Amicus Curiae Brief — Kingsley v. Hendrickson, 135 S. Ct. 1039 (2015) (No. 14-6368)

MAR 17 2015

LOR CE OF THE Ct ow |

No. 14-6368

In the Supreme Court of the Cnited States

MICHAEL B. KINGSLEY, PETITIONER

Vv.

STAN HENDRICKSON, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING AFFIRMANCE

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

BENJAMIN C. MIZER

VANITA GUPTA

Acting Assistant Attorneys

General

IAN HEATH GERSHENGORN

Deputy Solicitor General

JOHN F. BASH

Assistant to the Solicitor

General

BARBARA L. HERWIG

MARK L. GRoss

ERIN ASLAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the requirements of a 42 U.S.C. 1983

excessive-force claim brought by a plaintiff who was a

pretrial detainee at the time of the incident are satis-

fied by a showing that the state actor deliberately

used force against the pretrial detainee and the use of

force was objectively unreasonable.

(I)

‘ae ed

TABLE OF CONTENTS

Page

I Se ie ee ND cernrensetsereeesernennennn l

aE 1

GE SII ccccesccessenermnnmntinen 9

Argument:

To succeed on an excessive-force claim, a pretrial

detainee is not required to prove that the defendant

acted with a particular subjective mental state ................ 11

A. The Due Process Clause prohibits prison officials

from using force that amounts to punishment

against a pretrial detainee .....................ccceccceeeceeseeeeeeeees 12

B. The standards for excessive-force claims under

the Fourth and Eighth Amendments do not apply

Oe Ie Ga cccenscenensecsreccssscesnreccssnsessemnscenerscerenees 20

1. The use of force during pretrial detention

does not effect a Fourth Amendment seizure.......20

2. The Eighth Amendment’s “malicious and

sadistic” standard does not apply to excessive-

force claims brought by pretrial detainees ........... 23

C. The district court adequately instructed the

jury on the elements of an excessive-force claim......... 28

CR cecinsnntenstenenmmeniemneiennnene 33

Appendix — Constitutional and statutory provisions ........... la

TABLE OF AUTHORITIES

Cases:

Albright v. Oliver, 510 U.S. 266 (1994) .00...0.....ccccesceeeeseeeeeees 21

Anderson v. Creighton, 483 U.S. 635 (1987) ............cc00e00++ 28

Atwater v. City of Lago Vista, 532 U.S. 318 (2001)............. 11

Bell v. Wolfish, 441 U.S. 520 (1979)...........ccccccceseeseeenee passim

Brendlin v. California, 551 U.S. 249 (2007) ............ccccece000- 20

Block v. Rutherford, 468 U.S. 576 (1984) .........cccceceeeees 15, 18

(IIT)

Cases—Continued: Page

City of Revere v. Massachusetts Gen. Hosp.,

A 23

County of Sacramento v. Lewis, 523 U.S. 833 (1998)......... 19

Daniels v. Williams, 474 U.S. 327 (1986).................cccccceseenees 7

Farmer v. Brennan, 511 U.S. 825 (1994) ....... 5, 23, 24, 25, 26

Florence v. Board of Chosen Freeholders,

Se ee Ga, Bl i ccreccccccenssccsssssnserssnesensennteensennsmeen 18

Gerstein v. Pugh, 420 U.S. 103 (1975).........ccccccccsecsceeeeaseeeeee 11

Global-Tech Appliances, Inc. v. SEB S.A.,

ee 16

Graham v. Connor, 490 U.S. 386 (1989)......... 8, 12, 16, 18, 21

Helling v. McKinney, 509 U.S. 25 (1998)...........cccccocseeeeeees 24

Howes v. Fields, 132 S. Ct. 1181 (2012) ..0......0.....cccccececeseenees 22

Hudson v. McMillian, 503 U.S. 1 (1992) ........... 17, 24, 25, 26

Hudson v. Palmer, 468 U.S. 517 (1984)............ccc.ccceee00 18, 21

Huff v. Sheahan, 493 F.3d 893 (7th Cir. 2007) .................0++ 29

Ingraham v. Wright, 430 U.S. 651 (1977) .........ccccceeseeseseees 24

Kennedy v. Mendoza-Martinez, 372 U.S. 144

STITT nasinansnsstansestenainitenesatiecseeseesasumnemnmermmmnnepionemecsees 14, 16

Michigan v. Bryant, 131 S. Ct. 1143 (2011)... eee 16

Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233

(11th Cir. 2008), cert. denied, 558 U.S. 816 (2009)......... 30

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)......... 12, 24

Pearson v. Callahan, 555 U.S. 223 (2009) ..............cccceeeeeeee 28

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014)........ 4, 11, 18, 23

Rhodes v. Chapman, 452 U.S. 337 (1981).........2....cc000 2A, 27

Sandin v. Conner, 515 U.S. 472 (1995) .........0ccccccccceeseeceseeeeee 24

Schall v. Martin, 467 U.S. 253 (1984) ..000......0cccccccceceseseee 15, 16

Scott v. Harris, 550 U.S. 372 (2007) ...........ccccccccceeeeeeeeseeeeennee 23

Tennessee v. Garner, 471 U.S. 1 (1985) ...........cccccccesseenee 20, 21

Cases—Continued: Page

Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d

a scrissiamiiaetii 29

Turner v. Safley, 482 U.S. 78 (1987) ..........cceccecscesssecsennecenees 18

United States v. Salerno, 481 U.S. 739 (1987).....9, 11, 13, 16

Westchester Fire Ins. Co. v. General Star Indem.

i Te ee ED GG SII cecrttteecesicencctcneceneenseneccncnnn 29

Whitley v. Albers, 475 U.S. 312 (1986)................ 17, 24, 25, 26

Wilson v. Seiter, 501 U.S. 294 (1991) 200... ececteeeeeeees 24

Constitution and statutes:

U.S. Const-.:

ee canetuiancemniaconettaenrainnsmnnitmnnaninnen passim, la

Amend. V (Due Process Clause)................. 9,11, 12,17, la

I, We decrrctinatininniintinitnininnntmnnnen passim, la

Amend. XIV (Due Process Clause).................. passim, 2a

Bail Reform Act of 1984, 18 U.S.C. 3141 et seq. ................. 16

adele ettintialaaanieninliiaes 1

SEES ne crea anes ee ee wee COS Snr 3, 3a

Se ace a eee OR TR 1

In the Supreme Court of the Gnited States

No. 14-6368

MICHAEL B. KINGSLEY, PETITIONER

Vv.

STAN HENDRICKSON, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING AFFIRMANCE

INTEREST OF THE UNITED STATES

This case concerns the requirements for establish-

ing that an officer’s use of force against a pretrial de-

tainee violated the Constitution. The United States

detains individuals awaiting criminal prosecutions. At

the same time, the United States prosecutes law-

enforcement officers who violate the civil rights of

pretrial detainees, see 18 U.S.C. 242, and brings civil

actions to address the use of excessive force against

such detainees, see 42 U.S.C. 1997a, 14141. The

United States therefore has a substantial interest in

the Court’s disposition of this case.

