Kinsgley v. Hendrickson: What Standard Governs Pretrial Detainee Due Process Excessive Force Claims?
The Supreme Court granted certiorari and then reversed the Seventh Circuit in Kingsley v. Hendrickson, 135 S. Ct. – (2015)(No. 14-6368), revg Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014)(Judge Hamilton dissenting), a case involving the proper excessive force standard applicable to pretrial detainee claims brought under substantive due process. In this case, the plaintiff pretrial detainee alleged that the use of a taser against him constituted excessive force in violation of due process.
The Question Presented was “[w]hether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”
The Court’s Opinion
In an opinion by Justice Breyer, the Court rejected the subjective inquiry used by the district court—that there must be “an actual intent to violate [the plaintiff’s] rights or reckless disregard for his rights”–and affirmed by the Seventh Circuit. Instead, the Court declared that the proper standard in such pretrial detainee substantive due process cases was one of objective reasonableness, the same standard required by the Fourth Amendment for police officers making arrests in Graham v. Connor, 490 U.S. 386 (1989). The Court did not accept the defendant correctional officers’ contention that because this was a prison setting, under Bell v. Wolfish, 441 U.S. 520 (1979), the plaintiff pretrial detainee was required to prove that he was “punished” by them, meaning that at the least the defendants must have been subjectively aware that their use of force was unreasonable.
The Court went on to explain why this objective reasonableness standard would not unduly burden corrections officers. For one thing, the use of force must be determined from the perspective of a reasonable corrections officer at the time. For another, the objective reasonableness standard was workable and consistent with the pattern jury instructions used in several Circuits. For a third, the standard adequately protected corrections officers who acted in good faith because jail circumstances, including security and order, must be taken into account in making the objective reasonableness determination. Finally, the availability of qualified immunity to corrections officers provided an additional margin for error. See Chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014)(West).
Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissented, arguing that “punishment” was required under due process and that the infliction of objectively unreasonable force, standing alone, was not sufficient for this purpose. They also questioned whether a pretrial detainee had a liberty interest in freedom form objectively unreasonable force. Justice Alito also dissented, maintaining that certiorari was improvidently granted. In his view, the Court should first determine whether a pretrial detainee can bring a Fourth Amendment excessive force claim before reaching the substantive due process claim involved in Kingsley.
Kingsley is a sound decision. It finally puts to rest the split in the circuits regarding the proper excessive force standard for pretrial detainees, an issue that had been percolating in the circuits for some time.
In addition, so long as relevant security factors are plugged into the objective reasonableness inquiry, pretrial detainees are not being unduly advantaged to the detriment of the need to maintain security and order.
Perhaps most important, it would have been fundamentally unfair for pretrial detainees, who by definition have not been convicted of anything, to be governed by a subjective inquiry of the sort the governs excessive force claims brought under the Eighth Amendment by those already convicted. Kingsley property treats pretrial detainees as free citizens in this context.
I invite you to follow me on Twitter @NahmodLaw
In Carroll v. Carman, 135 S. Ct. 348 (2014)(per curiam), revg, Carman v. Carroll, 749 F.3d 192 (3rd Cir. 2014), a police officer was sued under § 1983 and the Fourth Amendment for entering plaintiffs’ property in July 2009 by going into their backyard and onto their deck without a warrant. The police officer argued that his entry was lawful under the “knock and talk” exception to the warrant requirement because he stayed on that portion of plaintiffs’ property that the general public was allowed to go on.
The Third Circuit held that the officer violated the Fourth Amendment since he did not go first to the front door as required (so the Third Circuit read its own precedent as saying) by the “knock and talk” exception. It also ruled that the officer violated clearly established Fourth Amendment law.
Reversing, the Supreme Court held that the officer was entitled to qualified immunity because clearly settled law did not exist at the time. Even assuming that a single Third Circuit decision could suffice for this purpose, the decision that the Third Circuit cited did not stand for the proposition that the Third Circuit said it did.
The Court went on: “The Third Circuit’s decision is even more perplexing in comparison to the decisions of other federal and state courts, which have rejected the rule the Third Circuit adopted here.” However, the Court emphasized that it was not deciding the constitutional merits here but only qualified immunity.
