“Between the status of arrestee and sentenced prisoner is the intermediate status of the detainee, who similarly is entitled to protection from physically abusive government conduct. The constitutional source of that protection lies in the right to be free from deprivations of liberty without due process of *910 law.”
How later courts described this case
- “Between the status of arrestee and sentenced prisoner is the intermediate status of the detainee, who similarly is entitled to protection from physically abusive government conduct. The constitutional source of that protection lies in the right to be free from deprivations of liberty without due process of *910 law.”
- describing the prior law in the decision that was later reversed by the Supreme Court in Kingsley
- referring to the “amorphous ‘shocks the conscience’ standard”
- quot- ing Wilson v. Williams, 83 F. 3d 870, 875 (CA7 1996)
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3639
MICHAEL B. KINGSLEY,
Plaintiff‐Appellant,
v.
STAN HENDRICKSON, ET AL.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:10‐cv‐00832‐bbc — Barbara B. Crabb, Judge.
ARGUED APRIL 23, 2013 — DECIDED MARCH 3, 2014
Before RIPPLE and HAMILTON, Circuit Judges, and
STADTMUELLER, District Judge.*
RIPPLE, Circuit Judge. Michael Kingsley brought this action
under 42 U.S.C. § 1983 against six staff members of a
Wisconsin county jail, where he had been held as a pretrial
detainee in 2010. Mr. Kingsley alleged that during his forcible
*
The Honorable J.P. Stadtmueller, United States District Court for the
Eastern District of Wisconsin, sitting by designation.
2 No. 12‐3639
transfer to a new cell, which included the application of a taser,
the defendants had violated various of his constitutional and
statutory rights. The district court granted partial summary
judgment for the defendants; a single claim of excessive force
against Sgt. Stan Hendrickson and Deputy Fritz Degner
proceeded to trial. The jury returned a verdict for the
defendants.
Mr. Kingsley now appeals the judgment entered on the
verdict, contending that the jury received erroneous and
confusing instructions. Specifically, Mr. Kingsley contends that
the district court conflated the standards for excessive force
under the Eighth and Fourteenth Amendments and, as a result,
wrongly instructed the jury to consider the subjective intent of
the defendants. Mr. Kingsley also contends that the
instructions misstated the harm that he must prove to obtain
relief. We hold that the instructions were not an erroneous or
confusing statement of the law of this circuit and that
Mr. Kingsley affirmatively acquiesced to the instruction
dealing with harm. Accordingly, we affirm the judgment of the
district court.
I
BACKGROUND
A.
In April 2010, Mr. Kingsley was booked into the Monroe
County Jail in Sparta, Wisconsin, as a pretrial detainee. On
May 1, he was transferred to the facility’s south cell block.
No. 12‐3639 3
On May 20, 2010, a deputy performing a cell check
noticed a sheet of yellow legal paper covering the light above
Mr. Kingsley’s bed and ordered him to take it down.
Mr. Kingsley refused the order and answered that he had not
put the paper there.1 The deputy moved on. When he returned
for a further cell check later in the evening, he noticed that the
paper had not been removed and again ordered Mr. Kingsley
to take it down. After another refusal and a warning of
possible disciplinary action, the deputy issued him a minor
violation and reported it to Sgt. Hendrickson. Sgt. Hendrickson
informed Deputy Karl Blanton that Mr. Kingsley would have
to remove the paper in the morning.
When Deputy Blanton made his morning rounds, he
ordered Mr. Kingsley to take down the paper. Mr. Kingsley did
not respond and did not remove the paper. A few minutes
later, Sgt. Hendrickson came to deliver Mr. Kingsley’s
medication, and he again ordered Mr. Kingsley to take down
the paper. After several requests, Mr. Kingsley again refused,
stating once again that he had not put the paper there.
Sgt. Hendrickson next called the jail administrator, Lieutenant
Robert Conroy.
Lt. Conroy then went to Mr. Kingsley’s cell. After
Mr. Kingsley refused his order, Lt. Conroy said jail staff would
take the paper down and would have to transfer Mr. Kingsley
to another cell in the interim. He also threatened discipline.
1
Apparently, covering the lights with paper is a common practice by
inmates in an effort to dim some of the brightness of the jail’s lights.
4 No. 12‐3639
A few minutes later, Sgt. Hendrickson, Deputy Blanton,
Lt. Conroy, Deputy Fritz Degner and Deputy Sheriff Shisler
arrived at the cell. They ordered Mr. Kingsley to stand up and
to back up to the door with his hands behind his back.
Mr. Kingsley asked why and protested that he had done
nothing wrong. Deputy Degner told Mr. Kingsley to follow the
order or he would be tasered. He was again ordered to get up,
but he continued to lie facedown on his bunk. He did,
however, put his hands behind his back.
At this point, Sgt. Hendrickson and Deputy Blanton entered
the cell, and, with some difficulty (which they attribute to
Mr. Kingsley “tensing” his arms and holding them apart),2 they
were able to handcuff him. Mr. Kingsley would not follow an
order to stand, so they pulled him to his feet. Mr. Kingsley then
fell to his knees; he claimed that, in pulling him off of the bed,
the officers had smacked his feet on the bedframe, causing him
pain. He claimed that the pain was so severe that he could not
stand or walk. The officer therefore carried him out of the cell
by holding him under his arms and placed him facedown in
the hallway. When he would not answer questions about his
foot injury, he was taken in the same manner to a receiving cell
and placed facedown on the bunk.
Once he was on the receiving‐cell bunk, the officers
attempted to remove the handcuffs. The evidence at trial was
conflicting on the later course of events.3 The defendants say
2
R.27 at 7.
3
The record contains several videos, including one of the transfer and one
(continued...)
No. 12‐3639 5
that Mr. Kingsley resisted their effort, pulling the handcuffs
apart and trying to get up. Mr. Kingsley denied this resistance
at trial. At some point, Sgt. Hendrickson put his knee in
Mr. Kingsley’s back, and Mr. Kingsley told him, in colorful
language, to get off him. Mr. Kingsley claims that the
defendants then smashed his head into the concrete bunk, an
allegation the defendants deny.
After some further verbal exchange,4 Deputy Degner
applied a taser for five seconds on Mr. Kingsley’s back.
Lt. Conroy then ordered all of the staff to clear the cell. Fifteen
minutes later, the staff returned and were able to remove the
handcuffs. Mr. Kingsley was placed on a medical watch, but
refused the attention of a nurse.5
3
(...continued)
of the incident in the receiving cell. However, the district court found them
of limited value on the disputed points because the camera angle is such
that Mr. Kingsley is nearly entirely blocked by the defendants.
4
Mr. Kingsley claims Sgt. Hendrickson ordered Deputy Degner to “[t]ase
his ass.” R.157 at 52. The defendants deny that these words were used but
agree that Sgt. Hendrickson told Deputy Degner to apply the taser in
contact stun mode to Mr. Kingsley.
5
Following the incident, Mr. Kingsley was given a major violation report
showing four rule violations. The events surrounding the issuance of that
report and the consequences were a part of Mr. Kingsley’s procedural due
process claim, which is not at issue in this appeal.
6 No. 12‐3639
B.
In December 2010, Mr. Kingsley, proceeding pro se,
brought this action in the district court. His principal theory
was that the defendants had violated his due process rights
under the Fourteenth Amendment.6 His initial complaint
presented several claims against seven Monroe County
defendants, including an excessive force claim relating only to
Sgt. Hendrickson and Deputy Degner.
