Few subjects are more timely than the use of excessive force by law enforcement officials, and the Supreme Court on Monday will consider an aspect of that issue: how to evaluate excessive force claims made by pretrial detainees.
Specifically, the Court will try to resolve a deep split among the federal appeals courts over whether a pretrial detainee may demonstrate unconstitutional excessive force by showing conduct that was objectively unreasonable or whether evidence of a subjective intent to harm the detainee is also required.
The importance of the case, Kingsley v. Hendrickson, may be lost in the shadow of the same-sex marriage dispute being argued the next day. Pretrial detention presents a set of fascinating analytical challenges for the courts, with both practical and theoretical ramifications that are important because by many estimates there are more than 450,000 individuals in pretrial detention in the United States on a typical day. While the overwhelming majority do not face issues of excessive force, complaints by detainees have arisen in almost all of the federal appeals courts.
The issues should be of concern to law students interested in criminal procedure, law enforcement, and the rights of the accused and of prisoners, as well as those who may study theories of punishment and due process rights.
The reason that the issue is somewhat difficult is that pretrial detainees occupy a unique constitutional status in between arrestees and convicted criminals. Pretrial detainees generally are considered those in custody while awaiting trial because a judge has found a sufficient basis – probable cause – to hold them. As a general principle, pretrial detainees are still entitled to a presumption of innocence before trial and, therefore, may not be punished while they are awaiting trial. But precisely what rights do they have and from what constitutional provisions?
Let us start with a theoretical framework. Individuals who are arrested may generally claim the protection of the Fourth Amendment against the use of excessive force by police, the freedom from “unreasonable searches and seizures.” Law enforcement may use force to arrest someone, but the amount of force must be reasonable to meet Fourth Amendment standards. Those who are convicted and incarcerated have the protection of the Eighth Amendment’s ban on “cruel and unusual punishments.” For convicted criminals, prison guards may use force both to maintain order and security and also, in theory, as part of punishment that meets Eighth Amendment standards.
But for pretrial detainees who have advanced in the system past arrestee status but are not yet convicted criminals, the constitutional protection seems to come from the guarantee of due process in the Fourteenth Amendment, as applied to states, or the Fifth Amendment, as applied to the federal government. Precisely what that due process protection entails is the heart of this case.
The case arose after Michael Kingsley was jailed in 2010 in Sparta, Wisconsin, while awaiting trial on a criminal charge. Deputies at the jail asked Kingsley several times to remove a piece of paper covering a light over his bed in his cell. Because of his refusal, which he said was because he had not placed the paper there, deputies decided to move Kingsley to a different cell. The deputies handcuffed Kingsley behind his back and hauled him out of the cell; he said they banged his leg and that he couldn’t move on his own. In the new cell, the deputies could not remove the handcuffs and applied a taser to Kingsley’s back and then left him in the cell. Other deputies later removed the handcuffs.
Kingsley filed a civil rights lawsuit against the deputies for the use of excessive force, which he said amounted to unconstitutional punishment. After a federal judge refused to grant summary judgment for the deputies, Kingsley contested the jury instructions proposed by the judge, which required Kingsley to demonstrate a subjective intent by the deputies to recklessly disregard his rights. Kingsley argued at trial and subsequently that a pretrial detainee need only show that the amount of force used was objectively unreasonable – that is, more force than necessary under the circumstances.
The U.S. Court of Appeals for the Seventh Circuit upheld Kingsley’s conviction. The appeals court, in an opinion by Judge Kenneth Ripple, ruled that there must be some proof of intent, at least to establish reckless disregard for the detainee’s rights. The two-to-one decision argued essentially that a reckless intent to punish the detainee is what must be demonstrated for a violation of due process.
In dissent, Judge David Hamilton said the majority was adding to confusion over the proper standard for pretrial detainee claims. “If a pretrial detainee can prove that a correctional officer used objectively unreasonable force against him, it should be self-evident that the detainee was ‘punished’ without due process of law. In this case, however, the district court’s jury instruction on excessive force added an unnecessary and confusing element of ‘reckless’ conduct or purpose to the required elements of plaintiff’s claim,” Judge Hamilton wrote.
Judge Hamilton also noted that “[t]here is a longstanding circuit-split on the substantive standard for these excessive force claims by pretrial detainees,” and he urged the Supreme Court “to bring greater clarity to this question for the sake of both detainees and law enforcement and correctional personnel.”
One aspect of the issue that has been highlighted in briefs in the Supreme Court is the fact that, in many places in the country, pretrial detainees and convicted criminals are housed together in the same facilities. In a friend-of-the-court brief filed by Indiana and nine other states, state attorneys general argued that pretrial detainees may often be transferred for numerous reasons from local and county jails to state facilities where convicted criminals are also housed. Reasons include jail overcrowding, the security of the detainee, or the security of the jail if the detainee poses a threat. Adopting one standard under the Eighth Amendment for convicted prisoners and a different one under the Due Process Clause for pretrial detainees will interfere with the ability of law enforcement to maintain prison order and safety, the states said.
In the Supreme Court, Kingsley’s lawyers argue first that force which is objectively unreasonable violates the Due Process Clause. As a second argument, they maintain that force that is objectively unreasonable also amounts to an unconstitutional seizure in violation of the Fourth Amendment.
Lawyers for the deputies argue that there must be proof of subjective intent to punish a pretrial detainee and urge the Court not to import Fourth Amendment standards which are intended for individuals who are not incarcerated. But they also argue that even if the Court decides to rely on objective standards, the deputies in this case should have some degree of immunity from civil rights claims because they were acting according to their understanding of established policy and should not be liable for damages.
The Supreme Court must sort out the conflicting and competing standards. And while the standards for the treatment of pretrial detainees may be sufficiently distinct from other uses of excessive force, the highly charged atmosphere over excessive force will make this case all the more interesting to watch.
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