What is interesting to me about this decision is the Court’s non-deferential approach to the Third Circuit’s understanding of its own precedent. The Court may also have signaled that it disagreed with the Third Circuit’s rule on the merits, although it said that it did not decide the constitutional merits.
I invite you to follow me on Twitter @NahmodLaw
San Francisco v. Sheehan: New Supreme Court Qualified Immunity Decision Dealing with Shooting the Mentally Disturbed (ADA Issue Not Reached)
In its 2014 Term, the Supreme Court handed down a qualified immunity decision dealing with the shooting of a mentally disturbed woman. As has become the norm in recent qualified immunity cases before the Court, the police officers prevailed.
San Francisco v. Sheehan, 135 S. Ct. 1765 (2015), involved the near-fatal shooting of a mentally disturbed woman in a group home in August 2008. When the officers initially entered her room, she grabbed a kitchen knife and told them to leave, which they did. After conferring, they then re-entered her room by forcing open the door and blinding her with pepper spray. However, she continued to resist with her knife, so they shot her repeatedly.
Although the Supreme Court had granted certiorari to decide whether the Americans with Disabilities Act required the officers to “accommodate” the plaintiff’s disability, the Court did not address that question because it was not properly raised by San Francisco. Instead, reversing the Ninth Circuit, the Court ruled that the officers were protected by qualified immunity from § 1983 Fourth Amendment liability because there was no clearly established law prohibiting this conduct.
The Court rejected the Ninth Circuit’s contrary qualified immunity holding that its precedents would have placed “any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry.”
But even assuming that was true, the Court continued, no precedent clearly established that there was not “an objective need for immediate entry” here. “[A]n officer could not know that reopening [plaintiff’s] door to prevent her from escaping or gathering more weapons would violate the Ninth Circuit’s test, even if all the disputed facts are viewed in respondent’s favor.”
The Supreme Court did not defer to the Ninth Circuit’s understanding of its own Fourth Amendment precedents as to the general rule in such cases.
Similarly, the Court did not defer to the Ninth Circuit’s application of its “objective need for immediate entry” criterion.
I invite you to follow me on Twitter @NahmodLaw
Section 1983 Malicious Prosecution (VI): Third and Fourth Circuit Decisions with a Fabrication of Evidence Twist
I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13, 4-8-14 and 5-11-15 about section 1983 malicious prosecution cases in the circuits.
What follows are recent section 1983 malicious prosecution/fabrication of evidence decisions from the Third and Fourth Circuits that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Halsey v. Pfeiffer (3rd Circuit)
In Halsey v. Pfeiffer, 750 F.3d 273 (3rd Cir. 2014), an important case that couples section 1983 fabrication of evidence and malicious prosecution claims. the plaintiff, wrongly imprisoned for murder for over 20 years, sued various law enforcement officers and others alleging (1) the fabrication of his oral confession that led to the prosecutor filing charges against him and (2) malicious prosecution and (3) coercing him into signing the fabricated confession which was crucial at his trial. Reversing the district court’s grant of summary judgment to the defendants, the Third Circuit explained:
First, we reaffirm what has been apparent for decades to all reasonable police officers: a police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant’s constitutional right to due process of law. Second, we reinstate[plaintiff’s] malicious prosecution claim, principally because the prosecutor instrumental in the initiation of the criminal case against [plaintiff] has acknowledged that the false confession the [defendants] claimed they obtained from [plaintiff] contributed to the prosecutor’s decision to charge [plaintiff], and for that reason we will not treat the decision to prosecute as an intervening act absolving [defendants] from liability. Moreover, without that false confession, there would not have been direct evidence linking [plaintiff] to the crimes so that the prosecutor would not have had cause to prosecute [plaintiff]. …
In the course of its discussion in Halsey, the Third Circuit commented that in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007), it had not addressed the question, which it now answered in the affirmative, whether a fabrication claim could give rise to a stand-alone due process cause of action. It also observed that in this case any Fourth Amendment seizure had long since ended: it was the fabricated evidence that led to the unfair trial, the wrongful conviction and plaintiff’s incarceration. Further, this was analytically different from a section 1983 malicious prosecution claim as to which probable cause is a defense. Finally, as to plaintiff’s section 1983 Fourth Amendment malicious prosecution claim, the Third Circuit determined that the prosecutor’s decision to prosecute was not an intervening act that severed the initiation of prosecution from the defendants. The district court erred in concluding that the prosecutor’s decision to prosecute was made without regard to the defendants’ alleged misconduct. The district court further erred in finding that there would have been probable cause even without plaintiff’s confession: there were genuine issues of material fact on this question.