The parties cross‐moved for summary judgment. The
district court granted partial judgment for the defendants on a
procedural due process claim relating to Mr. Kingsley’s
discipline by jail staff. It concluded, however, that material
issues of fact remained that precluded judgment on the
excessive force claim based on the officers’ conduct in the
receiving cell. Specifically, the court identified “a dispute about
whether defendants slammed plaintiff’s head into the concrete
bed and used a taser against him solely for the purpose of
causing him harm.”7 Although the officers clearly had
difficulty removing the handcuffs, Mr. Kingsley claims that it
was because they had been applied too tightly and
Sgt. Hendrickson’s kneeling on his back had caused his body
to tense; the officers claim that Mr. Kingsley was resisting. The
court observed that, from the video, “it is not clear … whether
6
He brought the federal claims under 42 U.S.C. § 1983. A state law claim
for assault and battery initially was presented as well. That claim is not at
issue in this appeal.
7
R.69 at 12.
No. 12‐3639 7
plaintiff was resisting or struggling. [He] does not appear to be
moving his body around aggressively or very much at all.”8
The court noted the case law that held that it was
reasonable to use force against an inmate who refused to
comply with orders but concluded that the issue in the case
was “whether [the] defendants’ response to plaintiff’s
obstinance was reasonable under the circumstances or whether it
was excessive and was intended to cause [the] plaintiff harm.”9
The court also concluded that, because a jury could find that
the defendants had acted with malice, qualified immunity was
not available. Although the court, in its ruling, concluded that
the relevant constitutional right was contained within the
Fourteenth Amendment because of Mr. Kingsley’s status as a
pretrial detainee, the court applied Eighth Amendment
excessive force standards in assessing the claim.
Following the grant of summary judgment, the parties
stipulated to the dismissal with prejudice of all outstanding
claims except the excessive force claim against
Sgt. Hendrickson and Deputy Degner. Counsel was appointed
for Mr. Kingsley and the case proceeded to trial. In pretrial
proceedings, the district court proposed an instruction on
excessive force to which both parties objected, and the court
made various modifications. At the close of the evidence, the
parties revisited the instruction and again objected to its
content. Again, the district court made some modification and
8
Id. at 7.
9
Id. at 14 (emphasis added).
8 No. 12‐3639
added a clarifying instruction. The court finally settled on the
following instruction:
Excessive force means force applied recklessly that
is unreasonable in light of the facts and
circumstances of the time. Thus, to succeed on his
claim of excessive use of force, plaintiff must prove
each of the following factors by a preponderance of
the evidence:
(1) Defendants used force on plaintiff;
(2) Defendants’ use of force was unreasonable in
light of the facts and circumstances at the time;
(3) Defendants knew that using force presented
a risk of harm to plaintiff, but they recklessly
disregarded plaintiff’s safety by failing to take
reasonable measures to minimize the risk of
harm to plaintiff; and
(4) Defendants’ conduct caused some harm to
plaintiff.
In deciding whether one or more defendants used
“unreasonable” force against plaintiff, you must
consider whether it was unreasonable from the
perspective of a reasonable officer facing the same
circumstances that defendants faced. You must
make this decision based on what defendants knew
at the time of the incident, not based on what you
know now.
Also, in deciding whether one or more defendants
used unreasonable force and acted with reckless
No. 12‐3639 9
disregard of plaintiff’s rights, you may consider
such factors as:
• The need to use force;
• The relationship between the need to use force
and the amount of force used;
• The extent of plaintiff’s injury;
• Whether defendants reasonably believed there
was a threat to the safety of staff or prisoners; and
• Any efforts made by defendants to limit the
amount of force used.[10]
Mr. Kingsley’s counsel objected to the inclusion of “harm”
as an element of an excessive force claim. He contended that
the jury might confuse the element of harm for some sort of
lasting or significant injury. Counsel first requested a clarifying
instruction that “pain is considered harm.”11 When the court
began to offer a preferred alternative, “[A] person can be
harmed even if he does not suffer a lasting injury or …,”
plaintiff’s counsel interjected, “Or severe injury.”12 Following
this exchange, the jury was instructed that “[a] person can be
harmed even if he did not suffer a severe injury.”13
10
R.146 at 3–4.
11
R.156 at 79.
12
Id. (internal quotation marks omitted).
13
R.146 at 4.
10 No. 12‐3639
The jury returned a verdict for the defendants, and the
district court entered judgment dismissing the case.
Mr. Kingsley timely appeals the judgment. He submits that the
instruction misstated the law and confused the jury on the
subjects of both the intent and harm necessary to establish an
excessive force claim in the pretrial detainee context.
II
DISCUSSION
On appeal, Mr. Kingsley raises two challenges to the jury
instructions. First, he claims that the instruction wrongfully
conflated the standard for excessive force claims under the
Eighth and Fourteenth Amendments and that, as a result, the
instructions incorrectly required him to demonstrate that the
defendants acted with reckless disregard for his safety. Second,
Mr. Kingsley claims that the instruction regarding harm, which
stated that harm was an element of the claim and that it could
be demonstrated without a showing of “severe injury,” was
both incorrect and confusing.
We shall assess each of his objections to the instructions in
turn. Our review of jury instructions is de novo. Huff v.
Sheahan, 493 F.3d 893, 899 (7th Cir. 2007). We must “determine
whether, taken as a whole, [the instructions] correctly and
completely informed the jury of the applicable law.” Id. “We
defer to the district court’s phrasing of an instruction that
accurately states the law; however, we shall reverse when the
instructions misstate the law or fail to convey the relevant legal
principles in full and when those shortcomings confuse or
No. 12‐3639 11
mislead the jury and prejudice the objecting litigant.” Id.
(citation omitted) (internal quotation marks omitted).
A.
1.
A claim of excessive force, like the one at issue here, is, at
bottom, one that seeks to impose liability for “physically
abusive governmental conduct.” Graham v. Connor, 490 U.S.
386, 394 (1989). The right to be free from such abuse derives
from various provisions of the Bill of Rights. The Fourth
Amendment affords protection to the person in the context of
a seizure, id.; the Eighth Amendment applies when, following
the constitutional guarantees of our criminal process, there has
been an adjudication of guilt and an imposition of sentence,
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). Between the
status of arrestee and sentenced prisoner is the intermediate
status of the detainee, who similarly is entitled to protection
from physically abusive government conduct. The
constitutional source of that protection lies in the right to be
free from deprivations of liberty without due process of law.
Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979).
In sum, we evaluate a claim of excessive force not under
“some generalized ‘excessive force’ standard,” but “by
reference to the specific constitutional standard which governs
that right.” Graham, 490 U.S. at 394. Mr. Kingsley was a pretrial
detainee at the time of the tasing incident; therefore, the
Fourteenth Amendment’s Due Process Clause is the source of
his substantive right and determines the applicable standards
12 No. 12‐3639
to evaluate his claim. See Ingraham, 430 U.S. at 672 n.40; Forrest
v. Prine, 620 F.3d 739, 743–44 (7th Cir. 2010).
2.
In examining the contours of the right to be free from
excessive force as an element of due process, Bell v. Wolfish, 441
U.S. 520 (1979), is our primary touchstone. There, the Supreme
Court evaluated a claim regarding the conditions of
confinement for pretrial detainees. “[U]nder the Due Process
Clause, a detainee may not be punished prior to an adjudication
of guilt in accordance with due process of law.” Id. at 535
(emphasis added). As a consequence, “the proper inquiry” is
whether the treatment of the detainee “amount[s] to
punishment.” Id. The Supreme Court markedly contrasted due
process protections for detainees against the rights of
sentenced inmates: “A sentenced inmate[] … may be punished,
although that punishment may not be ‘cruel and unusual’
under the Eighth Amendment.” Id. at 535 n.16 (emphasis
added).
Our cases also have noted that the protection afforded by
the Due Process Clause is broader than that afforded under the
Eighth Amendment. See Lewis v. Downey, 581 F.3d 467, 474 (7th
Cir. 2009) (“[T]he Due Process Clause, which prohibits all
‘punishment,’ affords broader protection than the Eighth
Amendment’s protection against only punishment that is ‘cruel
and unusual.’”); id. at 475 (noting that, in the excessive force
context, “anything that would violate the Eighth Amendment
would also violate the Fourteenth Amendment”); cf. Forrest,
620 F.3d at 743–44 (acknowledging that “[t]he Fourteenth
No. 12‐3639 13
Amendment right to due process provides at least as much,
and probably more, protection against punishment as does the
Eighth Amendment’s ban on cruel and unusual punishment”).