STATEMENT

1. In April 2010, petitioner was placed into deten-

tion in the Monroe County Jail in Sparta, Wisconsin,

pending his trial on a drug charge. Pet. App. 2a;

(1)

2

D. Ct. Doc. 157, at 43-44 (Nov. 5, 2012). On May 20,

2010, an officer was performing a cell check when he

noticed a piece of paper covering a light fixture above

petitioner’s bed. Pet. App. 3a. The officer told peti-

tioner to remove the paper, but petitioner refused.

Ibid. Throughout the course of the evening and the

following morning, petitioner continued to refuse mul-

tiple orders from different officers to remove the pa-

per, including orders from Lieutenant Robert Conroy,

the administrator of the jail. /bid.

Lieutenant Conroy ultimately told petitioner that

the officers would remove the paper, but that petition-

er would have to be removed from the cell and would

face disciplinary action. Pet. App. 3a. Lieutenant

Conroy and four officers, including respondents, then

approached the cell. Jd. at 4a. When petitioner re-

fused to voluntarily exit, the officers stood him up and

handcuffed him. /bid. Petitioner would not voluntari-

ly walk out of the cell, claiming that his foot was in

pain. /bid. The officers therefore carried him to a

“receiving cell,” where they placed him facedown on a

concrete cell bunk. bid.

The events that occurred in the receiving cell are

captured in a video in the record, but the officers’ bod-

ies largely obstructed the view of the camera. Pet.

App. 4a n.3. According to the officers, petitioner

physically resisted their efforts to remove his hand-

cuffs (a safety precaution when leaving an inmate

alone in a cell). Jd. at 4a-5a; J.A. 174. Respondent

Hendrickson put his knee on petitioner’s back, and

petitioner responded by telling him, in saltier terms,

to stop. Pet. App. 5a. In the courts below, but not in

this Court, petitioner claimed that the officers then

slammed his head into the concrete bunk. /d. at 5a,

3

58a, 6la, 63a-64a According to the officers, respond-

ent Degner told petitioner that if he continued to re-

sist, Degner would stun him with a taser. Jd. at 58a.

When petitioner still refused to comply, Hendrickson

ordered Degner to stun petitioner. /d. at 5a n.4.

Degner stunned petitioner in the back for five sec-

onds. /d. at 5a At that point, Lieutenant Conroy or-

dered the officers to leave the cell. /bid.

Fifteen minutes later, officers returned to the cell,

and petitioner allowed them to remove his handcuffs.

Pet. App. 5a. The officers placed petitioner on a medi-

cal watch. /bid. A nurse came by shortly after, but

petitioner refused to allow her to attend to him. /d. at

5a, 59a.

2. Petitioner filed a pro se complaint against re-

spondents and other officers under 42 U.S.C. 1983 and

state law in the United States District Court for the

Western District of Wisconsin. Pet. App. 6a & n.6. As

relevant here, he alleged that they had violated the

Due Process Clause of the Fourteenth Amendment by

using excessive force against him in the receiving cell.

Id. at 6a.

a. The district court denied cross-motions for

summary judgment on the excessive-force claim after

identifying “a genuine dispute of material fact regard-

ing whether [the officers] used excessive force against

[petitioner] once he was in the receiving cell” by

“slamm[ing] [his] head into the concrete bed and

us(ing] a taser against him solely for the purpose of

causing him harm.” Pet. App. 63a; see id. at 53a. The

court found that a “jury could conclude that because

[petitioner] was not resisting and posed no safety

threat at the time [the officers] slammed his head and

used the taser against him, [their] use of force was

4

disproportionate to the situation” or that the officers

“made no efforts to temper the severity of the force

and * * * intended to harm [petitioner).” Jd. at

64a The district court also denied the officers’ re-

quest for qualified immunity. Jd. at 66a-67a. The

court stated that “a reasonable jury could conclude

that [the officers] acted with malice and intended to

harm [petitioner] when they used force against him.”

Ibid.

b. The parties stipulated to the dismissal of all

claims except the excessive-force claim against Hen-

drickson and Degner (respondents-here). Pet. App.

7a. With petitioner represented by appointed counsel,

the case proceeded to trial. /bid. Over three days,

the jury heard testimony from petitioner, respond-

ents, other officers, and expert witnesses. See D. Ct.

Docs. 154-158 (Nov. 5, 2012).

ce. The parties proposed different jury instructions

for the definition of unconstitutionally excessive force.

Petitioner proposed an instruction that would have

asked the jury only “whether each individual [re-

spondent’s] use of force was unreasonable from the

perspective of a reasonable officer facing the same

circumstances that [each respondent] faced,” without

regard to whether the officer’s “intentions were good

or bad.” J.A. 78 (emphasis omitted); see J.A. 76-77.

That proposal mirrored the Fourth Amendment

standard that this Court has recognized for claims of

excessive force in arrest situations. See, e.g., Plum-

hoff v. Rickard, 134 S. Ct. 2012, 2020 (2014).

Respondents proposed an instruction that would

have required the jury to find that the force they had

used against petitioner was “not applied in a good

faith effort to maintain or restore discipline, but was

5

instead applied maliciously or sadistically for the very

purpose of causing harm.” J.A. 65. That is the stand-

ard that this Court has recognized under the Eighth

Amendment for claims of excessive force brought by

prisoners serving criminal sentences. See Farmer v.

Brennan, 511 U.S. 825, 835-836 (1994).

The district court gave an instruction that differed

from both of the proposed instructions. See J.A. 277-

278; D. Ct. Doc. 156, at 153-154. The instruction stat-

ed that “[e)xcessive force means force applied reck-

lessly that is unreasonable in light of the facts and cir-

cumstances of the time.” J.A. 277. “Thus,” the court

said, petitioner was required to “prove each of the fol-

lowing factors”: (i) respondents used force on him;

(ii) that “use of force was unreasonable in light of the

facts and circumstances at the time”; (iii) respondents

“knew that using force presented a risk of harm to

[petitioner], but they recklessly disregarded |[petition-

er’s}] safety by failing to take reasonable measures to

minimize the risk of harm to [petitioner]”; and (iv) the

use of force caused some harm to petitioner. J.A. 277-

278.

The court further instructed the jury that “[i)]n de-

ciding whether one or more [respondents] used ‘un-

reasonable’ force against [petitioner], you must con-

sider whether it was unreasonable from the perspec-

tive of a reasonable officer facing the same circum-

stances that [respondents] faced.” J.A. 278. The

court added that “in deciding whether one or more

[respondents] used unreasonable force and acted with

reckless disregard of [petitioner’s] rights,” the jury

could “consider such factors as: [t]he need to use

force; [t]he relationship between the need to use force

and the amount of force used; [t]he extent of [petition-

6

er’s] injury; [w]hether [respondents] reasonably be-

lieved there was a threat to the safety of staff or pris-

oners; and [a]ny efforts made by [respondents] to lim-

it the amount of force used.” /bid.

Petitioner preserved an objection to the portion of

that instruction stating that the jury would have to

find that respondents had “recklessly disregarded

[petitioner’s] safety by failing to take reasonable mea-

sures to minimize the risk of harm” to petitioner. J.A.

231; see J.A. 228-231. He argued that the phrase was

“confusing in the context of an excessive force case

where [respondents] were deliberately applying

force.” J.A. 231. Petitioner also objected to the in-

struction requiring proof of harm (although he has not

pressed that objection in this Court). J.A. 233-234.

d. The jury entered a verdict in favor of respond-

ents. J.A. 284.

