Words Hurt: How the Differences Between “Objectiveness” and “Subjectivity” and “Punishment” and “Discipline” Can Be a Painful Thing

On May 27th, the United States Supreme Court heard oral arguments in the case Kingsley v. Hendrickson – a decision which will surely have significant impact on the law of 1983 Actions and perhaps even beyond.  Substantially, the facts of the case are as follows:

In 2010, Plaintiff Kingsley was a pre-trial detainee awaiting trial in Monroe County, Wisconsin.  At some point during this pre-trial detention, jail correctional officers requested that Kingsley remove a “piece of paper” which was apparently affixed to the lighting unit of Kingsley’s cell.  To this request, Kingsley initially refused, claiming that he had not been responsible for the piece of paper so being there.  The officers requested again and Kingsley again refused.  At that point, correctional officer Hendrickson and three of his colleagues entered Kingsley’s cell, placed Kingsley face down on a with hands behind his back and handcuffed him – thus answering the age old question: It takes 4 officers to remove paper from a light bulb.   At this point the facts are somewhat contested.  Kingsley claimed that he was compliant with this police procedure, the officers claimed that Kingsley resisted by tensing himself.  In any event, Kingsley was tased in his back and injured.  Kingsley sued under 1983.

Procedurally, the Supreme Court granted certiorari on appeal from a 7th Circuit U.S. Court of Appeals Decision which had upheld a jury determination that whether 1983 prohibition on excessive force has been violated by a state officer requires showing of 1) “subjective recklessness” in an intent to administer 2) deliberate force.  Kingsley’s appeal argued that the jury instructions were constitutionally incorrect and that a lower (more provable) standard showing for excessive force as 1) objectively unreasonableness in administering 2) deliberate force is more appropriate under the circumstances.  Practically speaking, objective unreasonableness is not only abundantly more provable at trial, applying it would bring about a certain uniformity and simplicity of standards, simply – whether a reasonable officer under the circumstances in question would have so deliberately administered force.  Moreover, under the objective approach, “intent” becomes practically irrelevant.


The Questions Framed

Specifically, Kingsley (and the United States which joined Oral Argument on the side of Kingsley) has, first, asked the Supreme Court to resolve a jurisdictional split over which standard of proof is necessary to support a prima facie 1983 violation in the context of pre-trial detainment.  The most polar opposition to this point is between the 9th Circuit (which has decided that an absolute objective unreasonableness test of intent to use force is appropriate) and the 7th Circuit (which had heretofore held that a subjective recklessness test of intent to use force is appropriate).  Kingsley’s appeal has been supported by, among others, the American Civil Liberties Union and the Rutherford Institute

Second, and of substantially lesser importance, Kingsley has asked the Supreme Court to, should it find that a subjective test is appropriate, carve out a specific Constitutional referent for so holding.  Specifically, Kingsley asks the Supreme Court to decide whether objectiveness arises out of rights prescribed by the 14th Amendment (providing protection against deprivation of…liberty without due process of law) or (alternatively) the 4th Amendment (providing protection against unreasonable search and seizure).

Hendrickson, who has been supported by Amicus briefs from, among others, National Sherriff’s Association…, for his part maintains that 1) any jurisdictional split in approach to this question is immaterial or over-stated by Kingsley in that subjectivity is always a significant factor in any Court’s determination of excessive use of force upon any detainee and 2) that the objective test of the 7th Circuit should be the appropriate standard.

What’s at Stake?

On the face of things, whatever the Supreme Court decides in this matter seems fairly narrow – only affecting the rights of pre-trial detainees in conventional pre-trial detention – i.e. your “county jail” scenario.  However, when one considers the myriad contexts in which a person may be imprisoned pending subjection to United States penal law, the potentially far-reaching consequences of Kingsley v. Hendrickson becomes more apparent.  For instance, the title “pre-trial detainee” is probably applicable to any host of persons under arrest but not formally tried in a court of law – enemy combatants, alleged illegal/removable immigrants, juveniles in detention, overnight jail stay/drunk tank detainees, and “a whole host of persons not subject to the rigors of the Bill of Rights.” John F. Bash for the United States in Oral Argument.

Notably, the objective test standard is calibrated to the 8th Amendment which protects only against “cruel and unusual punishment” and/or “reckless indifference”.  Thus, another significant difference between the subjective and objective standards is that the former essentially provides the same inalienable protections to pre-trial detainees afforded to law abiding persons, generally (the 4th Amendment and 14th Amendment).  The former, however tacitly strips away those rights afforded to the general population, and arguably offers no greater protection than that extended to a death-row convict.  And on this point, the philosophical differences between the two positions becomes especially salient.  Kingsley and his supporters argue that it is philosophically consistent for an individual who has not yet been fairly tried nor found guilty of a particular crime to be afforded protections (under the 4th and or 14th Amendments) enjoyed by the general citizenry.  By contrast however, Hendrickson and his supporters believe, philosophically, that there should be no practical difference between detainees of any stripe (be they tried and convicted or waiting for trial) in the context of the degree of force which may be used on them by their custodians.

Lastly, but not least, the integrity of the English language may also be at stake.  Oral argument of this case took a turn for the post-modern when certain questions were posed  (mostly to Kingsley) concerning the practical difference(s) between “pre-trial” and other detainees in terms of when and what type of corporal action may, constitutionally, be deployed against their persons.  To this, counsel for Kingsley attempted to make some distinction between words like “discipline” vs. words like “punish” – the former, according to Kingley’s counsel, apparently being within the realm of constitutionally permissible action against a pre-trial detainee, the latter being prohibited against a pre-trial detainee.

But, beyond the realm of “objective vs. subjective” and/or “discipline vs. punish” – an apparent battle of lexicon, it should not be forgotten that this case revolves, mostly, around the physical: concrete bunks, tasers, sticks, stones, and when a prison official may fairly break one’s bones.  Stay tuned for the decision, expected at some time later this year and my discussion of same.

For additional coverage on this case check out:

Oral Arguments brought to you by our friends at the Oyez Project:


Discussion of the case brought to you by SCOTUS Blog:



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