Of course, “[n]ot every disability imposed during pretrial
detention amounts to ‘punishment’ in the constitutional
sense.” Bell, 441 U.S. at 537.14 We must ask whether a particular
action was taken “for the purpose of punishment or whether
it is but an incident of some other legitimate governmental
purpose.” Id. at 538.15
Notably, the Due Process Clause provides its own limiting
principle; the Clause protects against only abusive conduct that
is more than negligence, Daniels v. Williams, 474 U.S. 327, 334
(1986), or even gross negligence, Archie v. City of Racine, 847
F.2d 1211, 1219 (7th Cir. 1988) (en banc). Indeed, we have said
that the official conduct must be at least reckless. See Archie,
847 F.2d at 1219–20. Recklessness, which necessarily
incorporates some measure of subjective intent, stands in
contrast to the rule under the Fourth Amendment that focuses
only on whether the government conduct was “objectively
14
As we already have noted, Bell v. Wolfish, 441 U.S. 520 (1979), was a
conditions of confinement case, not a case concerning excessive force, and
the Supreme Court has not applied its rule directly in the excessive force
context. However, in Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the
Court noted that Bell made clear the right of a detainee to be free from
excessive force under the Due Process Clause.
15
The Supreme Court has noted, at least in the context of the Eighth
Amendment, that “punishment” itself requires “‘a deliberate act intended
to chastise or deter.’” Wilson v. Seiter, 501 U.S. 294, 300 (1991) (quoting
Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)).
14 No. 12‐3639
reasonable” in light of all of the facts and circumstances.
Graham, 490 U.S. at 397 (emphasis added) (internal quotation
marks omitted); see also Common v. City of Chicago, 661 F.3d 940,
943 (7th Cir. 2011).
While these cases make clear the basic theoretical and
doctrinal distinction among the constitutional standards
governing the various categories of confinement, they do not
provide a practical framework for distinguishing the
obligations of those constrained by each of the constitutional
provisions. Indeed, on more than one occasion, while noting
the distinction between pretrial and posttrial incarceration, we
have decided the case before us by employing the more
familiar Eighth Amendment standard. See, e.g., Rice ex rel. Rice
v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012) (“[C]ourts
still look to Eighth Amendment case law in addressing the
claims of pretrial detainees, given that the protections of the
Fourteenth Amendment’s due process clause are at least as
broad as those that the Eighth Amendment affords to
convicted prisoners, and the Supreme Court has not yet
determined just how much additional protection the
Fourteenth Amendment gives to pretrial detainees.” (citations
omitted)); Forrest, 620 F.3d at 744 (affirming summary
judgment for the defendant officers where the plaintiff
detainee had “not explained[] … how any protections
guaranteed by the Fourteenth Amendment provide him with
more protection than he would receive under traditional
Eighth Amendment standards”); Lewis, 581 F.3d at 474
(reversing summary judgment for officer in Fourteenth
Amendment case upon concluding that the plaintiff had raised
No. 12‐3639 15
a genuine issue of fact even when considered under the more
stringent standard set by the Eighth Amendment).
Here, we also have no need to delineate, in any
comprehensive fashion, the differences between the rights of
pretrial detainees and adjudicated criminals. Our task is less
ambitious. We must determine the adequacy of an instruction
given to a jury tasked with determining whether excessive
force was employed against a pretrial detainee. We simply
must determine whether the instruction at issue was
sufficiently precise in its description of the due process right of
a pretrial detainee to ensure that Mr. Kingsley’s case was fairly
presented to the jury.
Several of our cases have explored the problem of
describing, in the due process context, the right of a detainee
to be free from excessive force. In Titran v. Ackman, 893 F.2d
145 (7th Cir. 1990), we expressed concern about defining a
detainee’s due process right to be free from excessive force by
use of highly subjective terms such as “grossly
disproportionate” or “shocks the conscience.” Id. at 147
(internal quotation marks omitted). We pointed out that, in the
usual course of events, “the propriety of using force on a
person in custody pending trial will track the Fourth
Amendment: the court must ask whether the officials behaved
in a reasonable way in light of the facts and circumstances
confronting them.” Id. This emphasis on the objective standard
of a reasonable prison officer was written, of course, against
the background of the amorphous “shocks the conscience”
standard. See id. at 147–48. Notably, however, while giving us
the objective criteria borrowed from the Fourth Amendment as
a more concrete touchstone against which to measure the
16 No. 12‐3639
conduct of government officials, the court in Titran also
pointedly remarked that, because “the Due Process Clause
does not proscribe negligence or even gross negligence, the
search for ‘punishment’ cannot be wholly objective.” Id. at 147
(emphasis added).
Wilson v. Williams, 83 F.3d 870 (7th Cir. 1996), a case that
came to us posttrial and that involved the correctness of the
jury instructions, afforded us an occasion to focus more
directly on the requisite intent for a due process violation
based on excessive force. The jury was instructed that the
plaintiff must establish that there was a “use of force that was
clearly excessive to the need[,] … the excessiveness of which
was … objectively unreasonable in light of the facts and
circumstances at the time.” Id. at 873. The jury was further
instructed that the plaintiff must establish that the defendant
“acted deliberately or with callous indifference, evidenced by
an actual intent to violate plaintiff’s constitutional rights or
reckless disregard for his rights.” Id.
In Wilson, the plaintiff had objected that the instruction
wrongfully excluded the officer’s subjective intent from the
jury’s consideration. We perceived no error in this regard. We
stated that, where the issue of intent is contested, “a jury may
properly rely on objective factors to arrive at their
determination of that intent.” Id. at 876. Notably, we also
reaffirmed the pointed holdings of Anderson v. Gutschenritter,
836 F.2d 346, 349 (7th Cir. 1988), and Shelby County Jail Inmates
v. Westlake, 798 F.2d 1085, 1094 (7th Cir. 1986), that a plaintiff
must prove that the defendants “acted deliberately or with
callous indifference, evidenced by an actual intent to violate
No. 12‐3639 17
[the plaintiff’s] rights or reckless disregard for his rights.”
Wilson, 83 F.3d at 875 (internal quotation marks omitted).
Again in Rice ex rel. Rice v. Correctional Medical Services, 675
F.3d 650 (7th Cir. 2012), when we confronted a situation
analogous in many relevant respects to the situation before us
today (jail guards extricating a detainee from his cell), we
wrote:
Where, as here, force is employed in the course of
resolving a disturbance, the pertinent inquiry is
whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.
Factors relevant to that inquiry include whether jail
officials perceived a threat to their safety and the
safety of other inmates, whether there was a genuine
need for the application of force, whether the force
used was commensurate with the need for force, the
extent of any injury inflicted, and whatever efforts
the officers made to temper the severity of the force
they used. See also Forrest v. Prine, 620 F.3d 739,
744–45 (7th Cir. 2010); Lewis v. Downey, 581 F.3d 467,
475–77 (7th Cir. 2009).
Id. at 668 (additional citations omitted) (internal quotation
marks omitted).
