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Argument analysis: Debating excessive force in the pre-trial setting

Today, the Court heard argument in Kingsley v. Hendrickson, a case about excessive force claims raised by pre-trial detainees. The basic question is whether a subjective or objective standard should govern these claims, but the Court spent a significant amount of the argument just trying to identify the practical ramifications of this choice. At times, it seemed that the Court was trying to choose between clarifying the fundamental principles in this area and simply dispensing with the case at hand on narrow doctrinal grounds. At the end of the argument, the result seemed uncertain.

Wendy M. Ward for petitioner (Art Lien)

Wendy M. Ward for petitioner (Art Lien)

Here’s the basic situation. (For a somewhat more detailed explanation, check out my argument preview.) Kingsley claims that, while he was in jail awaiting trial, a number of jail officers gratuitously tased him, even though he was compliant at the time and, in fact, lying face down on a concrete surface. The jail officers, by contrast, argue that Kingsley was physically resisting their efforts to remove his handcuffs. A jury found for the jail officers, but Kingsley argues that the jury decided the case under the wrong legal standard. In Kingsley’s view, the appropriate standard is objective, like the Fourth Amendment excessive force standard applicable to people who are free. The jail officers, by contrast, argue that the appropriate standard is subjective, like the Eighth Amendment standard applicable to convicted prisoners.

Arguing for Kingsley, Wendy Ward’s opening argument featured several of the argumentative fault lines identified in the briefing.

Early on, Justice Anthony Kennedy said that he found it “very difficult to understand” why a different legal standard should apply to the conduct of jail officers who are dealing with disobedience by pre-trial detainees, rather than convicts. Ward responded that detainees can be disciplined, whereas only convicts can be punished, prompting Justice Kennedy to offer a version of the “po-tay-to/po-ta-to” objection: “You use the word ‘discipline’; I use the word ‘punish.’ Are they the same?” (In hindsight, perhaps it was inevitable that Foucault would come up in this argument.)

Chief Justice John Roberts added that the jail officers “make a very persuasive case that the convicts are actually less of a threat than . . . the pretrial detainees.” As he elaborated, “You go to – you’re going to go to jail if you’ve got 10 days on a DUI or something like that, but the people who are detained preconviction may be multiple murderers.” Ward’s response began: “That’s certainly true.”

Kingsley v. Hendrickson, No. 14-6368

John Bash (Art Lien)

Justice Samuel Alito soon introduced another important theme that would last the rest of the argument: “As a practical matter[,] how much difference does it make whether there’s a purely objective standard or a subjective standard?” Ward responded definitively that there was an important difference because “juries give a lot of deference to officers.” Therefore, she continued, “if [juries are] allowed to inject their subjective good faith as part of a response to the elements for proving the – the case by the by the prisoner, that would result in a lot more findings and verdicts in favor of guards, even in instances where objectively unreasonable, unjustified force is used.”

Arguing for the United States, Assistant to the Solicitor General John Bash advanced a kind of hybrid position. On the one hand, Bash agreed with Kingsley that the objective standard should apply to pre-trial excessive force claims. But, on the other hand, Bash contended that Kingsley’s jury was correctly instructed under that standard – even though the instructions repeatedly use the rather subjective-sounding word “reckless.”

Bash also sought to undermine the jail officers’ effort to deploy what I’ve called “the Friendly canon” – the idea that Supreme Court precedents inspired by the late Judge Henry Friendly should be read in favor of Friendly’s original intentions. The canon arises in this case because the Court expressly derived its subjective Eighth Amendment standard from a Friendly opinion concerning pre-trial detainees. Bash responded in part by questioning the legitimacy of the canon and doubting whether the Court “can extrapolate from a few citations to Judge Friendly.” But Bash also argued that Friendly’s opinion was more nuanced than the jail officers had let on and so offered a reason why the canon might not cut against the government’s position after all. Later in the argument, Justice Elena Kagan appeared to echo that second line of attack.

Interestingly, Bash noted at one point that the ramification of the case might extend far beyond the kinds of pre-trial detainees on which the Court and parties had focused. As he put it: “remember, this [standard] …. would also probably apply to immigration detainees, juveniles who have not been subject to a criminal punishment, and a host of other people who have not gone through the rigors of the Bill of Rights, who have not been convicted of a crime.” Concern for the rights of these other populations, Bash suggested, might explain the government’s decision to break type and endorse Kingsley’s preferred standard over the jail officers’.

