9.29 Particular Rights–Fourteenth Amendment–Pretrial Detainee's Claim of Excessive Force

In Hyde v. City of Willcox, 23 F.4th 863 (9th Cir. 2022), the Ninth Circuit held that the use of force was constitutionally excessive when officers continued to use force after a pretrial detainee had been restrained and was not resisting, at least where the officers had sufficient time to realize that the detainee could no longer resist and did not pose a threat. Id. at 871. “The most important factor is whether the suspect posed an immediate threat.” Id. at 870 (citing Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)). “This analysis is not static, and the reasonableness of force may change as the circumstances evolve.” Hyde, 23 F.4that 870(citing Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1130 (9th Cir. 2017)). Courts review these claims “from the perspective of a reasonable officer on the scene,” and take into account the particular facts and circumstances of each case. Bell, 108 F.4th at 819 (quoting Kingley, 576 U.S. at 397). 

The Ninth Circuit has held that failing to give a jury deference instruction based on the general principles outlined in Bell was an error. Norwood, 591 F.3d at 1066-67 (“Prison officials are entitled to deference whether a prisoner challenges excessive force or conditions of confinement.”). In subsequent cases, the Ninth Circuit explained that a deference instruction should be given only where both of the conditions in Bell were present: first, the prison officials adopted and executed “policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,”  Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (quoting Bell, 441 U.S. at 547), and second, the record did not contain “substantial evidence showing [that the prison’s] policies are an unnecessary or unjustified response to problems of jail security.” Id. (quoting Florence, 566 U.S. at 323); see also Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022) (restating the rule that “two conditions” inform whether the deference instruction should be given when prisoners assert Eighth Amendment claims challenging their treatment in prison, namely “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs”). 

In light of the two Bell conditions, the Ninth Circuit has explained the contours of giving a deference instruction in different scenarios. The plaintiff bears the burden of producing “substantial evidence” in the record that the two conditions are not met. Shorter, 895 F.3d at 1183 (“In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations courts should ordinarily defer to their expert judgment in such matters” (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)). If the plaintiff has failed to carry this burden, or if the parties do not dispute that both Bell conditions are met, the trial court must give a jury the deference instruction. Fierro, 39 F.4th at 648; Norwood, 591 F.3d at 1067. Where the parties agree that one condition is met and one is absent, or that both conditions are absent, then the trial court may not give the jury deference instruction. Fierro, 39 F.4th at 648. 

In cases involving the denial of medical care to prisoners, which highlight Bell’s first condition (whether the policy or procedure addressed the need for prison security), the deference instruction should not be given “unless a party’s presentation of the case draws a plausible connection between a security-based policy or practice and the challenged medical care decision.” Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015); see also Shorter, 895 F.3d at 1184 (holding that “the [jury deference] instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy”); Coston v. Nangalama, 13 F.4th 729, 734 (9th Cir. 2021) (holding, in a medical care case, that the deference instruction should not have been given because, among other things, defendants “did not draw a plausible connection between a security-based policy or practice and the challenged decision to terminate [defendant’s] morphine prescription without tapering”). 

In a case highlighting Bell’s second condition (whether there was substantial evidence that prison officials had exaggerated their response), a deference instruction was not appropriate when the record contained substantial evidence that the jail’s search practice “was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security.” Shorter, 895 F.3d at 1184 (stating that “jail officials concede[d] that there was no legitimate penological purpose for shackling mentally ill, virtually unclothed, female pretrial detainees to their cell doors for hours at a time”). 

            Finally, in some cases, whether or not to give deference to prison officials should be left to the jury to decide. Coston, 13 F.4th 735. If the plaintiff offered substantial evidence that the prison official’s action “was not provided pursuant to a security-based policy or practice,” and the policy at issue was “an unnecessary, unjustified, or exaggerated response,” but in response the prison adduced substantial evidence that the prison official’s “actions were (1) taken because of a security-based policy or practice and (2) necessary, justified, and not exaggerated,” Coston, 13 F.4th at 735, then “it might be appropriate to instruct the jury that ‘whether to give deference to prison officials [is] left to the jury to decide.’” Fierro, 39 F.4that 648-49 (citing Coston, 13 F.4th at 735). 

This framework also applies to pretrial detainees challenging use of force and other conditions of confinement. See Fierro, 39 F.4th 648. n.6 (“This framework also applies to pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment.”). A court must also account for the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 397 (quoting Bell v. Wolfish, 441 U.S. at 540). See also Bell v. Williams, 108 F.4th 809, 828 (9th Cir. 2024) (approving instructing the jury on deference owed to jail’s security interests for pretrial detainee’s claims under the ADA and Rehabilitation Act: “consider a detention facility's legitimate correctional interests, and whether there is a valid, rational connection between the action taken and the legitimate and neutral governmental interest put forward to justify it.”). 

            The Fourth Amendment may also be applicable. In Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the Supreme Court observed that it was an open 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.” But with regard to pre-arraignment custody, the Ninth Circuit held that the Fourth Amendment provides protection against the use of excessive force. Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996) (“We hold, therefore, that the Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest.”).