Opinion analysis: Supporting excessive force claims in jails – and prisons?
Today, a divided Court resolved Kingsley v. Hendrickson, an important case about excessive force, in the plaintiff’s favor. The precise question in the case had to do with the legal standard for excessive force in the context of pre-trial detention – a significant issue, to be sure, but also a relatively limited one. But the Court’s reasoning appears to extend significantly further and may undermine established standards for excessive force in the much broader context of prison detention. Notably, the United States supported the Court’s legal holding, marking an important instance in which the federal government sided with plaintiffs against prison officers.
I’ve covered the case before and so will only briefly summarize the background. After being arrested and taken to pre-trial detention, Michael Kingsley refused to remove a piece of paper covering a light fixture in his cell. Jail officers then removed Kingsley from his cell and made him lie down on a hard surface. While the details of what happened next are partly disputed, Kingsley alleges that he did not significantly resist and that officers slammed his head into the hard surface. The officers also used a taser on Kingsley for several seconds, even though he was handcuffed and lying face down.
The legal question before the Court has to do with the legal standard for finding unconstitutionally excessive force during pre-trial detention. When people are held in prisons after trial and conviction, the Eighth Amendment provides the appropriate standard and demands a showing of subjective “deliberate indifference” on the part of officers. The reason for that standard is that the Eighth Amendment prohibits certain types of “punishment,” and the Court has thought that punishment cannot be entirely inadvertent. However, the Eighth Amendment doesn’t govern pre-trial detention. Instead, cases like Kingsley’s are governed by the Due Process Clauses.
So, should something like the subjective requirement applicable in Eighth Amendment prison cases also apply in connection with pre-trial due process claims of excessive force? Or, instead, should objective unreasonableness – regardless of the officers’ subjective state of mind – be sufficient to create a due process violation?
In today’s decision Justice Stephen Breyer’s opinion for five Justices held that the appropriate standard is objective, not subjective. In elaborating this result, the Court made clear that the resulting standard is not easily met. The appropriate analysis focuses on “the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” And the objective inquiry must also take full consideration of the jail’s need for “internal order and discipline.”
The Court listed a range of non-exhaustive considerations relevant to the objective inquiry, including: “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”
In justifying this outcome, the Court reaffirmed its own precedent that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” But the Court then explained that, “in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not ‘rationally related to a legitimate non-punitive governmental purpose’ or that the actions ‘appear excessive in relation to that purpose.’” Therefore, the Court continued, “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.”
This is critical reasoning, for it is not necessarily limited to the context of due process and could conceivably extend to Eighth Amendment prison cases. Remarkably, the Court expressly confirmed as much:
We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.
This is a critical point. At oral argument, Justice Kennedy and other Justices thought it very odd that a different standard would govern excessive-force claims by pre-trial detainees as opposed to prison detainees. It seems that a majority may have tacitly decided that the appropriate standard – in both contexts – is objective. So, today, the Court applies an objective standard in the pre-trial context. And, tomorrow, the Court might be prepared to make the Eighth Amendment standard conform.
The Court noted that pragmatic considerations cut in favor of its result. Many jury instructions and jail policies already assume the objective approach, without creating any obvious problem. And the Court also noted that “the use of an objective standard adequately protects an officer who acts in good faith,” particularly given the availability of qualified immunity.
One of the more interesting aspects of the case arose when the jail officers argued that the Court’s precedent stemmed from a circuit opinion authored by the famous Judge Henry Friendly, who served on the U.S. Court of Appeals for the Second Circuit. Confirming Friendly’s abiding influence, the Court took that argument seriously – but found that Friendly had, if anything, written more supportively of the objective standard than the subjective one.
Finding that the jury instructions were erroneous, the Court remanded for the court of appeals to consider whether any error was harmless.
In a rather short dissent, Justice Antonin Scalia, joined by Chief Justice John Roberts and Justice Clarence Thomas, argued that the majority had misread precedent. The key question for Scalia is whether there was “punishment,” and precedent made clear that punishment cannot exist based on objective unreasonableness alone. As Scalia puts it: “It is illogical . . . automatically to infer punitive intent from the fact that a prison guard used more force against a pretrial detainee than was necessary.” Scalia also argued that any liberty interest asserted by Kingsley isn’t sufficiently supported by tradition to be respected. Finally, Scalia emphasized that state law can provide relief to people like Kingsley and that the majority had acted out of a “tender-hearted desire to tortify the Fourteenth Amendment.”
Justice Samuel Alito dissented separately on the interesting ground that the case should have been dismissed as improvidently granted, because the Court had yet to resolve whether a Fourth Amendment claim could be brought in these circumstances. Given the relevance of that issue, Alito would “not decide the due process issue presented in this case until the availability of a Fourth Amendment claim is settled.”
Kingsley won’t be remembered as the Court’s last or most influential case on excessive force, but it should be remembered as an important one. Rather than decide the case based on mechanical doctrinal reasoning, the majority thought about why the doctrinal categories existed – and expressed openness to changing those categories. In time, the case might look like a pivotal moment when the Court began the project of adopting objective unreasonableness standards more broadly, including – perhaps – in the Eighth Amendment context.