitutional
avoidance “sometimes does not fit the qualified immunity sit-
uation because it threatens to leave standards of official con-
duct permanently in limbo” and explaining that “constitu-
tional determinations” in qualified immunity cases are “self-
consciously designed” to “establish[] controlling law and pre-
vent[] invocations of immunity in later cases”).
    This downside is especially evident when we look to the
demanding standard for showing that a right is “clearly es-
tablished”: a plaintiff must point to “existing precedent” that
puts the “statutory or constitutional question beyond de-
bate”—no doubt a monumental task if there is little constitu-
tional precedent to consider. Ashcroft v. al-Kidd, 

,
741 (2011). Recognizing that both approaches have a proper
time and place, the Supreme Court leaves it to the “sound dis-
cretion” of the lower courts to determine the order of decision.
See Pearson, 

.
    We exercise that discretion here to consider the first prong
and resolve whether Smith demonstrated a constitutional vi-
olation for each of his three claims. Doing so allows us to clar-
ify Eighth Amendment law in our circuit and establish future
constitutional boundaries to what, if Smith’s account is taken
as true, we see as a serious and disproportionate correctional
response to an inmate’s noncompliance with an officer’s di-
rectives. See Camreta, 

 (explaining that the
No. 22-2870                                                    9

purpose of allowing courts the discretion to reach the consti-
tutional question is “to promote clarity—and observance—of
constitutional rules”).
                               A
                               1
    We begin with Smith’s Eighth Amendment excessive force
claims arising from the use of pepper spray. Smith advances
this claim against Captain Van Lanen, the correctional officer
who deployed the spray and led the cell-extraction efforts, as
well as John Kind, the Green Bay prison’s Security Director.
Because Smith has provided no evidence that Kind acted with
wantonness in authorizing Van Lanen’s use of force to facili-
tate his extraction, we affirm the district court’s grant of sum-
mary judgment in Kind’s favor. The analysis for Van Lanen is
not so straightforward, however.
    Captain Van Lanen does not dispute that his use of pepper
spray satisfies the objective harm component of Smith’s
Eighth Amendment claim. So we consider only whether he
acted with the requisite intent—wantonness. See Wilson, 

. “Wantonness,” the Supreme Court has explained,
“does not have a fixed meaning but must be determined with
‘due regard for differences in the kind of conduct against
which an Eighth Amendment objection is lodged.’” 

 (quot-
ing Whitley v. Albers, 

 (1986)). Experience
shows that excessive force claims often arise in contexts
where correctional officers are required to act “in haste, under
pressure, and frequently without the luxury of a second
chance,” such as in quelling a riot or other disturbance. Whit-
ley, 

. Correctional officers “must balance the
threat unrest poses to inmates, prison workers,
10                                                  No. 22-2870

administrators, and visitors against the harm inmates may
suffer if guards use force.” Hudson, 

.
   Recognizing the difficulty of balancing these competing
concerns, the Supreme Court has held that Eighth Amend-
ment excessive force claims require a “very high state of
mind”: a correctional officer’s use of force only qualifies as
“unnecessary and wanton infliction of pain” if it is applied
not “in a good-faith effort to maintain or restore discipline,”
but “maliciously and sadistically to cause harm.” Wilson, 

; Hudson, 

.
    Because direct evidence of intent rarely exists, several fac-
tors inform 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 tanta-
mount to a knowing willingness that it occur.” Whitley, 

. Those factors include examining the need for
force, the threat posed by the inmate as reasonably perceived
by the responsible official, the relationship between the need
for force and the amount of force used, and any efforts made
to temper the severity of a forceful response. See id.; see also
Hudson, 

. Applying these factors, we conclude
that a reasonable jury could infer that Captain Van Lanen’s
deployment of pepper spray into Smith’s cell under the cir-
cumstances presented here was malicious and sadistic.
    We, of course, recognize that correctional officers have
broad leeway to exercise force when a situation presents a
threat to immediate safety. See Whitley, 

 (ex-
plaining that deference to prison administrators “carries spe-
cial weight” when the “‘ever-present potential for violent con-
frontation and conflagration’ ripens into actual unrest and
conflict” (citation omitted) (quoting Jones v. N.C. Prisoners'
No. 22-2870                                                   11

Lab. Union, Inc., 

 (1977)); Lewis v. Downey, 

 (7th Cir. 2009) (observing that aggressive behav-
ior “increases the need for force and often poses a threat to the
security officers”). But viewing the facts in Smith’s favor, as
we must, a jury could find that he posed no such threat at the
time Captain Van Lanen deployed pepper spray into his cell.
    Remember, foremost, that officers had entered Smith’s cell
to facilitate his extraction for three straight days before Cap-
tain Van Lanen chose to resort to pepper spray. Each of those
extractions proceeded without incident in the same routine
way, and nothing in the record suggests that Smith acted ag-
gressively toward correctional officers or threatened violence
in the future. To be sure, in the pre-extraction meeting, Van
Lanen stated that Smith had a history of assaultive behavior
while in prison. But the summary judgment record contains
no documented instances of Smith engaging in any violence
while incarcerated. And Smith, for his part, insists that he had
no history of violence while incarcerated.
   But even on the generous assumption that Van Lanen’s
perception that Smith had a history of violent behavior was
reasonable, see McCottrell v. White, 

