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

Supreme Court, U.S.

FILED

MAR § - 2015

No. 14-€ OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MICHAEL B. KINGSLEY, PETITIONER

v.

STAN HENDRICKSON AND FRITZ DEGNER

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE NATIONAL SHERIFFS’

ASSOCIATION ET AL. AS AMICI CURIAE

GREGORY C. CHAMPAGNE

COUNSEL OF RECORD

SHERIFFGC@STCHARLESSHERIFF.ORG

St. Charles Parish Sheriffs Office

260 Judge Edward @ufresne Parkway

Luling, LA 70070

(985) 783-2883

MAURICE E. BOSTICK

St. Charles Parish Sheriff's Office

260 Judge Edward Dufresne Parkway

Luling, LA 70070

(985) 783-1280

March 9, 2015

CURRY & TAYLOR © 202-393-414!

ROBERT P. F'AIGIN

SPECIAL ASSISTANT TO THE SHERIFF/

CHIEF ATTORNEY

Office of the Sheriff, Legal Affairs

San Diego County Sheriffs Department

San Diego, CA 92193

(858) 974-2255

RICHARD HODSDON

GENERAL COUNSEL

Minnesota Sheriffs Association

Post Office Box 825

Stillwater, MN 55082

(651) 341-8202

Attorneys for Amici Curiae

National Sheriffs’ Association, et al.

RICHARD M. WEINTRAUB

CORPORATE COUNSEL

RMWEIN1948@GMAIL.COM

National Sheriffs’ Association

1450 Duke St.

Alexandria, VA 22314

(703) 836-7827

CARRIE L. HILL

Post Office Box 2108

Minneapolis, MN 55311

(612) 306-4831

ROBERT SPENCE

ROSEN HARWOOD, PA

2200 Jack Warner Parkway,

Suite 200

Post Office Box 2727

Tuscaloosa, AL 35403-2727

(205) 344-5000 ext. 2415

SUMMARY OF ARGUMENT

ARGUMENT

I.

CONCLUSION

i

TABLE OF CONTENTS

THERE SHOULD BE ONE CONSTITUTIONAL

STANDARD FOR THE APPLICATION OF

FORCE IN A CORRECTIONAL FACILITY,

AND THAT STANDARD IS THE ONE

ARTICULATED IN WHITLEY V. ALBERS

AND HUDSON V. MCMILLIAN. .............ccccccceceeeeeee

. JAILS HOLD BOTH PRETRIAL AND

CORT VEC TERDD TDGREA TBD ..nceccececcecocecccceccocccscccccecosesees

. JAIL INMATES ARE NOT HOUSED BASED

ON THEIR CONVICTION STATUS. ............ccceeee-ceee

. THERE IS NO CONSTITUTIONAL BASIS FOR

A DISTINCTION BETWEEN PRETRIAL AND

Ve Be i icecccnccecnsecsssesncnvsvsesensssesesasees

. THERE SHOULD BE ONE UNIVERSAL

CONSTITUTIONAL STANDARD REGARDING

THE USE OF FORCE ON INMATEG..............-...--0--

WHITLEY AND HUDSON HAVE BEEN

APPLIED TO PRETRIAL DETAINEES .................-

SEER RRR EEE EEE RR EERE EERE REESE OEE

pemmeene 4

ii

TABLE OF AUTHORITIES

Page

CASES

BELL V. WOLFISH, 441 U.S. 520 (1979) .................... 7, 8, 11

BOZEMAN V. ORUM, 422 F.3D 1265 (11TH CIR.

STITT npaaatsires cthaerenianerasitniai ia ieaeatans mainte naaaadtaiecanenmennes 16, 21

CUTTER V. WILKINSON, 544 U.S. 709, 723 (2005)............. )

ESTELLE V. GAMBLE, 429 U.S. 97, 104 (1976) .................. 8

FARMER V. BRENNAN, 511 U.S. 825 (1994) ................... 6,8

FLORENCE V. BOARD OF CHOSEN

FREEHOLDERS OF THE COUNTY OF

BURLINGTON, 132 S.CT. 1510, 1520 (2012).....5, 9, 10, 11

FORREST V. PRINE, 620 F.3D 739, 744 (7TH CIR.

Scientia aight hia iia et aanranitaae 16

FUENTES V. WAGNER, 206 F.3D 335, 347 (3D

ta aicinnieeinaiahintaeririarneintnaiesitainearitideeateraarintetasenieeian 16

HOLT V. HOBBS, 135 S. CT. 853 (2015) -..2..........cecccceeeceeeee 11

HUDSON V. MCMILLIAN, 503 U.S. 1 (1991).................. 2,14

JENSEN V. CLARKE, 94 F. 3D 1191 (8TH CIR.