Massey v. Ojaniit (4th Circuit)
The Fourth Circuit cited the Third Circuit’s decision in Halsey in Massey v. Ojaniit, 759 F.3d 343 (4th Cir. 2014), another case coupling section 1983 fabrication of evidence and malicious prosecution claims. In this case, the plaintiff, released after almost twelve years of imprisonment, sued city police officers alleging that they fabricated evidence against him at trial to obtain his conviction in violation of due process. Ruling against the plaintiff, the Fourth Circuit observed that fabrication of evidence standing alone was not enough: the plaintiff had to allege adequate facts to show that the loss of liberty–his conviction and subsequent incarceration–was caused by the fabrication. This requirement included both cause in fact and proximate cause. Here, however, the plaintiff’s conviction was not caused by the alleged fabrication because the prosecution focused at trial on positive in-court identifications. In addition, the conviction was not the foreseeable result of the alleged fabrication.
The plaintiff in Massey also alleged a Fourth Amendment malicious prosecution claim, focusing on the fabricated evidence’s role in bringing about plaintiff’s arrest and his prosecution. Plaintiff lost here as well because he did not allege sufficient facts to undermine the grand jury’s probable cause determination. In other words, he did not sufficiently allege materiality of the fabricated evidence: even removing the fabricated evidence, there was sufficient evidence for a finding of probable cause.
Both cases recognize the availability of stand-alone due process fabrication of evidence claims. But while the plaintiff in Halsey properly alleged that the fabricated evidence led to his unfair trial, conviction and incarceration, the plaintiff in Massey did not.
Both cases also have in common section 1983 Fourth Amendment malicious prosecution claims and the all-important inquiry into causation–cause in fact and proximate cause–as well as the requirement of absence of probable cause. The Halsey plaintiff was able to persuade the Third Circuit that the prosecutor’s decision to prosecute was not a superseding cause and that there was a triable issue regarding the absence of probable cause. In contrast, the Massey plaintiff ‘s allegations were insufficient to persuade the Fourth Circuit that the grand jury’s probable cause determination was not a cause in fact of his arrest and prosecution.
I invite you to follow me on Twitter @NahmodLaw
I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13 and 4-8-14 about section 1983 malicious prosecution cases in the circuits.
What follows is an important recent Seventh Circuit decision dealing with such claims, a decision that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
A subsequent post will address several other recent circuit court decisions dealing with section 1983 malicious prosecution claims. But this Seventh Circuit decision deserves its own post.
Llovet v. City of Chicago (7th Cir. 2014)
In Llovet v. City of Chicago, 761 F.3d 759 (7th Cir. 2014), a decision written by Judge Posner, the plaintiff, acquitted in state court of aggravated battery, then sued police officers and the City of Chicago alleging section 1983 malicious prosecution under both due process and the Fourth Amendment.
The Due Process Claim
Affirming the dismissal of plaintiff’s due process-based claim on the authority of Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003), the Seventh Circuit, refusing to overrule Newsome, reaffirmed that case’s holding that such a suit, insofar as it is based on due process, is available only where the forum state does not provide an adequate remedy. Here, Illinois provided such a remedy.
The Fourth Amendment Claim
The Seventh Circuit then went on to reject the plaintiff’s additional arguments, premised on a section 1983 Fourth Amendment malicious prosecution theory, that “the Fourth Amendment’s prohibition of seizures of persons without probable cause does not terminate when the person arrested becomes detained pursuant to legal process (normally an arraignment …); and further that a [Fourth Amendment] claim … for malicious prosecution ‘accrues upon the favorable termination of criminal proceedings’ and thus does not have to be filed within the statute of limitations for the unlawful arrest.”
