Petition for Writ of Certiorari — Hyrum James Geddes, Petitioner v. Weber County, Utah, et al.

No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------HYRUM JAMES GEDDES,

Petitioner,

v.

WEBER COUNTY, WAYNE MOSS, ROBERT SHANER,

KARLEE DRAKE, AND JAMIE TOONE,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------GREGORY W. STEVENS

2825 East Cottonwood Parkway

Suite 500

Salt Lake City, UT 84121-7060

Telephone: (801) 990-3388

Email: utlaw@aol.com

Counsel for Petitioner

Hyrum James Geddes

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Mr. Geddes filed a civil action pursuant to 42

U.S.C. § 1983 against Respondent Weber County and

against the individual jailers employed by Weber

County. Mr. Geddes claimed that he suffered serious

injuries as a result of “objectively unreasonable force”

employed by the individual jailers after custody was

relinquished to and he was being detained by the Weber County Jail. (App. 36-37, 69-85.) This case presents

the following issues:

I.

Is the test of objective reasonableness applicable to a

claim of excessive force enunciated by this court in

Kingsley v. Hendrickson, 576 U.S. 389 (2015) (decided

under the Fourteenth Amendment) the same objective

standard as the test of objective reasonableness enunciated by this court in Graham v. Connor, 490 U.S. 386

(1989) (decided under the Fourth Amendment) as applied to the specific circumstances presented in the

context of an individual being held in a detention facility?

II.

After this Court’s decision in Kingsley v. Hendrickson,

576 U.S. 389 (2015), do the protections afforded by

the Fourth Amendment against use of objectively

ii

QUESTIONS PRESENTED – Continued

unreasonable force end and those afforded by the Fourteenth Amendment begin no later than the point at

which custody has been relinquished by an arresting

officer to a detention facility?

iii

PARTIES TO THE PROCEEDING

All parties to the civil action before the United

States District Court for the District of Utah, to the

appeal before the United States Court of Appeals for

the Tenth Circuit, and to this proceeding appear on the

cover to this Petition.

RELATED CASES

Geddes v. Weber County, et al., Case No. 1:18-cv-00136HCN-JCB, United States District Court for the District of Utah. Judgment entered August 3, 2020.

Geddes v. Weber County, et al., Case No. 20-4083,

United States Court of Appeals for the Tenth Circuit.

Judgment entered August 3, 2022. Petition for Rehearing En Banc denied September 9, 2022.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

TABLE OF AUTHORITIES .................................

vi

PETITION FOR WRIT OF CERTIORARI ...........

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED...........................................

2

A.

Fourth Amendment......................................

2

B.

Fourteenth Amendment, Section 1..............

2

STATEMENT OF THE CASE..............................

3

A.

Introduction .................................................

3

B.

Statement of Facts .......................................

8

C.

District Court Jurisdiction and Proceedings ...............................................................

8

D. The Tenth Circuit’s Opinion ........................

12

REASONS FOR GRANTING THE PETITION .....

13

I.

THE TEST OF OBJECTIVE REASONABLENESS APPLICABLE TO A CLAIM

OF EXCESSIVE FORCE ENUNCIATED

BY THIS COURT IN KINGSLEY REFLECTS A PARTICULARIZED APPLICATION OF THE SAME OBJECTIVE

STANDARD ENUNCIATED BY THIS

COURT IN GRAHAM ................................ 13

v

TABLE OF CONTENTS – Continued

Page

II.

THE PROTECTIONS AFFORDED BY THE

FOURTH AMENDMENT AGAINST USE

OF OBJECTIVELY UNREASONABLE

FORCE END AND THOSE AFFORDED

BY THE FOURTEENTH AMENDMENT

BEGIN NO LATER THAN THE POINT

AT WHICH CUSTODY HAS BEEN RELINQUISHED BY THE ARRESTING OFFICER TO A DETENTION FACILITY ..... 22

CONCLUSION..................................................... 30

APPENDIX

Order and Judgment of the United States Court

of Appeals for the Tenth Circuit (Aug. 16,

2022) ................................................................. App. 1

Memorandum Decision and Order Granting

Defendants’ Motion for Summary Judgment

(Aug. 3, 2020) .................................................. App. 55

Order of the United States Court of Appeals for

the Tenth Circuit Denying Petition for Rehearing En Banc (Sept. 9, 2022) .................... App. 66

Amended Complaint filed in the United States

District Court for the District of Utah (Feb. 11,

2019) ............................................................... App. 68

vi

TABLE OF AUTHORITIES

Page

CASES

Aldini v. Johnson, 609 F.3d 858 (6th Cir. 2010) .... 26, 27

Barrie v. Grand County, 119 F.3d 862 (10th Cir.

1997) ........................................................................25

Bell v. Wolfish, 441 U.S. 520 (1979) ................ 18, 23, 24

Brooks v. Johnson, 924 F.3d 104 (4th Cir. 2019) ........21

Clay v. Emmi, 797 F.3d 364 (6th Cir. 2015) ...............21

Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.

1996) ........................................................................25

Crocker v. Beatty, 995 F.3d 1232 (11th Cir.

2021) .................................................................... 24, 25

Estate of Booker v. Gomez, 745 F.3d 405 (10th

Cir. 2014) ......................................................... passim

Farmer v. Brennan, 511 U.S. 825 (1994) .............. 13, 14

Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir.

2009) ........................................................................14

Garrett v. Athens-Clarke Cnty., 378 F.3d 1274

(11th Cir. 2004)........................................................24

Graham v. Connor, 490 U.S. 386 (1989) ............. passim

Hudson v. McMillian, 503 U.S. 1 (1992).......................3

Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005) ..........24

Kingsley v. Hendrickson, 576 U.S. 389 (2015) .... passim

Lombardo v. City of St. Louis, ___ U.S. ___, 141

S. Ct. 2239, 210 L. Ed. 2d 609 (2021) .....................17

Mapp v. Ohio, 367 U.S. 643 (1961) .............................11

vii

TABLE OF AUTHORITIES – Continued

Page

McDowell v. Rogers, 863 F.2d 1302 (6th Cir.

1988) ........................................................................25

McCowan v. Morales, 945 F.3d 1276 (10th Cir.