Our dissenting colleague believes that our cases have been
ambiguous on the question of intent, but we see no serious
ambiguity here. Our cases make clear that, although we
employ the objective criteria of the Fourth Amendment as a
touchstone by which to measure the gravity of the defendant
18 No. 12‐3639
officer’s conduct, we also recognize, quite clearly, the need for
a subjective inquiry into the defendant’s state of mind in
performing the activity under scrutiny. In determining
whether the defendant officer had the requisite state of
mind—at least recklessness—the same criteria used to measure
the defendant’s lack of care are a useful benchmark. This is
because, as Titran intimated, the gravity of the offense and the
requisite intent are closely linked. Titran is clear that the
strength of this link under a particular set of facts may mean
that the inference of intent is so strong that no further inquiry
need be made. See Titran, 893 F.2d at 148 (“If the officers
intentionally restrained, jolted, and roughed up Titran without
physical provocation from her, their behavior was
unreasonable.”). But when the inference is less strong, the
cases do make clear that some examination of intent is
appropriate, and that the distinction makes a mechanical
application of Fourth Amendment objective standards
impossible. See id. at 147 (“Subtle differences between Fourth
and [Fourteenth] Amendment standards are inevitable on
account of this mental element.” (emphasis added)).16
We think at this point it is useful to pause and be certain
that we have not lost sight of the basic point of Bell. Bell teaches
16
The dissent also suggests that under Daniels v. Williams, 474 U.S. 327
(1986), the only “intent” requirement applicable in Fourteenth Amendment
cases is the general requirement of intentional rather than negligent acts,
necessary to impose liability for any alleged constitutional violation. The
difficulty with this view is that Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990),
and other of our cases already have held that there is something unique
about the Fourteenth Amendment that imposes a burden not imposed
under the Fourth Amendment.
No. 12‐3639 19
that the central inquiry relevant in a Fourteenth Amendment
case brought by a pretrial detainee is whether the state punished
him—as opposed to whether it had merely held him, restricted
him, or applied a measure of force in a manner consistent with
and expected of constitutional restraints on liberty prior to
trial. Bell was, of course, a conditions of confinement case, see
supra n.14, but it notes the necessity of determining from the
facts whether there is an intent to punish.
Finally, we note that although some consideration of intent
is embraced by our cases, it is limited in significant measure by
the fact that it is discernable from objective considerations17. See
Wilson, 83 F.3d at 876.
3.
With these principles in mind, we now turn to the jury
instruction at issue in the case before us.
On the subject of excessive force, the jury was instructed as
follows:
17
We acknowledge and are grateful for the fine work of the Committee
that developed this circuit’s impressive Pattern Civil Jury Instructions.
Nevertheless, while those instructions represent learned studies of the law
of this circuit, they are persuasive only to the extent that they accurately
restate the law of this circuit. See United States v. Burke, 781 F.2d 1234, 1239
n.2 (1985) (“Although the pattern instructions are suggestive rather than
absolutely binding, a decision of this court is authoritative.”). Moreover, it
is not clear from the commentary to the Pattern Instruction that the issue we
now confront was considered squarely. Notably, there is no mention of the
above cases and the contrary language included within them.
20 No. 12‐3639
Excessive force means force applied recklessly that
is unreasonable in light of the facts and
circumstances of the time. Thus, to succeed on his
claim of excessive use of force, plaintiff must prove
each of the following factors by a preponderance of
the evidence:
(1) Defendants used force on plaintiff;
(2) Defendants’ use of force was unreasonable in
light of the facts and circumstances at the time;
(3) Defendants knew that using force presented
a risk of harm to plaintiff, but they recklessly
disregarded plaintiff’s safety by failing to take
reasonable measures to minimize the risk of
harm to plaintiff; and
(4) Defendants’ conduct caused some harm to
plaintiff.
In deciding whether one or more defendants used
“unreasonable” force against plaintiff, you must
consider whether it was unreasonable from the
perspective of a reasonable officer facing the same
circumstances that defendants faced. You must
make this decision based on what defendants knew
at the time of the incident, not based on what you
know now.
Also, in deciding whether one or more defendants
used unreasonable force and acted with reckless
disregard of plaintiff’s rights, you may consider
such factors as:
No. 12‐3639 21
• The need to use force;
• The relationship between the need to use force
and the amount of force used;
• The extent of plaintiff’s injury;
• Whether defendants reasonably believed there
was a threat to the safety of staff or prisoners; and
• Any efforts made by defendants to limit the
amount of force used.[18]
Mr. Kingsley argues that the instructions were erroneous
and confusing because he was required to establish that the
officers had acted with “reckless disregard” for his safety,
when the instruction should have allowed the jury to find the
existence of punishment on the basis of wholly objective
factors.
A faithful adherence to the case law that we have discussed
precludes our accepting this contention. As we have noted
earlier, our cases are clear that the existence of intent—at least
recklessness—is a requirement in Fourteenth Amendment
excessive force cases. The court’s instruction reflected this
requirement in our case law. The jury was told specifically that,
in determining whether the intent element is satisfied, that is,
whether the defendants “acted with reckless disregard of
plaintiff’s rights,” it “may consider” a non‐exhaustive list of
five factors, drawn almost verbatim from Wilson. In short, the
instruction required a level of intent at least equivalent to
18
R.146 at 3–4.
22 No. 12‐3639
recklessness, measured largely by the objective factors that we
already have identified.19
The jury was instructed adequately on the elements of
Mr. Kingsley’s Fourteenth Amendment cause of action.20
19
The dissent contends that “[t]he clearest thing about Wilson is that it
reversed the use of the confusing amalgam of an instruction.” Dissent at 31.
In Wilson, this court approved an instruction that tracked very closely the
language used in this case, and turned on “whether the prohibited punitive
intent was present.” Wilson v. Williams, 83 F.3d 870, 877 (7th Cir. 1996). It
reversed only on another element, completely absent from our present
instruction, of a “good faith” defense. Id.
20
The dissent also contends that the instruction was confusing not only
because it introduced the extraneous concept of intent, but also because it
did so in three separate and quite different ways. See dissent at 35‐36. We
think this overstates the point and overly parses the instruction, which is
not our settled approach on review of such matters. True enough, the
instruction uses the term “reckless” three times, in three separate phrases.
Its first use, that the “force [must have been] applied recklessly” merely
tracks the usage that the dissent essentially admits is legally proper; that is,
it says that the force must be applied in a manner displaying more
culpability than negligence (i.e., the taser did not go “off by accident,” id. at
39). The evidence admittedly did not suggest that it had, but no reasonable
juror would have been confused as to the meaning under the circumstances.
The second usage is less clear, but the surrounding context cures any
confusion. Although the jury is asked to determine if the defendants
“recklessly disregarded plaintiff’s safety”—a less than ideal phraseology it
is then told precisely how to determine it, by whether they had “failed to
take reasonable measures to minimize harm to the plaintiff.” The final
usage is part of the phrase which introduces the uncontroversial objective
considerations.
No. 12‐3639 23
B.
Mr. Kingsley next submits that the district court erred in
instructing the jury on the issue of harm. He contends that he
should not have been required to demonstrate harm at all and,
if harm is an element, that the use of a taser establishes the
requisite injury as a matter of law. For this latter proposition,
Mr. Kingsley relies on Lewis v. Downey, 581 F.3d 467, 475 (7th
Cir. 2009), in which we held that use of a taser qualified as
more than a de minimis application of force. In the alternative,
he argues that, even if the harm instruction itself were proper,
the jury should not have been further instructed that “[a]
person can be harmed even if he did not suffer a severe
injury.”21 In his view, this clarifying instruction only confused
the matter by “allow[ing] the jury to consider whether the use
of the taser on Mr. Kingsley met some threshold standard of
injury to qualify as harm.”22 The defendants counter that the
plaintiff waived any objection and that, in any event, the
instruction as given was not erroneous.
1.
We begin with the question of waiver. At trial, Mr. Kingsley
did object to the inclusion of harm as an element of the
excessive force claim. Our reading of the transcript makes
clear, however, that his objection was that, because the
defendants repeatedly had contended that there had been no
21
R.146 at 4.
22
Appellant’s Br. 20.
