Excessive force claims are subject to a number of different constitutional standards and sorting out which standards should apply can be confusing. Errors in jury instructions may result in officers erroneously being found liable.
Excessive force claims seem to be reported in the news constantly.1 There is a powerful reason why: the claims pique the interest of media outlets because they contain inherent conflict. By definition, the claims suggest abuse (or the potential abuse) of police authority, and oftentimes there are allegations of fairly gruesome injuries or use of seemingly menacing, and sometimes high-tech, weaponry (i.e., pistols and tasers). Almost all of those news reports, of course, center on the conduct that the victim allegedly endured, and the resultant harm that followed.
The upshot is that sensational news reporting, rather than a cogent analysis of the law, more often than not shapes lawyers’ and citizens’ impressions about the protections afforded by the United States Constitution in excessive force cases. A number of different constitutional amendments apply in excessive force cases, and several culpability standards flow from them. Applying the correct standard can be confusing, and jury instructions—if not carefully drafted to conform to precedents—may lead to law enforcement officials being found liable when they should not be.
The Constitution, and in particular the Bill of Rights, were of course written in part to protect citizens from governmental abuses, and excessive force is governmental abuse in its most evident form. Intuitively, you might assume that such a basic civil right is subject to a very simple legal analysis. But under Supreme Court and 8th Circuit precedents, there are four different standards to determine what constitutes a government official’s use of excessive force, depending on the circumstances. These are variously grounded in the 4th, 8th, and 14th amendments to the United States Constitution. Moreover, somewhat counterintuitively, the constitutional standards for permissible force depend entirely upon the custodial status of the alleged victim of force—that is, whether the victim is a pretrial detainee (one whom the government has probable cause to believe has committed a crime but has not yet been convicted, and who is confined in a jail prior to trial2), a convicted criminal, or a free citizen.
- A pretrial detainee is protected under the 14th Amendment’s right to substantive due process, and to violate the Constitution the official’s use of force must be “conscience-shocking” (with two separate culpability standards depending on whether the situation is an emergency, or not);
- An incarcerated convict is protected under the 8th Amendment’s cruel and unusual punishment clause, and to violate the Constitution the official’s force must be used “maliciously and sadistically with the very purpose of causing harm”; and
- A free citizen is protected under the 4th Amendment’s search and seizure standard, and to violate the Constitution an official’s use of force must not be “objectively reasonable.”
Note that the potential for liability varies greatly depending upon the alleged victim’s custodial status. Also note that it does not matter whether the official is a police officer, jailer, prison guard, or even a teacher or high school principal;3 the custodial status of the alleged victim is the sole determining factor as to the appropriate culpability standard.
Genesis of Excessive Force Law
Excessive force law was not always this variable or convoluted. In decades past, virtually all claims of excessive force were analyzed under the same constitutional framework: was the governmental official’s use of force “conscience shocking.” The oft-cited source for the standard was a 1973 2nd Circuit opinion, Johnson v. Glick,4 authored by the venerable Judge Friendly, which based a pretrial detainee’s right to be free from excessive force from a correctional officer on the 14th Amendment’s substantive due process protection.
Glick held that, under the Supreme Court’s precedent of Roncin v. California,5 “quite apart from any ‘specific’ [amendment] of the Bill of Rights, application of undue force by law enforcement officers deprives the suspect of liberty without due process of law.”6 In his analysis, Judge Friendly specifically rejected the application of the 8thAmendment’s protection against cruel and unusual punishment to pretrial detainees, stating that amendment only applies to claims made by persons who have been convicted and sentenced. He also refused to apply the 4th Amendment’s proscription against unlawful searches and seizures to claims brought by pretrial detainees. In essence, Judge Friendly determined that, because no specific amendment applies to pretrial detainees, the catch-all protection of substantive due process in the 14th Amendment applies to a pretrial detainee’s claim of excessive force.