2019) ............................................................ 18, 19, 20

Miranda-Rivera v. Toledo-Davila, 813 F.3d 64

(1st Cir. 2016) ..........................................................21

Morabito v. Holmes, 628 F. App’x 353, 2015 U.S.

App. LEXIS 17737 (6th Cir. 2015) ............................4

Ondo v. City of Cleveland, 795 F.3d 597 (6th Cir.

2015) ........................................................................26

Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008) .........26

Petta v. Rivera, 143 F.3d 895 (5th Cir. 1998) ..............25

Patel v. Lanier Cnty., 969 F.3d 1173 (11th Cir.

2020) ..........................................................................7

Pierce v. Multnomah County, 76 F.3d 1032 (9th

Cir.), cert. denied, 519 U.S. 1006 (1996) ............ 25, 27

Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010) ..... 3, 4

Powell v. Gardner, 891 F.2d 1039 (2d Cir.

1989) ............................................................ 25, 26, 29

Riley v. Dorton, 115 F.3d 1159 (4th Cir.) (en

banc), cert. denied, 522 U.S. 1030 (1997) .......... 25, 27

Turner v. Safley, 482 U.S. 78 (1987) ...........................15

Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.),

cert. denied, 509 U.S. 905 (1993) ....................... 25, 27

West v. Atkins, 487 U.S. 42 (1988) .................................9

Whitley v. Albers, 475 U.S. 312 (1986) ........................14

viii

TABLE OF AUTHORITIES – Continued

Page

Wilkins v. May, 872 F.2d 190 (7th Cir.), cert.

denied, 493 U.S. 1026 (1989) ............................. 25, 27

Wilson v. Spain, 209 F.3d 713 (8th Cir. 2000) ...... 25, 26

UNITED STATES CONSTITUTION

U.S. Const., amend. IV ........................................ passim

U.S. Const., amend. VIII ................................... 3, 13, 14

U.S. Const., amend. XIV ..................................... passim

FEDERAL STATUTES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1331 ............................................................9

28 U.S.C. § 1343(a)(3) ...................................................9

42 U.S.C. § 1983 .................................................. passim

42 U.S.C. § 1988 ............................................................9

SUPREME COURT RULES

Sup. Ct. R. 13.1 .............................................................2

OTHER AUTHORITIES

E. Haber, “Demystifying a Legal Twilight Zone:

Resolving the Circuit Court Split on When

Seizure and Pretrial Detention Begins in

§ 1983 Excessive Force Cases,” 19 N.Y. L. Sch.

J. Hum. Rts. 939 (2003) .............................................6

ix

TABLE OF AUTHORITIES – Continued

Page

K. Lambroza, “Pretrial Detainees and the Objective Standard After Kingsley v. Hendrickson,”

American Criminal Law Review, Vol. 52:429

(2021) ................................................................... 6, 27

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Hyrum James Geddes respectfully petitions for a writ of certiorari to review the decision of

the United States Court of Appeals for the Tenth Circuit and resolve the issues that this case presents.

---------------------------------♦---------------------------------

OPINIONS BELOW

The panel majority opinion of the United States

Court of Appeals for the Tenth Circuit denying

Mr. Geddes’ appeal from the grant of summary judgment by the United States District Court for the District of Utah is reproduced at App. 1-36. The dissenting

opinion that is part of the Tenth Circuit’s decision is

reproduced at App. 36-54. The decision is not reported.

Geddes v. Weber County, et al., Case No. 20-4083, 2022

U.S. App. LEXIS 22719, 2022 WL 3371010 (10th Cir.

Aug. 16, 2022). The opinion of the United States District Court for the District of Utah granting summary

judgment on Mr. Geddes’ claims is reproduced at App.

55-65. The decision is not reported. Geddes v. Weber

County, et al., Case No. 1:18-cv-136, 2020 U.S. Dist.

LEXIS 137972, 2020 WL 4437405 (D. Utah Aug. 3,

2020). The Tenth Circuit’s Order denying Petitioner’s

Petition for Rehearing En Banc is reproduced at App.

66-67.

---------------------------------♦---------------------------------

JURISDICTION

Jurisdiction is proper pursuant to 28 U.S.C.

§ 1254(1). The Tenth Circuit entered its judgment and

2

opinion affirming the judgment on August 16, 2022.

(App. 1.) The Tenth Circuit entered an Order denying

Mr. Geddes’ petition for rehearing en banc on September 9, 2022. (App. 65.) This Petition is being filed within

90 days of that date and, accordingly, is timely. See Sup.

Ct. R. 13.1.

---------------------------------♦---------------------------------

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

A. Fourth Amendment

This case calls for an interpretation of the Fourth

Amendment to the United States Constitution. It

states the following:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

B. Fourteenth Amendment, Section 1

This case calls for an interpretation of Section 1 of

the Fourteenth Amendment to the United States Constitution. It states the following:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

3

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. Introduction

The essence of Mr. Geddes’ claim is that he was

mistreated while in the custody of Weber County following his arrest. Alleged mistreatment of this type

may be challenged under the Fourth Amendment,

Eighth Amendment, or Fourteenth Amendment. The

Fourth Amendment prohibits “unreasonable searches

and seizures.” U.S. Const., amend. IV. The Eighth

Amendment prohibits the infliction of “cruel and unusual punishments,” U.S. Const., amend. VIII, and this

Court has interpreted it to prohibit the use of excessive

force against convicted prisoners. E.g., Hudson v.

McMillian, 503 U.S. 1, 9 (1992). For those in confinement following an arrest, claims regarding mistreatment while in custody generally do not come within the

protection of the Fourth Amendment or the Eighth

Amendment. “[T]he Fourth Amendment . . . pertains to

the events leading up to and including an arrest of a

citizen previously at liberty,” while the Eighth Amendment is the source of protection for “prisoners already

convicted of a crime who claim that their punishments

involve excessive force.” Porro v. Barnes, 624 F.3d 1322,

4

1325-26 (10th Cir. 2010) (Gorsuch, J.). When, as here,

a “plaintiff finds himself in the criminal justice system

somewhere between the two stools of an initial seizure

and post-conviction punishment[,] we turn to the due

process clauses of the Fifth or Fourteenth Amendment

and their protection against arbitrary governmental

action by federal or state authorities” to evaluate

claims of mistreatment. Id. at 1326.