24 No. 12‐3639
lasting injury, the inclusion of the element of harm might be
misread as requiring more than de minimis harm. Counsel for
Mr. Kingsley therefore requested a clarifying instruction that
“pain is considered harm.”23 The court simply stated, “I think
I’ll add ‘a person can be harmed even if he does not suffer a
lasting injury or … .’”24 At this point, plaintiff’s counsel
interjected, “Or severe injury.”25
Although Mr. Kingsley objected to the inclusion of “harm”
as an element, counsel described the objection as concern that
the inclusion of “harm” might be construed erroneously by the
jury to require some lasting injury. Notably, counsel stated:
“[W]e submit that in the Seventh Circuit, injury isn’t a required
element of an excessive force claim. I think the use of harm is
an element.”26 Counsel specifically further told the court that
“[i]t’s just the extent that [the defendants are] going to argue
and there will be any suggestion to the jury that some form of
lasting injury is required under the law, that’s what we would
have the objection to.”27
We do not discern on the record any argument presented
to the district court that harm itself is not an element of the
cause of action or that tasing constitutes harm per se.
23
R.156 at 79.
24
Id.
25
Id.
26
Id. at 78 (emphasis added).
27
Id. at 79 (emphasis added).
No. 12‐3639 25
Consequently, we must agree that Mr. Kingsley’s current
position on the question of harm itself, or harm per se, has
been forfeited.
2.
We now turn to the question whether the district court’s
clarifying instruction introduced confusion by suggesting to
the jury that some unspecified level of injury was required to
establish harm. The transcript makes clear that, after voicing
the objection to the inclusion of harm and stating that it was
out of concern that the defendants would argue need for a
lasting injury, counsel for Mr. Kingsley participated in the
modification of the instruction and specifically suggested the
inclusion of the “[o]r severe injury” language that ultimately
was given by the district court to ameliorate the concerns
raised in the prior objection. In short, the clarifying instruction
was offered at Mr. Kingsley’s request, and for the very purpose
of minimizing any risk that the jury would construe harm as a
significant injury. Mr. Kingsley’s counsel actively participated
with the district court in achieving an instruction that would be
satisfactory in that regard and did not continue an objection to
the language as presenting further difficulty or insist on a more
specific instruction that any amount of pain qualified as harm.
Accordingly, the current objection is waived.
In any event, even if the merits of these objections were
properly before us, we previously have approved an
instruction in this context that included a requirement of
“some harm.” See Wilson, 83 F.3d at 876. Although it would not
have been error for the district court to define injury in a taser
26 No. 12‐3639
case in terms of pain, see Lewis, 581 F.3d at 475; see also Hudson
v. McMillian, 503 U.S. 1, 9–10 (1992), the instruction given by
the district court adequately permitted counsel to argue that
the pain inflicted fulfilled the injury requirement of the cause
of action. Indeed, counsel so argued.
There was no reversible error with respect to the
requirement of a showing of “harm” in this case.
Conclusion
Because the jury instructions were neither erroneous nor
confusing statements of the law of this circuit, the judgment in
favor of the defendants is affirmed.
AFFIRMED
No. 12-3639 27
HAMILTON, Circuit Judge, dissenting. I respectfully dissent. This
case presents an important issue about the extent of a pretrial
detainee’s constitutional right to be free from punishment and
excessive force. 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.
The Committee on Pattern Civil Jury Instructions of the
Seventh Circuit considered this question in 2009. The
committee wisely omitted such language of recklessness or
purpose from its Pattern Instructions 7.08 and 7.09 for
excessive force claims by pretrial detainees. We should remand
for a new trial with instructions tracking those pattern
instructions. That way we could avoid the puzzle posed by the
majority opinion: When does the Constitution allow law
enforcement and correctional officers to use objectively
unreasonable force against a person not convicted of a crime?
I. The Problem: Excessive Force Claims by Pretrial Detainees
As the majority explains, when law enforcement officers
apply physical force to suspects, detainees, or prisoners, the
constitutional standard depends on the status of the person on
the receiving end. A person who is not in custody and who is
a target of police force, such as in an arrest or investigative
stop, is protected by the Fourth Amendment’s prohibition on
unreasonable seizures of the person. The Fourth Amendment
standard is objective: was the application of force unreasonable
28 No. 12-3639
in light of all the relevant circumstances confronting the officer
at the time? Graham v. Connor, 490 U.S. 386, 395–97 (1989);
Federal Civil Jury Instructions of the Seventh Circuit No.
7.08 & 7.09. On the question of liability for a Fourth
Amendment violation, the officer’s subjective purposes do not
matter as long as the force was used intentionally rather than
by accident. Graham, 490 U.S. at 397–99.
A person convicted of a crime and serving a custodial
sentence is protected by the Eighth Amendment’s prohibition
on cruel and unusual punishment. The Eighth Amendment
standard differs from the Fourth because the officer’s state of
mind is critical. The plaintiff must prove that the correctional
officer intentionally used extreme or excessive cruelty toward
the plaintiff for the purpose of harming him, and not in a good
faith effort to maintain or restore security or discipline.
Whitley v. Albers, 475 U.S. 312, 320–21 (1986); Federal Civil Jury
Instructions of the Seventh Circuit No. 7.15. In Graham, the
Supreme Court explained that the less protective Eighth
Amendment standard applies “only after the State has
complied with the constitutional guarantees traditionally
associated with criminal prosecutions.” 490 U.S. at 398–99,
quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).
Both the objective standard under the Fourth Amendment
for free citizens and the subjective standard under the Eighth
Amendment for sentenced prisoners are well established in the
law. The person in between is the pretrial detainee. That
person is protected from excessive force by the Due Process
Clauses of the Fifth or Fourteenth Amendments because he
may not be “punished” until he has been adjudged guilty
No. 12-3639 29
through due process of law. Bell v. Wolfish, 441 U.S. 520, 535 &
n. 16 (1979); Ingraham, 430 U.S. at 671 n. 40. We have
recognized that pretrial detainees receive more protection than
convicted prisoners. E.g., Lewis v. Downey, 581 F.3d 467, 474
(7th Cir. 2009).
Just what the excessive force standard for a pretrial
detainee looks like in detail is not as clear. The detainee may
often be held in a jail with convicted offenders under
conditions that seem indistinguishable from prison, yet he has
not been convicted and is still entitled to a presumption of
innocence. The Supreme Court has not settled the question of
the standard for pretrial detainees. Graham explicitly left it
open. 490 U.S. at 395 n.10. Our circuit’s case law points in the
direction of a standard identical or close to the objective Fourth
Amendment standard, but there are conflicting signals in our
opinions that we should clarify here.1
1
There is a long-standing circuit split on the substantive standard for these
excessive force claims by pretrial detainees. Compare, e.g., Gibson v. County
of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002) (applying objective Fourth
Amendment standard); and Pierce v. Multnomah County, 76 F.3d 1032,
1042–43 (9th Cir. 1996) (reversing defense verdict and ordering new trial
with jury instructions using objective Fourth Amendment standard); with
Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) (applying Eighth
Amendment standard); and Fuentes v. Wagner, 206 F.3d 335, 346–48 (3d Cir.
2000) (applying Eighth Amendment standard to use of force to quell jail
disturbance); see generally Karen M. Blum & John J. Ryan, Recent Develop-
ments in the Use of Excessive Force by Law Enforcement, 24 Touro L. Rev. 569,
573 (2008) (standards “vary widely”); Baker, Wilson v. Spain: Will Pretrial
Detainees Escape the Constitutional “Twilight Zone”?, 75 St. John’s L. Rev. 449
(2001). Because of the effect of qualified immunity in litigation of these
(continued...)
30 No. 12-3639
My colleagues rely heavily on Wilson v. Williams, 83 F.3d
870 (7th Cir. 1996), where a pretrial detainee claimed that he
had been punished by the use of excessive force, but its
guidance does not support the majority here. In Wilson we
approved the portion of a jury instruction that tracked the
objective Fourth Amendment standard. Id. at 876 (“While this
sentence, lifted verbatim from Graham…was intended to apply
to excessive force claims raised explicitly under the Fourth
Amendment, we do not consider it, nor the test which it
espouses, inappropriate in the context here.”). In other
respects, though, the instruction given in Wilson was a
confusing amalgam of Fourth Amendment, Eighth
Amendment, and punitive damages law, along with a defense
of subjective good faith that we said was erroneous. See id. at
877. We also noted that convicted prisoners and pretrial
detainees are often held together in the same facility, so it
might be impractical to have different standards, at least in the
context of a jail disturbance. Id. at 876.