3. The court of appeals affirmed. Pet. App. 1a-26a.

As relevant here, the court rejected petitioner’s ar-

gument that the district court had “conflated the

standards for excessive force under the Eighth and

Fourteenth Amendments and, as a result, wrongly in-

structed the jury to consider the subjective intent of

[respondents].” /d. at 2a.

a. The court of appeals began by explaining that

the Fourth and Eighth Amendments protect arrestees

and convicted prisoners, respectively, from excessive

force by law-enforcement officers, but that “[b]etween

the status of arrestee and sentenced prisoner is the

intermediate status of the detainee,” who “is entitled

to protection from physically abusive government con-

duct” under the Due Process Clause of the Fourteenth

Amendment. Pet. App. lla The court accordingly

analyzed the instructions under due-process stand-

7

ards, relying on this Court’s decision in Bell v. Wolf-

ish, 441 U.S. 520 (1979), as its “primary touchstone.”

Pet. App. 12a. Under Bell, the court of appeals ex-

plained, “‘the proper inquiry’ is whether the treat-

ment of the detainee ‘amountis] to punishment,’”

which may not be imposed on an individual before he

has been convicted and sentenced. /bid. (brackets in

original) (quoting Bell, 441 U.S. at 535). The court

contrasted that standard with the Eighth Amend-

ment’s narrower proscription only on “cruel and unu-

sual” punishments, and thus concluded that “the pro-

tection afforded by the Due Process Clause” from the

use of force “is broader than that afforded under the

Eighth Amendment.” /bid.

The court of appeals then held, again relying on

Bell, that to determine whether a given action consti-

tuted forbidden “punishment,” a court must ask

“whether [the] action was taken ‘for the purpose of

punishment or whether it is but an incident of some

other legitimate governmental purpose.’” Pet. App.

13a (quoting Bell, 441 U.S. at 538). That standard of

liability, the court said, could not be satisfied by negli-

gent governmental conduct, ibid. (citing Daniels v.

Williams, 474 U.S. 327, 334 (1986)), but it could be

satisfied by recklessness, which, the court said, “in-

corporates some measure of subjective intent,” ibid.

The court of appeals cited circuit precedent approving

instructions that required a plaintiff to prove that the

defendants “acted deliberately or with callous indif-

ference, evidenced by an actual intent to violate [the

plaintiff's) rights or reckless disregard for his rights.”

Pet. App. 16a-17a (citation omitted); cf. id. at 17a (per-

tinent inquiry is whether officers acted “maliciously

and sadistically for the very purpose of causing

8

harm”). The court noted that its cases “recognize,

quite clearly, the need for a subjective inquiry into the

defendant’s state of mind in performing the activity

under scrutiny.” Jd. at 18a. Such a standard “stands

in contrast,” the court continued, “to the rule under

the Fourth Amendment that focuses only on whether

the government conduct was ‘objectively reasonable’

in light of all of the facts and circumstances.” /d. at

13a-14a (quoting Graham v. Connor, 490 U.S. 386, 397

(1989)).

Applying its understanding of the Bell due-process

standard, the court of appeals held that the jury in-

structions were “sufficiently precise in [their] descrip-

tion of the due process right of a pretrial detainee to

ensure that [petitioner’s] case was fairly presented to

the jury.” Pet. App. 15a; see id. at 19a-22a. Petitioner

had argued on appeal that “the instructions were er-

roneous and confusing because he was required to es-

tablish that the officers had acted with ‘reckless dis-

regard’ for his safety, when the instruction should

have allowed the jury to find the existence of punish-

ment on the basis of wholly objective factors.” Jd. at

2la. But the court rejected that argument on the

ground that “the existence of intent—at least

recklessness—is a requirement in Fourteenth

Amendment excessive force cases,” and that the in-

structions had told the jury to measure recklessness

“largely by the objective factors” that the district

court had enumerated. /d. at 2la-22a. The court of

appeals further explained that in light of the overall

context of the instructions, the district court’s three

references to recklessness indicated only that to be

held liable, respondents must have (i) acted more than

negligently (“i.e., the taser did not go ‘off by acci-

9

dent’”), (ii) “‘failed to take reasonable measures to

minimize harm to [petitioner],’” and (iii) otherwise

behaved unreasonably in light of “objective considera-

tions.” Id. at 22a n.20 (quoting jury instructions).

b. Judge Hamilton dissented. Pet. App. 27a-42a.

He argued that “[iJf 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.”

Id. at 27a. In his view, the district court had erred by

“add[ing] an unnecessary and confusing element of

‘reckless’ conduct or purpose to the required elements

of [petitioner’s] claim.” [bid.; see id. at 34a-37a.

SUMMARY OF ARGUMENT

The judgment of the court of appeals should be af-

firmed. Petitioner is correct (Br. 11) that a pretrial

detainee is not required to prove that an officer acted

with a “bad mental state” to prevail on an excessive-

force claim. However, the district court’s instructions,

although not a model of clarity, are most fairly read

not to include such a mental-state element.

A. Under the Due Process Clause, a person who

has been detained pending trial after a judicial finding

of probable cause may not be subjected to “punish-

ment.” United States v. Salerno, 481 U.S. 739, 746

(1987); see id. at 746-752. This Court has held that a

general restriction imposed on pretrial detainees con-

stitutes “punishment” in the relevant sense if (i) pris-

on officials impose it with the intent to achieve a puni-

tive objective, such as deterrence or retribution, or

(ii) the restriction is not reasonably related to a legit-

imate nonpunitive objective, such as prison security

and discipline, or is unreasonably disproportionate to

such an objective. Bell v. Wolfish, 441 U.S. 520, 535-

10

539 & n.20, 540 & n.23, 561 (1979). The same standard

should apply to an officer’s use of force against a pre-

trial detainee, with appropriate sensitivity to the diffi-

cult judgment calls that officers often must make

when inmates resist their orders or threaten violence.

B. The due-process excessive-force standard for

pretrial detainees differs in certain respects from the

Fourth Amendment standard for arrestees and the

Eighth Amendment standard for convicted prisoners.

But those differences are attributable to the different

text and purposes of the constitutiona) provisions and

the different stages in the criminal-justice process at

which they apply. In litigation, those differences can

be substantial, as the Eighth Amendment’s intent re-

quirement poses a significant barrier to liability.

However, for individual officers working with a prison

population comprising both pretrial detainees and

convicted prisoners, the practical problems should not

be substantial. In all cases, an officer who makes a

reasonable decision to use a proportionate level of

force in the service of a legitimate governmental

objective—such as effecting a lawful arrest, protect-

ing the public, ensuring the safety of prisoners and

guards, or enforcing legitimate discipline—complies

with the Constitution. And qualified immunity pro-

tects from liability an officer who reasonably believes

that her actions are lawful.

C. The jury instructions in this case required the

jury to hold respondents liable if it found that re-

spondents had used force against petitioner unreason-

ably in light of objective factors. Fairly read, those

instructions did not, as petitioner contends, include an

erroneous “bad mental state” element. Although the

excessive-force instruction used a variant of “reck-

11

less” in three places, the instruction is best read to

equate recklessness with “failing to take reasonable

measures to minimize the risk of harm to [petitioner]”

and otherwise acting unreasonably in light of objec-

tive considerations, J.A. 278, not with a “bad mental

state,” such as a malicious or punitive purpose.