This case presents the important, recurring, and

as yet unresolved issues of the standard that applies

to an excessive force claim that arises in the situation

presented here and when, if ever, the standard changes

in the course of an individual’s arrest and detention.1

Lawsuits by persons filed under Section 1983 by persons being held in custody in a detention facility following an initial arrest are common, consume

substantial resources of the courts and Defendants,

and could be handled more efficiently under a settled

rule of law without the confusing interpretation added

by the panel majority’s opinion at issue here. More

1

There is also a clear interplay between the two issues presented. If, in the context of a claim alleging unreasonable force,

the objective standard applicable to an arrestee under the Fourth

Amendment is the same objective standard as that applicable to

a pretrial detainee under the Fourteenth Amendment, a dividing

line is not, as a practical matter, necessary. Some courts have so

concluded. E.g., Morabito v. Holmes, 628 F. App’x 353, 357, 2015

U.S. App. LEXIS 17737, *9 (6th Cir. 2015) (stating that, in Kingsley, “[t]he Supreme Court has recently clarified that no dividing

line is necessary” by adopting the rule that “a pretrial detainee

must show only that the force purposely or knowingly used

against him was objectively unreasonable”).

5

particularly, this case merits full consideration by this

Court, for the following reasons:

First, the panel majority opinion of the decision

at issue here, in one essential pillar of the decision,

conflicts with this Court’s decisions in Graham and

Kingsley and with decisions of other courts of appeals.

In particular, the panel majority concluded that, because Mr. Geddes cited to the Fourteenth Amendment

and not the Fourth Amendment in his Complaint,

Mr. Geddes did not state a claim alleging use excessive

force while he was being held in jail after his arrest

and did not provide sufficient notice of his claim. The

panel majority concluded that the objective reasonableness test applicable to a claim of excessive force by

an arrestee under Graham and the Fourth Amendment differs substantively in material ways from the

objective reasonableness standard applicable to a

claim by a pretrial detainee under Kingsley and the

Fourteenth Amendment. Yet, that conclusion conflicts

with the reasoning of this Court in Kingsley in applying the objective reasonableness standard enunciated

in Graham and tailoring the Graham factors, which

apply to a person being arrested and taken into custody, to the situation in which the person is being held

following his or her arrest in a detention facility. The

standard applicable to a claim of excessive force is the

same under either the Fourth or Fourteenth Amendments: was the force objectively reasonable? Only the

factors applicable to the particular circumstances

change after an individual is in a detention facility.

As a consequence, the Tenth Circuit has taken an

6

approach to analyzing claims of excessive force in the

situation presented here that diverges both from the

approach taken by this Court in Kingsley and by other

circuits.

Second, the panel majority opinion, in a second

essential pillar of its decision, applied a prior, preKingsley decision by the Tenth Circuit that had addressed the question of when the objective reasonableness standard ended and the pre-Kingsley, subjective

standard applied. In that context, the Tenth Circuit

concluded that the Fourth Amendment provides the

test for excessiveness of force between the arrest and a

finding of probable cause by a court and, after such a

judicial finding, that the Fourteenth Amendment provides the test. There is a deeply-entrenched split in

the circuits as to whether that is a proper line to draw.2

After Kingsley, it is not. As this Court noted in Graham

and Justice Alito again noted in Kingsley, this Court

has “not resolved the question whether the Fourth

Amendment continues to provide individuals with protection against the deliberate use of excessive force

beyond the point at which arrest ends and pretrial

2

K. Lambroza, “Pretrial Detainees and the Objective Standard After Kingsley v. Hendrickson,” Am. Crim. L. Rev., Vol.

52:429, at 434 n.19 (2021) (noting that “[t]here is considerable

debate as to when an individual is arrestee rather than a pretrial

detainee; stating that “[t]he distinction is significant because it

changes the constitutional grounds on which the individual

brings their claim”; and discussing the split in the circuits) (citing

E. Haber, “Demystifying a Legal Twilight Zone: Resolving the

Circuit Court Split on When Seizure and Pretrial Detention Begins in § 1983 Excessive Force Cases,” 19 N.Y. L. Sch. J. Hum.

Rts. 939, 948 (2003)).

7

detention begins.” 490 U.S. at 395 n.10; see also Kingsley, 576 U.S. at 408 (Alito, J., dissenting) (so stating).

This case presents an opportunity to resolve that question. In reality, the line of demarcation set by the Tenth

Circuit is inappropriate when, as here, the arrest and

seizure has ended, custody has been transferred to a

jail, and the individual is being held in a cell. Indeed,

the factors set out by this Court in Kingsley under the

Fourteenth Amendment, rather than the factors set

out by the Court in Graham under the Fourth Amendment, actually fit the situation presented here. Accordingly, to prevent confusion and achieve consistency

with this Court’s approach in Kingsley and resolve the

split in the circuits, the Court should set the point at

which custody is relinquished to a detention facility

following an arrest, at the outer limit, as an appropriate line of demarcation in excessive force cases between the point at which the protections afforded by

the Fourth Amendment end and those afforded by the

Fourteenth Amendment begin.3

3

Of course, setting that line in this case leaves open the

question for another day of when the protections afforded by the

Fourth Amendment end and those afforded by the Fourteenth

Amendment begin when someone has been seized following an

arrest and, having been subject to the initial seizure, is still in the

custody of the arresting officer but is being transported or held in

a law enforcement vehicle. E.g., Patel v. Lanier Cnty., 969 F.3d

1173, 1178, 1181-82 (11th Cir. 2020) (applying the Kingsley objective reasonableness standard to a situation involving a detainee

in a hot car).

8

B. Statement of Facts

Mr. Geddes was arrested for speeding and driving

under the influence and taken into custody by a

Trooper with the Utah State High Patrol. After his

arrest was completed, the Trooper released Mr. Geddes

into the custody of the Weber County Jail. The individual jailers employed by Weber County at the Jail handcuffed Mr. Geddes behind his back and put him in a

holding cell. While Mr. Geddes was still handcuffed

behind his back and detained in the cell, two jailers

responded to his inability to remove his boots as they

had demanded by throwing him to the floor using a

violent take-down technique. With no way to shield

himself, Mr. Geddes hit his head on the concrete floor

and wall. Mr. Geddes suffered serious injuries as a

result. Although Mr. Geddes had been arrested and

taken into custody by the Trooper, the magistrate

judge did not make a probable cause determination until shortly after the incident. (App. 2-3, 36-37.) As noted

below, though both sides had argued in their summary

judgment memoranda filed in the district court and in

their briefs filed in the Tenth Circuit as to the objective

reasonableness of the actions by the individual jailers,

the case was not resolved on the merits but, instead,

based on an erroneous resolution of the issues presented here.