On this last point, though, recall the caution in Bell and
Graham that the Eighth Amendment standard applies only
after the state has complied with the constitutional protections
needed to convict a person of crime. 441 U.S. at 535; 490 U.S. at
398–99. In light of Bell and Graham and their constitutional
foundations, there is no apparent reason why a state’s
unilateral decision to house pretrial detainees with convicted
1
(...continued)
claims, I respectfully submit that our court and/or the Supreme Court needs
to bring greater clarity to this question for the sake of both detainees and
law enforcement and correctional personnel.
No. 12-3639 31
prisoners—for financial or other institutional reasons— should
have the effect of reducing the constitutional protections of
pretrial detainees who are still presumed innocent. The clearest
thing about Wilson is that it reversed the use of the confusing
amalgam of an instruction. It does not support the recklessness
instruction given here.
More enlightening is Titran v. Ackman, 893 F.2d 145 (7th Cir.
1990), where a pretrial detainee brought a claim for excessive
force. We applied the objective reasonableness standard
identical to the Fourth Amendment: “It does not follow [from
the transition from arrest to detention] that officers acquired
greater ability to assault and batter Titran.” Id. at 147. We
explicitly rejected one defendant’s effort to apply a subjective
standard, and we noted: “Multiple standards of official
conduct send confusing signals that undermine the force of the
law….” Id. Our holding was clear: “If the officers intentionally
restrained, jolted, and roughed up Titran without physical
provocation from her, their behavior was unreasonable.” Id. at
148. That looks like an objective standard.
My colleagues make much of a sentence in Titran between
the two I have quoted: “Given Daniels v. Williams and Archie v.
City of Racine, holding that the Due Process Clause does not
proscribe negligence or even gross negligence, the search for
‘punishment’ cannot be wholly objective.” Id. at 147 (citations
omitted). As explained below, however, the point of Williams
and Archie is only that the officer’s conduct must be intentional.
Negligent accidents do not violate the Constitution. Neither
decision added a subjective element of wrongful purpose into
the excessive force standard for a pretrial detainee, nor did
32 No. 12-3639
Titran do so. Nevertheless, I will cheerfully acknowledge that
our few opinions on excessive force against pretrial detainees
leave some room for debate. This case provides an opportunity
to clarify the standard, but we are missing that opportunity.
II. The Pattern Jury Instructions
The Committee on Pattern Civil Jury Instructions of the
Seventh Circuit took up this problem in 2009 and published
with approval of the Circuit Council the pattern jury
instructions that advise using the same objective
reasonableness standards for excessive force claims by pretrial
detainees as well as arrestees. The Circuit Council’s publication
does not imply substantive approval for every line of the
instructions, but the committee chaired by Judge Robert H.
Miller, Jr., included talented judges and practitioners
representing a range of perspectives, and the committee
invited and received public comment on its draft instructions.
The committee’s work deserves our respect and close attention.
Pattern Instructions 7.08 and 7.09 were drafted for use in
excessive force cases for both arrestees under the Fourth
Amendment and pretrial detainees under the Fifth and
Fourteenth Amendments. The full texts of the instructions and
committee comments are attached as an appendix to this
opinion.
The elements instruction, 7.08, includes three elements:
1. Defendant used unreasonable force against
Plaintiff;
[2. Because of Defendant’s unreasonable force,
Plaintiff was harmed;]
No. 12-3639 33
[3. Defendant acted under color of law.]
The second and third elements are in brackets
because there will often be no dispute about
them and because it is not clear whether “harm”
is a distinct element, as the committee’s comment
explains.
Instruction 7.09 then explains what is meant by excessive or
unreasonable force, and it does so in purely objective terms:
You must decide whether Defendant’s use of
force was unreasonable from the perspective of
a reasonable officer facing the same
circumstances that Defendant faced. You must
make this decision based on what the officer
knew at the time of the arrest, not based on what
you know now. In deciding whether Defendant’s
use of force was unreasonable, you must not
consider whether Defendant’s intentions were
good or bad.
In performing his job, an officer can use force
that is reasonably necessary under the
circumstances.
The committee chose not to identify specific factors, but
offered a proposed list for judges who believe such a list might
aid a jury:
— the need for the use of force;
— the relationship between the need for the use
of force and the amount of force used;
34 No. 12-3639
— the extent of the plaintiff’s injury;
— any efforts made by the defendant to temper
or limit the amount of force;
— the severity of the crime at issue;
— the threat reasonably perceived by the
officer(s);
— whether the plaintiff was actively resisting
arrest or was attempting to evade arrest by
fleeing.
These pattern instructions are more consistent with the
applicable constitutional standard, see Graham, Titran, and
Wilson, and much less confusing than the instruction used in
this case. The problem is the concept of “recklessness” in the
district court’s instruction.
III. The Instruction Given in This Trial
The jury instruction given in plaintiff Kingsley’s trial,
quoted by the majority at pages 8–9, goes astray by introducing
the concept of reckless conduct as an additional element the
plaintiff must prove. The first line of the instruction given in
this trial told the jury that excessive force is “force applied
recklessly that is unreasonable in light of the facts and
circumstances of the time.” In the Fourth Amendment context,
excessive force is force that is unreasonable in light of the facts
and circumstances the officer faced. Graham, 490 U.S. at 396–97;
Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir. 2013); Phillips v.
Community Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012).
No. 12-3639 35
Assuming the pretrial detainee plaintiff can prove force
“that is unreasonable in light of the facts and circumstances of
the time,” which is the correct standard, the concept
“recklessly” adds a vague and confusing extra hurdle for the
plaintiff. Put another way, how and why would it be
constitutional for an officer to use force against a pretrial
detainee that was “unreasonable in light of the facts and
circumstances of the time,” since this instruction invites that
very possibility? How and why would objectively
unreasonable force be deemed anything other than
“punishment” that would be imposed on the detainee without
due process of law? See Bell, 441 U.S. at 535 (“under the Due
Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.”).
The instruction here also introduced a second version of
recklessness in the third element, saying the plaintiff must
show: “Defendants knew that using force presented a risk of
harm to plaintiff, but they recklessly disregarded plaintiff’s safety
by failing to take reasonable measures to minimize the risk of
harm to plaintiff.” I am not at all sure what that means, and I
don’t know how a juror should have interpreted it. Must the
plaintiff come forward with evidence of reasonable measures
that would have minimized the risk of harm? Would simply
refraining from the alleged use of force—in this case, using a
taser on an allegedly compliant prisoner, or refraining from
smashing his head into a concrete bed—have been sufficient?
Or was something else required? (I realize that whether the
plaintiff was actually compliant by that time and how force
was used were hotly debated at trial, but jury instructions must
36 No. 12-3639
guide the jury on the law applicable to both sides’ versions of
the facts.)
Adding to the confusion, the same jury instruction then
used a third version of recklessness, telling the jury: “in
deciding whether one or more defendants used unreasonable
force and acted with reckless disregard of plaintiff’s rights, you
may consider such factors as….” A juror trying to follow the
instructions carefully might ask at this point where the idea of
reckless disregard of plaintiff’s rights came from and what it
means. Something different from use of excessive force?
Something different from the first two uses of recklessness?
Does this instruction mean the defendant must have realized
he was violating the detainee’s rights, or at least not cared
whether he was doing so? Reckless disregard for the plaintiff’s
rights will support a punitive damage award, so that
admittedly subjective concept is used in punitive damage
instructions. See Smith v. Wade, 461 U.S. 30, 56 (1983); Pattern
Inst. No. 7.24. But reckless disregard of the plaintiff’s rights is
simply not an element of the plaintiff’s core case for liability. It
was an error to add it to the elements instruction.