Glick held that a plaintiff may prove an excessive force claim under the 14th Amendment if the plaintiff shows “conduct that shocks the conscience” under Roncin. Judge Friendly provided a four-factor test to aid in determining whether a use of force met the conscience-shocking standard:
In determining whether the constitutional line has been crossed, a court must look to such factors as the need for application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm.7
The decision explicitly recognizes that aspects of jail management may lead to the need to use force: “[t]he management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force.”8
It is doubtful that Judge Friendly anticipated the expansive influence that the Glick decision would have on subsequent excessive force claims. Indeed, for many years that followed, courts applied his announced standard to virtually all types of excessive force claims.9
Force Against Prisoners
In 1986, the Supreme Court decided Whitley v. Albers,10 an excessive force case by convicted prisoners against guards in a prison riot. The Court held that to establish that the use of force was excessive, convicts must show that it constituted an “unnecessary and wanton infliction of pain,” under the 8th Amendment’s cruel and unusual punishment clause.11 The Court held further that in order to meet this standard, the prisoner must focus on the fourth Glick factor, and prove force was used “maliciously and sadistically for the very purpose of causing harm.”12 The Court also noted that the other Glick factors may be used to help infer wantonness, and stated:
[E]qually relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.13
Whitley explicitly addressed and rejected the application of the less stringent deliberate indifference standard, which is used in the context of inmate claims of insufficient medical care. The Court stated that, in excessive force situations, “a deliberate indifference standard does not adequately capture the importance of [competing] obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance.”14 As we will see, the Supreme Court’s reticence to override decisions made by officers in emergency circumstances will be echoed in each of the use-of-force culpability standards.
4th Amendment Protections
A few years later, in 1989, Graham v. Connor held that a free citizen’s right to be free from excessive force “in the course of making an arrest, investigatory stop, or other ‘seizure’ of his person. … [is] properly analyzed under the th Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard [of Glick].”15 The subjective motivations of the officers, whether ill-intended or benevolent, are never a factor in the 4th Amendment’s use-of-force analysis.16
The standard invokes a balancing test, comparing the government’s objectives with the citizen’s rights.17 The reasonableness analysis requires the court to evaluate the totality of the circumstances, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” These factors are commonly referred to as the “Graham Factors.”18
The Graham analysis is actually far more deferential to law enforcement personnel than it may at first appear. For example, it prohibits the use of hindsight to evaluate the officer’s actions, accounts for the fact an officer’s decision making is affected by the uncertainty of emergency circumstances, and defers to the officer’s mistaken judgments. It also provides officers with substantial latitude to describe all of the circumstances that led the officer to use force and to justify why a certain level of force was used in a given case.19
Importantly, Graham states that reasonable force does not equate with the least amount of force possible. On the contrary, even if it appears later that the level of force applied was mistaken,
“[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers … violates the th Amendment.”20 Following Graham, the 8th Circuit has stated:
[T]he appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available. Officers must not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within the range of conduct we identify as reasonable.21
The Constitution does not prohibit a law enforcement officer from using force that is later determined to be unnecessary; it only prohibits unreasonable force considering the totality of circumstances confronted by the officer in an exigent situation.
Pretrial Detainees Revisited
In light of the Supreme Court’s precedents carving out different use-of-force standards for claims under the 8th and 4th Amendments, what standard now applies for pretrial detainees under the 14th Amendment? Is the Glick standard still vital for pretrial detainees, or has the standard been abrogated? Eighth Circuit decisions express uncertainty about the proper standard. In fact, a very recent decision stated that, although the circuit’s decisions make it clear that the 4th Amendment standards apply through arrest and “incidents occurring shortly after arrest,” including through the booking process and “initial detention” of an inmate,22 it is “unclear” which standard, the 4th Amendment’s standard or 14th Amendment’s substantive due process standard, applies during the “legal twilight zone” between arrest and sentencing.23
But in addition to announcing the use-of-force standard for 8th Amendment claims, the Supreme Court’s decision in Whitley also discussed the appropriate standard for excessive force claims brought by pretrial detainees under the 14th Amendment’s substantive due process protection. It held that “in the context of forceful prison security measures, ‘conduct that shocks the conscience’ or ‘affords brutality the cloak of law’ … violates the 14th Amendment.”24 (citing Rochin). The Court performed scant analysis on the application of that standard in Whitley, stating simply that if a plaintiff can make a claim under the more demanding 8th Amendment standard, he could clearly make a claim under the easier-to-prove 14th Amendment standard. Since Whitley, no Supreme Court case has addressed or modified this articulated standard for excessive force claims by a pretrial
The most significant Supreme Court case since Whitley pertaining to the application of substantive due process does not involve the use of force, but instead a high-speed car chase. In Sacramento County v. Lewis,25 the United States Supreme Court reiterated that, in order to violate the substantive due process clause, the officer’s conduct must be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”26 For support, the Court cited Rochin, Whitley, and many other cases that adhered to the conscience-shocking test.27
The Lewis court then evaluated the level of culpability required to show conscience-shocking behavior, and determined that it was context dependent. At the high end of the culpability spectrum, as in a high-speed chase, the Court held, “only a purpose to cause harm unrelated to the legitimate [governmental] object[ive] … will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a substantive due process violation.”28 The Court determined that negligent conduct alone would never establish a sufficient level of culpability to prove a substantive due process violation under the 14th Amendment.29 The Court left open the possibility that a mid-range level of culpability (based on gross negligence or recklessness) may be sufficient to prove conscience-shocking behavior in unstated contexts.