, 668–69 (7th
Cir. 2019), on this record we have a hard time seeing his deci-
sion to change course—to shift from entering Smith’s cell
without incident to using pepper spray to which Smith had a
medical contraindication—as justified. For starters, if Smith
had a reputation of being assaultive on the day Van Lanen
used pepper spray, then he surely had that reputation the day
before. Van Lanen, however, offered no explanation for why
Smith’s alleged past behavior did not deter him from entering
Smith’s cell the previous day. So we are puzzled as to what
prompted Van Lanen to discontinue a successful extraction
12                                                  No. 22-2870

method in favor of one that he knew could cause complica-
tions for Smith’s health.
    Nor can we lose sight of the bigger picture: a four-man ex-
traction team donned full tactical gear and faced a single, un-
armed inmate, lethargic after reportedly starving himself for
more than 50 days. See Lewis, 

 (considering that
an inmate “was merely lying on his bunk, weak and sluggish
from more than ten days without food” when analyzing a cor-
rectional officer’s need for force); see also Abbott v. Sangamon
County, 

 (7th Cir. 2013) (discussing the “gen-
eral proposition” that using pepper spray on a subdued sub-
ject is excessive).
    Captain Van Lanen also attempted to justify his resort to
pepper spray by suggesting that Smith may have had a
weapon. But here too we see, and Van Lanen has identified,
no evidence supporting that speculation: Smith was in restric-
tive housing, had not used or threatened to use a weapon dur-
ing previous extractions, and his hands were visible and
empty at all times. Van Lanen has likewise failed to explain
why his concern about Smith harboring a weapon suddenly
developed—he extracted Smith from his cell without pepper
spray and without incident just the day before.
   Still, we recognize that an immediate threat to safety is not
the only circumstance in which a correctional officer can ap-
propriately use force. The Supreme Court has emphasized
many times over that correctional officers receive special def-
erence in their approach to restoring or maintaining order and
discipline. See, e.g., Bell v. Wolfish, 

 (1979);
Whitley, 

; Hudson, 

. That deference
applies not only to materialized threats to prison order and
inmate misconduct, like fighting or rioting, but also to
No. 22-2870                                                    13

preventative measures intended to avoid future disturbances.
See Whitley, 

.
    We applied this same principle to reverse a district court’s
determination that prison officials’ use of mace on inmates
who repeatedly refused orders to exit their cells violated the
Eighth Amendment. See Soto v. Dickey, 

(7th Cir. 1984). The correctional officers in Soto, like here with
Smith, issued what seemed like non-emergency directives to
inmates locked in their cells. See 

 at 1265–67. But the simi-
larities between the two cases end there.
    Many of the inmates in Soto had well-known and docu-
mented histories of assaulting prison guards and other in-
mates. See 

. The events leading to the use of pepper
spray often involved situations where inmates prone to
throwing items (like meal trays) at guards refused to turn
over the objects. See 

 at 1265–66. Put simply, it gives anal-
ogy a bad name to see the inmates in Soto as like Smith, who
was 50 days into a hunger strike and had no demonstrated
history of violence within the prison. And while correctional
officials entered Smith’s cell three days in a row without inci-
dent, the maximum-security prison in Soto had developed its
policy of using pepper spray as the first response to an in-
mate’s refusal to leave his cell after careful analysis and con-
sideration of the unit’s history of disruption and the inmates’
past use of makeshift weapons. See 

 at 1262–65, 1267.
   Captain Van Lanen nevertheless insists that, like the
guards in Soto, he was justified in using pepper spray once
Smith refused his orders because “[i]nmates cannot be per-
mitted to decide which orders they will obey, and when they
will obey them.” 

. At that level of generality, we
agree—inmates may not pick and choose which orders to
14                                                   No. 22-2870

obey. But an inmate’s passive disobedience, without more,
does not in and of itself authorize unrestrained or extreme es-
calation of force. See Treats v. Morgan, 

, 872–73
(8th Cir. 2002) (“Not every instance of inmate resistance justi-
fies the use of force, and use of pepper spray will not be justi-
fied every time an inmate questions orders or seeks redress
for an officer’s actions.” (citations omitted)). Instead, we con-
sider an inmate’s disobedience, along with the surrounding
“facts and circumstances,” to determine whether a particular
use of force was necessary. Soto, 

. Here, sev-
eral factors—particularly Smith’s weakened condition and
the history of peaceful and successful extractions on three pre-
ceding days—could lead a reasonable jury to find that Van
Lanen’s use of pepper spray was unnecessary.
    Our conclusion that the need for Van Lanen to resort to
pepper spray was relatively low informs the corollary analy-
sis of the relationship between the need for force and the
amount of force used. If there was little need for force, then
even a small amount of force may be disproportionate. See
McCottrell, 

 (“Obviously, if there was no need
for the warning shots, then those shots were significantly dis-
proportionate to the need for force.”).
    Many inmates may experience pepper spray as a relatively
minor use of force. See Soto, 

 (“Without excep-
tion, the institutional officials and officers were of the opinion
that the use of mace was much more humane and effective
than a flesh to flesh confrontation with an inmate.”); see also
Roberson v. Torres, 

, 406–07 (6th Cir. 2014) (ex-
plaining that whether use of pepper spray is preferable to a
physical altercation depends on the circumstances). And
courts, including ours, have sanctioned the use of pepper
No. 22-2870                                                  15

spray on noncompliant inmates. See, e.g., Soto, 

; Staples v. Gerry, 

, 17–18 (1st Cir. 2019).
    But Smith was not the typical inmate. See Segrain v. Duffy,

, 61 (1st Cir. 2024) (explaining that the “type of
physical reaction an incarcerated person has to the pepper
spray” matters in an Eighth Amendment excessive force anal-
ysis). Not only was he 50 days into a hunger strike, but he also
had a documented history of asthma, making the resort to
pepper spray all the more dangerous. See Garvin v. Armstrong,

