March 23, 2016 Articles

Supreme Court Clarifies a "Legal Twilight Zone" in Excessive Force Claims

The Court adopts objective reasonableness as the Fourteenth Amendment standard.

By Sarah E. Ricks – March 23, 2016

The Supreme Court recently resolved an entrenched circuit split about the standard for evaluating excessive force claims by pretrial detainees. Excessive force claims can be litigated under the Fourth, Fourteenth, or Eighth Amendments. Briefly, the Fourth Amendment governs excessive force claims arising during arrest, the Fourteenth Amendment governs claims arising during pretrial detention, and the Eighth Amendment governs claims arising after conviction.

The Circuit Split over How to Analyze Post-Arrest Excessive Force Claims
In 1989, the Supreme Court expressly reserved the question of how to analyze a claim concerning the use of excessive force by law enforcement “beyond the point at which arrest ends and pretrial detention begins.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).

In the decades since Graham, the federal circuits have split over (1) what legal standard governs the post-arrest, pre-arraignment situation; and (2) the substance of the Fourteenth Amendment’s standard governing pretrial detainees. As the Eighth Circuit phrased it, “[b]etween arrest and sentencing lies something of a legal twilight zone.” Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000).

On the first issue, circuits have disagreed over how to analyze claims that law enforcement used excessive force in the “legal twilight zone” of post-arrest. According to an Eighth Circuit survey, “[s]ome circuits hold that after the act of arrest, substantive due process is the proper constitutional provision because the Fourth Amendment is no longer relevant,” while “[o]ther circuits hold that the Fourth Amendment applies until an individual arrested without a warrant appears before a neutral magistrate for arraignment or for a probable cause hearing, or until the arrestee leaves the joint or sole custody of the arresting officer or officers.” Wilson, 209 F.3d at 715 n.2 (citations omitted).

On the second issue, even where the Fourteenth Amendment was identified as the source of constitutional protection, circuits disagreed over the appropriate content of a standard based on the Fourteenth Amendment. Some circuits measured excessive force claims under the Fourteenth Amendment just as they would under the Fourth Amendment, applying an objective reasonableness test. An objective test does not require a plaintiff to prove a law enforcement officer’s mental culpability.

By contrast, other circuits measured Fourteenth Amendment excessive force claims using standards borrowed from the Eighth Amendment framework that governs claims by convicted prisoners. Rejecting an objective standard, those circuits applied a standard of “subjective deliberate indifference” or “malicious and sadistic” purpose, or another Eighth Amendment standard, all of which require a plaintiff to prove some level of mental culpability by the defendant officer.the supreme court adopts objective reasonableness as the fourteenth amendment standard

The Court Adopts Objective Reasonableness as the Fourteenth Amendment Standard

In Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472–73 (June 22, 2015), the Supreme Courtresolved the long-standing circuit split over the content of the Fourteenth Amendment standard. Each side in Kingsley agreedthat the plaintiff was a pretrial detainee and therefore agreed his claim was governed by the Fourteenth Amendment. The Supreme Court granted certiorari on “whether, to prove an excessive force claim, a pretrial detainee must show that the officers were subjectively aware that their use of force was unreasonable, or only that the officers’ use of that force was objectively unreasonable.” Id. at 2470.

Before the Court, the correctional officers advocated for a subjective standard that required proof of the officer’s mental culpability, a standard based on the Eighth Amendment standard applicable to convicted prisoners and originally adopted in the context of restoring order during a prison riot. The correctional officers argued that “[a] detainee must demonstrate that force was used maliciously and sadistically for the very purpose of causing harm.” Brief for RespondentsKingsley v. Hendrickson, No. 14-6368, 2015 WL 1519055 (Apr. 1, 2015).

Ten states agreed. In an amicus brief, those states argued that, because pretrial detainees often are mixed in the same housing as convicted prisoners, as a practical matter the Supreme Court should adopt a “substantially similar standard” to assess excessive force claims by both populations. Brief of Indiana, Arizona, Delaware et al.Kingsley v. Hendrickson, No. 14-6368, 2015 WL 1641130, at *1–2 (Apr. 8, 2015) (quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)).

However, the Supreme Court rejected the prison officials’ argument for a subjective standard. Instead, Kingsley resolved the decades-long circuit split over the content of the Fourteenth Amendment standard by adopting objective reasonableness as the measure of Fourteenth Amendment liability for law enforcement use of force. While the officer must intend to use the force, the Supreme Court held, the plaintiff need not prove any mental culpability by the officer. Rather, the Supreme Court held, to prove an excessive force claim under the Fourteenth Amendment, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2472–73.

Does Kingsley Signal the Court’s Willingness to Reduce the Eighth Amendment Standard?
The Supreme Court in Kingsley suggested that the lesser showing now required for a pretrial detainee to show excessive force under the Fourteenth Amendment may cast doubt on the continued viability of the more difficult standard for a convicted prisoner to prevail on an excessive force claim under the Eighth Amendment. The objective standard that now applies to excessive force claims by pretrial detainees under the Fourteenth Amendment “may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners,” the Court observed. Id. at 2476.

That the Supreme Court expressly raised the issue but reserved it—“we need not address that issue today”—perhaps signals the Court’s willingness to revisit the Whitley standard in place since 1986. Kingsley, 135 S. Ct. at 2476. Stay tuned.

Keywords: excessive force, pretrial detention, circuit split, Fourteenth Amendment, Graham, objective, reasonable, Supreme Court


Sarah E. Ricks is a clinical professor at Rutgers Law School.


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