RRR eee ee ee en Le ree ee 7

JOHNSON V. CALIFORNIA, 543 U.S. 499, 510-511,

125 S. CT. 1141, 160 L. ED. 2D 949 (2005) .................... 11

KITCHEN V. DALLAS COUNTY, 759 F.3D 468, 477

TEASER ET Rea =e ae an OE 16

MCCRAY V. SULLIVAN, 509 F.2D 1332, 1334

LEE SEAT aE 7

OVERTON V. BAZZETTA, 539 U.S. 126, 131-132,

123 S. CT. 2162, 156 L. ED. 2D 162 (2003) .................... 10

REDMAN V. COUNTY OF SAN DIEGO, 942 F.2D

1435, 1442 (9TH CIR. 1991), CERT. DEN., 502

| TT ee a 16

SCARBRO V. NEW HANOVER COUNTY, 374 FED.

APPX. 366, 369-370 (4TH CIR. 2010) 200.0... 02.0. cccccceee cece 16

it

TURNER V. SAFLEY, 482 U.S. 78 (1987) ................2..000+ 8, 10

UNITED STATES V. BRIGGS 697 F.3D 98 (2p CIR.

RI Rea rer oo Rn een eT Da RO NT 5

UNITED STATES V. EL-HAGE, 213 F.3D 74 (2p

C1R. 2000), CERT. DENIED, 531 U.S. 801 (2000) ............ 5

VALENCIA V. WIGGINS, 981 F.2D 1440 (5TH CIR.

a 16

WALTON V. GOMEZ, 745 F.3D 405,426 (10TH CIR.

EERE Een nas eee ene aero eee RT 16

WHITLEY V. ALBERS, 475 U.S. 312 (1985) ................. 2,14

WILKINS V. GADDY,559 U.S. 34 (2010) ......0000. eee 15

WILSON V. SEITER, 501 U.S. 294 (1991) ......... 20... cece cceeeees 8

STATUTES

ER Cer Le ee eS aT ee 1

ERE ce ae a ee NER TS 2,7,8

BE RES Ese a ore 9

RULES

SUPREME COURT RULE 37.3(A) ......ccccccccccerccscccsssscersccccsoese 1

]

AMICI CURIAE BRIEF OF THE

NATIONAL SHERIFFS’ ASSOCIATION, ET AL.

The National Sheriffs’ Association, et al.,

respectfully submit this amici curiae brief. Pursuant

to Supreme Court Rule 37.3(a), counsel of record have

received timely notice of the intent to file this brief.

IDENTITY AND INTEREST OF AMICI CURIAE

The National Sheriffs’ Association (the “NSA”)

is a non-profit association formed under 26 U.S.C.

501(c)(4). Formed in 1940 the NSA seeks to promote

the fair and efficient administration of criminal justice

throughout the United States and in particular to

advance and protect the Office of Sheriff throughout

the United States. The NSA has over 20,000 members

and is the advocate for 3,083 sheriffs throughout the

United States.

The NSA also works to promote the public

interest goals and policies of law enforcement

throughout the nation. It participates in the judicial

process where the vital interests of law enforcement

and its members are affected.

Amici represent the nation’s sheriffs who

operate more than 3,000 local correctional facilities

throughout the country. The vast majority of these

facilities house both pretrial detainees and convicted

inmates.! Sheriffs, as the custodians of the inmates

housed within these facilities, are charged with

' For the purposes of this brief unless noted otherwise, pretrial!

detainees include any inmate. including arrestees, who have not

been convicted.

2

providing a safe and secure environment for both the

inmates and for their staff.

In this case under review, the Seventh Circuit

affirmed the district court’s judgment dismissing

petitioner’s action under 42 U.S.C. 1983, which alleged

that the respondent county jail officials had employed

excessive force in transferring him to a cell within the

facility. In reviewing this case and rendering its

decision, amici respectfully ask this Court to apply the

same Constitutional standard concerning use of force

by correctional staff on incarcerated persons regardless

of whether they are pretrial detainees or convicted

inmates.

SUMMARY OF ARGUMENT

Jails in the United States house a mixture of

both pretrial and convicted inmates. The housing and

classification of inmates in a jail are not based on their

pretrial versus convicted status but rather on a

behavioral and security based classification system

utilizing a multitude of factors. As such, pretrial and

convicted inmates are housed together.

This Court has already held, in Whitley v.

Albers, 475 U.S. 312 (1985), that force used as part of a

good-faith effort to restore prison security does not

violate an inmate's Eighth Amendment rights. Further,

in Hudson v. McMillian, 503 U.S. 1 (1991), this Court

expanded on Whitley to hold that correctional deputies

inflict cruel and unusual punishment under the Eighth

Amendment if they use force maliciously and

sadistically to cause harm rather than in a good-faith

effort to maintain or restore discipline. What has not

been established by this Court is whether this same

standard applies to pretrial inmates.

3

Pretrial and convicted inmates are housed

together in jails, sometimes in the same cell. Both

types of inmates may be involved in a single incident

that may require correctional deputies to use force to

enforce the safety and security procedures of a jail.

