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9.27 Pretrial Detainee’s Claim of Excessive Force (Comment only)

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This chapter is being reviewed in light of comments solicited by the Committee from the public.



When a pretrial detainee claims unconstitutional use of force, the court must determine whether to instruct based on the Fourth Amendment, the Eighth Amendment, the Fourteenth Amendment, or another constitutional standard.

In Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the Supreme Court observed:

Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear, however, that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment. See Bell v. Wolfish, 441 U.S. 520, 535-39 (1979).

Thereafter, the Ninth Circuit held in Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir.1996), that the Fourth Amendment applies to excessive force cases involving situations of "warrantless, post-arrest, pre-arraignment custody." See also Gibson v. County of Washoe, Nev. 290 F.3d 1175, 1197 (9th Cir.2002),and Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir.2003), both of which hold the "Fourth Amendment sets the applicable constitutional limitations" in circumstances when the use of force apparently occurred before arraignment. But the question whether force claims by post-arraignment, pre-trial detainees should be analyzed under the Fourth or Eighth Amendments remains an open question in the Ninth Circuit.

Pending clarification by the Ninth Circuit, the Committee recommends modifying Instruction 9.23 (Particular Rights–Fourth Amendment–Unreasonable Seizure of Person– Excessive (Deadly and Nondeadly) Force) when the court concludes the plaintiff’s force claim arises under the Fourth Amendment and Instruction 9.24 (Particular Rights—Eighth Amendment—Prisoner’s Claim of Excessive Force) when the court concludes the claim arises under the Eighth Amendment. The Committee has not drafted a Fourteenth Amendment excessive force instruction due to the absence of controlling Ninth Circuit case law.

In Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015), the Supreme Court held that to prove an excessive force claim, a pretrial detainee must show that the officers’ use of force was "objectively" unreasonable and is not required to show that the officers were "subjectively" aware that their use of force was unreasonable.

Shortly after the Supreme Court decided Kingsley, the Ninth Circuit decided Castro v. Cty. of Los Angeles, 797 F.3d 654 (9th Cir.2015). In Castro, the Ninth Circuit held that "[b]ecause Castro was a pretrial detainee, his right to be free from violence at the hands of other inmates arises from the Fourteenth Amendment rather than the Eighth Amendment." Id. at 664. The Ninth Circuit also noted that, "[d]espite those different constitutional sources, the ‘deliberate indifference’ test is the same for pretrial detainees and for convicted prisoners." Id.