ARGUMENT

TO SUCCEED ON AN EXCESSIVE-FORCE CLAIM, A

PRETRIAL DETAINEE IS NOT REQUIRED TO PROVE

THAT THE DEFENDANT ACTED WITH A PARTICULAR

SUBJECTIVE MENTAL STATE

An individual is subject to the use of force by law-

enforcement officers at various stages of the criminal-

justice process. When an officer has probable cause to

believe that a person has committed a crime, she may

arrest him. Atwater v. City of Lago Vista, 532 U.S.

318, 354 (2001). The Fourth Amendment permits the

officer to use a reasonable level of force to effect that

arrest and to ensure the safety of herself, fellow offic-

ers, and other citizens. Plumhoff v. Rickard, 134

S. Ct. 2012, 2020-2022 (2014). The Fourth Amend-

ment and the Due Process Clause of the Fourteenth

(or Fifth) Amendment then permit the government to

detain the arrestee pending a guilty plea or trial if a

magistrate finds probable cause and denies bail. See

United States v. Salerno, 481 U.S. 739, 746-752 (1987);

Gerstein v. Pugh, 420 U.S. 103, 126 (1975). Within the

pretrial-detention facility, officers will often be re-

quired to use force or the threat of force to maintain

order and to ensure the safety of officers and detain-

ees. Finally, after a defendant has been convicted and

sentenced to a term of imprisonment, the government

may incarcerate him in a facility where officers may

use force not only to maintain order and safety, but

12

also to advance legitimate penological goals, subject to

the limits imposed by the Eighth Amendment’s pro-

scription on “cruel and unusual punishments.” See

O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).

This case concerns the constitutional limits on of-

ficers’ use of force during the pretrial-detention

phase. This Court has made clear that “the Due Pro-

cess Clause protects a pretrial detainee from the use

of excessive force that amounts to punishment.” Gra-

ham v. Connor, 490 U.S. 386, 395 n.10 (1989). Peti-

tioner is correct (Br. 12, 15-27) that a pretrial detainee

can establish a due-process violation by showing ei-

ther that the officer bore the subjective intent to in-

flict punishment or that the level of force employed

had no reasonable relation to a legitimate nonpunitive

objective, like prison safety and discipline. But peti-

tioner errs in contending (Br. 11, 13) that the jury in-

structions in this case, fairly read, misled the jury that

petitioner was required to prove a “bad mental state”

element."

A. The Due Process Clause Prohibits Prison Officials

From Using Force That Amounts To Punishment

Against A Pretrial Detainee

1. a. Under the Due Process Clause, a person

“may not be punished prior to an adjudication of guilt

in accordance with due process of law.” Bell v. Wolf-

ish, 441 U.S. 520, 535 (1979). The government, how-

' Respondents have preserved an argument that they are enti-

tled to qualified immunity even if the instructions were erroneous,

an issue that the court of appeals did not reach. See Br. in Opp. 17

n.1; Resps. C.A. Br. 28-29. Were this Court to conclude that the

instructions were erroneous, it would be appropriate to remand to

the court of appeals for resolution of that case-specific question in

the first instance.

13

ever, may detain a criminal defendant pending trial in

certain circumstances, such as where he cannot make

bail or poses a risk of future dangerousness, because

such detention is “regulatory, not penal” in character.

Salerno, 481 U.S. at 746; see Bell, 441 U.S. at 536.

During the course of that detention, the government

“may subject [the detainee] to the restrictions and

conditions of the detention facility so long as those

conditions and restrictions do not amount to punish-

ment or otherwise violate the Constitution.” Bell, 441

U.S. at 536-537.

In Bell, this Court set out the framework for dis-

tinguishing “between punitive measures that may not

constitutionally be imposed [on a detainee] prior to a

determination of guilt and regulatory restraints that

may.” 441 U.S. at 537. “A court,” Bell explained,

“must decide whether the disability is imposed for the

purpose of punishment or whether it is but an incident

of some other legitimate governmental purpose.” /d.

at 538. Thus, to prove a due-process violation, a plain-

tiff must establish a particularized form of intent:

that jail officials acted with the purpose of achieving a

punitive objective, such as “[rjetribution [or] deter-

rence,” rather than a “legitimate nonpunitive govern-

mental objective{]},” id. at 539 n.20, such as “[e)}nsuring

security and order at the institution,” id. at 561.

Bell further held that a plaintiff can establish that

unlawful purpose in one of two ways. First, the pur-

pose requirement is met if a plaintiff proves “an ex-

pressed intent to punish on the part of detention facil-

ity officials.” 441 U.S. at 538; see id. at 539 n.20, 561.

Second, absent proof of such an expressed intent, the

“determination generally will turn on ‘whether an al-

ternative purpose to which [the challenged practice]

14

may rationally be connected is assignable for it, and

whether it appears excessive in relation to the alterna-

tive purpose assigned [to it}.’” Jd. at 538 (second set

of brackets in original) (quoting Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-169 (1963)).

The inquiry under the second alternative is an ob-

jective one. If the challenged practice “is reasonably

related to a legitimate governmental objective, it does

not, without more, amount to ‘punishment,’” and

therefore does not violate due process. Bell, 441 U.S.

at 539. “Conversely, if a restriction or condition is not

reasonably related to a legitimate goal—if it is arbi-

trary or purposeless—a court permissibly may infer

that the purpose of the governmental action is pun-

ishment.” Jbid. In conducting that inquiry, a court

must also ask whether there exist “many alternative

and less harsh methods” of achieving the same nonpu-

nitive objective. /d. at 539 n.20. For example,

although “loading a detainee with chains and shackles

and throwing him in a dungeon may ensure his pres-

ence at trial and preserve the security of the institu-

tion,” such extreme conditions would nevertheless

“support a conclusion that the purpose for which they

were imposed was to punish.” /bid.

Bell applied its framework to a number of chal-

lenged security practices in a federal detention facili-

ty, including body-cavity searches and unannounced

cell searches. See 441 U.S. at 544-562. Because the

officials had no “intent to punish the pretrial detainees

housed there,” the Court evaluated whether the prac-

tices were “rationally related to a legitimate nonpuni-

tive governmental purpose and whether they ap-

pear[ed] excessive in relation to that purpose.” /d. at

561. Under that standard, the Court concluded that

15

the plaintiffs “simply ha[d] not met their heavy bur-

den of showing that these officials have exaggerated

their response to the genuine security considerations”

that prompted the practices. /d. at 561-562; see Block

v. Rutherford, 468 U.S. 576, 583-591 (1984) (applying

Bell standard to security practices for pretrial detain-

ees); Schall v. Martin, 467 U.S. 253, 269-271 (1984)

(applying Bell standard to conditions of pretrial de-

tention for juveniles).

b. Neither Bell nor this Court’s subsequent deci-

sions applying its standard have been perfectly clear

as to whether the second, objective prong reflects an

independent legal basis for classifying governmental

action as punitive or instead describes only the sort of

evidence from which a factfinder may infer that a giv-

en action was in fact motivated by a punitive intent.