C. District Court Jurisdiction and Proceedings

Mr. Geddes sued the individual jailers and Weber

County under 42 U.S.C. § 1983. (App. 2, 68-85.) The

9

district court had original jurisdiction over this civil

action based on the following provisions: (a) 28 U.S.C.

§ 1331, because Mr. Geddes’ civil action arises under

the Constitution and laws of the United States; (b) 28

U.S.C. § 1343(a)(3), because his civil action arises under a law of the United States providing for equal

rights; and (c) 42 U.S.C. §§ 1983 and 1988, because the

civil action was brought pursuant to Section 1983.

Section 1983 provides that “[e]very person

who. . . . subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured. . . .” To state

a claim under Section 1983, a plaintiff must allege the

violation of a right secured by the Constitution and

laws of the United States. E.g., West v. Atkins, 487 U.S.

42, 48 (1988) (citations omitted).

In his Complaint, Mr. Geddes alleged that the incident that gave rise to his claims occurred after his

initial seizure by the Utah State Highway Patrol

Trooper and after the Trooper had relinquished custody to the Weber County Jail. Mr. Geddes alleged

that, at that point, he was subjected to excessive force

that was “objectively unreasonable” under the circumstances presented, set out the facts that he alleged supported his claims, and identified the serious physical

injuries that he received as a result of the jailers’ use

of such force. The only reference to the jailers’ intent

was made only in connection with Mr. Geddes’ claim

10

for punitive damages. (App. 4-5, 36-37, 69, 72, 76, 77.)4

Finding himself in the twilight zone between a clear

applicability of the Fourth Amendment or the Fourteenth Amendment, Mr. Geddes alleged that he was

subjected to objectively unreasonable force proscribed

by the Fourteenth Amendment. After the close of fact

discovery, the jailers moved for summary judgment,

arguing that (1) Mr. Geddes had cited to the wrong

Amendment in his Complaint; and (2) even if he had

pleaded his claims sufficiently, they were entitled

qualified immunity because the record showed that

they did not use objectively unreasonable force when

analyzed under the factors enunciated in Graham.

(App. 37.)

As noted above, in Graham, this Court made clear

that it has “not resolved the question whether the

Fourth Amendment continues to provide individuals

with protection against the deliberate use of excessive

force beyond the point at which arrest ends and pretrial detention begins.” 490 U.S. at 395 n.10; see also

Kingsley, 576 U.S. at 408 (Alito, J., dissenting) (so stating). Under its pre-Kingsley decision of the Tenth Circuit, however, the Fourth Amendment still provides the

test for excessiveness of force between the arrest and a

finding of probable cause and, after that finding, the

Fourteenth Amendment provides the test. (App. 39)

(citing Estate of Booker v. Gomez, 745 F.3d 405, 419

4

The only references to “deliberate indifference” in the Complaint occurred when it described the County’s “deliberate indifference” to the rights of Mr. Geddes through inadequate training,

supervision, and so on. (App. 69, 75, 76, 84.)

11

(10th Cir. 2014)). Thus, under that pre-Kingsley decision of the Tenth Circuit, the Fourth Amendment (not

the Fourteenth) would apply. Id.5

In his opposition to the jailers’ motion, Mr. Geddes

argued, among other points, that (1) regardless of the

Amendment that applies, his Complaint clearly put

Defendants on notice that he was pursuing a claim under 42 U.S.C. § 1983 for use of excessive force that was

“objectively unreasonable” (the Fourth Amendment

standard under Graham and the Fourteenth Amendment standard under Kingsley); and (2) there is no

practical difference between the standards applicable

under the Fourth and Fourteenth Amendments to a

claim of excessive force, rendering any error in pleading immaterial. (App. 37-40.)

The district court granted the Defendants’ motion.

The district court concluded that Mr. Geddes had relied

on the Fourteenth Amendment in his Complaint when

he should have cited to the Fourth Amendment. Therefore, the court concluded, Mr. Geddes had not properly

pled his claims and Defendants were not put on notice

of his claims because the tests applicable to claims under the two Amendments are different. (App. 59-63.)

5

A Fourth Amendment claim against a state or county officer is actually a Fourteenth Amendment, because the Fourth

Amendment’s protections apply to the states and political subdivisions through the Fourteenth Amendment’s Due Process

Clause. E.g., Mapp v. Ohio, 367 U.S. 643, 650-55 (1961). Accordingly, Mr. Geddes’ Complaint actually correctly invoked the Fourteenth Amendment as the constitutional source of his protection

against excessive force. (App. 39.)

12

D. The Tenth Circuit’s Opinion

In a two-to-one decision that reflects strikingly

divergent opinions, the Tenth Circuit affirmed the

judgment of the district court. The panel majority concluded that Mr. Geddes had cited to the wrong constitutional amendment and, as a consequence, did not

state a viable claim for relief. In addition, the panel

majority concluded that, because the Fourth Amendment and Fourteenth Amendment each call for application of a different test, Mr. Geddes did not provide

the Defendants with proper notice of his legal claim for

excessive force. (App. 7-24.) By contrast, reflecting a

sharp difference of opinion, the dissent stated that, in

the context of a claim alleging use of excessive force,

the objective standard applicable under the Fourth

Amendment is the same objective standard as that applicable under the Fourteenth Amendment. Therefore,

the dissent concluded, Mr. Geddes had sufficiently pled

his claims alleging use of objectively unreasonable use

of force against him while he was being held in the jail;

that Mr. Geddes further clarified his claims in his memorandum filed in opposition to Defendants’ motion for

summary judgment as alleging an objectively unreasonable use of force; that both parties had actually argued

in the district court as to the objective reasonableness of

the force used; and that the Defendants were properly

put on notice of those claims. (App. 36-40.)