So the district court’s instruction was erroneous for two
reasons. First, it introduced an extra element—
recklessness—that is simply not required in a pretrial
detainee’s claim for excessive force. Second, its treatment of
that extra element in three different ways made this instruction
a confusing amalgam that a jury could not reasonably be
expected to follow.
As we consider the district court’s instruction, we should
also step back a moment from the details of the case law and
No. 12-3639 37
ask whether and why a pretrial detainee’s claim for excessive
force should differ at all from that of a person being arrested or
stopped. The pretrial detainee is still cloaked in the
presumption of innocence and may not be punished. Bell, 441
U.S. at 535; see also Graham, 490 U.S. at 398–99. Ordinarily, of
course, a judge will have found probable cause to detain the
person. If the detention is prolonged, a judge in the federal
system ordinarily will have found either a risk of flight or a
danger to the community. See 18 U.S.C. §3142(e).
Even those federal detainees are still presumed innocent,
though, and should not be subject to punishment before a
conviction. And in many state justice systems, a pretrial
detainee may remain in jail for weeks or even months simply
because he cannot afford the premium for the presumptive
bond set in his case. For those many thousands of people in the
criminal justice system, we should recognize that the
intentional use of objectively unreasonable force against them
amounts to punishment without due process of law and
violates the Constitution. They are not and should not be
required to prove more in terms of reckless disregard for or
intentional violation of their rights. The transition from arrest
to pretrial detention does not give officers “greater ability to
assault and batter” the detainees. Titran, 893 F.2d at 147.
IV. The Role of Intentional or Reckless Conduct
To support the subjective recklessness element in the
district court’s instruction, my colleagues cite the case law
holding that a plaintiff suing under 42 U.S.C. § 1983 for a
constitutional violation must show intentional conduct. They
then treat reckless conduct as a form of intentional conduct.
38 No. 12-3639
See above at 13, citing Daniels v. Williams, 474 U.S. 327, 334
(1986), and Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.
1988) (en banc). That reasoning mistakenly combines two
separate issues. The same confusion appeared in Shelby County
Jail Inmates v. Westlake, 798 F.2d 1085, 1094 (7th Cir. 1986), and
was repeated in Anderson v. Gutschenritter, 836 F.2d 346, 349
(7th Cir. 1988), both also cited by the majority. The Pattern
Instruction Committee carefully and correctly kept the two
issues separate.
In Daniels the Supreme Court resolved a circuit split on
whether negligent conduct can violate the individual rights
guaranteed by the Constitution. The Court’s answer was no. In
Daniels a jail inmate claimed he had been deprived of liberty
when he was injured by slipping on a pillow that an employee
had negligently left on a staircase. The Court left such claims
from accidental conduct to state tort law. 474 U.S. at 332. At the
same time, the Court carefully drew the distinction that my
colleagues overlook. In response to an argument that prison
officials’ negligent failure to comply with procedural
requirements in depriving a prisoner of good-time credit
should be actionable, the Court explained: “We think the
relevant action of the prison officials in that situation is their
deliberate decision to deprive the inmate of good-time credit,
not their hypothetically negligent failure to accord him the
procedural protections of the Due Process Clause.” Id. at
333–34. Applying the same distinction here, the focus should
be on a deliberate decision to use force, not a negligent or
reckless or intentional failure to comply with the constitutional
standard for using force.
No. 12-3639 39
In the context of an excessive force claim, Daniels means
that if, during the removal of Kingsley from his cell, the
application of force was not intentional—the taser went off by
accident, for example, or a guard slipped, fell, and knocked the
handcuffed inmate down so that his head hit the floor—then
there would have been no constitutional violation. Reckless
conduct is generally recognized as equivalent to intentional
conduct for these purposes, when it is equivalent to criminal
recklessness, meaning that the actor is subjectively aware of the
high risk of harm and then disregards it. See Farmer v. Brennan,
511 U.S. 825, 837 (1994); Slade v. Board of School Directors of City
of Milwaukee, 702 F.3d 1027, 1029 (7th Cir. 2012); see also Archie,
847 F.2d at 1219.
In an appropriate case, therefore, it could be appropriate to
instruct a jury that if the defendant’s use of force was reckless
(perhaps, for example, running through a crowd with a finger
on the trigger of an unaimed gun), that would be sufficient to
show intentional use of force. That would be an appropriate
role for the concept of recklessness in an excessive force case.
But there is no need for such an instruction unless the defense
contends the use of force was unintended. The defense did not
argue that here, so there was no need for a subjective element
in the instruction.2
2
Section 1983 and Bivens excessive force cases in which defendants contend
the application of force was accidental appear to be relatively unusual, but
they do arise. The Pattern Instruction Committee allowed for them. Its
comment on Instruction 7.08 advises judges in such cases to break the first
element of unreasonable force into two parts: intentional use of force and
unreasonable use of force.
40 No. 12-3639
My colleagues’ reliance on the need for intentional conduct
to justify the subjective recklessness elements of the instruction
given here also proves too much. As explained above,
intentional conduct is needed to show any constitutional
violation, including the Fourth Amendment, where the
standard for excessive force is objective. See County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“liability for
negligently inflicted harm is categorically beneath the
threshold of constitutional due process”), citing Daniels,
474 U.S. at 328; Brower v. County of Inyo, 489 U.S. 593, 596–97
(1989) (“seizure” requires “intentional acquisition of physical
control” through “means intentionally applied”). That is why
an accidental police shooting is not actionable under the Fourth
Amendment, see Watson v. Bryant, 532 Fed. Appx. 453, 457 (5th
Cir. 2013); Pleasant v. Zamieski, 895 F.2d 272, 276–77 (6th Cir.
1990); Dodd v. City of Norwich, 827 F.2d 1, 7–8 (2d Cir. 1987) (on
reargument), but an intentional shot that accidentally hits the
wrong person is a seizure of that person that may be actionable
under the Fourth Amendment, Fisher v. City of Memphis,
234 F.3d 312, 317–18 (6th Cir. 2000).
The court in Fisher explained precisely the difference that
my colleagues’ reasoning overlooks. After recognizing that a
Fourth Amendment violation requires intent, not negligence,
the Sixth Circuit explained: “However, the intent in question
is the intent to commit the act, not the intent that a certain
result be achieved. Therefore, Officer Taylor’s act of firing the
gun was intentional, even if the result was not one he sought
to achieve. Instructing the jury that more than negligence was
required would likely confuse the jury as to the intent
question.” Id. at 317. Again, because the defendants at this trial
No. 12-3639 41
did not claim the use of force was accidental, there was no
reason to introduce the concept of recklessness into the
excessive force instruction.
Before closing, I should add that I have considerable
sympathy for both this district judge and any other judge
trying to distill our case law into a coherent elements
instruction for a pretrial detainee’s excessive force claim. Some
of the cases cited by the majority—especially Wilson—reflect
similar confusion. But that is why the work of the Pattern
Instruction Committee was so valuable. We should endorse
their work, not reject it.
Finally, I agree with the majority that plaintiff Kingsley
waived in the district court his challenge to the “harm”
element of the court’s instruction on excessive force. As for the
merits of that challenge, which the majority also addresses, I
see no prejudicial error by including harm as an element. The
Pattern Instruction Committee also confronted this issue as
part of its Instruction 7.08 and could not come to a definitive
conclusion. The committee’s comment gives good advice and
leaves the choice to the sound judgment of the district court. In
most excessive force cases, harm is likely to be so obvious that
it does not require treatment as a separate element. (It will
ordinarily be relevant in deciding whether the force applied
was excessive or in deciding on an amount of damages.) If the
defense argues that the force used was too minimal to violate
the plaintiff’s rights, the plaintiff should not be prejudiced if
the district judge includes harm as an element but also
instructs the jury, as the court did here, that pain can be harm
for purposes of proving that element.
42 No. 12-3639
For these reasons, I would reverse the judgment of the
district court and remand for a new trial with jury instructions
that track Seventh Circuit Pattern Jury Instructions 7.08 and
7.09.
