In his handwritten declaration under oath in his opposition as plaintiff to defendant John McKinney’s motion for summary judgment, Christopher Watts stated the following:

In the light of this declaration, the district court held that a triable issue of fact was raised, i.e., whether McKinney had applied force "maliciously and sadistically to cause harm" in violation of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 7 , 112 S.Ct. 995 , 117 L.Ed.2d 156 (1992). As to McKinney’s claim of qualified immunity, the district court followed Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). The act attributed to McKinney violated a clearly established constitutional right "of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1981).

McKinney, represented by the attorney general of California, appeals, contending that Watts’ declaration if accepted as true states no violation of the Eighth Amendment and that “a reasonable officer in defendant McKinney’s position would not necessarily have believed” that his conduct was unlawful. McKinney blunts Watts’ precise delineation of the assault upon him by describing it as a kick in “the groin.”

A lawyer must be zealous on behalf of his client. But zeal needs to be tempered by commonsense. The Supreme Court in Hudson proscribed the use of force for the malicious and sadistic purpose of causing harm. Watts’ declaration, describing the vengeful acts of a frustrated investigator, identifies the unconstitutional purpose and deeds. To suppose that any reasonable person, let alone a trained prison officer, would not know that kicking a helpless prisoner’s genitals was cruel and unusual conduct is beyond belief. The Supreme Court did not need to create a catalogue of all the acts by which cruel and sadistic purpose to harm another would be manifest; but if it had, such act would be near the top of the list. The case must go to trial.

AFFIRMED.