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

Jn The

Supreme Court of the Anited States

MICHAEL B. KINGSLEY,

Petitioner,

Vv.

STAN HENDRICKSON

AND

FRITZ DEGNER,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

John W. Whitehead Stephen J. Neuberger

Counsel of Record THE NEUBERGER FIRM

Douglas R. McKusick 2 East Seventh Street

THE RUTHERFORD INSTITUTE Suite 302

923 Gardens Boulevard Wilmington, DE 19801

Charlottesville, VA 22901 (302) 655-0582

(434) 978-3888

johnw@rutherford.org

March 6, 20215 Counsel for Amicus Curiae

“. ' LANTAGNE LEGAL PRINTING

G04 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

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 satisfied by a showing that the state actor

deliberately used force against the pretrial detainee

and the use of force was objectively unreasonable.

TABLE OF CONTENTS

SES OF INT IEE cccccccccecscccsscncensceesscecensconesens i

ED CO BEF CEE TD cscccncnncvcesnscescecesssseccsceseess ili

IDENTITY AND INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT. ......0.........ccceceeceeeeeeneees 2

FE scitrtinensnnsscitnnansncnninennnmesewtinineennensenmnen 3

I. THE LIBERTY INTEREST

TRADITIONALLY AFFORDED TO

PRETRIAL DETAINEES REQUIRES

APPLICATION OF AN OBJECTIVE

STANDARD TO EXCESSIVE FORCE

CLAIMS THEY ASSERT.........................0++. 3

A. This Court’s Guideposts......................::cs0ss008 3

B. The Circuit Court Approaches....................... 7

C. Elimination of a Subjective Intent Element is

TI onsale oniintanianiienieeeneneh 12

IED cirtciitnecicenmnsssncncionimennistnenimntinintmmmanes 15

ili

TABLE OF AUTHORITIES

Cases

Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001)...... 11

Baribeau v. City of Minneapolis, 596 F.3d 465 (8th

i a nsiinssnlesnsinissiginiaenniaiinaiguineiteagsintcniniannaiadamsdenduints 6

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

Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012)............. 6

Blackmon v. Sutton, 734 F.3d 1237 (10th Cir. 2013) 6

Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013)....... 9

Campbell v. McGruder, 580 F.2d 521 (D.C.Cir. 1978)

scnhnantithnenitenaaianinideiiidemiamnaieniaanEeEENENANND 2

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

Sa staid cadet ila 12

Feeley v..Sampson, 570 F.2d 364 (1st Cir. 1978)....... 2

Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009)..9

Forrest v. Prine, 620 F.3d 739 (7th Cir. 2010)......... 10

Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000)........ 8

Gibson v. County of Washoe, Nev., 290 F.3d 1175 (9th

I TT ieee eee eeiiiennaiipmanidiis 11

Graham v. Connor, 490 U.S. 386 (1989).......... 4,5,12

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998) ..... 2

Hudson v. McMillian, 503 U.S. 1 (1992).................... 4

Hunter v. County of Sacramento, 652 F.3d 1225 (9th

SEL TTT situ hicsaesscendciansadintedaelaetcioniadepealitaiiaaciainanetbontsietanesi 11

Jackson v. Buckman, 756 F.3d 1060 (8th Cir. 2014)

iv

Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014)

SunieitecaintiniiiiicnnininieamnneNiiae 9,14

Leary v. Livingston County, 528 F.3d 438 (6th Cir.

SI iahisenidarthietnbetnendeabiiaineninndideacnieniiaimiigainatih 10

Norris v. District of Columbia, 737 F.2d 1148 (D.C.

