By Lisa Soronen

Since the 1980s (and arguably the 1970s) the U.S. Supreme Court has been clear: A pretrial detainees’ right to be free from excessive force derives from the 14th Amendment’s due process clause.

But what does that mean exactly? The Supreme Court will lay out the specifics in Kingsley v. Hendrickson. 

State and local government officials can be sued for money damages for constitutional violations. A legal standard more deferential to government officials means that successful pretrial detainee excessive force lawsuits will be less likely.

More significant, different excessive force standards for pretrial detainees and sentenced inmates, who are often housed in the same facility, will be difficult for correctional officers to comply with. After all, correctional officers must make split second decisions regarding the use of force and may not know whether an incarcerated person is a pretrial detainee or has been convicted.

The constitutional standard for the use of excessive force depends on whether a person is an arrestee, a pretrial detainee or a sentenced inmate.

The Fourth Amendment applies to arrestees, the 14th Amendment’s due process clause applies to pretrial detainees and the Eighth Amendment applies to those convicted.

Not surprisingly, the standard that applies to arrestees is less deferential to law enforcement than the standard that applies to those who have been convicted. Force against an arrestee must be “objectively reasonable,” while force against a sentenced inmate must merely not be “cruel and unusual.” The Supreme Court has never defined the substantive standard for excessive force claims by pretrial detainees.

Pretrial detainee Michael Kingsley alleges two police officers used excessive force against him when they transferred him to a different cell so they could remove a piece of paper covering the light over his bed that he refused to remove. In the process, his feet smacked against the bedframe, an officer kneed him in the back, he was tasered so his handcuffs could be removed, and he claims an officer smashed his head against the concrete bunk. 

The jury instruction stated that for Kingsley to win his excessive force case he had to prove that the officers acted “recklessly.” Kingsley claims that the jury instruction should have been less deferential to the officers and that he should have only had to prove that they failed to act “objectively reasonable.”

The 7th U.S. Circuit Court of Appeals concluded the jury instruction was adequate. The court had previously said that force under the due process clause must “incorporate some measure of subjective intent” and must be at least reckless.  And the 7th Circuit in some cases had applied the Eighth Amendment standard.   

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on U.S. Supreme Court cases for the NCSL Blog.