The former view, however, is the better reading of the

decisions. Bell stated that the “court” (rather than

the “jury” or “factfinder”) would draw the inference of

punitive intent from the lack of any reasonable and

proportionate connection between the restriction and

a nonpunitive objective. 441 U.S. at 538-539. It also

held that “arbitrary or purposeless” restrictions

would be unconstitutional, id. at 539, suggesting that

if prison officials had no discernible purpose whatso-

ever in implementing a restriction, the restriction

could violate due process. And in Block, the Court

stated that Bell’s objective analysis applies “({a]bsent

proof of intent to punish,” 468 U.S. at 584 (emphasis

added), indicating that the objective analysis does not

constitute mere proof of an officer’s actual mental

state.

The Bell objective test thus resembles other situa-

tions when the law holds that a particular purpose

16

must be imputed to a challenged action based on ob-

jective circumstances. See, e.g., Michigan v. Bryant,

131 S. Ct. 1143, 1156 (2011) (“To determine whether

the primary purpose of an interrogation is to enable

police assistance to meet an ongoing emergency,

* * * we objectively evaluate the circumstances in

which the encounter occurs and the statements and

actions of the parties.”) (citation and internal quota-

tion marks omitted); cf. Global-Tech Appliances, Inc.

v. SEB S.A., 131 8. Ct. 2060, 2068-2069 (2011) (explain-

ing that the criminal law often equates willful blind-

ness with knowledge or purpose). And it accords with

this Court’s broader due-process jurisprudence, in

which the Court has typically evaluated governmental

action objectively. See Pet. Br. 24.

2. Bell set out the standard for impermissible

“punishment” in the context of claims challenging

conditions of confinement and general prison security

practices, not the use of force against a detainee. But

this Court later stated, citing Bell, that it “is clear

* ™* ™* that the Due Process Clause protects a pre-

trial detainee from the use of excessive force that

amounts to punishment.” Graham, 490 U.S. at 395

n.10 (citing 441 U.S. at 535-539). And this Court has

indicated that the Bell standard represents a general

definition of what sort of governmental action consti-

tutes “punishment” that is “per se illegitimate” when

“imposed without a prior adjudication of guilt.”

Schall, 467 U.S. at 272; see Salerno, 481 U.S. at 747-

748 (applying standard to Bail Reform Act of 1984, 18

U.S.C. 3141 et seqg.); Kennedy, 372 U.S. at 168-169

(applying standard to forfeiture-of-citizenship statute)

(relied on by Bell, 441 U.S. at 537-539 & n.20). For

that reason, the Bell standard is not limited to the

17

particular governmental practices at issue in Bell it-

self.

Accordingly, the Bell standard supplies the appro-

priate test for evaluating the constitutionality of the

use of force against pretrial detainees. A challenged

use of force should therefore be held to violate the

Due Process Clause when either (i) there was “an ex-

pressed intent to punish on the part of [the] detention

facility officials” who used the force, 2.e., to achieve

punitive objectives like deterrence, retribution, or

chastisement; or (ii) the use of force was “not reason-

ably related to a legitimate goal,” such as the safety of

officers and inmates or appropriate prison discipline,

or was unreasonably disproportionate in respect to

such an objective. Bell, 441 U.S. at 538-539.

That standard provides a workable test to guide an

officer’s decisionmaking in situations where she must

choose whether to use force to ensure the security of a

detention facility or to enforce her commands. Both

law-enforcement organizations and courts have ample

experience in assessing the lawfulness of the use of

force in light of the objective circumstances known to

the officer at the time, because a similar inquiry is re-

quired by the Fourth Amendment in the arrest con-

text. See pp. 22-23, infra.

There are, to be sure, critical differences between

general restrictions and security practices established

as prison policy and the quick judgment calls that of-

ficers make when deciding whether to use force

against a pretrial detainee. Officers can be called up-

on to use force “in haste, under pressure, and fre-

quently without the luxury of a second chance.” Hud-

son v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whit-

ley v. Albers, 475 U.S. 312, 320 (1986)). That concern,

18

however, does not warrant a different constitutional

standard for excessive-force claims. Cf. p. 26, infra.

Instead, courts should apply the Bell standard with

appropriate sensitivity to the volatile conditions under

which officers must make decisions about whether to

use force, as they do with Fourth Amendment claims.

See, e.g., Plumhoff, 134 S. Ct. at 2020-2022. In addi-

tion, as petitioner recognizes (Br. 26), a court must

always evaluate the use of force in light of the “facts

known [to the officer] at the time, not hindsight.” See

Graham, 490 U.S. at 397. And as with any claim chal-

lenging the actions of officials who serve in detention

facilities, courts must keep in mind that “[rjunning a

prison is an inordinately difficult undertaking,”

Turner v. Safley, 482 U.S. 78, 84-85 (1987), and that

“safety and order at these institutions requires the

expertise of correctional officials, who must have sub-

stantial discretion to devise reasonable solutions to

the problems they face,” Florence v. Board of Chosen

Freeholders, 132 S. Ct. 1510, 1515 (2012). See Block,

468 U.S. at 584-585, 588; Hudson v. Palmer, 468 U.S.

517, 526-527 (1984); Bell, 441 U.S. at 540 n.23, 547-548

& n.29; accord Pet. Br. 22.

3. In the decision below, the court of appeals cor-

rectly recognized that under Bell, “[w]je 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,’” Pet. App.

13a (quoting Bell, 441 U.S. at 538), and the court con-

cluded that “the existence of intent—at least reck-

lessness—is a requirement in Fourteenth Amendment

excessive force cases,” id. at 21a. But in discussing

recklessness, the court cited precedents both for the

proposition that reckless (but not negligent) govern-

19

mental action can violate the Due Process Clause, see

id. at 13a-14a, and for the proposition that the requi-

site intent can be shown either by “an actual intent to

violate [the plaintiffs] rights or reckless disregard for

his rights,” id. at 16a-17a (citation omitted; brackets

in original).

That analysis was unnecessarily confusing. The

court of appeals conflated two different types of intent

relevant to a due-process claim: the intent to commit

the act that caused harm, and the intent to achieve a

particular purpose. See Pet. App. 37a-4la (Hamil-

ton, J., dissenting). This case does not involve any

dispute over the first type of intent—as it would if, for

example, respondents claimed to have accidentally

stunned petitioner with the taser. See id. at 22a n.20

(majority opinion); cf. County of Sacramento v. Lewis,

523 U.S. 833, 836 (1998) (holding that “deliberate or

reckless indifference to life in a high-speed automobile

chase” does not violate due process). Rather, the

question here is whether respondents’ admittedly in-

tentional use of force against petitioner was undertak-

en with the purpose of inflicting punishment rather

than achieving a nonpunitive objective, like ensuring

compliance with their lawful orders.

As discussed, that aspect of the Bell standard is an

objective inquiry, and the use of the term “reckless” in

that context is more likely to confuse courts and liti-

gants, because it appears to invoke the threshold dis-

tinction between intentional and unintentional gov-

ernmental conduct. Accordingly, this Court should

not import the concept of “recklessness” into the

standard for constitutional excessive-force claims; it

should instruct lower courts to apply the Bell stand-

ard instead.

20

B. The Standards For Excessive-Force Claims Under

The Fourth And Eighth Amendments Do Not Apply

To Pretrial Detainees

The Bell standard differs in some respects from the

standards that this Court has established for Fourth

Amendment excessive-force claims brought by ar-

restees and Eighth Amendment excessive-force claims

brought by convicted prisoners. But those differences

are attributable to the different text and purposes of

those provisions and the different stages in the

criminal-justice process at which they apply. And in

any event, the differences in the legal standards are

unlikely to matter in a significant number of real-

world encounters where officers must decide whether

to use force.