SEITE dinvetshecatirndudncmambnntaniuiniagipaninmninieuneaimienmnniands 9,14

Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) ......... 2

Shreve v. Franklin County, Ohio, 743 F.3d 126 (6th

SEE TEI cininhatacinencentinsiesennimnananinnuasnaninntabinteednnees 9

Slade v. Hampton Roads Regional Jail, 407 F.3d 243

SI: III G cnsncestenicniniemienntihetrinbisinsinmenneiamnanminiadmneneiiie 7

Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998)...... 8

Titran v. Ackman, 893 F.2d 145 (7th Cir.1990)... 9, 10

U.S. v. Budd, 496 F.3d 517 (6th Cir. 2007) ............. 10

U.S. v. Salerno, 481 U.S. 739 (1987).....................06 13

U.S. v. Walsh, 194 F.3d 37 (2d Cir. 1999).................. 8

Valencia v. Wiggins, 981 F.2d 1440

ia cialtnceiinaeeipmnniiiniaesenaenciiliniennaniainaenninienittiaiia 7,8

Whitley v. Albers, 475 U.S. 312 (1986)....................... 4

Youngberg v. Romeo, 457 U.S. 307 (1982)............... 13

Statutes

Ns Oi in sceidnicieainicienieacielgseusialliintpaiiaiinat i

Other Authorities

4 W. Blackstone, Commentaries ............................ 2,5

Catherine T. Struve, The Conditions of Pretrial

Detention, 161 U.Pa.L.Rev. 1009 (2013)............... 13

Jeffrey Manns, Liberty Takings: A Framework for

Compensating Pretrial Detainees, 26 Cardozo

RE RT TR RE Ls

IDENTITY AND INTEREST

OF AMICUS CURIAE!

The Rutherford Institute is an international non-

profit organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute specializes in providing

legal representation without charge to individuals

whose civil liberties are threatened or infringed and

in educating the public about constitutional and

human rights issues. The Rutherford Institute is

interested in the instant case because it is greatly

concerned about and seeks to defend the safety and

security of the most vulnerable among us from

abuses of power at the hands of the government.

Pretrial detainees are particularly vulnerable to

abuse because they are held beyond the view of the

public; those charged with their detention and

custody are not subject to the moderating influence

of public scrutiny and inspection. The legal remedies

available to pretrial detainees must not be unduly

restrictive if their right not to suffer needless abuse

is to be assured. The Rutherford Institute submits

this brief in the hopes that the law will provide true

protection for the security of pretrial detainees.

1 This amicus brief is filed with the parties’ consent.

Petitioner filed a letter granting consent to amicus curiae

briefs in support of either or neither party on February

10, 2015, and Respondents filed a similar letter of consent

on February 19, 2015. No counsel for any party authored

this brief in whole or in part, and no monetary

contribution intended to fund the preparation or

submission of this brief was made by such counsel or any

party.

SUMMARY OF ARGUMENT

“At common law pretrial detainees were

differentiated from sentenced prisoners.” Feeley v.

Sampson, 570 F.2d 364, 368 (1st Cir. 1978). As the

Circuits often have noted,? the issue before this

Court was addressed more than 245 years ago by

Blackstone in his Commentaries where he agreed

that pretrial detainees are entitled as a matter of

simple justice to better treatment than that given

convicted criminals.

4 W. Blackstone, Commentaries *300. This “elegant

statement” holds as true today as it did then, and

(lif the offense be not bailable, or the

party cannot find bail, he is to be

committed to the county [jail] ... But

this imprisonment, as has been said, is

only for safe custody, and not for

punishment: therefore, in this dubious

interval between the commitment and

the trial, a prisoner ought to be used

with the utmost humanity, and neither

be loaded with needless fetters, or

subjected to other hardships than such

as are absolutely requisite for the

purpose of confinement only....

should guide the outcome of this case.

2 See, e.g., Campbell v. McGruder, 580 F.2d 521,

527-28 (D.C.Cir. 1978); Halvorsen v. Baird, 146 F.3d 680,

689 (9th Cir. 1998).

1974).

8 Rhem v. Malcolm, 507 F.2d 333, 342 (2d Cir.

Consistent with this Court’s precedent, several

Circuits continue to apply this common law principle

in our constitutional age, holding that the use of

objectively unreasonable force against pretrial

detainees runs afoul of the Fourteenth Amendment

and is the modern day constitutional equivalent of

the common law’s needless fetters, unnecessary

hardships, and lack of humanity. Under this

standard, the lack of intent is irrelevant if the officer

acts in an objectively unreasonable way. A pure

heart cannot shield an empty head. Objective

reasonableness is elastically measured, not in

hindsight, but by the facts and circumstances

confronting the officer at that time. And officials

who fail to meet this standard towards pretrial

detainees have imposed a form of “punishment” as

forbidden at common law since the days of

Blackstone and constitutionally since this Court’s

decision in Bell v. Wolfish, 441 U.S. 520 (1979). The

Seventh Circuit below followed a contrary standard

which fails to accord proper protection to the liberty

interests of pretrial detainees and should be

reversed.

