Most issues reviewed on this blog that pertain to prison conditions are legally assessed under the Eighth Amendment‘s prohibition against cruel and unusual punishment. Therefore, one of the ways in which the state tries to avoid accountability for the way it treats people is to argue that their situation does not count as “punishment”; and, indeed, the Supreme Court has routinely decided that many situations don’t count as “punishment”, and therefore do not merit an intervention, no matter how cruel and unusual the state’s behavior might be.
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:
Whenever courts hold someone to an objective standard of behavior–and this can happen in the context of a trial for criminal negligence or in a disposition of a search and seizure incident–it essentially compares the behavior of the person in question to an imaginary person. The “reasonable man” is not a statistical aggregate of all the people in the world; even if one’s attorney summons all the people in the world and they testify that they would behave just as the defendant has done, it’s not enough. The court is the sole arbiter of what a “reasonable person” would have done, and sometimes it deliberately sets the standard just a bit higher than the behavior of an average person, or of the defendant himself. The reason for that is that negligence, reasonability, and other objective standards rarely address issues that were within the defendant’s awareness and intent, and the court seeks to educate people who might be in the defendant’s shoes at a later time on how to behave.
If this seems harsh, take into account that the court’s “reasonable man” is not entirely divorced from the circumstances in which the actual actor found himself. As Justice Breyer reminds us in Kingsley, “[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.
Props to Mark Edwards for drawing my attention to this interesting case.