It has been a tumultuous past couple of weeks for SCOTUS watchers. Rarely has the Court issued a series of opinions of such sweep and contention. The reader may recall my earlier coverage of the oral arguments of a particular case from this 2014 session, Kingsley v. Hendrickson. Forgetting is understandable in light of a certain two other decisions of the Court – decisions that need no introductions here. However, allow me to recap – the Kingsley case saw the Court hear an appeal from a 7th Circuit decision which rejected a § 1983 excessive force claim and created a clear conflict between Circuits as to a) whether a pre-trial detainee may be “punished”/subjected to excessive force; b) whether subjective mind-set is relevant for determining whether excessive force has been used and c) which Constitutional protection against excessive force is applicable to a pre-trial detention scenario. At the close of the trial, at the Federal District Court level, for Kingsley’s 1983 action, jury instructions were given which (partially) charged jurors with considering, inter alia, “reckless disregard” in the conduct of the officer – an inherently subjective state of mind. In my earlier coverage of this case, I stated that the importance of the outcome is most evident when one considers that who is a “pre-trial detainee” is a substantially large cross-section of persons (including, possibly, accused terrorists).
In the 5-4 opinion authored by Justice Breyer and joined by Justices Ginsburg, Kagan, Kennedy, and Sotomayor, the Supreme Court held that, in order to prevail in a 42 U.S.C. § 1983 action, a pre-trial detainee need only show that the force intentionally used on him or her was objectively unreasonable. Kingsley v. Hendrickson, 576 US ____ (2015) (slip. op., at 1-2). That is, the subjective mind-set of a corrections officer who has intentionally acted to administer force, is irrelevant. Id. Further, the Court held that the source of a pre-trial detainee’s Constitutional protection against excessive force derives from the Fourteenth Amendment Due Process Clause (where the physical actor is a state employee; One could infer that the holding therefore implicates the Fifth Amendment should the physical actor be a federal employee). Of central importance to the Court was an interest in uniformed policy concerning jail or prison officials. Indeed, the Court appeared duly impressed by the fact that Association of Former Corrections Administrators and other Experts joined Kingsley as Amici, each firmly maintaining that the use of physical force upon any detainee already is and aught to be delimited by certain objective criteria – policies clearly articulating what constitutes acceptable physical conduct and what does not. Id at 9 citing Amici Curiae 8-18. That is, the Court was greatly swayed by the practical attractiveness of objectivity in this context in finding “the objective standard…workable”. Id at 9. Indeed, Breyer repeatedly appealed to the objective standard as a method by which an officer can protect himself from a 1983 claim, taking a safe harbor in abiding by the rules of engagement. Additionally (and again underlining the practical desirability of an objective approach) the Court concluded that, in so holding, there is nothing to suggest that floodgates to litigation against prison and prison officials will open. In that regard, the opinion cited 42 U.S.C. § 1997(e) which imposes a fairly high bar against § 1983 actions and is designed to dismiss frivolous suits. Id at 12.
The Court also concluded that the weight of case law invoked by either party in briefs and during argument supported an objective standard for determining the Constitutionality of force employed. Id at 2. Specifically, as to precedent, the Court found the authorities clear in a § 1983 context – a pre-trial detainee may not be punished and (because she has neither been tried nor convicted) Constitutional protections afforded to her are greater than that afforded by the Eighth Amendment prohibition against cruel and unusual punishment. Beyond that the Court also went on to find that the weight of case law militates in favor of finding a § 1983 violation where any force used against a pre-trial detainee has no rational relationship with a “’legitimate nonpunitive governmental purpose’ or that the actions ‘appear excessive in relation to that purpose’”. Id at 8. Conversely, the Court roundly rejected the uses of case law proffered by the Respondents – a plaintiff does not have to prove that an officer acted “maliciously and sadistically to cause harm”. Id at 10. Several cases were dismissed off-hand as they clearly arose in an Eighth Amendment, cruel and unusual punishment context. Id at 10. In their briefs and during oral argument, Respondents had relied heavily on a series of decisions by the late 2nd Circuit Court of Appeals judge, Henry Friendly. One opinion in particular authored by Friendly, Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), had been touted by Respondents as supporting a judicial consideration of an officer’s subjective state of mind for purposes of determining whether excessive force has been used. Breyer redressed such a reading of Glick – acknowledging that Judge Friendly did include a “sadistic/malicious” use of force factor in testing for excessive force (a factor which would suggest a necessary inquest into the subjective mind-frame of the actor), but (then) rejecting the idea that the “sadistic/malicious” factor is a necessary pre-requisite for finding that an officer has, in fact, utilized excessive force. Id at 11-12.
The Court’s opinion did ultimately give some way to a degree (be it small) of subjectivity in assessing the conduct of prison officials – Breyer describing objective reasonableness as partly determined by, among other things, the present facts “on the scene”, “what the officer knew at the time”, and an accounting of the “legitimate interests that stem from [the government’s] need to manage the facility.” Id at 6-7 citing Graham v. Connor, 490 U.S. 386, 396 (1989); Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979). Furthermore, Breyer maintained that an officer yet enjoys the presumption of qualified immunity from excessive force liability unless he violates a “’clearly established right’” where “’it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted’”. Id at 10 citing Saucier v. Katz, 533 U.S. 194, 202 (2001).
As to disposition of Kingsley’s specific case, the opinion resulted in vacating the 7th Circuit decision and remand for re-litigating whether the underlying jury instructions (held to be erroneous) amounted to more than harmless error. Id at 13-14.
Beyond the relatively limited scope of the explicit holding in Kingsley – seemingly applicable only to excessive force used against a pre-trial detainee, the Court surprisingly also noted that its imposition of an objective standard for determining excessive force might also have resonance in an Eighth Amendment context. Id at 13. If so, and I suppose we shall have to wait to find out, then force applied on convicted inmates would also be constrained by an objective standard – a game changer.
Please check out the full opinion at http://www.supremecourt.gov/opinions/14pdf/14-6368_m6hn.pdf
Good SCOTUS Blog discussion of the opinion can be found here: http://www.scotusblog.com/2015/06/opinion-analysis-supporting-excessive-force-claims-in-jails-and-prisons/
Oral argument can be found at Oyez.org: http://www.oyez.org/cases/2010-2019/2014/2014_14_6368