1. The use of force during pretrial detention does not

effect a Fourth Amendment seizure

Petitioner contends (Br. 27-34) that the Fourth

Amendment supplies an alternative standard for an

excessive-force claim by a pretrial detainee. Although

that argument is misguided, petitioner is correct (Br.

34-36) that the Fourth Amendment’s reasonableness

standard does not substantially differ from the objec-

tive component of the Bell standard.

a. The Fourth Amendment prohibits unreasonable

seizures of persons. “Whenever an officer restrains

the freedom of a person to walk away,” either through

a show of force or an exercise of force, “he has seized

that person.” Tennessee v. Garner, 471 U.S. 1, 7

(1985); see Brendlin v. California, 551 U.S. 249, 254

(2007). Because the Fourth Amendment’s reasona-

bleness requirement governs “how [a] seizure is

made,” Garner, 471 U.S. at 7, the use of force “in the

context of an arrest or investigatory stop of a free citi-

21

zen” must be objectively reasonable, Graham, 490

US. at 394.

The use of force during pretrial detention, howev-

er, does not effect a “seizure” in the constitutional

sense and so is not subject to the Fourth Amendment.

Once a defendant has been placed into pretrial deten-

tion, it is not any subsequent use of force within the

detention facility that “restrains [his] freedom

* * * to walk away.” Garner, 471 U.S. at 7. Ra-

ther, it is the placement into the detention facility it-

self that “results in restricting the movement of [the]

detainee.” Bell, 441 U.S. at 537. A subsequent use of

force against him may constitute impermissible pun-

ishment, but it does not produce any additional re-

straint on his freedom of movement, because that

freedom has already been fully extinguished upon his

introduction into the facility. Even if that initial sei-

zure is understood to continue throughout the period

of detention, cf. Albright v. Oliver, 510 U.S. 266, 277-

279 (1994) (Ginsburg, J., concurring), the use of force

is not what effects the seizure; the detainee will re-

main seized regardless of whether force is employed.

Cf. Palmer, 468 U.S. at 528 n.8 (holding that the

Fourth Amendment “is inapplicable” to seizure of

property from convicted prisoner’s cell).

Petitioner suggests (Br. 30-32) that each incremen-

tal restriction on a detainee’s freedom of movement

within a detention facility counts as a separate Fourth

Amendment seizure. Petitioner cites no case of this

Court suggesting that view, and it is impracticable.

Jail administrators, after all, constantly exercise

physical control over detainees, both through the use

of force and through the explicit or implicit threat of

force. It would work a vast expansion of the Fourth

22

Amendment to hold that each of the many daily en-

counters that “necessitate some additional limitations

on [a detainee’s] freedom of movement” within a de-

tention facility—such as “taking a prisoner aside for

questioning,” ordering him out of his cell, or breaking

up a fight—constitutes an additional seizure requiring

a fresh Fourth Amendment analysis. Howes v. Fields,

132 S. Ct. 1181, 1192 (2012).

Classifying every restriction on a detainee’s move-

ment as an additional Fourth Amendment seizure

could foster confusion in lower courts as to whether

the Fourth Amendment reasonableness standard re-

quires a greater justification for particular restric-

tions than the Bell standard. And most significantly,

petitioner does not identify any plausible reason why,

on his view, each restriction on movement imposed on

convicted prisoners would not also constitute a Fourth

Amendment seizure. If so, prison administrators

could be faced with a higher standard for certain

conditions-of-confinement claims than the currently

governing Eighth Amendment standard (“deliberate

indifference”). See p. 26, infra. For those reasons, it

is more sensible to consider the use of force under the

due-process standard that this Court has already held

to apply to pretrial detention.

b. In any event, as petitioner agrees (Br. 13, 34-36),

applying the Fourth Amendment reasonableness

standard to excessive-force claims would not produce

a standard that materially differs from the Bell stand-

ard. The question in a traditional Fourth Amendment

excessive-force case is whether the level of force used

was a reasonable, proportionate means of achieving

the legitimate governmental objectives appropriate to

that stage of the criminal-justice process: ensuring

23

the safety of officers and the public and apprehending

an offender. See, e.g., Plumhoff, 134 S. Ct. at 2020-

2022; Scott v. Harris, 550 U.S. 372, 383-384 (2007). In

the pretrial-detention context, the governmental ob-

jectives are similar: primarily, protecting the safety of

other inmates and officers and ensuring good order

and discipline within the facility. See Bell, 441 U.S. at

559. As in arrest situations, a proportionate use of

force reasonably calibrated to achieve those goals in

light of the facts and circumstances facing the officer

would be objectively reasonable. Accordingly, even if

this Court were to hold that the Fourth Amendment

applies (or reserve that question), adoption of the sec-

ond, objective component of the Bell formulation, as a

product of Fourth Amendment balancing, would ulti-

mately be appropriate.

2. The Eighth Amendment's “malicious and sadistic”

standard does not apply to excessive-force claims

brought by pretrial detainees

The Eighth Amendment prohibits prison officials

from applying force against inmates “maliciously and

sadistically for the very purpose of causing harm.”

Farmer v. Brennan, 511 U.S. 825, 835-836 (1994).

Although the Eighth Amendment applies only after a

“formal adjudication of guilt,” City of Revere v. Mas-

sachusetts Gen. Hosp., 463 U.S. 239, 244 (1983), and

therefore does not directly apply to pretrial detainees,

respondents argued below that the Eighth Amend-

ment standard “is appropriate whenever jail officials

use force to preserve internal order and discipline and

to maintain institutional security” in a _pretrial-

detention facility. Resps. C.A. Br. 23. That view is in-

correct.

24

a. This Court has held that a “sentenced inmate,”

unlike a pretrial detainee, “may be punished, although

that punishment may not be ‘cruel and unusual’ under

the Eighth Amendment.” Bell, 441 U.S. at 535 n.16

(citing Ingraham vy. Wright, 430 U.S. 651, 671 n.40

(1977)); see Sandin v. Conner, 515 U.S. 472, 485

(1995). In contrast to pretrial detention, incarceration

after sentencing can entail “restrictive and even

harsh” conditions, Rhodes v. Chapman, 452 U.S. 337,

346-347 (1981), that are designed to achieve “valid pe-

nological objectives—including deterrence of crime,

rehabilitation of prisoners,” and just retribution,

O’Lone, 482 U.S. at 348; see Rhodes, 452 U.S. at 352.

In light of that longstanding view, this Court has

interpreted the Eighth Amendment’s proscription on

“cruel and unusual punishments” to bar “‘only the un-

necessary and wanton infliction of pain’” on prisoners.

Wilson v. Seiter, 501 U.S. 294, 298 (1991) (emphasis

added) (quoting Whitley, 475 U.S. at 319). That re-

quires “more than ordinary lack of due care for the

prisoner’s interests or safety.” Jd. at 299 (quoting

Whitley, 475 U.S. at 319). A plaintiff must prove both

an objective element—that the prison official’s con-

duct violated “contemporary standards of decency”—

and a subjective element—that the official acted with

“a sufficiently culpable state of mind.” McMillian,

503 U.S. at 8 (citation omitted); see Helling v.

McKinney, 509 U.S. 25, 35-37 (1993). A subjective el-

ement is necessary, this Court has held, for an offi-

cial’s action to qualify as “punishment” under the

Eighth Amendment. Wilson, 501 U.S. at 300; see

Farmer, 511 U.S. at 837-838.