ARGUMENT

I. THE LIBERTY INTEREST TRADITIONALLY

AFFORDED TO PRETRIAL DETAINEES

REQUIRES APPLICATION OF AN

OBJECTIVE STANDARD TO EXCESSIVE

FORCE CLAIMS THEY ASSERT

A. This Court’s Guideposts.

1. Arrestees - the Objective Fourth

Amendment Standard. An excessive force claim

brought by an otherwise free citizen arising during

the course of his arrest is analyzed under the

familiar “objective reasonableness” standard of

Graham v. Connor, 490 U.S. 386, 388 (1989). The

question is whether the officer's actions are

“objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to

their underlying intent or motivation.” Jd. at 397.

Subjective motivations have no bearing. “An officer’s

evil intentions will not make a Fourth Amendment

violation out of an objectively reasonable use of force;

nor will an officer's good intentions make an

objectively unreasonable use of force constitutional.”

Id.

2. Convicted Prisoners - the

Subjective Eighth Amendment Standard. At

the other end of the spectrum, excessive force claims

brought by convicted prisoners are governed by the

cruel and unusual punishment test of the Eighth

Amendment, where the core inquiry is “whether

force was applied in a good faith effort to maintain or

restore discipline, or maliciously and sadistically to

cause harm.” Hudson v. McMillian, 503 U.S. 1, 6

(1992); see Whitley v. Albers, 475 U.S. 312, 320-21

(1986). Subjective intent is key. “[T]he subjective

motivations of the individual officers are of central

importance in deciding whether force used against a

convicted prisoner violates the Eighth Amendment.”

Graham, 490 U.S. at 398.

3. Pretrial Detainees -_ the

Fourteenth Amendment Standard. The decision

in this case will establish standards to govern claims

of excessive force for those citizens - pretrial

detainees - who find themselves in this “dubious

interval’* between these two poles of the justice

system. In Graham, this Court explained that “our

cases have not resolved the question whether the

Fourth Amendment continues to provide individuals

with protection against excessive physical force

beyond the point at which arrest ends and pretrial

detention begins, and we do not attempt to answer

that question today.” Graham, 490 U.S. at 395 n.10.5

However, this Court did find it “clear that the Due

Process Clause protects a pretrial detainee from the

use of excessive force that amounts to punishment.”

Id.

4. The Punishment Test. The

limited extent of this Court’s precedent addressing

the due process rights of pretrial detainees is found

in the earlier case of Bell v. Wolfish, 441 U.S. 520

(1979). There the Court explained that “[a] person

lawfully committed to pretrial detention has not been

adjudged guilty of any crime. He has had only a

judicial determination of probable cause as a

prerequisite to the extended restraint of his liberty

following arrest.” Jd. at 536 (internal punctuation

omitted). Thus, because “a detainee may not be

punished prior to an adjudication of guilt in

accordance with due process of law,” id. at 535; see

id. at 535 n. 16 (“[djJue process requires that a

pretrial detainee not be punished.”), “the proper

inquiry is whether those conditions amounted to

4 4W. Blackstone, Commentaries *300.

5 As the Brief of the Petitioner persuasively

argues, the Fourth Amendment also should apply to

applications of force against pretrial detainees because

use of force is a wholly distinct seizure of the prisoner.

Br. of Pet. at 27-34.

punishment of the detainee.” Jd. at 535. In other

words, a “court must decide whether the disability is

imposed for the purpose of punishment or whether it

is but an incident of some other legitimate

government purpose.” Id. at 538. The Bell Court

continued and set forth a two-part analysis for

determining whether punishment has occurred,

explaining that -

Absent a showing of an expressed intent

to punish on the part of the detention

facility officials, that determination will

generally turn on whether = an

alternative purpose to which the

restriction may rationally be connected

is assignable for it, and whether it

appears excessive in relation to the

alternative purpose assigned to it.

Id. at 538 (internal punctuation omitted) (emphasis

added). Thus, punishment under Beil can be proven

in any one of two ways:

1. Through evidence of an “expressed intent” to

punish, Bell, 441 U.S. at 538, or

2. By analyzing whether the challenged action at

issue is reasonably related to a legitimate

government purpose and whether the action is

excessive to achieving that purpose. See id.

(this “determination will generally turn on

whether an alternative purpose to which the

restriction may rationally be connected is

assignable for it, and whether it appears

excessive in relation to the alternative purpose

assigned to it.”) (emphasis added); id. at 539

(“Thus, if a particular condition or restriction

of pretrial detention is reasonably related to a

legitimate government objective, it does not,

without more, amount to ‘punishment.”)