Based on 8th Circuit precedent, there are two different tests to meet this standard. In Terrell v. Larson,30 an en banc panel of the 8th Circuit held that to show conscience-shocking behavior in emergency circumstances, a plaintiff must show that the officer had an intent-to-harm unrelated to legitimate purpose, as in Lewis.31 When officers “subjectively believe that they [are] responding to an emergency” the intent-to-harm standard applies because substantive due process liability turns on a government official’s “evil intent.” Courts must “take at face value an officer’s characterization of a situation as an emergency in all but the most egregious cases.”32 It seems clear that based on the analysis of the Supreme Court in Whitley, discussed above, application of the deliberate indifference standard in a use-of-force situation is inappropriate in a correctional setting. It is hard to imagine a scenario, other than a completely arbitrary use of force, where the use of force in a correctional setting would not be considered exigent, and therefore subject to application of the intent-to-harm standard.
In nonemergency circumstances, the plaintiff must show “not only that the deputies’ behavior reflected deliberate indifference, but that it was also ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ … Not all deliberately indifferent conduct is conscience shocking in the constitutional sense of the term.”33 This appears to be a “deliberate indifference plus” type showing. There are no known cases, however, applying this lesser, yet still stringent, standard in the 8th Circuit.
Pattern Jury Instructions
The comments to the 8th Circuit jury instructions explicitly reference confusion about the standards for some types of excessive force claims.34 It appears that, based on the analysis above, the 8th Circuit jury instructions may improperly state the law regarding two types of excessive force claims, and exclude factors that should be considered in a third type of force claim.
First, the pattern 8th Circuit instruction for use-of-force claims under the 14th Amendment appears to be inconsistent with current law. As a threshold matter, a claim alleging a violation of substantive due process is, under Terrell, a question of law for the court to resolve—not a jury question. Terrell held “[b]ecause the conscience-shocking standard is intended to limit substantive due process liability, it is an issue of law for the judge, not a question of fact for the jury.”35 This suggests that there should not be a pattern jury instruction for a pretrial detainee’s claim of excessive force except, perhaps, where wholly arbitrary use of force is alleged. Instead, such claims should be heard by the court in a bench trial.
In addition, the standard in the published instruction seems to be incorrect. A comment to the jury instruction states that the standard does not apply for pretrial detainees “in custody.” But what other kind of pretrial detainee is there? Moreover, the comments refer to the Supreme Court case Canton v. Harris for the constitutional standard to be used for claims by pretrial detainees that are in custody. The problem, however, is that the Canton decision does not remotely deal with excessive force or substantive due process claims brought by pretrial detainees, but instead involves the standard of proof necessary for “failure to train” claims.36 More to the point, the pattern instruction does not include the “shocks the conscience” or “intent-to-harm” standard of Whitley, Lewis or Terrell. Rather, in multiple spots, the instruction includes a reasonableness standard, which is directly contrary to Whitley, Lewis, and the subjective “intent-to-harm” standard of the “shocks the conscience” test as described by the Supreme Court and 8th Circuit. Accordingly, when the current pattern instruction for a pretrial detainee’s excessive force claim is followed, defendants are subjected to an unjustified and legally unsupportable double-whammy: they are faced with jury trials when they should not be, and they are subjected to a greater level of scrutiny than the Constitution requires.
Second, the 8th Circuit instruction pertaining to 4th Amendment excessive force claims appears to be in error with respect to a single, but in some circumstances, essential, word. The jury instruction 4.10 states, in part:
Second, the use of such force was excessive because it was not reasonably necessary to [here describe the purpose for which force was used such as “arrest the plaintiff,” or “take the plaintiff into custody,” or “stop the plaintiff for investigation”]
At first read, the instruction seems to encapsulate the Graham holding fairly well. But one word in this part of the instruction is concerning: “necessary.” A discerning read of this instruction reveals that the requirement that a certain level of force is “necessary” is contrary to the Graham decision, and the manner in which it has been interpreted by the 8th Circuit.
