Argument preview: Pre-trial detainees and excessive force in jail
Kingsley v. Hendrickson will be the Court’s next word on the law of excessive force. The case focuses on the relatively narrow question of what should happen when pre-trial detainees bring excessive-force claims against jail officers, but it’s impossible for the Court to answer that question without thinking about excessive force more broadly. In short, the issue before the Court is whether excessive-force claims brought by pre-trial detainees should be governed by the standard applicable to free people on the street, or instead by a standard like the one applicable to convicted criminals in prison.
Back in 2010, petitioner Michael Kingsley was arrested on a drug charge and detained in a Wisconsin jail pending trial. One day, a jail officer noticed that a piece of paper covered a light fixture in Kingsley’s cell, creating fire and visibility issues. Jail officers asked Kingsley to remove the paper and then to leave his cell, but Kingsley refused. This led the officers to handcuff Kingsley and forcibly remove him from his cell, ultimately placing him facedown on a concrete bunk in another room. At that point, the officers claim that Kingsley resisted their efforts to remove the handcuffs, prompting them to taser Kingsley for five seconds and possibly use other force as well.
Kingsley sued some of the officers, now the respondents, for excessive force under the Due Process Clause of the Fourteenth Amendment. Under the relevant case law, this claim required Kingsley to show that he had been “punished” while he was awaiting trial. Kingsley’s main theory was that the officers had tased him and used other force when he was compliant and posed no threat. The federal district court denied the officers’ request for summary judgment and qualified immunity largely on the ground that a jury could find that the officers acted with malice and intent to harm. After trial, the jury ruled for the officers – but not before Kingsley objected to the jury instructions.
In Kingsley’s view, the trial judge should have instructed the jury to apply an objective “unreasonableness” test. The judge instead gave an instruction that also seemed to require a subjective finding of “recklessness.” On appeal, a split Seventh Circuit panel ruled in favor of the officers. In fact, the Seventh Circuit seemed to go even further than the trial judge by suggesting that the jury should have had to find an intent to harm, and not mere recklessness. In any event, the Seventh Circuit concluded that the instructions, read as a whole, defined “recklessness” in terms of objective factors – which is what Kingsley was asking for on appeal. Judge Hamilton dissented on the ground that objective factors should suffice to show improper “punishment.”
In granting cert. in this case, the Court sought to resolve the legal standard that governs pre-trial detainees’ excessive force claims. The typical excessive-force claim is governed by an objective Fourth Amendment inquiry focusing on “unreasonable” searches and seizures. But that test paradigmatically involves free people on the street or in their homes. Once convicted of a crime, people are generally treated as lawfully “seized,” rendering the Fourth Amendment largely inapplicable (more on this below). The Eighth Amendment then steps in to supply the critical benchmark, which consists of both an objective component and a subjective “deliberate indifference” requirement.
The question before the Court is what to do when government agents use force on individuals who are detained awaiting trial and so are in between freedom and conviction. For his part, Kingsley wants something like the objective Fourth Amendment test to govern in pre-trial cases like his own, so he contends that the critical dividing line is the moment of conviction. Pre-trial detainees, on this view, are like free people on the street: suspected, perhaps, but assumed innocent. From the detainee’s perspective, only a criminal conviction accompanied by due process can justify “punishment.” By contrast, the jail officers endorse a subjective standard modeled after the Eighth Amendment rule for convicted criminals. On that view, the key dividing line is the moment of incarceration, when an individual becomes the responsibility of jail officers facing complex safety challenges. Viewed through the officers’ eyes, it’s easy to see why pre-trial detainees and convicted criminals might be treated alike.
Meanwhile, the United States, which filed an amicus brief that supported neither party, has advanced a kind of compromise position. On the one hand, the United States agrees with Kingsley that the appropriate test is objective. On the other hand, the United States argues that the jury instructions in the case fairly encompassed an objective standard, so there is no need for reversal on the facts at hand. This fact-intensive approach is remarkable in part because the United States has recently garnered critical attention for arguably siding with police too quickly and uniformly in excessive-force claims. In Kingsley, by contrast, it appears – at least on first blush – that the United States has navigated its conflicting duties by siding with today’s officers but tomorrow’s plaintiffs.
A lot of the briefing strives to parse the most relevant precedent, the Court’s 1979 decision in Bell v. Wolfish. In Bell, the Court held that due process protects pre-trial detainees from “punishment,” and no party has chosen to second-guess that basic standard. Bell’s focus on punishment arguably supports the jail officers, because the Court has previously linked punishment with subjective intentions. Indeed, the Court adopted its subjective Eighth Amendment test because it understood “punishment” in the Cruel and Unusual Punishment Clause to require a certain subjective state. In short, if “punishment” implies subjectivity in the Eighth Amendment context, then perhaps it should have the same implication in connection with pre-trial due process.
