Yesterday, I had the opportunity to provide commentary to KSTP on the Freddie Gray tragedy in Baltimore. “Rage to Relief in Baltimore as 6 Officers Charged in Death.”
An interesting point that we did not cover is that there was a critical Supreme Court case argued on April 27, 2015, which may impact any civil rights action brought by Gray’s next of kin. In Kinglsey v. Hendrickson, a pre-trial detainee — generally, someone detained in jail but has not yet been convicted — alleged that he was beaten in 2010 by several deputies during a cell transfer, approximately a month after his arrest. 744 F.3d 443 (7th Cir. 2014).
This factual scenario brings us into the murky world of the interplay between the Fourth, Eighth, and Fourteenth Amendments in excessive force cases. The Fourth Amendment protects citizens at liberty from unreasonable uses of force. The Eighth Amendment protects those convicted of crimes and incarcerated from cruel and unusual punishment. The Fourteenth Amendment’s due process clause generally covers the grey area, where a citizen is no longer at liberty but has not yet been convicted of a crime (i.e., a pre-trial detainee).
Now, the issue of which test applies is a BIG DEAL. The Fourth Amendment applies an objective reasonableness standard just like basic negligence. You don’t have to show that the officer INTENDED to do anything, just that a reasonable officer would have acted differently. With the Eighth Amendment, you have to prove “subjective intent,” particularly that the prison official recklessly disregarded or was deliberately indifferent to an inmate’s right to be free from a variety of conduct deemed “cruel and unusual.” Cruel and unusual punishment could be excessive force, sexual abuse, or a failure to attend to an inmate’s medical needs.
With respect to the Fourteenth Amendment and excessive force, two critical issues remain that courts have been divided on. The first question is: when does the Fourth Amendment end and when does the Fourteenth Amendment begin? In the Eighth Circuit, which Minnesota is a part of, the Court has held that the objective reasonableness standard of the Fourth Amendment applies to incidents following arrest, including transportation, booking, and initial detention. See Chambers v. Pennycook, 641 F.3d 898, 905 (2011). But even then, the Eighth Circuit has established no bright line rule as to when one becomes a pre-trial detainee. See Robison v. Clawson, 2014 WL 1910284, *5 (E.D. Mo. May 13, 2014) (citation omitted).
I handled a case for a Liberian man, who was slammed on his head at the police station while being detained prior to booking following a DWI arrest. “Brooklyn Park Cop Faces $500k Excessive Force Lawsuit.” I sued that case out for excessive force under the Fourth Amendment and a settlement was reached.
In the Fourth Circuit, where Maryland is, the courts have generally found that once a subject is handcuffed and in the back of the police car, the protections of the Fourth Amendment end and the (now pre-trial detainee’s) rights are governed by the Fourteenth Amendment. See Robles v. Prince George’s County, 302 F.3d 262, 269 (2002). So if we assume that the most actionable conduct in the Freddie Gray matter truly happened after he was secured in the van, we would expect under current Fourth Circuit law that the officer’s conduct will be viewed under the Fourteenth Amendment.
This brings us to the second issue: what test should be employed under the Fourteenth Amendment? Should it be objective (like the Fourth Amendment) or subjective (like the Eighth Amendment)? In the Robles case, the Fourth Circuit actually applied an objective standard to the Fourteenth Amendment, finding that the due process determination turns on whether the pretrial detention is reasonably related to a legitimate governmental objective or if it is arbitrary or purposeless. Id. at 269 (quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979) (quotes omitted). So as to Freddie Gray, under current Fourth Circuit law, we would expect an objective standard to apply to the conduct that occurred in the van.
Finally, coming back to Kingsley v. Hendrickson… There, the Seventh Circuit held that in order for a pre-trial detainee to establish a violation under the Fourteenth Amendment for excessive force, he must prove that the official was reckless (i.e., subjective intent). The Supreme Court granted review.
The Petitioner/Kingsley (i.e., the pre-trial detainee), asks the Court to apply either the Fourth Amendment or the Fourteenth Amendment, but that the outcome be an objective standard, regardless. Petitioner’s policy arguments are that an objective standard is more appropriate because: (1) we are dealing with legally innocent people; and (2) an objective reasonable test still requires a court or jury to consider all of the circumstances surrounding the use of force.
Respondents argue that jail settings are more akin to prison settings in that there is a constant interaction between jail officials and detainees, unlike arrests, which are relatively acute incidents between police and arrestees. Respondents further argue that subjecting jail officials to an objective analysis would essentially open the floodgates of litigation, and make it unworkable for jail officials to perform their duties. And that this is particularly true because many jails mix detainees and convicts.
Ultimately, the Court’s opinion in Kingsley may determine whether an objective or (the more difficult) subjective standard will apply to the van conduct in Gray’s case (likely even if that conduct ends up being characterized less as force and more as a failure to provide medical attention).
While not directly at issue in Kingsley, cases like Gray’s could be more easily handled if the Supreme Court provided a bright line, even if it is in dicta, that the Fourth Amendment continues to apply until (at least) the arrestee’s booking process is completed and the arrestee is housed in a cell. I do expect the Supreme Court to provide guidance on this point. I also expect, however, that we will see the Supreme Court fashion a new test that applies to pre-trial detainees and excessive force under the Fourteenth Amendment. I would be somewhat surprised if that test turns out to be wholly objective.
Finally, I’m not a criminal lawyer, but it did confuse me that the Misconduct in Office charges against the officers in the Gray case were reportedly based on the Eighth Amendment, since Gray had not been convicted of any crime. I’m not sure why it would not have been the Fourteenth Amendment — given the Circuit Maryland sits in. Anyway, just a final thought.