Pretrial detention has been explicitly left out of the category of "punishment", per Bell v. Wolfish (1979). But today's decision in Kingsley v. Hendrickson is a step forward in protecting pretrial detainees from use of force and violence while behind bars.
Michael Kingsley was arrested on a drug charge and held in a Michigan jail while awaiting his trial. Following the escalation of a dispute over Kingsley's refusal to remove a piece of paper from the light fixture, officers forcibly removed him from his cell and put him in another cell, forcing him to lie face down on a bunk bed with his hands cuffed behind his back. There's some dispute over what happened next; Kingsley said the officers slammed his head against the bed, which they denied. But everyone agrees that the officers subsequently tased Kingsley in the back for five minutes and then left him alone in the cell.
Kingsley filed a §1983 suit against the jail officials. Since he couldn't argue cruel and unusual punishment, he argued that the officers' behavior violated his due process rights. The legal debate that ensued revolved around the question: what legal standard should be used when adjudicating claims about use of force? Kingsley maintained that the appropriate standard was objective: that is, that all he needed to prove was that the use of force would have seemed excessive to a reasonable officer at the time. The officers, by contrast, argued that the appropriate test was subjective, i.e., that Kingsley would have to prove intentional conduct on their behalf (very much akin to the standard employed in Eighth Amendment analysis in similar cases involving inmates). Since officers are likely to perceive their actions as appropriate (or at least claim they were appropriate later in court), you can see why the former standard is more favorable to the plaintiff.
The court found, 5:4, for Kingsley. The division of votes is pretty much what you would expect; Justice Breyer wrote the majority opinion, finding that an objective standard is appropriate here.
Whenever I talk to my students about the reasonable man, I draw someone like this on the blackboard:
"[a] court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." In our case, in which the officers had to decide how to treat Kingsley for his paper-on-the-light-fixture violation, the court's assessment of the officers' reasonability may include the following factors: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting."
Justice Breyer explains why the objective standard is suitable in this case. He starts off by reminding us that, precisely since pretrial detention is not "punishment", whether or not the officers intended to "punish" the detainee does not matter for the disposition of the case. Moreover, it is a workable standard, which might even be included in training materials for jail personnel anyway. And finally, even though the standard is objective, since the examination takes into account the officer's perception at the time, it protects officers who acted in good faith.
Justice Scalia's dissent ties Kingsley to Wolfish, arguing that the objective standard is not enough to equate the behavior to punishment. Ironically, juxtaposing the majority and the dissent leads to some unclarity on which situation benefits the defendant more: framing pretrial detention as "punishment" or as something else. And Justice Alito's dissent brings up even one more possibility, which is as of now undecided--the question whether a detainee in Kingsley's situation could raise a Fourth Amendment claim.
Detainee rights advocates may find some encouragement in the fact that the majority opinion subverts the usual problem with non-punishment confinement situation, which is the inability to apply Eighth Amendment protections to them, by supporting a test that is actually more favorable to the defendant. But what is even more remarkable is that the decision leaves the door open to Fourteenth Amendment claims of excessive force not only on behalf of detainees, but on behalf of convicted prisoners:
We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.
What with this, and with Kennedy's concurrence in Davis v. Ayala last week, this was a good week for promising dicta sayings that are sensitive to prisoners' rights and to correctional excesses.
But lest we become overly overjoyed, let's keep in mind that Kingsley's ordeal dates back to 2010. The conversation about bail and pretrial detention often expounds on how much better off you might be if you are not detained before trial: it's easier to prepare your defense, communicate with your loved ones and with your attorney, and keep your job, not to mention avoiding doing time that might later become "time served" by default. Kingsley is a reminder that pretrial detention also exposes one to violence and force, which hindsight support from courts--even from the Supreme Court--cannot undo.
Props to Mark Edwards for drawing my attention to this interesting case.