Yet the Court in Bell explained that impermissible pre-trial punishment occurs either when there is an “expressed intent to punish” or when there is a use of force that was “not reasonably related to a legitimate goal,” in which case “a court permissibly may infer that the purpose of the governmental action is punishment.” The jail officers read this language to mean that the jury must find a forbidden “intent” or “purpose,” whether “expressed” or “infer[red].” By contrast, Kingsley and the United States argue that Bell is best read to mean that objective indicia can establish an impermissible purpose as a matter of law, in which case the objective indicia alone do all the key legal work.
As a kind of precedential tie-breaker, respondents make the intriguing move of invoking what might be called the “Friendly canon” – that is, the notion that Supreme Court precedents inspired by the iconic Judge Henry Friendly should be construed in favor of Friendly’s original intentions. The Friendly canon enters into the case because Eighth Amendment precedents like Hudson v. McMillan expressly “derived” their subjective standard “from one articulated by Judge Friendly in Johnson v. Glick.” And Johnson, unlike Hudson, involved pre-trial detainees. Therefore, the jail officers conclude, all of the original reasons behind the subjective Eighth Amendment test for convicted criminals must also apply to pre-trial detainees.
But, doctrinal nuance aside, what is really at stake when choosing between an objective or subjective standard in this area? The parties seem to take it for granted that the subjective-intent requirement is necessarily the more officer-protective standard, yet the reasons for that assumption are surprisingly difficult to pin down.
The jail officers argue that a subjective standard is necessary if government agents are to receive adequate deference. The officers even assert that “[a] purely objective standard provides no deference.” This is an odd claim, since several paradigmatic deference standards are objective rather than subjective. Indeed, respondents themselves argue in the alternative that they should be protected by qualified immunity, which is itself an objective inquiry that is highly deferential toward officers. Moreover, the United States expressly advocates for an objective standard while reminding the Court of the need to defer to the in-the-moment decisions of jail officers. So the level of deference afforded government actors doesn’t seem to depend on having a subjective test.
Respondents also posit that an objective standard would make it more difficult for officers to prevail based on qualified immunity, which protects officers who act reasonably but unconstitutionally. But this too is an odd assertion. Subjective standards are typically fact-intensive and so resist resolution on legal grounds like qualified immunity. Indeed, the jail officers acknowledge that both their case and a related one “resulted in jury trials, even with the application of a subjective standard.” And, in cases that the jail officers cite, the Court has called for a double dose of deference when claimants must overcome both qualified immunity and an underlying constitutional standard based on reasonableness. So one wonders whether the use of a subjective standard might actually make it harder for officers to avoid a jury trial.
Finally, the jail officers argue that a subjective standard would ensure uniform regulation of government actors, who may simultaneously interact with pre-trial detainees and convicted criminals. Since it is settled law that convicted criminals are protected by a subjective standard, the officers argue that the same standard should apply to pre-trial detainees, particularly since those detainees are often housed in the same facilities and can be more dangerous (because they may be accused of more serious crimes). The difficulty with this argument is that a hybrid regime would still leave officials a fairly workable rule for avoiding liability: avoid conduct that is not reasonably related to legitimate governmental objectives. It is largely for this reason that the United States denies that an objective test would be problematic for government.
And that leads to the bigger question that’s indirectly raised in this case: if an objective standard governs pre-trial “punishment,” would that ruling call into question the subjective standard that now predominates in Eighth Amendment punishment cases? That question nearly comes up in the briefing when Kingsley suggests that the objective Fourth Amendment inquiry might directly apply in his case. The United States rejected that approach in part because Kingsley “does not identify any plausible reason why, on his view, each restriction on movement imposed on convicted prisoners would not also constitute a Fourth Amendment seizure.” But it seems fair to raise a similar point with the United States: is there a practical reason why an objective standard is good enough for pre-trial detainees but too good for convicted prisoners?
Perhaps sensing that the Court’s decision might implicate larger issues, the case has drawn amicus briefs on both sides. For example, the ACLU filed a brief for Kingsley in which it emphasizes the demographic features of pre-trial detainees, including their relative poverty. And a number of states and municipal organizations filed briefs for the jail officers which emphasize the need for deference and uniform treatment of all detainees.
With the parties dissecting case law and offering fact-based grounds for victory, the Court’s decision probably won’t revolutionize the law of excessive force. But the case still raises deep questions, and in framing the issue and options, the Court might start to turn the law in this area in one direction or another.