Picking up on Justice Alito’s earlier theme, Justice Kennedy asked: “Can you give us an example of what a guard could do to an inmate and a guard could not do to a pretrial detainee, other than for rehabilitation purposes?” The Chief Justice understood Bash’s answer to focus on maximum-security facilities. Because those facilities rarely house pre-trial detainees, the Chief responded: “you come up with a hypothetical, I think, is quite unrealistic, so I’m not sure it’s responsive.”

Helpfully prompted by Justice Ruth Bader Ginsburg, Bash wrapped up his time by elaborating on his jury-instruction argument as a reason for the Court to side – in this case, at least – with the jail officers.

Paul D. Clement for respondent (Art Lien)

Paul D. Clement for respondent (Art Lien)

Finally, Paul Clement’s argument for the jail officers defended “the subjective test fashioned by Judge Friendly in Johnson against Glick.” In their brief, the jail officers seemed to view the Friendly canon as a way of understanding the Court’s own past intent: if the Court borrowed from Friendly’s case on pre-trial detention, the reasoning seemed to go, then the Court must already have endorsed Friendly’s views. At argument, by contrast, Clement seemed to shift emphasis by arguing that the Court should take the new step of embracing Friendly’s characteristically wise opinion.

Soon, though, Clement’s argument turned to the by-now-familiar question of whether the subjective or objective standards really made that much of a difference. This time, Justice Ginsburg took the lead, noting: “what does the reckless add to it? If it’s an excessive use of force, isn’t that at least reckless by definition?” Later, Justice Kagan quite fairly tested the subjective standard’s appeal by asking why Kingsley’s preferred objective standard couldn’t do just as good a job of accounting for the prison “context” and giving jail officers all appropriate “deference.”

In answering these and other questions, the Justices confirmed Clement’s stature at the Court by allowing him to give lengthy, even monologic answers. But even when trying to tease the subjective and objective approaches apart, Clement sometimes conflated them. For example, he said of the subjective test:

[It] gives the jury a practical landing place when they think, you know, with the benefit of hindsight, I wish the police I wish the corrections officer hadn’t done that, but I don’t think it was completely outside of the bounds of what was reasonable. I certainly don’t think it’s so purposeless and so arbitrary that it gives rise to an inference that it had a punitive motive.

The italicized sentence seems objective and to point in exactly the same direction as the subjective-sounding statement in the final sentence.

A little later, Clement asserted that the facts of the case at hand illustrate the practical importance of the subjective/objective distinction, on the theory that the relevant facts clearly show that the jail officers lacked a bad subjective state. As he put it: “I think if you look at this and you ask yourself, was it reasonable to use the Taser? That’s a debatable question.” But when Clement then turned to the subjective standard and asked whether the use of the Taser “was really punitive,” he immediately cashed out that concept in what sounded like distinctly objective terms: “Was it unrelated to an interest in trying to get the handcuffs off? Of course not.”

In a similar vein, Clement himself had earlier appeared to concede (in response to a question from Justice Sonia Sotomayor) that the dueling standards might not make any real difference on the facts of his case. As he put it: “Well, I suppose that if the jury actually credited [Kingsley’s] versions of events, they might be able to find liability under the Johnson v. Glick standard.”

Clement’s most interesting argument both acknowledged that the law in this area might be due for a fundamental re-thinking and turned that uncertainty into a reason for his clients to win. In a single, uninterrupted answer, Clement first suggested that, “[i]n a subsequent case,” it “may make some sense” for the Court “to reconsider what the test should be even under the Eighth Amendment and apply it uniformly across pretrial detainees and convicted inmates.” And Clement further agreed that “there’s some very interesting questions lurking out there about what kind of objective evidence of unreasonableness is enough … to get to the jury on the subjective intent question.” But “nobody here” is asking the Court to overrule the subjective Eighth Amendment standard. Therefore, “the first step in a case where nobody wants to overrule [the Eighth Amendment standard] is to suggest that[,] since the imperatives that the officers face with respect to pretrial detainees and convicted inmates are essentially identical,” the subjective test should win out.

By the end, it seemed clear that the Justices were struggling with the doctrinal categories that they had inherited from past cases. For example, Justice Kagan noted, “I’m not quite sure what the word ‘punishment’ is doing in this context”—even though the Court’s own jurisprudence had made “punishment’ the purported touchstone for excessive-force claims rooted in pre-trial detention. And Justice Sotomayor likewise indicated frustration with the relevant precedential “boxes.” What remains to be seen is whether the Court dispenses with this case on relatively narrow doctrinal grounds, or uses it to think more deeply and creatively about the law of excessive force.

Recommended Citation: Richard M. Re, Argument analysis: Debating excessive force in the pre-trial setting, SCOTUSblog (Apr. 27, 2015, 4:34 PM),