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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0574%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0574%3A16. Public record. Not legal advice.