Accordingly, there should be one universal standard

regarding the use of force in a custodial setting

regardless of an inmate’s status as pretrial or convicted.

Pretrial and convicted inmates are required to abide by

the same rules of behavior. To treat various classes of

inmates differently as to the amount of force needed to

enforce jail safety procedures is counterproductive to

the overall safety of all inmates and staff. Further,

given that both pretrial and convicted inmates are

housed together based upon numerous classification

criteria, as a practical matter, it would be impossible for

deputies responding to an incident in a housing module

to distinguish between inmates in order to maintain or

restore order.

As amici curiae, the National Sheriffs’

Association respectfully suggests that it is time for this

Court to end any ambiguity concerning the standard for

the use of force by custodial staff in maintaining safety,

security, order, control and discipline in a correctional

facility. The Sheriffs of the United States submit there

is one universal standard regarding the use of force on

inmates, and it is the one articulated by this Court in

Whitley v. Albers and Hudson v. McMillian. The

Court’s decision in this case should emphasize that the

same standard applies to both pretrial detainees and

convicted inmates.

4

ARGUMENT

I. There Should Be One Constitutional

Standard for the Application of Force in a

Correctional Facility, and That Standard Is

the One Articulated in Whitley v. Albers and

Hudson v. McMillian.

A. Jails Hold Both Pretrial _and

Convicted Inmates

Sheriffs' Offices throughout the country

maintain jails for the purpose of detaining adults who

are either charged with criminal law violations and are

awaiting trial or who are sentenced adult criminal

offenders. In 2013, local jails housed approximately

731,200 incarcerated individuals? Of the 731,200

inmates held in local jails, 38% of them were convicted

inmates, while 62% were pretrial detainees.*

Many of the concerns relating to jail violations or

“in custody” behavior are not distinguishable based

upon an inmate's conviction status. Physical assaults,

drug violations, alcohol violations, possession of

weapons, possession of stolen property, escape

attempts, and other major violations are committed by

both pretrial detainees and sentenced inmates.

Additionally, the nature of criminal offenses and

criminal sophistication do not change based upon the

* U.S. Department of Justice, Office of Justice Programs, Bureau of

Justice Statistics, Correctional Populations in the United States,

2015, NCJ 248479 (Dec. 2014),

http://www.bjs.gov/content/pub/pdf/cpus 13.pdf.

*U.S. Department of Justice, Office of Justice Programs, Bureau of

Justice Statistics. Jail Inmates at Midyear 2013-Statistical Tables,

NCJ 245350 (May 2014),

http://Awww.bjs.gov/content/pub/pdf/jim13st.pdf.

+)

conviction status of inmates in the jails. Indeed, this

Court has recognized that “[p]Jeople detained for minor

offenses can turn out to be the most devious and

dangerous criminals.” Florence v. Board of Chosen

Freeholders of the County of Burlington, 132 S.Ct.

1510, 1520 (2012).

Jails house a variety of inmates. Among them

are pretrial detainees accused of nonviolent crimes

ranging from theft offenses to drug offenses and violent

crimes including rape, assault, manslaughter, and

murder. Additionally, jails can house convicted inmates

sentenced for some of those very same offenses. In

some states convicted inmates can be sentenced to

serve their confinement in a county jail for periods

exceeding one year.‘ Pretrial inmates can also be

detained for periods exceeding one year in a county jail

while waiting for their cases to be adjudicated.°

Finally, inmates who are convicted of more serious

offenses and who are sentenced to state prison are

often returned to county jails and commingled with

pretrial detainees while waiting to be transferred to

state prison.

Jails hold both pretrial detainees charged with

crimes and inmates convicted of the very same criminal

‘ According to a survey conducted by the California State Sheriffs’

Association, as of April 25, 2014, there were 1635 county jail

inmates sentenced to between 5 and 10 years and 124 inmates

sentenced to over 10 years in county jail in California. California

State Sheriffs' Association, Updated Survey of Long Term

Offenders in County Jails, (2014), http://www.calsheriffs.org

* See United States v. Briggs 697 F.3D 98 (2d Cir. 2012) upholding

the pretrial detention of a defendant for over 26 months, and

United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000), cert. dewied,

531 U.S. 801 (2000) upholding a projected pretrial detention of

between 30 and 35 months.

6

offenses. Sheriffs' deputies cannot reasonably be

expected to distinguish among inmates based solely

upon their conviction status when attempting to

maintain or restore order in a jail facility.

B. Jail Inmates Are Not Housed Based

On Their Conviction Status

There is no doubt that a long-established body of

Constitutional law, utilizing the “deliberate

indifference” standard, obligates a correctional facility

to take reasonable measures to provide for the safety of

inmates. Those measures include steps to reduce the

risk of harm from other inmates. Farmer v. Brennan,

511 U.S. 825 (1994). In addition to enforcing rules of

behavior, some of which on occasion require the use of

force, a major tool used by corrections administrators

to accomplish their mission is a comprehensive system

of inmate classification. The purpose of inmate

classification is to énsure that housing protects the

vulnerable from the predatory, the weak from the

strong and the potential perpetrator from the potential

victim*.