 (7th Cir. 2001) (“Asthma, depending upon
its degree, can be a serious medical condition.”). Captain Van
Lanen knew of this danger.
    In the final analysis, based on Smith’s version of events,
we conclude that a reasonable jury could find in his favor on
the excessive force claim against Captain Van Lanen. The ev-
idence supports a “reliable inference” that Van Lanen knew
that Smith—on the verge of starvation, with no documented
history of violence while incarcerated—posed no credible
threat to officer safety or prison administration. Whitley, 

. From there a jury could determine that Van
Lanen’s opting for a method of force that he knew Smith had
a medical contraindication to was so disproportionate to the
risks that it could not “plausibly have been thought neces-
sary” and “instead evinced such wantonness with respect to
the unjustified infliction of harm as is tantamount to a know-
ing willingness that it occur.” 

.
                               2
   Having determined that a jury could find that Van Lanen
violated Smith’s constitutional rights, we move to the second
prong of the qualified immunity analysis: whether that right
16                                                    No. 22-2870

was clearly established. See Pearson, 

. It is on
this prong that Smith falls short. The fact intensive inquiry
that led us to conclude that Van Lanen’s actions violated his
right to be free from excessive force precludes us from deter-
mining at the requisite level of specificity that the constitu-
tional violation was clearly established enough as to put Van
Lanen on notice.
    State correctional officers are immune from liability for
conduct that “does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Kisela v. Hughes, 

, 104 (2018) (per
curiam) (quoting White v. Pauly, 

, 78–79 (2017) (per
curiam)). For a law to be clearly established, “existing prece-
dent must have placed the statutory or constitutional ques-
tion beyond debate.” White, 580 U.S. at 79 (quoting Mullenix,
577 U.S. at 12); see Sabo v. Erickson, 

, 844 (7th Cir.
2025) (en banc). Put differently, save for the “rare ‘obvious’”
violation, Smith must identify a case that “every reasonable
official would interpret … to establish the particular rule” he
seeks to apply. District of Columbia v. Wesby, 

, 63
(2018) (quoting Brosseau v. Haugen, 

 (2004)
(per curiam)).
    Smith cannot clear this high bar. Returning our attention
to Soto, he contends that Captain Van Lanen violated his
clearly established right by using “mace or other chemical
agents in quantities greater than necessary.” 

.
But the Supreme Court has cautioned courts against reason-
ing from broad principles when considering whether a right
is clearly established for qualified immunity purposes. See
Kisela, 584 U.S. at 104. Especially in excessive force cases,
where “it is sometimes difficult for an officer to determine
No. 22-2870                                                     17

how the relevant legal doctrine … will apply to the factual
situation the officer confronts,” correctional officers are enti-
tled to qualified immunity “unless existing precedent
‘squarely governs’ the specific facts at issue.” Id. (emphasis
added) (quoting Mullenix, 577 U.S. at 308–09); see also Smith
v. Finkley, 

, 742 (7th Cir. 2021) (observing that spec-
ificity is “particularly important” in excessive force cases, “as
it can be difficult to determine how the law will apply to a
factual situation”).
    After examining the specific facts before us, we cannot
conclude that a reasonable correctional officer would have
known that using pepper spray to extract Smith from his cell
violated the Eighth Amendment. Indeed, in Soto—the only
controlling case Smith relies on—we held that the correctional
officer could deploy pepper spray on non-compliant inmates.
See 744 F.2d at 1270–71. No other precedent from our court or
the Supreme Court addresses circumstances close enough to
those here to defeat qualified immunity.
    Nor does Smith’s documented medical contraindication to
pepper spray change the outcome. While a close call, we do
not view Smith’s account of what transpired here, though
very concerning, as falling within that narrow category of
cases where the constitutional violation is so severe and bla-
tant as to be obvious. See Hope v. Pelzer, 

(2002) (holding that correctional officers were not entitled to
qualified immunity for handcuffing an inmate to a hitching
post for seven hours in extreme heat because “the Eighth
Amendment violation was obvious”); Taylor v. Riojas, 

, 8–9 (2020) (per curiam) (reversing a court of appeals’s deci-
sion that granted correctional officers qualified immunity for
housing an inmate in a sewage-filled, frigidly cold cell for four
18                                                No. 22-2870

days because any reasonable officer would know such condi-
tions offend the Eighth Amendment).
   We therefore affirm the district court’s grant of summary
judgment for Captain Van Lanen on Smith’s Eighth Amend-
ment excessive force claim.
                              B
                              1
   We next consider whether the conditions Smith faced dur-
ing his 23 hours in the control cell violated the Eighth Amend-
ment. Here too we conclude that a jury could find in Smith’s
favor.
    The Constitution allows restrictive and even harsh condi-
tions of confinement. See Rhodes v. Chapman, 

(1981). What the Constitution does not allow, however, is a
deprivation “of the minimal civilized measure of life’s neces-
sities.” 