According to the Seventh Circuit in Llovet, a seizure was necessary for a Fourth Amendment-based malicious prosecution claim (the possible existence of which Newsome did not deny). Here, the initial seizure was supported by probable cause because the plaintiff was already in jail on a misdemeanor charge and was unable to make bail. Also, there was no causal relation between the aggravated battery charge and the deprivation of plaintiff’s liberty in being arrested and jailed on the misdemeanor charge. Even if the plaintiff was in jail longer than he would have been had it not been for the defendants’ alleged framing of him for aggravated battery, the initial seizure was still supported by probable cause.
The Continuing Seizure Doctrine
The Seventh Circuit then rejected the continuing seizure doctrine in this case. For one thing, Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 549 U.S. 384 (2007), implied that the Fourth Amendment falls out of the picture when detention by arrest becomes detention by arraignment. For another, some of the other circuits did not accept the continuing seizure argument. The Seventh Circuit also expressed concern that the continuing seizure doctrine would unduly enlarge the scope of the Fourth Amendment. Finally, the court rejected the plaintiff’s alternative argument that there was a second seizure in this case when the filing of the aggravated battery charge caused the plaintiff to be held in jail longer than he would otherwise have been for the misdemeanor charge. “There is a difference between seizing a person and not letting him go.” In the latter situation, the due process clause becomes applicable.
See also Welton v. Anderson, 770 F.3d 670 (7th Cir. 2014), reaffirming that the continuing seizure doctrine is not the law in the Seventh Circuit.
Llovet certainly covers a lot of section 1983 malicious prosecution ground: due process, the Fourth Amendment and, especially, continuing seizures.
For those interested in the subject, Llovet is worth reading in its entirety.
I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm. The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13 and the most recent was on August 28, 2014.
Here are four 2014 DeShaney-related decisions from the Fifth and Eighth Circuits and the Supreme Court of New Jersey. I came across these cases when preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Fifth Circuit: Lance v. Lewisville Independent School District
Where a fourth grade special needs student who had been bullied locked himself inside the school nurse’s bathroom and then took his own life, his parents and his estate sued the school district under § 1983 and substantive due process. The Fifth Circuit affirmed the district court’s grant of summary judgment to the school district. The Fifth Circuit rejected the application of the special relationship theory, the state danger-creation theory and the caused-to-be-subjected theory. No special relationship between the decedent and the school district existed in the case pursuant to the en banc decision of the Fifth Circuit in Doe ex rel Magee, 675 F.3d 849 (5th Cir. 2012)(en banc). Also, there was no genuine issue of material fact in dispute regarding the state-created danger theory even if that theory were to be applied: the school district did not affirmatively place the decedent in danger, there was no evidence that the school district knew that decedent’s suicide was imminent and the plaintiffs did not show that the school district created a dangerous environment for the decedent. Finally, the caused-to-be subject theory has not been adopted by the Fifth Circuit. Lance v. Lewisville Independent School District, 2014 WL 805452 (5th Cir. 2014).
Eighth Circuit: Montgomery v. City of Ames and Gladden v. Richbourg
The plaintiff sued a city, police officers and others alleging a substantive due process violation arising out of the shooting of the plaintiff by a third person who broke into her house and shot her three times. She alleged that the defendants created the danger that the assailant would attack her through their deliberate indifference. Montgomery v. City of Ames, 2014 WL 1387033 (8th Cir. 2014). Ruling for the defendants on this issue, the Eighth Circuit noted that the assailant was subject to a protective order, stemming from his conviction for domestic-abuse assault, which prohibited him from being near the plaintiff and from contacting her. However, it determined that the police officer who spoke with the assailant about the plaintiff’s allegations, but did not arrest him despite plaintiff’s warnings, did not act with the requisite deliberate indifference to her safety. There were conflicting accounts about whether the assailant had in fact violated the protective order, and this meant a reasonable jury could not conclude that the officer acted recklessly or in a conscience shocking manner just because he did not arrest the assailant before an investigation the next day.
In Gladden v. Richbourg, 2014 WL 3608521 (8th Cir. 2014), the decedent died of hypothermia after police officers, who had determined that he was mildly intoxicated, took him from a restaurant in a city to an isolated off-ramp outside the city at the county line even though he had asked the officers to take him to his sister’s house in the next county. The decedent’s due process rights were not violated, according to the Eighth Circuit. There was no special relationship because the harm suffered did not occur in police custody. Also, the officers did not act with the requisite reckless/conscience shocking state of mind under the danger creation theory because, even though it was bitterly cold, decedent was only mildly intoxicated, appeared functional to the officers throughout, and thus appeared able to make his way to a guard shack a short distance from where he was dropped off.