The conviction status of an inmate within a

correctional setting is relevant only as one of many

objective classification factors used to help jail

administrators provide a safe and secure facility.

Objective classification factors also include, but are not

limited to, criminal sophistication, seriousness of

offense, medical or mental health needs, “in custody”

behavior, and security risk. Relying solely on an

inmate’s conviction status to determine housing for an

* James Austin, Objective Jail Classification Systems: A Guide for

Jail Administrators, (February 1998), p. 1, 8.

7

inmate could, in and of itself, represent a constitutional

violation and clearly is inconsistent with modern

professional standards. The use of an objective

classification system helps improve the level of safety

for inmates and staff. Failure to employ such a

classification system has resulted in liability both under

42 U.S.C. §1983 and state law. See, Jensen v. Clarke,

94 F. 3d 1191 (8th Cir. 1996); McCray v. Sullivan, 509

F.2d 1332, 1334 (5th Cir. 1975).

In a modern facility, staff interaction with

inmates, as both a practical and legal matter, generally

does not differ based upon an inmate’s conviction

status. Inmates, regardless of conviction status, are

expected to follow all rules of behavior. It seems that

only in the area of use of force, as it relates to inmates,

is there left a question as to whether conviction status

requires differing treatment among similarly confined

inmates. The National Sheriffs’ Association believes

that conviction status does not require different

standards for use of force, and it is for this very reason

that the Association submits this brief.

C. There Is No Constitutional Basis For

A_Distinction Between Pretrial and

Convicted Inmates

Decisions of this Court regarding convicted

inmates’ Constitutional rights have long been applied to

pretrial detainees. In the seminal case of Bell vr.

Wolfish, 441 U.S. 520 (1979), this Court recognized that

"simply because prison inmates retain certain

Constitutional rights does not mean that these rights

are not subject to restrictions and limitations." This

Court went on to hold that this principle applies equally

8

to pretrial detainees and convicted prisoners. /d. at

546.

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

Court examined the constitutionality of regulations

affecting inmate correspondence and inmate marriages

under the First Amendment. In so doing this Court

made no distinction between pretrial detainees and

convicted inmates. Turner is heralded as the leading

Supreme Court decision in the area of correctional law

and is universally applied to both pretrial and convicted

inmates.

In Estelie v. Gamble, 429 U.S. 97, 104 (1976) this

Court examined whether an inmate’s Eighth

Amendment rights were violated for failure of the

correctional facility to provide adequate medical care.

Estelle is the foundation for the legal analysis

regarding medical care and is universally applied to

both pretrial and convicted inmates.

In Wilson v. Seiter, 501 U.S. 294 (1991), an

inmate filed an action against prison officials under 42

U.S.C.S. § 1983. The inmate alleged that a number of

the conditions of his confinement constituted cruel and

unusual punishment in violation of the Eighth and

Fourteenth Amendments. In examining the issue, this

Court stated that "[WJhether one characterizes the

treatment received by [the prisoner] as inhumane

conditions of confinement, failure to attend to his

medical needs, or a combination of both, it is

appropriate to apply the ‘deliberate indifference’

standard articulated in Estelle." Id. at 303. Wilson is

universally applied to both pretrial and convicted

inmates as it relates to conditions of confinement cases.

In Farmer v. Brennan, 511 U.S. 825 (1994), this

Court held that a prison official may be held liable

under the Eighth Amendment for acting with

9

“deliberate indifference” to inmate health or safety only

if the official knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to

take reasonable measures to abate it. Farmer is the

foundational precedent applied without distinction to

the inmate’s convicted status regarding the duty to

protect as well as other claims alleging violations of the

Eighth Amendment. No distinction was made between

pretrial detainees and convicted inmates.

In Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)

this Court examined the religious rights of “current and

former inmates” of institutions operated by the Ohio

Department of Rehabilitation and Correction under the

Religious Land Use and Institutionalized Persons Act

of 2000 (RLUIPA), 42 U. S. C. $2000ce (2000), et seq.,

without making a distinction between pretrial

detainees and convicted inmates. Cutter, 544 U.S. at

723. RLUIPA’s arms extend to all institutionalized

persons, focusing on those incarcerated in jails and

prisons. This Court unanimously held that RLUIPA

was constitutionally enacted.

In Florence v. Board of Chosen Freeholders of

the County of Burlington, 132 S. Ct. 1510 (2012), this

Court examined pretrial detainees’ Fourth and

Fourteenth Amendment rights against strip searches

noting that:

Correctional officials have a legitimate interest,

indeed a responsibility, to ensure that jails are

not made less secure by reason of what new

detainees may carry in on their bodies. Facility

personnel, other inmates, and the new detainee

himself or herself may be in danger if these

threats are introduced into the jail population.