(emphasis added); id. (“if a restriction or

condition is not reasonably related to a

legitimate goal - if it is arbitrary or

purposeless - a court permissibly may infer

that the purpose of the government action is

punishment that may not constitutionally be

inflicted upon detainees qua detainees.”). Id.

(emphasis added).

So under Bell’s second prong, the analysis turns on

how to determine the reasonableness of a challenged

government action and whether that action is

excessive.

B. The Circuit Court Approaches.

Although a number of Circuits have recognized that

Bell requires this two part analysis, only some

apply it.

1. Subjective Intent Required - The

Eighth Amendment Standard. The Fifth and

Third Circuits have taken the position that “[w]hile

[the Bell] inquiry works well for claims of improper

conditions or restrictions, it does not lend itself to

analysis of claims of excessive use of force in

8 See, e.g. Blackmon v. Sutton, 734 F.3d 1237, 1241

(10th Cir. 2013); Bistrian v. Levi, 696 F.3d 352, 373 (3d

Cir. 2012); Baribeau v. City of Minneapolis, 596 F.3d 465,

483 (8th Cir. 2010); Slade v. Hampton Roads Regional

Jail, 407 F.3d 243, 251 (4th Cir. 2005); Valencia v.

Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993).

controlling prison disturbances.” Valencia, 981 F.2d

at 1446; Fuentes v. Wagner, 206 F.3d 335, 347 (3d

Cir. 2000).

Both of these Circuits have explicitly declined

to apply the Bell test and instead apply the

subjective Eighth Amendment Hudson excessive

force standard for convicted prisoners.’ They are

joined by the Second,*? Fourth? and Eleventh!

7 See Valencia, 981 F.2d at 1446 (“For these

reasons, we conclude that excessive use of force claims by

pretrial detainees should not be analyzed under Bell’s

conditions of confinement standard. Instead, we are

guided by the standard announced in Whitley and

Hudson”), Fuentes, 206 F.3d at 347-48 (“Accordingly, we

hold that the Eighth Amendment cruel and unusual

punishments standards found in [Whitley and Hudson]

apply to a pretrial detainee’s excessive force claim arising

in the context of a prison disturbance”) (emphasis

removed).

8 See U.S. v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999)

(“we conclude that the Hudson analysis is applicable to

excessive force claims brought under the Fourteenth

Amendment as well”).

® See Taylor v. McDuffie, 155 F.3d 479, 483 (4th

Cir. 1998) (“To succeed on a claim of excessive force under

the Due Process Clause of the Fourteenth Amendment,

Taylor must show that Defendants inflicted unnecessary

and wanton pain and suffering.... The proper inquiry is

whether the force applied was in a good faith effort to

maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.”)

(internal punctuation omitted) (overruled on other

grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010) (per

curiam)).

Circuits in explicitly applying the Eighth

Amendment standard.

Applying standards similar to that of the

Eighth Amendment are the Sixth! and D.C.!2

Circuits, as well as the Seventh in the decision under

review.13

But in many of these same Circuits, the case

law itself is mixed on these issues. Significant parts

of the majority and dissenting opinion below

centered around the decision in Titran v. Ackman,

10 See Fennell v. Gilstrap, 559 F.3d 1212, 1216 n.5

(11th Cir. 2009) (“A claim of excessive force under the

Fourteenth Amendment is analyzed as if it were an

excessive force claim under the Eighth Amendment.”).

11 See Shreve v. Franklin County, Ohio, 743 F.3d

126, 134 (6th Cir. 2014) (applying a shocks the conscience

standard); Burgess v. Fischer, 735 F.3d 462, 472-73 (6th

Cir. 2013) (“shocks the conscience standard” and

observing this is a “a substantially higher hurdle to

overcome” than the Fourth Amendment objective

reasonableness standard).

12 See Norris v. District of Columbia, 737 F.2d

1148, 1152 n.8 (D.C. 1984) (the “Constitution may be

offended if the force used grossly exceeds that warranted

by the circumstances”); id. at 1150 (citing with favor a

test which includes Eighth Amendment subjective intent

analysis).

13 See Kingsley v. Hendrickson, 744 F.3d 443, 453

(7th Cir. 2014) (“the existence of intent - at least

recklessness - is a requirement in Fourteenth Amendment

excessive force cases”).