 A prison official who denies an inmate an “identi-
fiable human need such as food, warmth, or exercise,” Wilson,

, “violates the Eighth Amendment upon exhib-
iting ‘deliberate indifference to a substantial risk of serious
harm to an inmate,’” Thomas v. Blackard, 

, 719 (7th
Cir. 2021) (quoting Farmer, 

). To succeed on his
Eighth Amendment claim, then, Smith must show that Lieu-
tenant Retzlaff and Captain Van Lanen denied him a human
need and did so with deliberate indifference.
    Because warmth is one such need, “prisoners have a right
to protection from extreme cold.” Dixon v. Godinez, 

 (7th Cir. 1997). Whether an inmate’s exposure to cold
rises to a constitutional level depends on “the severity of the
cold; its duration; whether the prisoner has alternative means
to protect himself from the cold; the adequacy of such
No. 22-2870                                                    19

alternatives; as well as whether he must endure other uncom-
fortable conditions as well as cold.” 

. This fact-inten-
sive inquiry “will often be peculiarly appropriate for resolu-
tion by the trier of facts.” 

.
   Smith spent almost 24 hours in a cell equivalent to the tem-
perature outside. And despite the temperature reaching be-
low freezing at night, he was left naked—given no clothes, no
bedding, and no way to protect himself from the cold. See Wil-
son, 

 (observing that a low cell temperature at
night plus failure to issue blankets can combine to create un-
constitutional conditions of confinement). Smith explained
that the extreme cold he experienced overnight caused him
pain and prevented sleep. On these facts, Smith has done
enough to create a genuine dispute of material fact as to
whether these conditions meet the “constitutionally necessary
minimum protection against severe cold.” Dixon, 

.
    The question then becomes whether Smith has presented
evidence that Captain Van Lanen and Lieutenant Retzlaff
acted with deliberate indifference. This requires us to deter-
mine if a reasonable jury could conclude that the two defend-
ants had actual knowledge that Smith faced “a substantial
risk of serious harm” to his health or safety and, if so, what
steps they took to respond to that risk. Farmer, 

.
   Beginning with Captain Van Lanen, a few observations
lead us to conclude that a reasonable juror could find that he
was deliberately indifferent to Smith’s exposure to extreme
cold. First, he placed Smith naked in a cold cell surely know-
ing that it was November 28 in Green Bay, Wisconsin when
the temperature would (and did) drop below freezing. Van
Lanen did so with full awareness of Smith’s weakened state
20                                                 No. 22-2870

and pepper spray-induced asthma attack. Second, Van Lanen
chose not to follow his usual practice of making a smock and
bedding available to Smith in the control cell. Nor did he ever
return to the cell that night to discuss clothing, even though
he promised Smith he would do so.
    Viewing these facts in the light most favorable to Smith, a
juror could reasonably conclude that Van Lanen was aware of
the risk of serious harm to Smith—left naked in a frigid cell
overnight—but did nothing, making him deliberately indif-
ferent to that risk. 

 (“Whether a prison official had
the requisite knowledge of a substantial risk is a question of
fact subject to demonstration in the usual ways, including in-
ference from circumstantial evidence, and a factfinder may
conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.” (citation omitted));
see also 

 (“[I]t is enough that the official acted or
failed to act despite his knowledge of a substantial risk of se-
rious harm.”).
    The analysis is even more straightforward for Lieutenant
Retzlaff. Smith asked Retzlaff to provide him with clothes and
bedding or move him to a warmer cell. Retzlaff did neither. A
jury could therefore infer that he was deliberately indifferent
to the serious health risk arising from Smith’s exposure to ex-
treme cold.
                               2
   Again though, when it comes to defeating a qualified im-
munity defense, establishing a constitutional violation is only
one step, not the finish line. Smith must also show that the
conditions of the control cell were unconstitutional “beyond
No. 22-2870                                                     21

debate.” Ashcroft, 

. It is at this step that Smith’s
claim again falls short.
    Our case law is clear on the general proposition that in-
mates have a well-established constitutional right to protec-
tion from extreme cold. See, e.g., Henderson v. DeRobertis, 

 (7th Cir. 1991). But this statement sweeps too
broadly for qualified immunity purposes. To overcome the
officers’ immunity defense, Smith needs to show that the spe-
cific conditions he faced in the control cell were unconstitu-
tional.
    Once we view the situation at the appropriate level of par-
ticularity, we can locate no case that “squarely governs” Van
Lanen’s or Retzlaff’s conduct. Brosseau, 

. Before
today, we had never held it unconstitutional on closely anal-
ogous facts to house an inmate in a cell that ranged in temper-
ature from 25 to 57 degrees over a 23-hour period without
clothes or a way to keep warm.
   To be sure, Smith points us to a number of cases where we
determined that cold cell conditions violated an inmate’s
Eighth Amendment rights. But the temperature in those cases
was more extreme, see, e.g., Henderson, 

 (four
days of subzero temperature); Del Raine v. Williford, 

 (7th Cir. 1994) (temperature reached 50 degrees be-
low zero during an inmate’s strip search), or the duration ex-
tended far beyond 23 hours, see, e.g., Lewis v. Lane, 

 (7th Cir. 1987) (cell temperature was around
53 degrees for two months). And while we credit the pain and
extreme discomfort Smith says he experienced, we cannot
conclude that this constitutional violation was so “obvious”
as to avoid the need to point to a closely analogous case.
Wesby, 583 U.S. at 63 (quoting Brosseau, 

).
22                                                   No. 22-2870

    That leaves us to affirm the district court’s grant of sum-
mary judgment for Van Lanen and Retzlaff on Smith’s condi-
tions-of-confinement claim.
                                  C
    Smith’s final claim concerns the escort from his cell to the
health unit after the pepper spray incident. He contends that
members of the extraction team—Alexander Bonis, John Die-
drick, and Cole Meyer—exercised excessive force by placing
him in chokeholds and bending his wrists. We agree with the
district court’s conclusion that Smith’s characterization of his
escort is “contradicted by the record, so that no reasonable
jury could believe it.” Scott v. Harris, 