This case presents the question of what rules, or

10

limitations, the Constitution imposes on searches

of arrested persons who are to be held in jail

while their cases are being processed. The term

“jail” is used here in a broad sense to include

prisons and other detention facilities.

Florence, 132 S. Ct. at 1513.

This Court also noted the extent of jail

populations and the difficulties inherent in jails, as

opposed to prisons, as follows:

The difficulties of operating a detention center

must not be underestimated by the courts.

Turner v. Safley, 482 U.S. 78, 84-85, 107 S. Ct.

2254, 96 L. Ed. 2d 64 (1987). Jails (in the stricter

sense of the term, excluding prison facilities)

admit more than 13 million inmates a year.

See, e.g., Dept. of Justice, Bureau of Justice

Statistics, T. Minton, Jail Inmates at Midyear

2010--Statistical Tables 2 (2011).The largest

facilities process hundreds of people every day;

smaller jails may be crowded on weekend nights,

after a large police operation, or because of

detainees arriving from other jurisdictions. [1]

Maintaining safety and order at_ these

institutions requires the expertise of

correctional officials, who must have substantial

discretion to devise reasonable solutions to the

problems they face. The Court has confirmed the

importance of deference to correctional officials

and explained that a regulation impinging on an

inmate's constitutional rights must be upheld “if

it is reasonably related to legitimate penological

interests.” Turner, supra, at 89, 107 S. Ct. 2254,

96 L. Ed. 20 64; see [1516] Overton v. Bazzetta,

11

539 U.S. 126, 131-132, 123 S. Ct. 2162, 156 L. Ed.

2d 162 (2003). But see Johnson v. California, 543

ULS. 499, 510-51), 125 5. Ct. 1141, 160 L. Ed. 2d

949 (2005) (applying strict scrutiny to racial

classifications).

Bell, 441 U.S., at 546, 99 S. Ct. 1861, 60 L. Ed. 2d

447 (“[MJaintaining institutional security and

preserving internal order and discipline are

essential goals that may require limitation or

retraction of retained constitutional rights of

both convicted prisoners’ and _ pretrial

detainees”).

Florence, 132 S. Ct. at 1515-1517.

As this Court recognized in Bell, an inmate's

convicted status does not diminish the potential for

contraband to be smuggled into the facility. In the

Florence decision, this Court echoed Bell and affirmed

Turner by holding that correctional officials have a

legitimate governmental interest to maintain safety

and security for all who live and work in these

institutions. This Court has recognized that under the

Fourth and Fourteenth Amendments even arrestees

are treated the same as pretrial detainees and

convicted inmates for the purpose of strip searches

when entering general population. Florence, 132 S. Ct.

at 1523.

In Holt v. Hobbs, 135 S. Ct. 853 (2015) this Court

held a Department’s policy violated RLUIPA, which

prohibits a state or local government from taking any

action that substantially burdens the religious exercise

of an “institutionalized person,” unless the government

demonstrates that the action constitutes the least

restrictive means of furthering a_ compelling

12

governmental interest. This Court did so without

making a distinction between pretrial and convicted

inmates.

In sum, this Court does not distinguish between

pretrial and convicted inmates in examining Caims of

Constitutional violations relating to conditions of

confinement (Bell), involving rights of freedom of

speech and marriage of inmates (Turner), inadequate

medical care of inmates (Estelle), conditions of

confinement (Wilson), duty to protect inmates

(Farmer), freedom of religion of inmates (Cutter and

Holt), or strip searches of inmates (Florence).

Accordingly, no such distinction should be made

regarding claims of excessive use of force by staff in

correctional facilities.

D. There Should Be One Universal

Constitutional Standard Regarding

the Use of Force On Inmates

Use of force scenarios are fluid, ever evolving

and changing. A deputy in the jail does not have the

ability to determine during an incident whether the

Fourth, Eighth, or Fourteenth Amendment applies to a

particular inmate. What they do have, is the ability to

ascertain the threat they perceive by the inmate and

information available to them, the need for force at that

given moment, the amount of force they will choose in

relation to the need for the use of force, and if an option,

any efforts made to de-escalate the situation. It would

be unrealistic to inflict upon deputies a different use of

force standard depending on the status of the inmate.

There should be but one standard applied to the use of

force in a correctional setting. The standard previously

articulated by this Court in Whitley v. Albers and

13

Hudson v. McMiilian is the correct standard.

The reality of jail management is that confining

inmates in close proximity with one another has the

obvious potential for violence. Responding to violence

as a general rule requires the use of some level of force

and restraint measures by staff. Depending upon the

perceived threat, the response may range from simply

coercing inmates to comply with orders to using deadly

force. Such risks are a natural result of having to

supervise, control, and manage both pretrial and

convicted inmates who are involuntarily incarcerated.

Deputies must protect themselves and others, but

always with the concern that their protective actions

will be evaluated after the fact by persons who have

never had to risk personal injury to restore or maintain

order in a jail.