10

893 F.2d 145, 147 (7th Cir.1990), where the Seventh

Circuit explained that “[m]jost of the time the

propriety of using force on a person in custody

pending trial will track the Fourth Amendment: the

court must ask whether the officials behaved in a

reasonable way in light of the facts and

circumstances confronting them,” id. at 147, but then

continued and conversely observed that “the search

for ‘punishment’ cannot be wholly objective.” IZd.

Similarly, in U.S. v. Budd, 496 F.3d 517, 530 (6th

Cir. 2007), the Sixth Circuit analyzed a finding of

excessive force by a prison guard against a pretrial

detainee under the two part Bell standard, not the

more restrictive subjective Eighth Amendment test.

The Seventh Circuit also has previously

observed that the Fourteenth Amendment rights of

pretrial detainees should be broader than those of

convicted criminals under the Eighth Amendment.

See Forrest v. Prine, 620 F.3d 739, 744 (7th Cir.

2010) (“The Fourteenth Amendment right to due

process provides at least as much, and probably

more, protection against punishment as does the

Eighth Amendment’s ban on cruel and unusual

punishment”). The Sixth Circuit has made similar

observations. See Leary v. Livingston County, 528

F.3d 438, 443 (6th Cir. 2008) (“there is room for

debate over whether the Due Process Clause grants

pretrial detainees more protections than the Eighth

Amendment does.”).

2. Subjective Intent Not Required.

Three Circuits do not require a pretrial detainee to

prove an officer’s subjective intent to harm him.

11

a. Subjective Intent Irrelevant - the

Fourth Amendment Standard. Both the Eighth

and Ninth Circuits'® apply an _. objective

reasonableness standard akin to that under the

Fourth Amendment when evaluating excessive force

claims of pretrial detainees.

b. Subjective Intent Can Be a

Factor, but Is Not Required. The Tenth Circuit

follows a unique approach in that although it does

not require a finding of intent, it recognizes that

intent can be a factor in a totality of the

14 See Andrews v. Neer, 253 F.3d 1052, 1060 (8th

Cir. 2001) (“The evaluation of excessive force claims

brought by pre trial detainees, although grounded in the

Fifth and Fourteenth Amendments rather than the

Fourth Amendment, also relies on an _ objective

reasonableness standard.”); Jackson v. Buckman, 756

F.3d 1060, 1067 (8th Cir. 2014) (“The objective indicia

relevant to the excessive force analysis under the Fourth

Amendment guide this due process inquiry.”) Notably, in

Jackson, the 8th Circuit applied the second prong of the

Bell analysis, finding that “[a)n official’s use of force does

not amount to punishment in the constitutional sense if it

is but an incident of some other legitimate government

purpose.” Jackson, 756 F.3d at 1067.

8 See Gibson v. County of Washoe, Nev., 290 F.3d

1175 (9th Cir. 2002) (“the Fourth Amendment sets the

applicable constitutional limitations for considering

claims: of excessive force during pretrial detention.”)

(internal punctuation omitted); Hunter v. County of

Sacramento, 652 F.3d 1225, 1231 n.6 (9th Cir. 2011)

(“Graham...explicates the standards applicable to a pre-

trial detention excessive force claim in this circuit.”).

12

circumstances analysis to determine excessive

force. 16

C. Elimination of a Subjective Intent

Element is Consistent with Bell. Consistent with

their treatment at common law and as a matter of

constitutional law, the protections afforded pretrial

detainees should be stronger than those afforded to

convicted prisoners. As this Court observed in

Graham, “the less protective Eighth Amendment

standard applies only after the State has complied

with the constitutional guarantees traditionally

associated with criminal prosecutions.” Graham, 490

U.S. at 398 (internal punctuation omitted). Yet

pretrial detainees have not received the protections

of these constitutional guarantees. They have not

been convicted of any crime, they have not been

judged by a jury of their peers, they have not faced

their accuser, they have not yet been able to see the

government’s evidence against them, they have not

yet had their day in court, and have not yet

experienced the rest of the full panoply of

constitutional and statutory protections afforded to

those accused of a crime. So as this Court held in

Bell, absent an actual adjudication of guilt, they

cannot be punished. Bell, 441 U.S. at 535. Yet no

16 See Estate of Booker v. Gomez, 745 F.3d 405, 423

(10th Cir. 2014) (“To determine whether a use of force is

excessive under the Fourteenth Amendment we consider

three factors: (1) the relationship between the amount of

force used and the need presented; (2) the extent of the

injury inflicted; and (3) the motives of the state actor.”);

id. at 426 (concluding there is no case law to support

dismissal of a due process excessive force case solely

based upon lack of evidence of illicit intent).