Is this single word that important? Isn’t including the term “necessary” merely an expansion of the reasonableness concept? Not really. Inclusion of the limiting word “necessary” is misleading. It suggests to the trier of fact that if a lesser amount of force might have accomplished the law enforcement objective based on the 20/20 vision of hindsight, then the officer’s use of more force than “necessary” in a particular case is unreasonable, and therefore violates the 4th Amendment. But per Graham and 8th Circuit decisions applying it, defendants should be afforded a range of reasonable responses in a given situation based on what the law enforcement personnel believed the circumstances to be at the time, not restricted to a post hoc determination of the minimum force “necessary.” Accordingly, that word should be removed from the instruction.
Finally, the 8th Circuit jury instruction on excessive force claims under the 8th Amendment, though it cites the correct standard, does not list some of the “equally relevant” factors that should be evaluated in the custodial context according to Whitley, such as the extent of the threat posed by the prisoner, and any efforts made to temper the severity of a forceful response.37
In summary, it appears that errors in the current 8th Circuit jury instructions may lead to law enforcement defendants being found liable for excessive force claims brought under the 4th, 8th, and 14th Amendments when, based on controlling precedent, they should not be.
Excessive force law is fascinating, and unexpectedly complex. Based on the above analysis, you may want to scrutinize news reports of excessive force claims with a more analytical eye, through the more law-enforcement-friendly lens of constitutional law. Even the least protective constitutional standard provides government officials a great deal of latitude to explain the appropriateness of the force used in a given case. You might find that what you originally viewed as a clear case of excessive force was an entirely permissible use of force under the Constitution.
1 An informal search of the Star Tribune and Pioneer Press websites showed dozens of articles dealing with allegations and settlements of excessive force claims over the last three years.
2 Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989).
3 See, Golden Bach v. Anders, 324 F.3d 650 (8th Cir. 2003) (applying the 14th Amendment “shocks the conscience” test to a claim of excessive force by a student against a principal).
4 481 F. 2d 1028, 1029 (2d Cir. 1973).
5 342 U.S. 165 (1952).
6 Glick, at 1032.
7 Id. at 1033.
9 See Graham v. Connor, 490 U.S. 386, 393 (1989) (stating lower courts indiscriminately applied the Glick standard).
10 Whitley v. Albers, 475 U.S. 312 (1986).
11 Id. at 319.
13 Glick, at 1085.
14 Whitley, at 320.
15 Graham, at 388.
16 Id. at 397.
17 Id. at 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal marks omitted).
18 Id. at 396 (citation omitted).
19An article on the application
of the many considerations allowed under Graham is included at the author’s website at www.wiley-law.com.
20 Graham, 490 U.S. at 396 (quoting Glick, at 1033 (internal marks omitted)).
21 Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 2005).
22 Chambers v. Pennycook, No. 09-2195 (8th Cir. 06/06/11), *8 (the case held that a plaintiff need not show a certain level of injury to make a claim of excessive force under the 4th Amendment).
24 Whitley, 475 U.S. at 326-27.
25 523 U.S. 833 (1998).
26 Id. at 847, n. 8.
27 Id. at 846-847.
28 Id. at 836.
29 Id. at 848-49.
30 396 F.3d 975 (8th Cir. 2005); see also Sitzes v. City of West Memphis, 606 F. 3d 461, 468 (8th Cir. 2010) (“Terrell forecloses inquiry into the situation objective nature of the emergency, as substantive due process liability turns on the intent of the government actor.”)
31 Terrell, at 980 (evaluating hot pursuit cases under substantive due process standard).
32 Sitzes, at 469 (so long as the professed belief is not “preposterous,” the court must defer to the officer’s subjective judgment).
33 Terrell, at 980-981 (citing Lewis). The 8th Circuit has not specifically applied this substantive due process analysis to an excessive force claim, but there is no rational basis for a different standard to apply to this type of substantive due process claim, especially given the language in Whitley.
34 See 8th Cir. Civil Jury Inst. §4.20, comment (2011) (expressing uncertainty about the proper standard for 14th Amendment excessive force claims).
35 For this view, Terrell cited, among other cases, Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992) (“arbitrary government action that must ‘shock the conscience’ of federal judges”); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 753 (1999) (Souter, J., concurring in part and dissenting in part) (“Substantive due process claims are, of course, routinely reserved without question for the court,” citing Lewis, 523 U.S. at 853-55.)
36 8th Cir. Civil Jury Instr. §4.20 comments (2011). See also Canton v. Harris, 489 U.S. 378 (1989).
37 8th Cir. Civil Jury Instr. §4.30 (2011); Whitley, at 320.