Deputies must control inmates and manage the

jail regardless of the inmate’s status. When inmates act

out in ways that upset order and discipline they must

be controlled and order restored. It is not an option for

a deputy to ignore or fail to act when such actions

occur. Restoring and maintaining order in the jail is the

duty of all detention staff regardless of the inmate’s

status. Detention staff who work in jails are at

constant risk of harm in dealing with inmates

regardless of their conviction status. Deputies cannot

determine solely by looking at an inmate which one is

more likely to engage in an unprovoked assault on staff.

Nor can a deputy determine during a facility

disturbance which inmates are more likely to resist

efforts to restore or maintain order. Detention

deputies have a legitimate interest in maintaining

safety, security, order, control, and discipline. As a

result they must act to restore order when inmates

become destructive, threatening, aggressive, or

14

engaged in actions that could result in self-inflicted

injury, regardless of the inmate's conviction status. ’

The foundation of all legal analysis regarding use

of force begins and ends with this Court's two leading

decisions regarding force in custodial settings, Whitely

v. Albers, 475 U.S. 312 (1986) and Audson v.

McMillian, 503 U.S. 1 (1992).

Whitely set the standard for use of force scenarios

in which force is applied during “exigent

circumstances”, or decisions made in haste, under

pressure, or without the luxury of a second chance. In

those circumstances this Court departed from its

previous standard of deliberate indifference (criminal!

recklessness), and held that when evaluating use of

force, the issue is whether the force was applied in a

good faith effort to maintain and restore discipline, or

maliciously and sadistically for the very purpose of

causing harm.

In all other use of force scenarios, the standard

articulated in Hudson applies.

In Hudson, this Court articulated a five-part

test to be applied in use of force decisions regarding

inmates. The Hudson factors provide an excellent

framework by which to develop written policies and

procedures, reporting and review instruments, as well

as staff training. This Court’s decision appeared to

recognize the very substantial differences between

neecls and requirements for the use of force outside

corrections facilities and use of force inside jails and

prisons. Jails and prisons confine in close proximity

* The Amici adamantly oppose force as punishment. as was

articulated in Whitley v. Albers. We continue to strongly endorse

that constitutional view.

15

large numbers of inmates, both pretrial and convicted

together, many of whom have some violence in their

criminal histories and who may act violently without

provocation or warning.

The five factors of Hudson become relevant in

determining whether force was applied in a good faith

effort to maintain and restore order or was malicious

and sadistic for the very purpose of causing harm. The

appropriate factors for determining the reasonableness

of force are:

1. The threat(s) to safety, security, order,

control, and/or discipline perceived by the

responsible detention deputy;

2. Whether in light of the perceived threat(s),

the responsible detention deputy believed

force was necessary to resolve the threat(s);

3. The amount or severity of force used by the

responsible detention deputy in relation to

the need for force;

4. What efforts were made by the responsible

detention deputy to temper the forceful

response; and

5. The extent of the injury, if any, suffered by

the inmate.® ,

8 This court affirmed the continued viability of Hudson v.

McMillian in Wilkins v. Gaddy.559 U.S. 34 (2010) reiterating that

the extent of the injury is only one of the factors to be considered

in determining if the force applied was malicious and sadistic for

the very purpose of causing harm, or whether the force applied

was “reasonable” [T]he extent of injury suffered by an inmate is

one factor that may suggest ‘whether the use of force could

plausibly have been thought necessary” in a particular situation,

“or instead evinced such wantonness with respect to the

unjustified infliction of harm as is tantamount to a knowing

willingness that it occur.” Hudson.

16

As to convicted inmates Whitley and Hudson are

indisputably recognized as the controlling precedent.

E. Whitley and Hudson Have Been

Applied To Pretrial Detainees

As to pretrial detainees Whitley and Hudson are

recognized in multiple circuits as also providing the

controlling precedent. See Fuentes v. Wagner, 206 F.3d

335, 347 (8d Cir. 2000), (“the Eighth Amendment cruel

and unusual punishments standards found in Whitley v.

Albers, and Hudson v. McMillian, citations omitted,

apply to a pretrial detainee's excessive force claim

arising in the context of a prison disturbance.”’); Scarbro

v. New Hanover County, 374 Fed. Appx. 366, 369-370

(4th Cir. 2010), (pretrial detainees are held to the same

burden of proof for excessive force claims as convicted

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

1993)(for “excessive use of force claims by pretrial

detainees...we are guided by the standard announced in

Whitley and Hudson”); Kitchen v. Dallas County, 759

F.3d 468, 477 (5th Cir. 2014)”; Forrest v. Prine, 620 F.3d

739, 744 (7th Cir. 2010)applying the Eighth

Amendment standards to evaluate a use of force claim

by a pretrial detainee.); Redman v. County of San

Diego, 942 F.2d 1435, 1442 (9th Cir. 1991), cert. den., 502

U.S. 1074 (1992)(citing Whitley and finding that it is not

“inappropriate that the same standard may be used

under the Fourteenth and Eighth Amendment.”;

Walton v. Gomez, 745 F.3d 405,426 (10th Cir.