 (2007).
   Video footage of the extraction confirms that the officers
did not behave maliciously while escorting Smith. Because he
had difficulty sustaining his own weight, two officers sup-
ported Smith by his arms. And despite Smith’s assertion oth-
erwise, the video shows no dragging, chokeholds, or other
misconduct. There being no violation of the Eighth Amend-
ment, we affirm the district court’s grant of summary judg-
ment for the defendants on this claim.
                              *       *   *
    For these reasons, we AFFIRM the district court’s grant of
summary judgment for the defendants on each of Smith’s
claims.
No. 22-2870                                                  23

   HAMILTON, Circuit Judge, concurring in part and
dissenting in part. I agree with most of the analysis and
holdings in Judge Scudder’s opinion for the court. I agree that
a jury could find that defendant Van Lanen violated the
Eighth Amendment by using the pepper spray against
plaintiff Smith, at least where Van Lanen knew of plaintiff’s
special vulnerability to that weapon, but that Van Lanen is
entitled to qualified immunity on that claim. I also agree that,
given the video evidence, we must affirm summary judgment
on plaintiff’s excessive force claim based on the guards’
moving plaintiff to the control cell.
    I also agree with the majority’s holding that plaintiff
offered evidence that would allow a jury to find that
defendants Van Lanen and/or Retzlaff imposed conditions of
confinement on plaintiff that violated his Eighth Amendment
rights. Plaintiff has provided evidence that the defendants
intentionally placed him and left him for hours in a cold cell
without clothing or blankets or other protection. The
majority’s holding that a jury could find this deliberate
exposure of a prisoner to extreme cold without protection to
have been cruel and unusual punishment is clear and
important. And the majority wisely chooses to use our
discretion to decide step one of the qualified immunity
analysis—the merits of the claims—on both the pepper spray
claim and the conditions of confinement claim.
I. Qualified Immunity and Deliberate Exposure to Cold
   With respect, however, I must dissent from the majority’s
decision to affirm summary judgment for defendants Van
Lanen and Retzlaff on the claim for deliberate exposure to
cold based on the defense of qualified immunity. The majority
reaches that conclusion by applying what the Supreme Court
24                                                  No. 22-2870

has called “a rigid, overreliance on factual similarity.” Hope v.
Pelzer, 

 (2002). As the majority explains here:
“Before today, we had never held it unconstitutional on
closely analogous facts to house an inmate in a cell that
ranged in temperature from 25 to 57 degrees over a 23-hour
period without clothes or a way to keep warm.” Ante at 21.
That observation is literally correct but certainly should not
be decisive. It loses sight of the long-established and more
general standard for qualified immunity: whether a reasona-
ble official in the defendant’s position would have under-
stood that his actions were unlawful. E.g., Ziglar v. Abbasi, 

, 152 (2017); Hope, 

; Saucier v. Katz, 

, 206 (2001); Anderson v. Creighton, 

(1987); Manery v. Lee, 

, 1080 (7th Cir. 2025); Dox-
tator v. O’Brien, 

, 863 (7th Cir. 2022).
    Prisoners have a well-established right not to be subjected
to extreme cold, at least without protection from it. For
purposes of summary judgment and this appeal, we must
assume that these defendants deliberately placed a prisoner
“in a cell that ranged in temperature from 25 to 57 degrees
over a 23-hour period without clothes or a way to keep
warm.” Ante at 21. As the majority opinion explains, several
pieces of evidence—including defendant Van Lanen’s typical
practice of providing inmates with a smock, his failure to
return to discuss clothing with Smith, and the Green Bay
weather in late November—would allow a reasonable jury to
infer that Van Lanen, Retzlaff, or both were deliberately
indifferent to plaintiff Smith’s unprotected exposure to the
cold. I respectfully submit that it should have been obvious to
a reasonable prison official that such conditions violate a
prisoner’s right not to be subjected to cruel and unusual
punishment.
No. 22-2870                                                      25

    The Supreme Court and our court have long recognized
that where the constitutional violation is sufficiently obvious,
a plaintiff need not always point to a case that is factually on
all fours. Hope, 536 U.S. at 740–41; Ashcroft v. al-Kidd, 

, 741 (2011) (collecting cases and explaining: “We do not
require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate.”); Schimandle v. Dekalb County Sheriff’s Office, 

, 655 (7th Cir. 2024) (plaintiff need not point to an “identi-
cal case”); Lopez v. Sheriff of Cook County, 

, 988 (7th
Cir. 2021) (“The prong-two clearly-established-law assess-
ment does not require a case with identical factual circum-
stances, lest qualified immunity become absolute immun-
ity.”), citing Kisela v. Hughes, 

, 104 (2018). Plaintiff
has offered evidence that defendants chose to punish his mis-
conduct by, in effect, refrigerating him—naked and unpro-
tected—for hours. Plaintiff’s evidence is that Van Lanen or
Retzlaff or both deliberately exposed him to that cold for pur-
poses of “control.” That last word is a euphemistic way of say-
ing they deliberately subjected him to a practice widely rec-
ognized in law as a form of torture to coerce him to change
his behavior.
   The proper question for qualified immunity is whether a
reasonable prison official would have understood it to be
unlawful to deliberately expose a naked prisoner to cold
conditions in an effort to coerce different behavior. I think the
answer is obviously yes. That is the answer based on
elementary notions of human decency and dignity. And the
answer does not depend on exactly how cold it was or exactly
how many hours the prisoner suffered.
26                                                 No. 22-2870