---------------------------------♦---------------------------------

13

REASONS FOR GRANTING THE PETITION

I.

THE TEST OF OBJECTIVE REASONABLENESS APPLICABLE TO A CLAIM OF EXCESSIVE FORCE ENUNCIATED BY THIS COURT

IN KINGSLEY REFLECTS A PARTICULARIZED APPLICATION OF THE SAME OBJECTIVE STANDARD ENUNCIATED BY THIS

COURT IN GRAHAM.

One indispensable premise of the majority opinion

of the Tenth Circuit’s decision at issue here is that

the test applicable to a claim of excessive force of an

arrestee differs in material ways from the standard

applicable to a claim of excessive force brought by a

pretrial detainee. Yet, under the decisions of this Court

in Graham and Kingsley and a proper reading of the

Fourth Amendment and Fourteenth Amendment, that

premise is erroneous.

Prior to this Court’s decision in Kingsley, the circuits had analyzed claims of excessive force brought by

pretrial detainees as if they were brought under the

Eighth Amendment.6 Under that approach, use of force

6

The Eighth Amendment protects an inmate from “cruel and

unusual punishments,” which includes a right to be free from

deliberate indifference to an inmate’s serious medical needs. A

deliberate-indifference claim under the Eighth Amendment has

an objective and a subjective component. To meet the objective

component, the plaintiff must show that the medical need is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

To meet the subjective component, the plaintiff must show that

“an official kn[ew] of and disregard[ed] an excessive risk to inmate

health or safety.” Id. at 837. An express intention to inflict

14

against a pretrial detainee was excessive under the

Fourteenth Amendment if it “shocked the conscience”

or was “applied maliciously and sadistically to cause

harm.” E.g., Fennell v. Gilstrap, 559 F.3d 1212, 1216

n.5, 1217 (11th Cir. 2009) (quotation omitted). In

Kingsley, this Court made clear that the Eighth

Amendment’s malicious-and-sadistic standard – which

applies to incarcerated prisoners – does not extend to

pretrial detainees. 576 U.S. at 400-01. Instead, the

Kingsley Court held, when bringing an excessive force

claim, a “pretrial detainee must show only that the

force purposely or knowingly used against him was

objectively unreasonable,” rather than demonstrate

deliberate indifference. Id. at 396-97.

Importantly, the Kingsley Court described the application of the objective reasonableness standard as

follows: “A court (judge or jury) cannot apply this

standard mechanically. Rather, objective reasonableness turns on the facts and circumstances of each particular case.” 576 U.S. at 397. In so doing, the Court left

no doubt that the objective-reasonableness standard

in the context of a person being detained in a jail

merely raises particular considerations than does the

objective-reasonableness standard when applied to

someone who is being arrested. See id. at 397-400.

The Court recognized that “[r]unning a prison is an

unnecessary pain is not required. E.g., Whitley v. Albers, 475 U.S.

312, 319 (1986). Still, the plaintiff must demonstrate that the official was aware of facts from which an inference of substantial

risk of serious harm to inmate health or safety could be drawn

and that the official actually drew the inference. Farmer, 511 U.S.

at 837.

15

inordinately difficult undertaking[.]” Id. at 399 (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)). Accordingly, the Court held that courts must “acknowledg[e]

as part of the objective reasonableness analysis” the

deference due “to policies and practices needed to

maintain order and institutional security” at a jail. Id.

at 399-400.

The objective tests set out initially in Graham and

applied in Kingsley are thus the same objective standard. Indeed, the test applicable to claims of excessive

force under the Fourteenth Amendment under Kingsley is whether “the force purposely or knowingly used

against [the claimant] was objectively unreasonable

. . . from the perspective of a reasonable officer on the

scene.” Kingsley, 576 U.S. at 397. Likewise, the test applicable to claims of excessive force under the Fourth

Amendment under Graham is whether the force was

objectively unreasonable “in light of the facts and circumstances confronting [the officers], without regard

to their underlying intent or motivation.” Graham, 490

U.S. at 397. Under both Graham and Kingsley, “[o]bjective reasonableness turns on the ‘facts and circumstances of each particular case.’ ” Kingsley, 576 U.S. at

397 (quoting Graham, 490 U.S. at 396) (emphasis

added).

In Graham, in the context of an initial seizure

during an arrest, the Court stated that “[d]etermining

whether the force used to effect a particular seizure is

‘reasonable’ under the Fourth Amendment requires a

careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment

16

interests’ against the countervailing governmental interests at stake.” 490 U.S. at 396 (citation and internal

quotation marks omitted). The Court added that “[o]ur

Fourth Amendment jurisprudence has long recognized

that the right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.” Id.

(citation omitted). The Court then set out the familiar

non-exclusive list of factors that a court should consider in evaluating the reasonableness of force used in

connection with a seizure, “including the severity of

the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

In reality, the particular non-exclusive factors identified in Graham cannot legitimately be applied as

written and without modification to the situation presented when, as here, a person is being held in jail.

See id.

In Kingsley, this Court took the Graham factors

and applied them to the circumstances presented

when a person is being detained in a jail. In particular,

this Court cited to, quoted from, and applied the factors

set out by the Court in Graham to a claim of excessive

force brought by a pretrial detainee – tailoring those

factors to the circumstances presented (that of a pretrial detainee in a jail). 576 U.S. at 396-403. In particular, the Court provided a non-exclusive list of factors

that may inform the objective reasonableness analysis

17

in the context of a person who is being held in jail as a

pretrial detainee:

Considerations such as the following may

bear on the reasonableness or unreasonableness of the force used: 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.

See, e.g., Graham, 490 U.S. at 396. We do not

consider this list to be exclusive. We mention

these factors only to illustrate the types of objective circumstances potentially relevant to a

determination of excessive force.

Kingsley, 576 U.S. at 397 (citing Graham, 490 U.S. at

396). In that analysis, the “court must also account for

the ‘legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,’ appropriately deferring to ‘policies

and practices that in th[e] judgment’ of jail officials

‘are needed to preserve internal order and discipline

and to maintain institutional security.’ ” Kingsley, 576

U.S. at 397 (citation omitted); see also Lombardo v. City

of St. Louis, ___ U.S. ___, 141 S. Ct. 2239, 2241, 210

L. Ed. 2d 609 (2021) (summary disposition addressing

the Kingsley factors in the context of an excessive force

claim brought on behalf of a person who died after being held in a jail following his arrest). The test enunciated in Kingsley is thus an application of the test

18

enunciated in Graham – tailored to the circumstances

presented in a detention situation.