For an Eighth Amendment excessive-force claim

(as opposed to a conditions-of-confinement claim), the

25

subjective element requires a plaintiff to “show that

{the} officials applied force ‘maliciously and sadistical-

ly for the very purpose of causing harm,’” i.e., with “‘a

knowing willingness that [harm] occur.’” Farmer, 511

U.S. at 835-836 (brackets in original) (quoting McMil-

lian, 503 U.S. at 6, 7). Accordingly, so long as the

force was used in a “good-faith effort to maintain or

restore discipline,” the Eighth Amendment is not vio-

lated. McMillian, 503 U.S. at 7. Once that subjective

element is established, however, the objective element

is also met; “[w]Jhen prison officials maliciously and

sadistically use force to cause harm, contemporary

standards of decency always are violated.” Id. at 9

(citing Whitley, 475 U.S. at 327).

As with due-process claims, this Court has sug-

gested that the subjective element of an Eighth

Amendment excessive-force claim can be inferred

from objective circumstances. The Court has in-

structed that in deciding whether a correctional of-

ficer’s use of force was “malicious and sadistic,” a

court should consider “such factors as the need for the

application of force, the relationship between the need

and the amount of force that was used, [and] the ex-

tent of injury inflicted.” Whitley, 475 U.S. at 320-321

(citation omitted; brackets in original). “From such

considerations,” the Court has held, “inferences may

be drawn as to whether the use of force could plausi-

bly have been thought necessary, or instead evinced

such wantonness with respect to the unjustified inflic-

tion of harm as is tantamount to a knowing willing-

ness that it occur.” /d. at 321 (emphasis added).

b. The differences between the due-process stand-

ard and the Eighth Amendment standard arise from

the different text of the pertinent constitutional provi-

26

sions and the fact that, unlike convicted prisoners,

pretrial detainees have not yet been adjudicated

guilty of a criminal offense. In particular, the Eighth

Amendment requirement that the officer acted “mali-

ciously and sadistically for the very purpose of caus-

ing harm” stems from the Eighth Amendment’s dis-

tinct requirement that the punishment be “cruel and

unusual,” i.e., wanton. Whitley, 475 U.S. at 320-321

(citation omitted). Because wantonness is not a re-

quirement of a due-process claim, the officer’s pur-

pose in using force against a pretrial detainee need

not rise to the level of maliciousness or sadism to vio-

late the Constitution.

Likewise, in the Eighth Amendment context, this

Court adopted a higher subjective standard for exces-

sive-force claims (“malicious and sadistic”) than for

conditions-of-confinement claims (“deliberate indiffer-

ence”), whereas under the due-process analysis set

out above, the Bell standard applies to both types of

claims. But that is because the Eighth Amendment’s

wantonness element requires a mental state for condi-

tions-of-confinement claims—‘“deliberate _ indiffer-

ence,” 2e., “subjective recklessness,” Farmer, 511

U.S. at 839-840—that would be inappropriate for eval-

uating decisions to use force (and would be a poor fit

in the context of intentional applications of force in

any event). See McMillian, 503 U.S. at 6-7. The same

problem does not exist here, because the Bell stand-

ard, like Fourth Amendment objective reasonable-

ness, can readily be applied to excessive-force claims.

See pp. 22-23, supra.

ce. Detention facilities sometimes house both pre-

trial detainees and convicted prisoners. See Bell, 441

U.S. at 546 n.28. Under the framework described

27

above, a stricter standard for the use of force will ap-

ply to the pretrial detainees than to the other inmates,

in theory giving rise to practical difficulties when the

two classes of detainees are housed together.

There are substantial reasons, however, to believe

that the difference in standards will not present seri-

ous practical problems for jail administration. Like

the Eighth Amendment standard, the Bell standard

gives officers substantial discretion to use force for

safety and disciplinary purposes. Accordingly, in real-

world encounters, an officer’s decision to use force

against a detainee probably would not be affected by

whether the due-process or Eighth Amendment

standard governs. It would be the unusual case where

an officer’s use of force is not malicious or sadistic

(and so satisfies the Eighth Amendment) but has no

reasonable relation to any legitimate nonpunitive ob-

jective (and so violates due process). In addition,

many officers are subject to a use-of-force policy

adopted by their detention facility that is stricter than

the Eighth Amendment standard.

Moreover, it has been clear since at least 1981 that

the Bell standard governs conditions-of-confinement

claims for pretrial detainees, while the “deliberate in-

difference” standard governs such claims by convicted

prisoners. See Rhodes, 452 U.S. at 347. Yet we are

aware of no evidence that administrators of detention

facilities housing both pretrial detainees and convicted

prisoners have struggled to conform the conditions of

the facilities to constitutional standards.

Finally, with respect to both due-process and

Eighth Amendment claims, officers are protected

from liability by qualified immunity. That defense

“applies regardless of whether the government offi-

28

cial’s error is a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (cita-

tions and internal quotation marks omitted). Accord-

ingly, to hold an officer liable for the use of excessive

force under the Bell standard, absent an expressed

intent to punish, it must be established that no rea-

sonable officer in the same position could have con-

cluded that the use of force was reasonably related to

a legitimate nonpunitive objective and was propor-

tionate to that objective. Cf. Anderson v. Creighton,

483 U.S. 635, 643-644 (1987) (holding that officers are

entitled to qualified immunity if they reasonably con-

clude that a search is reasonable under the Fourth

Amendment). Given that high threshold for liability,

it is unlikely that officers will find themselves having

to differentiate between pretrial detainees and con-

victed prisoners in deciding whether to use force.

C. The District Court Adequately Instructed The Jury On

The Elements Of An Excessive-Force Claim

Under the Bell due-process standard for excessive-

force claims diseussed above, a plaintiff can succeed

by proving that the use of force was not reasonably

related to a legitimate nonpunitive objective (or was

unreasonably disproportionate to such an objective),

without proving that the defendant in fact had a par-

ticular culpable mental state.

Petitioner contends (Br. 11, 13) that the jury in-

structions in this case impermissibly required him to

prove that respondents had a “bad mental state” when

they used force against him. That argument does not

merit reversal of the jury’s verdict. As the court of

appeals recognized, Pet. App. 10a-lla, a jury verdict

in a civil case should be reversed for instructional er-

29

ror “only if it appears that the jury was misled and its

understanding of the issues was seriously affected to

the prejudice of the complaining party.” Westchester

Fire Ins. Co. v. General Star Indem. Co., 183 F.3d 578,

585 (7th Cir. 1999) (citation and internal quotation

marks omitted); see, e.g., Townsend v. Lumbermens

Mut. Cas. Co., 294 F.3d 1232, 1237 (10th Cir. 2002)

(“The instructions as a whole need not be flawless, but

we must be satisfied that, upon hearing the instruc-

tions, the jury understood the issues to be resolved

and its duty to resolve them.”). And a reviewing court

must “defer to the district court’s phrasing of an in-

struction” so long as it “accurately states the law.”

Pet. App. 10a (quoting Huff v. Sheahan, 493 F.3d 893,

899 (7th Cir. 2007)).