     If more specific support is needed for the proposition that
it is obviously unconstitutional to deliberately subject a naked
prisoner to temperatures equivalent to and colder than a re-
frigerator, I offer that support in three forms. First, United
States law and international covenants to which the United
States is a party recognize that deliberately subjecting a pris-
oner to extreme cold is a form of torture. This means that the
actions alleged here could be found to have violated both
United States and international law. Second, a good deal of
prior case law deals with prison officials trying to manage
when prison heating systems break down or when poor
maintenance of prison buildings makes them difficult to heat
adequately. The general principles applied in those cases
should have made it obvious that deliberately subjecting a na-
ked prisoner to extreme temperatures is beyond the pale of
arguably tolerable conduct. A third form of support is the
complete absence of any attempt here, by defendants or the
majority opinion, to argue how an official in this situation
might have thought this deliberate refrigeration of a naked
human being could have been permissible.
II. The Law and Practice of Torture
    Federal law makes it a crime for a person to engage in tor-
ture outside the United States. Torture Act, 

& 2340A. Torture is defined as “an act committed by a person
acting under the color of law specifically intended to inflict
severe physical or mental pain or suffering (other than pain
or suffering incidental to lawful sanctions) upon another per-
son within his custody or physical control.” § 2340(1). The
United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (most fa-
miliar to our court from immigration cases and widely known
No. 22-2870                                                   27

as the CAT), to which the United States is a party, defines tor-
ture as:
       any act by which severe pain or suffering,
       whether physical or mental, is intentionally
       inflicted on a person for such purposes as
       obtaining from him or a third person
       information or a confession, punishing him for
       an act he or a third person has committed or is
       suspected of having committed, or intimidating
       or coercing him or a third person, or for any
       reason based on discrimination of any kind,
       when such pain or suffering is inflicted by or at
       the instigation of or with the consent or
       acquiescence of a public official or other person
       acting in an official capacity. It does not include
       pain or suffering arising only from, inherent in
       or incidental to lawful sanctions.
United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment art. 1, Dec.
10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 113–14; see
also 

(a)(1) (incorporating a very similar defi-
nition into domestic law for asylum purposes); Torture Victim
Protection Act of 1991, 

 § 3(b)(1), note following 

 (defining torture in similar terms in statute cre-
ating private right of action against torturers).
    Deliberately exposing a naked prisoner to extreme cold as
asserted here easily fits within both definitions. For the rea-
sons explained in the majority opinion, a jury could find that
the defendants “specifically intended to inflict severe physical
or mental pain or suffering” on plaintiff Smith while he was
in their custody. 

(1). A jury could likewise
28                                                    No. 22-2870

find that plaintiff was placed in the literally freezing control
cell, in order to punish him for an act he committed, “with the
consent or acquiescence of a public official or other person
acting in an official capacity” in violation of the CAT.
   The torture definitions in both the Torture Act and the
CAT exclude pain and suffering inflicted as part of “lawful
sanctions,” but to my knowledge, there is no plausible claim
here of any explicit or implicit authority in law to deliberately
expose naked Wisconsin prisoners to extreme cold as part of
their sentences. Defendants have not tried to argue here that
they were authorized by law to deliberately refrigerate a
naked prisoner. The defendants have argued instead that
plaintiff has the facts wrong, but that is a matter for trial rather
than summary judgment.
    Extensive international authorities make the point that
these general definitions of torture encompass deliberate use
of extreme cold to cause pain and suffering. The United Na-
tions Committee Against Torture monitors implementation of
the CAT. It has long explained that “using cold air to chill”
can amount to torture under the Convention. Rep. of the U.N.
Committee Against Torture, Israel (“Report on Israel”), U.N.
GAOR, 52nd Sess., Supp. No. 44 at 38 ¶ 257, U.N. Doc. A/52/44
(Sept. 10, 1997). The same Committee Against Torture also
adopted a similar finding from a local human rights body re-
garding practices in Mexico, explaining that torture in prison
included “being undressed and kept in a freezing, air-condi-
tioned room for days at a time.” U.N. Committee Against Tor-
ture, 30th Sess., Report on Mexico at 35–36 ¶ 165, U.N. Doc.
CAT/C/75 (May 26, 2003). More generally, the United Nations
Special Rapporteur of the Commission on Human Rights ob-
served in 2004: “The jurisprudence of both international and
No. 22-2870                                                               29

regional human rights mechanisms is unanimous in stating”
that interrogation methods including “using cold air to chill”
violate the “prohibition of torture and ill treatment.” U.N.
Special Rapporteur of the Commission on Human Rights, Tor-
ture and other cruel, inhuman, or degrading treatment or punish-
ment, ¶ 17, U.N. Doc. A/59/324 (Sept. 1, 2004), quoting Report
on Israel, supra, at ¶ 257.
    United States case law on the deliberate use of cold against
prisoners is, thankfully, relatively sparse, but the available
case law clearly indicates it can be a form of torture and that
courts virtually take for granted the fact it is unlawful. 1 In
Lhanzom v. Gonzales, 

 (7th Cir. 2005), for instance,
this court remanded a person’s claim for relief under the Con-
vention Against Torture based on State Department reports
documenting torture of Chinese prisoners in Tibet, including
“electric shocks, exposure to cold, and severe beating.” 

 at
848–49, citing U.S. Department of State, 2005 Country Report
on Human Rights Practices: China (March 8, 2006)
(https://perma.cc/39K2-Z35H).
  Several other cases support the principle. In Al Shimari v.
CACI Premier Technology, Inc., 

 (E.D. Va.