Seemingly in keeping with this approach, the

Tenth Circuit had previously stated the following in

McCowan v. Morales, 945 F.3d 1276 (10th Cir. 2019):

The Fourteenth, instead of the Fourth,

Amendment, applies to an excessive-force

claim brought by a pretrial detainee “one who

has had a ‘judicial determination of probable

cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.’ ” Estate of Booker, 745 F.3d at 419 (quoting Bell v.

Wolfish, 441 U.S. 520, 536 (1979)). Applying

that definition of pretrial detainee, this court,

in Estate of Booker, explained that the Fourth

Amendment applied to an excessive-force

claim brought by an individual like McCowan,

who complained of force used after his warrantless arrest but before any probable-cause

determination has been made because that

person was still an arrestee and not yet a

pretrial detainee. . . . The distinction we drew

in Estate of Booker between an arrestee and

a pretrial detainee was critical in that case

because, while we apply only an objective

standard to an arrestee’s Fourth Amendment excessive-force claim, at the time we

decided Estate of Booker, we applied both an

objective and subjective test to a pretrial detainee’s Fourteenth Amendment excessiveforce claim. See 745 F.3d at 423. The distinction between arrestee and pretrial detainee

is less important in this case because the

19

Supreme Court has now clarified that only the

objective (and not a subjective) standard applies to a pretrial detainee’s Fourteenth

Amendment excessive-force claim. See Kingsley v. Hendrickson, 576 U.S. 389, 396-403

(2015). Thus, the same objective standard

now applies to excessive-force claims brought

under either the Fourth or the Fourteenth

Amendment.

McCowan, 945 F.3d at 1283 (emphasis added).

Narrowing that reading of Kingsley and Graham

in its prior, published decision in McCowan, the panel

majority stated the following in the opinion at issue

here:

[I]n McCowan, we made clear that the distinction that no longer mattered between an arrestee and pretrial detainee related to the

application of the objective and subjective

standards. See McCowan, 945 F.3d at 1283

n.6. Specifically, in McCowan, we reversed the

district court’s judgment because it “considered [the officer’s] subjective intent.” Id. Thus,

nowhere in that case did we hold that the distinction between an arrestee and pretrial detainee no longer matters in all respects. More

specifically, nowhere did we hold that there is

no substantive difference in the particulars of

the objective tests applied to these two classes

of plaintiffs.

(App. 30 n.5.) Thus, the panel majority concluded that

the standard applicable to an arrestee is different

from and not the “same objective standard” as that

20

applicable to a pretrial detainee. Yet, the panel majority’s reasoning is not well taken. If the distinction was

being made in McCowan only as to applicability of the

subjective versus the objective standards, then Estate

of Booker likewise would only apply to create a dividing line between the subjective and objective standards. Nonetheless, as the foregoing statement by the

panel majority makes clear, the Tenth Circuit has concluded that there is a substantive difference between

the objective standard applicable to an excessive force

claim under the Fourth Amendment and that applicable under the Fourteenth Amendment. The dissent

disagreed, stating that the same objective standard applies to excessive force claims under either the Fourth

or Fourteenth Amendments. (App. 36-39.)

The dissent is correct. In reality, an excessive force

claim brought under the Fourth Amendment is analyzed under the same objective standard as such a

claim brought under the Fourteenth Amendment. As

this Court made clear Kingsley, the particular nonexclusive factors applicable to the circumstances involving a pretrial detainee being held in jail necessarily have to change from those non-exclusive factors

identified in Graham – just as they change to accommodate any set of circumstances that a law enforcement officer confronts. See, e.g., Kingsley, 576 U.S. at

408 (Alito, J., dissenting) (noting that a Fourth

Amendment claim “apparently would be indistinguishable from the substantive due process claim that

the [majority] discusses”).

21

In light of all of this, it is clear that the panel majority’s opinion of the Tenth Circuit at issue creates a

conflict with this Court’s decisions in Graham and

Kingsley. In so doing, the panel majority’s opinion also

creates a conflict between its decisions and decisions of

the federal courts of appeals that have read Graham

and Kingsley as applying the same objective standard

– the First, Fourth, and Sixth Circuits, for example.

E.g., Brooks v. Johnson, 924 F.3d 104, 114 n.4 (4th Cir.

2019) (stating that “the Supreme Court has extended

the Fourth Amendment’s objective reasonableness

standard to excessive force claims by pre-trial detainees”); Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 70

(1st Cir. 2016) (“[T]he Supreme Court has held that the

appropriate standard for a pretrial detainee’s Fourteenth Amendment excessive force claim is simply objective reasonableness”); Clay v. Emmi, 797 F.3d 364,

369 (6th Cir. 2015) (concluding that, in light of Kingsley, a pretrial detainee’s excessive force claim brought

under the Fourteenth Amendment’s Due Process

Clause is subject to the same objective standard as

an excessive force claim brought under the Fourth

Amendment). In particular, the panel majority opinion

at issue here creates a test for assessing claims of excessive force that depends on a dividing line between

an arrestee and pretrial detainee and not, as this

Court made clear in Graham and Kingsley, on the particular circumstances presented. Yet, under Graham

and Kingsley, the test is the same – whether the use of

force was objectively reasonable under the circumstances – and only the circumstances have changed, as

they inevitably will from case to case.

22

Thus, this case presents an opportunity to address

that issue and resolve the divergence reflected in the

Tenth Circuit’s opinion from this Court’s approach in

Graham and Kingsley, resolve the apparent difference

between the Tenth Circuit’s reading of those decisions

with other courts of appeals, and provide guidance to

the courts of appeals and district courts. In so doing,

the Court would also be making clear to the courts of

appeals and district courts that, because the objective

standards are the same, it is not really necessary to

pick a dividing line between the Fourth Amendment

and Fourteenth Amendment in the context of a claim

alleging excessive force.

II.