Supreme Court of New Jersey: Gormley v. Wood-El
In Gormley v. Wood-El, 2014 WL 2921824 (S. Ct. N.J. 2014), the plaintiff attorney, assigned to represent an involuntarily committed patient at a psychiatric hospital, was brutally attacked by her client in the hospital’s unsupervised day room, “a place where psychotic patients milled about and where violence frequently erupted.” The Supreme Court of New Jersey, ruling for the attorney in her § 1983 claim against hospital officials and others, held that the plaintiff had a substantive due process right to be free from state created dangers and that this right was clearly established in September 2005, when the attorney was attacked and seriously injured. The plaintiff was a member of a discrete class of victims subject to foreseeable harm in the volatile day room created by the defendants. Also, the defendants exercised total control over the plaintiff and the day room meeting and they knew of the special dangers that the client might pose to the unsuspecting plaintiff. Further, there was sufficient evidence of deliberate indifference constituting conscience shocking conduct. Among other things, expert testimony indicated that the level of violence in this psychiatric hospital was unique. Justice LeVecchia, joined by Justice Patterson, dissented, 2014 WL 2921824, *20, arguing that the plaintiff did not make out a substantive due process claim and that the defendants in any event did not violate clearly established law.
As I and others have frequently noted, DeShaney issues typically arise in tragic circumstances, and these cases are no exception. Plaintiffs attempt to end-run the DeShaney no affirmative duty rule by using either the special relationship theory or the danger-creation theory or both.
However, it remains difficult for plaintiffs to prevail even on these theories, as the Fifth and Eighth Circuit cases demonstrate. Only in Gormley did the danger-creation theory work in combination with the special relationship theory by virtue of the total control exercised by the hospital officials over the plaintiff attorney, as found by the Supreme Court of New Jersey.
I invite you to follow me on Twitter @NahmodLaw
I invite you to join me in Chicago at the 32nd annual Section 1983 Civil Rights Litigation Conference on Thursday and Friday, April 16-17, 2015. This two-day seminar is designed for municipal and state attorneys, plaintiffs’ attorneys and criminal defense attorneys. It is always up to date and is useful for both attorneys new to the subject and experienced attorneys.
Whatever your level of expertise, I believe you will benefit from this program. It is a very good value and features some of the very best academics and litigators around.
If you have any questions about the program itself, please feel free to email me at firstname.lastname@example.org.
What follows is relevant information provided by Chicago-Kent’s CLE department.
Sheldon H. Nahmod, Distinguished Professor of Law, IIT Chicago-Kent College of Law
Gerald M. Birnberg, Williams, Birnberg, & Andersen LLP
Karen M. Blum, Associate Dean & Professor of Law, Suffolk University Law School
Erwin Chemerinsky, Founding Dean & Distinguished Professor of Law, University of California, Irvine School of Law
Laura Schauer Ives, Kennedy, Kennedy, & Ives LLC
Rosalie B. Levinson, Phyllis and Richard Duesenberg Professor of Law, Valparaiso University School of Law
John B. Murphey, Rosenthal, Murphey, Coblentz, & Donahue
- Elements of the §1983 Claim
- Individual Immunities
- Equal Protection: Hot Topics
- Practical Considerations in §1983 Litigation
- SCOTUS 2013 Term, plus important forthcoming decisions in the Supreme Court’s 2014 Term
- Municipal and Supervisory Liability
- Attorney’s Fees and Related Ethical Issues
- Immigration-Related Issues in Litigating Civil Rights Claims
- Procedural Defenses: The Basics
Key Event Information
Date: April 16-17, 2015
Registration, Breakfast: 8:00 am (both days)
Program: 8:50 am–5 pm Thursday; 9:00 am–3:30 pm Friday
Networking Reception: 5:00 pm Thursday
IIT Chicago-Kent College of Law
565 W. Adams Street
Chicago, IL 60661
IL MCLE credit:
11.25 hrs, including 1.5 ethics pending approval.
Other state MCLE credit:
Want to know if MCLE credit is available for your state? Call us at 312.906.5090.
For a complete conference brochure: click here