2014)(applying the Whitley and Hudson factors in

examining a use of force claim by a pretrial detainee.

including the motives of the state actor.); Bozenian vr.

Ovum, 422 F.3d 1265 (11th Cir. 2005)(“whether or not a

17

prison guard’s application of force is actionable turns on

whether that force was applied in a good faith effort to

maintain or restore discipline or maliciously or

sadistically for the very purpose of causing harm.”).

These circuits have wisely recognized and

applied this constitutional standard to all inmates

within the correctional setting regardless of an inmate’s

status. This exceptional working standard requires a

deputy to perceive a threat by an inmate, determine

whether force is needed and, if force is needed, apply

the necessary amount to maintain or restore order.

This Court has long applied its decisions regarding

convicted inmates to pretrial detainees. The jails in the

United States house both pretrial and convicted

inmates together. To have a different standard for

pretrial detainees in the jails is unrealistic and

unmanageable.

CONCLUSION

For these reasons, the National Sheriffs’

Association urges this Court to end any ambiguity and

clearly state that there is but one Constitutional

standard to be applied to the use of force on both

pretrial detainees and convicted inmates in any

correctional setting. That standard is the one

previously articulated by this Court in Whitely v-.

Albers and Hudson v. McMillian.

18

Respectfully submitted,

GREGORY C. CHAMPAGNE

COUNSEL OF RECORD

SHERIFFGC@sTCHARLESSHERIFF.ORG

St. Charles Parish Sheriff's Office

260 Judge Edward Dufresne Parkway

Luling, LA 70070

(985) 783-2883

MAURICE E. BOSTICK

St. Charles Parish Sheriff's Office

260 Judge Edward Dufresne Parkway

Luling, LA 70070

(985) 783-1280

ROBERT P. FAIGIN

SPECIAL ASSISTANT TO THE SHERIFF/

CHIEF ATTORNEY

Office of the Sheriff, Legal Affairs

San Diego County Sheriff's

Department

San Diego, CA 92193

(858) 974-2255

RICHARD HODSDON

GENERAL COUNSEL

Minnesota Sheriffs Association

Post Office Box 825

Stillwater, MN 55082

(651) 341-8202

Attorneys for Amici Curiae

National Sheriffs’ Association, et al.

19

RICHARD M. WEINTRAUB

CORPORATE COUNSEL

RMWEIN1948@GMAIL.COM

National Sheriffs’ Association

1450 Duke St.

Alexandria, VA 22314

(703) 836-7827

CARRIE L. HILL

Post Office Box 2108

Minneapolis, MN 55311

(612) 306-4831

ROBERT SPENCE

ROSEN HARWOOD, PA

2200 Jack Warner Parkway,

Suite 200

Post Office Box 2727

Tuscaloosa, AL 35403-2727

(205) 344-5000 ext. 2415

20

APPENDIX

A list of all of the Sheriffs’ Organizations

who join in this Amici Curiae Brief

Alabama Sheriffs’ Association, Robert D. Timmons,

Executive Director

514 Washington Avenue, Montgomery, AL 36104-4385,

(334) 264-7827

Arizona Association of Counties, Jennifer Sweeny

Marson, Executive Director

1910 W. Jefferson Street, Phoenix, AZ 85009, (602) 252-

6563 ext. 222

California State Sheriffs’ Association, Carmen Green,

Chief Operations Officer

1231 I Street, Suite 200, Sacramento, CA 95814, (916)

375-8000

Colorado, County Sheriffs of Colorado, Chris S.