Fairly read in light of those standards, the instruc-

tions here did not contain reversible error. In focus-

ing on the objective reasonableness of respondents’

actions, the jury instructions nearly mirrored the

Fourth Amendment approach that petitioner favors.

1. The district court instructed the jury that to

hold respondents liable, the jury was required to find

that the force respondents used “was unreasonable in

light of the facts and circumstances at the time,” and

that respondents “knew that using force presented a

risk of harm to [petitioner], but they recklessly disre-

garded [petitioner’s] safety by failing to take reasona-

ble measures to minimize the risk of harm to [peti-

tioner].” J.A. 277-278. Underscoring that the court

was effectively instructing the jury on an objective-

reasonableness standard, the court told the jury to

consider whether the force was “unreasonable from

the perspective of a reasonable officer facing the same

circumstances that [respondents] faced.” J.A. 278.

30

The court then proceeded to enumerate the various

objective factors that the jury was required to consid-

er “in deciding whether one or more [respondents]

used unreasonable force and acted with reckless dis-

regard of [petitioner’s}] rights”: “(t]he need to use

force; [t]he relationship between the need to use force

and the amount of force used; [t]he extent of [petition-

er’s] injury; [w]hether [respondents] reasonably be-

lieved there was a threat to the safety of staff or pris-

oners; and [a]ny efforts made by [respondents] to lim-

it the amount of force used.” Jbid.

Although the instruction used a variant of “reck-

less” in three places, it equated reckless conduct with

“*failing to take reasonable measures to minimize the

risk of harm to [petitioner],’”"—the objective propor-

tionality inquiry under Bell—and described “‘reckless

disregard’” purely in terms of “uncontroversial objec-

tive considerations,” as the court of appeals concluded.

Pet. App. 8a-9a, 22a n.20 (quoting instructions).

While attorneys and courts know that the term “reck-

less” can connote a subjective mental state, such as

consciously disregarding a substantial risk, see

Farmer, 511 U.S. at 839, the use of that term in the

instruction here would not have led a lay jury to con-

clude that respondents could be held liable only if they

actually had a particular subjective “bad mental

state.” See Morgan v. Family Dollar Stores, Inc., 551

F.3d 1233, 1283 (11th Cir. 2008) (“When the instruc-

tions, taken together, properly express the law appli-

cable to the case, there is no error even though an iso-

lated clause may be inaccurate, ambiguous, incomplete

31

or otherwise subject to criticism.”), cert. denied, 558

U.S. 816 (2009).?

Even considered in light of the term’s common le-

gal connotation, moreover, the inclusion of reckless-

ness was at most irreievant in a case in which re-

spondents did not dispute that they had used force in-

tentionally. Indeed, that was petitioner’s principal ba-

sis for objecting to the instruction in the district court.

See J.A. 229 (“[I]n an excessive force case, the con-

duct will always be intentional. Indifference or disre-

gard makes no sense.”); see also J.A. 231. But the in-

struction was not likely to have the led the jury to be-

lieve that liability required the officers to have had a

“bad mental state,” such as a punitive or malicious in-

tent.

For the reasons given above (see pp. 18-19, supra),

in the future courts should not invoke the concept of

recklessness in excessive-force cases. But the idio-

syncratic way in which that term was used in the in-

struction here would not have misled the jury into en-

tering a verdict for respondents on the ground that

they lacked a particular subjective intent.

2. The excessive-force instruction was imprecise in

two respects that petitioner does not challenge. Those

flaws therefore provide no grounds for reversal. But

the instruction given here should not be taken as a

mode! for future cases.

® The court’s punitive-damages instruction used the term “reck-

less disregard” in a different sense (“complete indifference” to pe-

titioner’s safety or rights), J.A. 281-282, but petitioner has not ar-

gued that the punitive-damages instruction could have misled the

jury on the liability instruction. To the contrary, the punitive-

damages instruction makes clear that the standard for punitive

damages is higher than the threshold standard for liability.

32

First, the district court did not instruct the jury

under the first prong of the Bell standard that it could

hold respondents liable if they had in fact acted with

an explicit punitive purpose. But petitioner never re-

quested such an instruction; to the contrary, he ar-

gued against any “separate subjective element” at all.

J.A. 229.

Second, the instructions did not inform the jury

that to be lawful, respondents’ use of force had to be a

reasonable and proportionate means of achieving a

nonpunitive objective. But again, petitioner did not

object on that ground. And in any event, the omission

was harmless because respondents never argued that

their actions could be justified as reasonably related

to an interest other than prison safety and discipline.

Instead, they argued that petitioner’s refusal to com-

ply with orders and physical resistance “led to the of-

ficers involved understandably being concerned that

somebody was going to get hurt,” D. Ct. Doc. 156, at

119, 135, and that Degner had stunned petitioner with

the taser “solely for the purpose of getting [petitioner]

to comply so they could take the cuffs off and leave

the cell,” id. at 136; see id. at 144-145.

33

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

BENJAMIN C. MIZER

VANITA GUPTA

Acting Assistant Attorneys

General

IAN HEATH GERSHENGORN

Deputy Solicitor General

JOHN F. BASH

Assistant to the Solicitor

General

BARBARA L. HERWIG

MARK L. GROSS

ERIN ASLAN

Attorneys

MARCH 2015

APPENDIX

1. U.S. Const. Amend. IV provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

2. U.S. Const. Amend V provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal! case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

3. U.S. Const. Amend VIII provides:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted.

(la)

2a

4. U.S. Const. Amend. XIV provides:

Section 1. 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 make or enforce

any law which shall abridge the privileges or immuni-

ties 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.

Section 2. Representatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in

each State, excluding Indians not taxed. But when

the right to vote at any election for the choice of elec-

tors for President and Vice President of the United

States, Representatives in Congress, the Executive

and Judicial officers of a State, or the members of the

Legislature thereof, is denied to any of the male in-

habitants of such State, being twenty-one years of age,

and citizens of the United States, or in any way

abridged, except for participation in rebellion, or other

crime, the basis of representation therein shall be

reduced in the proportion which the number of such

male citizens shall bear to the whole number of male

citizens twenty-one years of age in such State.

Section 3. No Person shall be a Senator or Rep-

resentative in Congress, or elector of President and

Vice President, or hold any office, civil or military,

under the United States, or under any State, who,

having previously taken an oath, as a member of Con-

3a

gress, or as an officer of the United States, or as a

member of any State legislature, or as an executive or

judicial officer of any State, to support the Constitu-

tion of the United States, shall have engaged in insur-

rection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may

by a vote of two-thirds of each House, remove such

disability.

Section 4. The validity of the public debt of the

United States, authorized by law, including debts in-

curred for payment of pensions and bounties for ser-

vices in suppressing insurrection or rebellion, shall not

be questioned. But neither the United States nor any

State shall assume or pay any debt or obligation in-

curred in aid of insurrection or rebellion against the

United States, or any claim for the loss or emancipa-

tion of any slave; but all such debts, obligations and

claims shall be held illegal and void.

Section 5. The Congress shall have power to en-

force, by appropriate legislation, the provisions of this

article.

5. 42 U.S.C. 1983 provides:

Civil action for deprivation of rights

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, 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

4a

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, in-

junctive relief shall not be granted unless a declarato-

ry decree was violated or declaratory relief was una-

vailable. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Co-

lumbia shall be considered to be a statute of the Dis-

trict of Columbia.