THE PROTECTIONS AFFORDED BY THE

FOURTH AMENDMENT AGAINST USE OF

OBJECTIVELY UNREASONABLE FORCE END

AND THOSE AFFORDED BY THE FOURTEENTH

AMENDMENT BEGIN NO LATER THAN THE

POINT AT WHICH CUSTODY HAS BEEN RELINQUISHED BY THE ARRESTING OFFICER

TO THE DETENTION FACILITY.

The second indispensable premise of the majority

opinion of the Tenth Circuit decision at issue here is

that the Fourth Amendment provides the test for excessiveness of force between an arrest and a finding of

probable cause by a court and, after that finding, the

Fourteenth Amendment provides the test – regardless

of the circumstances in which the allegedly excessive

force occurs. (App. 12, 16-17, 39 (citing Estate of Booker,

23

745 F.3d at 419).) As shown below, however, that premise reflects an erroneous interpretation of the decisions

of this Court; and, as a consequence, creates a need for

this Court to intervene to prevent confusion among the

courts of appeals and district courts.

In reaching this conclusion, the panel majority relied on its pre-Kingsley decision in Estate of Booker.

There, the Tenth Circuit addressed the issue of

whether to apply the subjective test then applicable

under the Fourteenth Amendment to claims of excessive force and the objective test applicable to such

claims under the Fourth Amendment. To arrive at a dividing line, the Tenth Circuit had relied on dicta from

this Court’s decision in Bell v. Wolfish, 441 U.S. 520,

536 (1979), to set the dividing line between arrestee

and pretrial detainee at the point at which a court

makes a finding of probable cause. In Bell, this Court

stated that the Fourteenth Amendment governs a

claim of excessive force brought by a pretrial detainee,

which the Court described a pretrial detainee as a person who had received “a ‘judicial determination of

probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.’ ” Bell, 441 U.S.

at 536 (1979) (citation omitted). Yet, given that Bell involved a claim challenging conditions of confinement,

not a claim alleging use of excessive force, the statement by the Court in Bell is simply dicta when taken

in the context of the situation presented here. 441 U.S.

at 535. And, in Graham, as noted above, this Court

stated that it has “not resolved the question whether

the Fourth Amendment continues to provide

24

individuals with protection against the deliberate use

of excessive force beyond the point at which arrest

ends and pretrial detention begins.” 490 U.S. at 395

n.10; see also Kingsley, 576 U.S. at 408 (Alito, J., dissenting) (so stating).7

There is also a deeply-entrenched split in the circuits as to where that line should be drawn in the

situation that is presented when, as here, a person

brings an excessive force claim based on events that

occur after the initial act of arrest but before he or she

has received a judicial determination of probable

cause.8 The applicable line depends on the forum in

which a person finds himself or herself. The Fourth,

Fifth, and Eleventh Circuits appear to have landed at

the position that the Fourteenth Amendment applies

in that situation; the Sixth, Ninth, and Tenth Circuits

appear to have landed at the position that the Fourth

Amendment applies; the Sixth Circuit appears to

7

The Eleventh Circuit has acknowledged that this issue has

remained unanswered: “Bell’s suggestion notwithstanding, we’ve

acknowledged that ‘the line is not always clear as to when an

arrest ends and pretrial detainment begins.’ ” Crocker v. Beatty,

995 F.3d 1232, 1247 (11th Cir. 2021) (quoting Garrett v. AthensClarke Cnty., 378 F.3d 1274, 1279 n.11 (11th Cir. 2004)). “As a

result, the line – for excessive-force purposes – between an arrestee and a pretrial detainee isn’t always clear, either.” Crocker,

995 F.3d at 1247 (citing Hicks v. Moore, 422 F.3d 1246, 1254 n.7

(11th Cir. 2005) (“The precise point at which a seizure ends (for

purposes of Fourth Amendment coverage) and at which pretrial

detention begins (governed until a conviction by the Fourteenth

Amendment) is not settled in this Circuit.”)).

8

In the decision of the Tenth Circuit at issue here, the panel

majority made note of the split in the circuits concerning this

issue. (App. 17-18 n.4.)

25

have changed its position to the Fourteenth Amendment; and the Second Circuit appears to have taken

a hybrid approach that depends both on a judicial determination of probable cause and on relinquishment

of custody. See, e.g., Wilson v. Spain, 209 F.3d 713, 715

n.2 (8th Cir. 2000);9 and compare Crocker v. Beatty, 995

9

In Wilson, a case decided by the Eighth Circuit prior to

Kingsley, the Court noted the following:

Some circuits hold that after the act of arrest, substantive due process is the proper constitutional provision because the Fourth Amendment is no longer

relevant. See Riley v. Dorton, 115 F.3d 1159, 1161-64

(4th Cir.) (en banc), cert. denied, 522 U.S. 1030, 139

L. Ed. 2d 611, 118 S. Ct. 631 (1997); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996); Wilkins v.

May, 872 F.2d 190, 192-95 (7th Cir.), cert. denied, 493

U.S. 1026, 107 L. Ed. 2d 752, 110 S. Ct. 733 (1989).

Other 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. See Barrie v. Grand County, 119 F.3d 862,

866 (10th Cir. 1997); Pierce v. Multnomah County, 76

F.3d 1032, 1042-43 (9th Cir.), cert. denied, 519 U.S.

1006, 136 L. Ed. 2d 397, 117 S. Ct. 506 (1996); Powell

v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989);

McDowell v. Rogers, 863 F.2d 1302, 1306-07 (6th Cir.