Johnson, Executive Director

9008 U.S. Hwy 85, N Unit C, Littleton, CO 80125, (720)

344-2762

Florida Sheriffs’ Association, Steve Casey, Executive

Director

2617 Mahan Drive, P. O. Box 12519, Tallahassee, FL

32317-2519, (850) 877-2165

Georgia Sheriffs’ Association, James T. Norris,

Executive Director

P.O. Box 1000, Stockbridge, GA 30281-8000, (770) 914-

1076

21

Idaho Sheriffs’ Association, Vaughn Killeen,

Executive Director

1087 W River Street, Suite 100, Boise, ID 83702, (208)

287-0001

Illinois Sheriffs’ Association, Greg Sullivan,

Executive Director

401 E. Washington Street, Suite 1000, Springfield, IL

62701-1207, (217) 753-2372

lowa State Sheriffs’ and Deputies’ Association, Bill

L. Sage, Financial Administrator, 5 W 7" Street,

Atlantic, LA. 50022, (712) 243-6205

Kansas Sheriffs’ Association, Sandy Horton,

Executive Director

P.O. Box 1122, Pittsburg, KS 66762, (620) 230-0864

Kentucky Sheriffs’ Association, Jerry Wagner,

Executive Director

2550 Ewing Road, P.O. Box 187, Ewing, KY 41039,

(606) 267-6161

Louisiana Sheriffs’ Association, Michae) A. Raratza,

Executive Director

1175 Nicholson Drive, Baton Rouge, LA 70802-7535,

(225) 343-8402

Major County Sheriffs’ Association, Donny

Youngblood, President, 1450 Duke Street, Alexandria,

VA 22314, (855) 625-2689

Maine Sheriffs’ Association, Mary-Anne LaMarre,

Executive Director

22

406 East Side Trail, Oakland, ME 04963-4442, (207) 314-

5215

Maryland Sheriffs’ Association, Karen J. Kruger,

Executive Director

36 S Charles Street, 12" F1., Baltimore, MD 21201, (410)

659-8329

Massachusetts Sheriffs’ Association, James F. Walsh,

Executive Director

271 Cambridge Street, Suite 202, Cambridge, MA

02141, (617) 503-3230

Michigan Sheriffs’ Association, Terrence L. Jungel,

Executive Director

650 S Capitol Avenue, Suite 320A, Lansing, MI 48933,

(517) 485-3135

Minnesota Sheriffs’ Association, James D. Franklin,

Executive Director

100 Empire Drive, Suite 222, Saint Paul, MN 55103-

1885, (651) 451-7216

Missouri Sheriffs’ Association, Michael R. Covington,

Executive Director

6605 Business Hwy 50 West, Jefferson City, MO 65109,

(573) 635-5925

Nevada Sheriffs’ and Chiefs’ Association, Robert E.

Roshak, Executive Director

P.O. Box 753601, Las Vegas, NV 89136, (866) 266-9870

New York State Sheriffs’ Association, Peter R.

Kehoe, Esq., Executive Director

27 Elk Street, Albany, NY 12207-1002, (518) 434-9091

23

North Carolina Sheriffs’ Association, Edmond W.

Caldwell Jr., Executive Vice President & General

Counsel, P.O. Box 20049, Raleigh, NC 27619-0049, (919)

459-1052

North Dakota Correctional Center Administrators’

Association, Penny Erickson, President, 315 SE Third

Street, P.O. Box 907, Minot, ND 58702, (701) 587-6503

North Dakota Sheriffs’ and Deputies’ Association,

Paul D. Laney, Sheriff

211 9" Street S, P.O. Box 488, Fargo, ND 58107-0488,

(701) 241-5800

Ohio, Buckeye State Sheriffs’ Association, Robert A.

Cornwell, Executive Director

1103 Schrock Road, Suite 401, Columbus, OH 43229-

1826, (614) 431-5500

Oklahoma Sheriffs’ Association, Ken McNair,

Executive Vice President

1615 S State Street, Edmond, OK 73013, (405) 471-6049

ext. 204

Oregon State Sheriffs’ Association, John Bishop,

Executive Director

P.O. Box 7468, Salem, OR 97303, (503) 364-4204

Pennsylvania Sheriffs’ Association, Robert B.

Wollyung, Executive Director

2426 N Second Street, Harrisburg, PA 17110-1104,

(717) 236-7336

South Carolina Sheriffs’ Association, Jarrod M.

Bruder, Executive Director

24

112 Westpark Boulevard, P.O. Box 21428, Columbia, SC

29210-3856, (803) 772-1101

South Dakota Sheriffs’ Association, Staci Ackerman,

Executive Director

P.O. Box 130, Howard, SD 57349, (605) 940-6554

Tennessee Sheriffs’ Association, Terry Ashe,

Executive Director

145 S College Street, Lebanon, TN 37087, (615) 306-

8136

Texas, Sheriffs’ Association of Texas, Steve

Westbrook, Executive Director

1601 South Interstate Hwy 35, Austin, TX 78741,(512)

445-5888

Utah Sheriffs’ Association, M. Helen Spann, Deputy

Director

P.O. Box 489, Santa Clara, UT 84765-0991, (435) 674-

5015

Vermont Sheriffs’ Association, Roger Marcoux Jr.,

President

212 Lincoln Street, Bennington, VT 05201, (802) 442-

4900

Virginia Sheriffs’ Association, John W. Jones,

Executive Director

701 E Franklin Street, Suite 706, Richmond, VA 23219-

2503, (804) 225-7152

Western States Sheriffs’ Association, James Pond,

Executive Director

25

474 Rogers Canyon Road, Laramie, Wyoming 82072,

(307) 760-4075

Wisconsin, Badger State Sheriffs’ Association, Dean

C. Meyer, Executive Director

P.O. Box 394, Bruce, WI 54819, (715) 415-2412

Wyoming Association of Sheriffs & Chiefs of Police,

Byron F. Oedekoven, Executive Director, P.O. Box 605,

Gillette, WY 82717-0605, (307) 682-8949