    1 Members of this court had no difficulty finding that conduct includ-

ing deliberate exposure of detainees to cold air could amount to torture in
Vance v. Rumsfeld, 

, 205–06 (7th Cir. 2012) (en banc) (Wood, J.,
concurring in the judgment); 

 (Hamilton, J., dissenting). The Vance
majority did not disagree, but did not decide the issue only because the
defense in that case did not even try to dispute whether the conduct al-
leged, including “prolonged exposure to cold,” amounted to torture. 

 (en banc majority); see also Vance v. Rumsfeld, 

, 610–
11 (7th Cir. 2011) (vacated panel opinion) (noting that the plaintiffs’ cells
were kept “intolerably cold” and that such conditions were clearly unlaw-
ful).
30                                                            No. 22-2870

2018), the plaintiffs had been prisoners at the infamous Abu
Ghraib complex operated by the United States in Iraq.
Plaintiffs offered evidence that U.S. military contractors had
subjected them to a range of abuses that amounted to torture,
including “using cold air to chill.” 

 at 781–82 (internal
quotation marks omitted); see also id. at 764, 769, 770
(describing conduct in that case, including deliberately
imposed cold). The court carefully reviewed United States
and international law and allowed some claims to go forward
on the theory that the defendants purposefully aided
violations of international law by facilitating abuses that
amounted to torture and/or cruel, inhuman, or degrading
treatment. See, e.g., id. at 777–82 (determining jurisdiction
under torture statutes). It explained that “international law
and domestic executive and military sources … clearly
identify the abuse experienced by plaintiffs as torture.” Id. at
781. 2
   Similarly, in Cicippio v. Islamic Republic of Iran, 

 (D.D.C. 1998), a group of former political hostages


     2 Courts and executive agencies have likewise characterized as torture

the use of cold water in interrogation and/or confinement. See, e.g., In re
Estate of Marcos Human Rights Litigation, 

 (D. Hawaii
1995) (characterizing as torture the practice of forcing a “detainee while
wet and naked to sit before an air conditioner often while sitting on a block
of ice”); U.S. Department of State, 2005 Country Report on Human Rights
Practices: Egypt (March 8, 2006) (https://perma.cc/8T3X-3NJF) (torture
practices included “dousing victims with cold water”); U.S. Department
of State, 2004 Country Report on Human Rights Practices: Yemen (Feb. 28,
2005) (https://perma.cc/35NF-V9PX). While leaving an inmate wet and
cold is distinct from just cold, these authorities further support the idea
that a reasonable official should have known it is unlawful to place a na-
ked inmate in freezing or near-freezing conditions.
No. 22-2870                                                      31

brought claims alleging torture by Iranian officials. One plain-
tiff was kept chained on a balcony for an entire winter, during
which he developed frostbite on his hands and feet. Id. at 66.
The court ruled that he had been “tortured” as defined by an
old version of the Foreign Sovereign Immunities Act, 

(e) (1997), and entered default judgment for the
plaintiffs. 

.
    Weighed against these authorities, which are only a
sample of a broad international literature on the law and
practice of torture, I have found no contrary authorities
suggesting that deliberate exposure of a prisoner, especially a
naked prisoner, to extreme cold is an accepted and lawful
means of punishment. In other words, I find no legal
foundation for a prison official in these defendants’
circumstances to have believed his actions could have been
lawful.
    I am not suggesting that conditions of confinement falling
short of torture are acceptable under the Eighth Amendment.
But our qualified immunity analysis should recognize action-
able violations, without qualified immunity, when officials
deliberately impose conditions that amount to torture. See Pa-
dilla v. Yoo, 

, 763 & n.10 (9th Cir. 2012) (stating that
“the unconstitutionality of torturing a United States citizen
was ‘beyond debate’ by 2001” and collecting authorities for
the principle).
III. Broken Furnaces and Drafty Prisons
   A more extensive body of case law concerns prison heat-
ing systems that failed in cold weather or drafty prison build-
ings that were difficult to keep humanely warm in cold
weather. The majority cites several of these cases. See ante at
32                                                    No. 22-2870

21, citing Del Raine v. Williford, 

 (7th Cir.
1994); Henderson v. DeRobertis, 

 (7th Cir.
1991); Lewis v. Lane, 

 (7th Cir. 1987). It none-
theless concludes that they do not control the outcome here
because they do not show that it is unlawful to “house an in-
mate in a cell that ranged in temperature from 25 to 57 degrees
over a 23-hour period without clothes or a way to keep
warm.” Ante at 21.
    Respectfully, that conclusion misses the point of the cases
that is most relevant here. We made clear decades ago in these
cases that when a prisoner is being subjected to temperatures
like those alleged here—for any reason, including without
fault of prison officials—prison officials have a duty to take
corrective measures, such as providing extra protective cloth-
ing and bedding and repairing heating systems or buildings
within a reasonable time. See, e.g., Henderson, 940 F.2d at
1059–61 (qualified immunity reversed when prison heating
system malfunctioned and defendants took four days to fix it;
collecting cases for principle that constitution requires prison-
ers to “be provided with adequate heat and shelter”); Lewis,

 (vacating summary judgment when plaintiffs
provided evidence that defendants maintained cell block be-
tween 52 and 54 degrees for several months).
    The Supreme Court made the same point more than thirty
years ago, writing as self-evident that “a low cell temperature
at night combined with a failure to issue blankets” may estab-
lish an Eighth Amendment violation. Wilson v. Seiter, 