1988). The Fifth Circuit, while generally taking the

position that substantive due process applies after

the act of arrest, see Valencia v. Wiggins, 981 F.2d

1440, 1443-45 (5th Cir.), cert. denied, 509 U.S. 905,

125 L. Ed. 2d 691, 113 S. Ct. 2998 (1993), has concluded that the relevant constitutional provisions

overlap and blur in certain factual contexts. See Petta

v. Rivera, 143 F.3d 895, 910-914 (5th Cir. 1998) (noting that Fourth Amendment standards are sometimes

26

F.3d 1232, 1247 (11th Cir. 2021) (analyzing an excessive force claim concerning a person detained in a hot

car following his arrest under the Fourteenth Amendment and the factors enunciated in Kingsley); and

Ondo v. City of Cleveland, 795 F.3d 597, 610 n.4 (6th

Cir. 2015) (“Once an arrest ends, and a person in police

custody transitions from arrestee to pretrial detainee,

the Fourteenth Amendment thenceforth governs any

excessive-force claims that arise during the pretrial

detention.”); and Orem v. Rephann, 523 F.3d 442, 446

(4th Cir. 2008) (acknowledging that, though “[t]he

point at which Fourth Amendment protections end

and Fourteenth Amendment protections begin is often

murky,” an excessive force claim based on events during post-arrest transport “requires application of the

Fourteenth Amendment”); with Aldini v. Johnson, 609

F.3d 858, 866 (6th Cir. 2010) (establishing “the line between Fourth and Fourteenth Amendment protection

at the probable-cause hearing” for those arrested without a warrant); and Powell, 891 F.2d at 1044 (“We think

the Fourth Amendment standard probably should be

applied at least to the period prior to the time when

the person arrested is arraigned or formally charged,

and remains in the custody (sole or joint) of the arresting officer”) (emphasis added).10

used in analyzing claims technically governed by substantive due process).

Wilson v. Spain, 209 F.3d at 715 n.2.

10

In Kingsley, the Court did not decide whether the objective

standard should apply to claims by pretrial detainees concerning

conditions of confinement, inadequate medical care, and failure to

27

The reasoning of circuits embracing the Fourteenth Amendment as the operable standard in this

situation is persuasive. Those circuits have reasoned

that neither the text nor the “core concerns” of the

Fourth Amendment apply to custodial treatment.

E.g., Riley, 115 F.3d at 1162-63, 1166; see also, e.g.,

Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir. 1989)

(stating that “[a] natural although not inevitable interpretation of the word “seizure” would limit it to the initial act of seizing, with the result that subsequent

events would be deemed to have occurred after rather

than during the seizure”). Those courts see the Fourth

Amendment and the body of case law it has generated

as directed at the “initial act of restraining an individual’s liberty” rather than conditions occurring after a

seizure or arrest is made and the individual is being

held in a detention facility. E.g., Valencia, 981 F.2d at

1443-45; Riley, 115 F.3d at 1162-63.

Other courts have read the word “seizure” in the

Fourth Amendment to extend beyond the initial moment of arrest. As noted, the Tenth Circuit recognized

that a “seizure” “may extend beyond arrest up until a

protect. As a result, there is also a split in the circuits as to

whether to apply the objective reasonableness standard set out in

Kingsley to such cases or, alternatively, the subjective deliberate

indifference standard that had been applied by the courts of appeals prior to Kingsley. E.g., K. Lambroza, “Pretrial Detainees

and the Objective Standard After Kingsley v. Hendrickson,” Am.

Crim. L. Rev., Vol. 52:429, at 441-50 (2021) (discussing the circuit

split, collecting cases, and advocating for application of an objective standard to all such cases). Where the line is drawn thus has

implications for those sorts of cases, as well.

28

probable cause determination.” Estate of Booker, 745

F.3d at 420. Other circuits have taken the same sort of

approach. E.g., Aldini, 609 F.3d at 866; Pierce, 76 F.3d

at 1043. Thus, at present, geography determines when,

in the context of claim of excessive force, the applicable

standard changes, if it does.

The reasoning of the former circuits is consistent

with this Court’s approach in Graham. Indeed, the particular non-exclusive factors enunciated in Graham in

addressing an excessive force claim under the Fourth

Amendment – (1) the severity of the crime at issue,

(2) whether the suspect poses an immediate threat to

the safety of the officers or others, and (3) whether he

is actively resisting arrest or attempting to flee – are

really aimed at evaluating the objective reasonableness of the use of force in effectuating a seizure under

the Fourth Amendment. E.g., Graham, 490 U.S. at 396.

Yet, those factors simply and fairly obviously do not fit

when, as here, the seizure has ended, custody has been

transferred to a pretrial detention facility, and force is

used against a person being held by a detention facility.

By contrast, the reasoning of those courts that embrace the Fourth Amendment as the operable Amendment even after custody has been relinquished to a

detention facility runs afoul of this Court’s approach in

Kingsley. In particular, the non-exclusive factors set

out by this Court in Kingsley as applicable to a pretrial

detainee under the Fourteenth Amendment are a perfect fit to the situation presented here – (1) the relationship between the need for the use of force and the

29

amount of force used; (2) the extent of the plaintiff ’s

injury; (3) any effort made by the officer to temper or

to limit the amount of force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived by the officer; and (6) whether the plaintiff was

actively resisting. Kingsley, 576 U.S. at 397 (citing

Graham, 490 U.S. at 386). In reality, those factors, reflecting an application of the Graham objective reasonable test, allow for a thorough analysis of the

circumstances actually confronted by the individual

jailers.

In light of all this, it is clear that adherence to a

line of demarcation that changes at the instant of a judicial finding of probable cause creates a disconnect

from this Court’s decision in Kingsley. Instead, the

Court should apply a dividing line between the Fourth

and Fourteenth Amendments in excessive force cases

that fits the actual situation – with the Fourth Amendment applicable until an individual has been seized

and the Fourteenth Amendment applicable no later

than the point at which the person is transferred to a

detention facility. See, e.g., Powell, 891 F.2d at 1044

(concluding that the Fourth Amendment applies until

a person is arrested, arraigned, or formally charged

and remains in the custody of the arresting officer).

As this Court made clear in Kingsley, when evaluating

whether use of force is objectively reasonable or not in

the context of a person being held in a detention facility, a court is called upon to address considerations

that that situation calls into question. Thus, this case

presents an opportunity for the Court to establish the

30

line of demarcation that is consistent with the Court’s

approach in Kingsley and Graham.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, Petitioner Hyrum

James Geddes respectfully requests that the Court

grant this Petition, review the Tenth Circuit’s decision,

and decide the questions identified above that this case

presents.

Respectfully submitted this 30th day of November

2022:

GREGORY W. STEVENS

2825 East Cottonwood Parkway

Suite 500

Salt Lake City, UT 84121-7060

Telephone: (801) 990-3388

Email: utlaw@aol.com

Counsel for Petitioner

Hyrum James Geddes