No. 12-3639 43
APPENDIX
7.08 FOURT H AMENDMENT/FOURTEENTH
AMENDMENT: EXCESSIVE FORCE AGAINST ARRESTEE
OR PRETRIAL DETAINEE — ELEMENTS
In this case, Plaintiff claims that Defendant used excessive
force against him. To succeed on this claim, Plaintiff must
prove each of the following things by a preponderance of the
evidence:
1. Defendant used unreasonable force against Plaintiff;
[2. Because of Defendant’s unreasonable force, Plaintiff was
harmed;]
[3. Defendant acted under color of law.]
If you find that Plaintiff has proved each of these things by
a preponderance of the evidence, then you should find for
Plaintiff, and go on to consider the question of damages.
If, on the other hand, you find that Plaintiff did not prove
any one of these things by a preponderance of the evidence,
then you should find for Defendant, and you will not consider
the question of damages.
Committee Comments
a. Unreasonable Force: For authority regarding the
“unreasonable force” element of the claim, see Graham v.
Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1
(1985); Deering v. Reich, 183 F.3d 645 (7th Cir. 1999). Although
Graham and Garner are Fourth Amendment cases involving
arrestees, Wilson v. Williams, 83 F.3d 870, 876 (7th Cir. 1996),
states that the same standard applies to pretrial detainees. A
44 No. 12-3639
separate instruction applies to cases involving convicted
prisoners.
If the defendant contends that the application of force was
accidental, the court may wish to break the first element into
two:
1. Defendant intentionally used force against Plaintiff;
2. The force Defendant used was unreasonable;
b. Harm to Plaintiff: Although some other circuits include
an element of “damage” in their pattern instruction, see, e.g.,
EIGHTH CIRCUIT MANUAL OF MODEL CIVIL JURY INSTRUCTIONS
§ 4.30 (1999), the Committee believes that there is significant
doubt as to whether damage, or “harm” as that term is
commonly understood, is actually required for a finding of
liability under §1983. Though “harm” in the commonly-
understood sense is likely to exist in most excessive force cases,
some cases will arise in which it does not, e.g., a situation in
which an officer strikes the plaintiff with his hand but leaves
no mark and causes no lingering injury or pain. In such cases,
the court will need to determine whether the jury should be
instructed on this point.
In Gumz v. Morrissette, 772 F.2d 1395, 1400 (7th Cir. 1985),
the court held that an officer’s use of force was
unconstitutional if it (1) caused severe injuries; (2) was grossly
disproportionate to the need for action under the
circumstances; and (3) was inspired by malice or shocked the
conscience. Gumz, however, was overruled by Lester v. City of
Chicago, 830 F.2d 706 (7th Cir. 1987), which used the same
“totality of the circumstances test” that was later adopted by
No. 12-3639 45
the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). In
Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467 (7th
Cir. 1997), the court upheld a claim based on force consisting
of “one violent push and poke,” noting that the plaintiff “need
not have been injured to have an excessive force claim.” Id. at
470 n.3. In McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002), the
court addressed a claim arising from an incident in which no
physical force was used, but officers pointed their weapons at
the plaintiffs. Though it determined that the officers were
entitled to qualified immunity, and indicated that the Fourth
Amendment appeared to require some use of force, id. at 467,
the majority ended its opinion with the statement “we do not
foreclose the possibility that the circumstances of an arrest
could become ‘unreasonable’ without the application of
physical force.” Id. at 468. See also Herzog v. Village of Winnetka,
Ill., 309 F.3d 1041, 1043 (7th Cir. 2002) (refusal to loosen chafing
handcuffs or shoving an arrestee would constitute actionable
excessive force).
Even if, as McNair indicates, an application of force is
required in order to implicate the Fourth Amendment, it is not
at all clear that the plaintiff must suffer “harm” in order to
obtain a finding of liability; the availability of nominal
damages in excessive force cases suggests that “harm” is not a
requirement. See, e.g., Briggs v. Marshall, 93 F.3d 355, 360 (7th
Cir. 1996) (indicating that nominal damages may be awarded
in a Fourth Amendment excessive force case where no injury
resulted from the use of excessive force, where the evidence of
actual injury is not credible, or where the injury has no
monetary value). Because the issue of whether a plaintiff must
prove “harm” is not definitively resolved, the Committee
46 No. 12-3639
placed the second element in brackets, indicating that a court
should give this part of the instruction to the jury at its
discretion.
c. Third element: The third element should be eliminated
if the “color of law” issue is not in dispute.
d. Single Element Instruction: If the second and third
elements are eliminated, only one element will remain, and the
instruction’s second sentence should read as follows: “To
succeed on this claim, Plaintiff must prove by a preponderance
of the evidence that Defendant used unreasonable force against
him.”
7.09 FOURTH AMENDMENT/FOURTEENTH
AMENDMENT: EXCESSIVE FORCE — DEFINITION OF
“UNREASONABLE”
You must decide whether Defendant’s use of force was
unreasonable from the perspective of a reasonable officer
facing the same circumstances that Defendant faced. You must
make this decision based on what the officer knew at the time
of the arrest, not based on what you know now. In deciding
whether Defendant’s use of force was unreasonable, you must
not consider whether Defendant’s intentions were good or bad.
In performing his job, an officer can use force that is
reasonably necessary under the circumstances.
[An officer may use deadly force when a reasonable officer,
under the same circumstances, would believe that the suspect’s
actions placed him or others in the immediate vicinity in
imminent danger of death or serious bodily harm. [It is not
No. 12-3639 47
necessary that this danger actually existed.] [An officer is not
required to use all practical alternatives to avoid a situation
where deadly force is justified.]]
Committee Comments
a. Authority: Graham v. Connor, 490 U.S. 386, 396 (1989);
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); Deering v. Reich, 183
F.3d 645 (7th Cir. 1999).
b. Factors: Case law establishes a number of factors that
may be relevant to the jury’s determination of whether a
particular use of force was unreasonable. The Committee did
not list these factors in the instruction because the jury is to
consider all circumstances, and the listing of some might
suggest that others are irrelevant. However, a court may wish
to consider giving a list of factors for the jury’s consideration,
and if it elects to do so the following is proposed:
— the need for the use of force;
— the relationship between the need for the use of
force and the amount of force used;
— the extent of the plaintiff’s injury;
— any efforts made by the defendant to temper or limit
the amount of force;
— the severity of the crime at issue;
— the threat reasonably perceived by the officer(s);
— whether the plaintiff was actively resisting arrest or
was attempting to evade arrest by fleeing.
48 No. 12-3639
See Graham v. Connor, 490 U.S. at 396 (fifth, sixth, and seventh
factors). In Wilson v. Williams, 83 F.3d 870 (7th Cir. 1996), a
Fourteenth Amendment excessive force case involving a
pretrial detainee, the Seventh Circuit listed factors one, two,
three, four, and six from the above list, and stated that they are
“generally relied on in the Fourth Amendment excessive force
context.” Id. at 876. For this proposition, however, the court
cited Hudson v. McMillian, 503 U.S. 1, 7 (1992), which was an
Eighth Amendment case, not a Fourth Amendment case. See
generally Eighth Circuit Manual of Model Jury Instructions
(Civil) 4.10 (1999) (using factors one, two, and three).
c. Deadly Force: The final (bracketed) paragraph applies
only in cases involving an officer’s use of deadly force.
Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Sherrod v. Berry,
856 F.2d 802, 805 (7th Cir. 1988). With regard to the final
(bracketed) sentence of this paragraph, see Deering v. Reich, 183
F.3d 645, 652-653 (7th Cir. 1999); Plakas v. Drinski, 19 F.3d 1143,
1148 (7th Cir. 1994). The fact that a particularized instruction is
proposed for deadly force cases does not preclude the
consideration or giving of a particularized instruction in other
types of cases, for example, those involving a fleeing felon or
an officer’s claim of self-defense.