13

such adjudication occurred here in our present

case.!7

“In our society liberty is the norm, and

detention prior to trial or without trial is the

carefully limited exception.” U.S. v. Salerno, 481

U.S. 739, 755 (1987). Pretrial detainees do not

surrender their liberty interest to be free of beatings

and other abuses. “[T]he right to personal security

constitutes a ‘historic liberty interest’ protected

substantively by the Due Process Clause ... [a]nd

that right is not extinguished by lawful confinement,

even for penal purposes.” Youngberg v. Romeo, 457

U.S. 307, 315 (1982). “The interest of persons in the

integrity of their bodies is a liberty interest of high

order ... The order of this liberty interest is precisely

as high among persons accused of crime as among

17 This concern is magnified by the numbers of

pretrial detainees and length of time of their pretrial

incarcerations. See, e.g., Jeffrey Manns, Liberty Takings:

A Framework for Compensating Pretrial Detainees, 26

Cardozo L.Rev. 1947, 1955 (2005) (noting “the tens of

thousands of American citizens subject to pretrial

detentions each year”); id. at 1950 n.11 (compiling state

and federal statistics and, specific to federal detainees,

finding that incarceration “averaged approximately one

month for individuals who were eventually able to meet

bail, to eighty-one days for those never able to meet bail,

and one-hundred-and-ten days for those denied bail.”);

Catherine T. Struve, The Conditions of Pretrial Detention,

161 U.Pa.L.Rev. 1009, 1054-55 (2013) (citing federal

statistics and concluding that for at midyear 2011, local

jail facilities in the U.S. held approximately 736,000

inmates, of which more than 60% were pretrial

detainees).

14

persons unaccused of crime.” Norris, 737 F.2d at

1152-53 (Doyle, J., concurring).

In Salerno, 481 U.S. at 750-51, this Court

recognized the “importance and fundamental nature”

of an _ individual’s liberty interest, but also

acknowledged that it may be infringed by a

“sufficiently weighty” government interest in the

balancing. But no cognizable government interest is

served by the unreasonable and excessive application

of force to a pretrial detainee when none is

objectively justified by the totality of the then

existing circumstances. That is simply prong two of

the Bell due process analysis of how to determine

punishment and also a restatement of the needless

fetters, unnecessary hardships and lack of humanity

forbidden at common law. The problem with

application of the subjective Eighth Amendment

convicted prisoner standard to pretrial detainees is

that it condones the unreasonable application of

force when none is objectively justified. As Judge

Hamilton succinctly stated in dissent below, “[i]f 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.” Kingsley, 744

F.3d at 455 (Hamilton, J., dissenting).

Accordingly, and consistent with the second

prong of the Bell analysis, the Court should apply

the due process equivalent of a Fourth Amendment

standard herein and recognize the distinction

between the objectively reasonable application of

force necessary to maintain order and enforce rules

for pretrial detainees and the use of unnecessary and

excessive force which goes above and beyond that

15

necessary to achieve these same ends. As the

common law has long recognized, the differing

liberty interests at stake between pretrial detainees

and convicted prisoners demands no less.

CONCLUSION

Pretrial detainees, like all citizens, are

entitled to the protection of the law from abuse at the

hands of the government. When subjected to

excessive force by their jailers, pretrial detainees

must have justice and a fair opportunity to obtain

that justice. The requirement imposed below and by

other circuit courts that a detainee prove a defendant

acted with some invidious intent not only unduly

limits the opportunity for justice but is not compelled

by this Court’s precedent. Therefore, amicus submits

that this Court should adopt the objective test of

reasonable force propounded by the Petitioner and

reverse the judgment of the Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

JOHN W. WHITEHEAD STEPHEN J. NEUBERGER

Counsel of Record THE NEUBERGER FIRM

DOUGLAS R. MCKUSICK 2 EAST SEVENTH STREET

THE RUTHERFORD INSTITUTE SUITE 302

932 GARDENS BOULEVARD WILMINGTON, DE 19801

CHARLOTTESVILLE, VA 22901 (302) 655-0582

(434) 978-3888

Counsel for Amicus Curiae

March 6, 2015