 (1991). More recent decisions from this court have re-
affirmed the point. See, e.g., Hill v. Nicholson, 

,
142 (7th Cir. 2020) (plaintiff stated Eighth Amendment claim
when officers let him take only cold showers and his cell block
No. 22-2870                                                      33

was “extremely cold”); Budd v. Motley, 

 (7th
Cir. 2013) (“[W]e have observed that jails must meet minimal
standards of habitability. This includes adequate bedding and
protection from cold, both of which were allegedly lacking
here.”); Antonelli v. Sheahan, 

 (7th Cir. 1996)
(reversing dismissal when prison officials failed to provide
blankets despite “extremely cold indoor air temperature”).
    Those cases did not draw bright lines based on exactly
how cold was too cold or exactly how long the cold conditions
lasted. They did make clear that prison officials have a duty
under the United States Constitution to respond quickly with
protective clothing and bedding. The broken-furnace/drafty-
cell cases cannot reasonably be read as offering any support
for the cruel idea that a prison official could deliberately subject
a naked and unprotected prisoner to extreme cold for any
length of time.
    We recognized that point in Gillis v. Litscher, 

(7th Cir. 2006), a case with facts extraordinarily similar to this
case. In Gillis, Wisconsin prison officials left an inmate naked
in his cell—without clothing, bedding, or a mattress—for five
days as part of a “Behavioral Modification Program.” 

 at
489–90. The cell’s vent blew cold air, and the prisoner said that
he had to walk around his cell for 14 hours a day just to stay
warm. 

. We found that the plaintiff had created an
issue of fact sufficient to get his Eighth Amendment claim
past summary judgment. We specifically addressed the inten-
tional nature of the defendants’ conduct, explaining that some
evidence in the record indicated that the prison officials used
Behavioral Modification Programs “as a way to deal with in-
mates without regard” for Wisconsin law. 

. We also
rejected the defendants’ qualified immunity defense,
34                                                    No. 22-2870

explaining tersely that it was well-established that “denial of
shelter, heat, and hygiene items implicated an inmate’s con-
stitutional rights.” 

.
    Gillis helps show why qualified immunity is inappropriate
here. In this case, as in Gillis, prison officials altered the
conditions of confinement to motivate a change in inmate
behavior. In both cases, the change involved a denial of
clothing and prolonged exposure to cold air. The deliberate
choice by prison officials to expose inmates to chilling
conditions was then—and is still now—a clear violation of the
Eighth Amendment.
    Gillis is a rare case because, as noted, case law on deliberate
exposure of unprotected prisoners to cold is thankfully
sparse. But our case law makes unequivocally clear that pris-
oners have a right to adequate heat. Similarly, the Lhanzom, Al
Shimari, and Cicippio cases discussed above all recognized de-
liberate exposure of a prisoner to extreme cold as a form of
torture. And Gillis made clear that cold conditions cannot be
constitutionally used as part of prison discipline.
IV. The Absence of a Counter-Theory
    My third form of support comes from the absence of any
theory, from these defendants or from the majority opinion,
as to how these defendants might reasonably have thought
they could lawfully refrigerate a naked human being for
hours.
   One might respond that the burden to defeat qualified im-
munity is on the plaintiff, not the defendant. That’s true as a
matter of law. But it is equally true that the plaintiff need not
always come forward with case law showing that the same or
even closely analogous conduct has been held unlawful
No. 22-2870                                                    35

where the violation is obvious. The canonical case on this
point is Hope v. Pelzer, where the Supreme Court reversed a
grant of qualified immunity despite the absence of closely
analogous case law. 536 U.S. at 744–46. The violation was so
“obvious” that the unlawfulness of the punishment should
have been apparent to a reasonable prison official. Id. at 741.
    The plaintiff in Hope was an Alabama prisoner who had
allegedly engaged in misconduct while on a chain-gang road
crew. As punishment, he had his shirt removed, was shackled
to a post in a painful position, and was left in the Alabama
sun for seven hours with very little water. The Supreme Court
held that the illegal character of that punishment was suffi-
ciently obvious that qualified immunity was not available. Id.
    The Court of Appeals in Hope had reasoned, much like the
majority opinion here, that qualified immunity applied unless
plaintiff could show a finding of a constitutional violation in
a previous case on facts “’materially similar’ to Hope’s
situation.” Id. at 739, quoting Hope v. Pelzer, 

(11th Cir. 2001). The Supreme Court said this “rigid gloss” on
the qualified immunity standard was “not consistent with our
cases.” 

 It explained that the contours of an asserted
constitutional right “must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful….“ 

 quoting
Anderson, 

.
    The ruling in Hope was not a simple “we know it when we
see it” reaction to disturbing facts. The Court took care to look
at other cases and administrative actions concerning the Ala-
bama practice of shackling prisoners uncomfortably in the
36                                                 No. 22-2870

heat as punishment, finding that the defendants had ample
notice that the practice was not permissible under the law. 536
U.S. at 741–45. The signals in those cases and administrative
actions were similar to the signals relevant here, from both the
“cold as torture” authorities and the broken-furnace and
drafty-cell cases.
    We do not need a case exactly on point to reject the
qualified immunity defense here, at least on the facts we must
treat as true on appeal. While I am pleased to join most of the
majority opinion, including its important holding that the
alleged intentional exposure to cold was sufficient to violate
the Eighth Amendment, I respectfully dissent from the
portion of the opinion and judgment affirming summary
judgment on the conditions of confinement claim based on
qualified immunity.