This post was co-authored with Steve Art and Sarah Grady.

Kingsley v. Hendrickson, No. 14-6368 (June 22, 2015), considered whether the standard for determining whether force used against a pretrial detainee (someone who has been arrested, is awaiting trial, but has not been convicted) is constitutionally “excessive.” The Court is often faced with making decisions that involving loads of precedent, authority, or at least history to contend with (and perhaps precedent it has been urged to overrule). Not so in the context of excessive force claims brought by pre-trial detainees. Instead, the dearth of law concerning excessive force claims brought by detainees provided the Court with a somewhat rare opportunity to clarify constitutional standards for such excessive force claims brought by detainees on the basis of the Justices’ view “first principles”; rather than any clear precedent. The result—a 5-4 split—tells us significant things about the way, at core, the Justices view claims brought under 42 U.S.C. § 1983.

By way of background, the dearth of law comes from the unique place pre-trial detainees find themselves on the constitutional spectrum. On one hand, citizens on the street interacting with law enforcement (for example, during the course of an arrest or a traffic stop) who claim that excessive force was used against them are protected the Fourth Amendment. The Fourth Amendment prohibits “unreasonable” searches or seizures and the standard employed for such claims is entirely objective—whether the use of force was objectively unreasonable—making an officer’s subjective intent entirely irrelevant. On the other hand, convicted prisoners who claim that excessive force was used against them are protected by the Eighth Amendment, which prohibits “cruel and unusual punishments.” In the Eighth Amendment context, almost universally, a prisoner must prove not only some objectively unreasonable action (like excessive force), but also prove that the objectively reasonable action was taken for some subjectively improper reason. Such reasons turn on the mental state of the prison guards; and the law requires that officers act with at least “recklessness” or “deliberate indifference.”

Claims brought by pre-trial detainees (who are neither free citizens on the street nor convicted prisoners) fall into a potential constitutional “gap” in a sense, because detainees have been subject to some judicial process, making the Fourth Amendment a less appropriate lens (some say) for analyzing detainees claims but the Eighth Amendment a bad fit because a detainee has not been convicted and therefore should not be “punished.” Courts have often—though not necessarily—used the vague concept of “substantive due process” to attempt fill that hole. Justice Alito found this gap alone to be enough to dispose of the case: he would have dismissed the case altogether because the question of whether the Fourth Amendment applies to detainees is “unsettled.” The rest of the Court, however, seemed comfortable analyzing detainees’ claims as questions of due process.

Thus, in Kingsley the Court was asked to decide whether due process for detainees means that the lower standard (used in Fourth Amendment cases) should apply to this “middle group,” or, instead, whether detainees must satisfy a higher standard (used in Eighth Amendment cases) of proving a subjective mental state like deliberate indifference. The holding of Kingsleyis clear: to prevail, a plaintiff-detainee who brings a claim of excessive force must only show that the force used against her was “objectively unreasonable.” As a consequence, Justice Breyer wrote for the majority, the defendants “state of mind is not a matter a plaintiff is required to prove.” Slip Op. at 5. In short, for detainees, the excessive force inquiry is purely objective, and does not involve the defendant-jailer’s beliefs about the use of force. The immediate consequence of Kingsley is that plaintiff-detainees bringing excessive force claims will not have to surmount a difficult hurdle of showing that a jailer-defendant’s mental state was to punish, was “deliberately indifferent,” that that it was to “maliciously and sadistically” cause harm.

Notably, the majority’s reasons for adopting the objective standard adopt the tone of practicality. The fact that an objective standard is “consistent with” existing precedent—if only loosely—is just one of several reasons for adopting the rule. In addition, the Court notes, an objective rule accords with the practice in many jurisdictions, see Slip Op. at 9 (citing Brief for Petitioner 26; Brief for Former Corrections Administrators and Experts as Amici Curiae 8-18, infra), and areas of the country where courts have already adopted an objective standard have not been met with a “rash of unfounded filings.” The Court found other factors already protected well-meaning officers who use force: increasingly strong immunity doctrines, and statutory reforms (like the Prison Litigation Reform Act of 1995, which was passed specifically to deter meritless lawsuits) are but two examples.

In the end, Kingsley found no practical reason to impose an additional—and mushy—subjective standard onto the objective reasonableness standard for excessive force claims. But, its reasons for doing so may have led at least some on the Court to consider an additional question: Why does an officer’s subjective intent ever matter in a claim involving excessive force? See Slip Op. at 12-13. This question should be of interest for future cases, as it suggests that some justices would be willing to embrace an objective standard for excessive force claims made by convicted prisoners (under the Eighth Amendment) as well. In other words, the majority seems open to the notion that just because you are in prison does not mean that objectively unreasonable force is excused—as it would be— if you are unable to prove that that force was meted out “maliciously and sadistically.”

The Kingsleymajority’s practical approach to constitutional litigation under § 1983, questioning the utility of an officer’s subjective intent in any excessive force claim, stands in contrast to Justice Scalia’s categorical dissent, which was joined by Chief Justice Roberts and Justice Thomas. In his dissent, Justice Scalia argues that a detainee’s constitutional right to due process is not violated when force objectively unreasonable force is used against her. That point bears repeating. According to Justice Scalia, objectively unreasonable force—like a gunshot to the back while a prisoner’s hands are raised in surrender, or shocks from a taser while in handcuffs (like Mr. Kingsley himself)—is never enough, on its own, amount to constitutionally excessive force against a detainee. Instead, Justice Scalia would require the detainee also show that the force was intended to be used as “punishment.” Thus, because determining whether there was an “intent to punish,” turns on the subjective believes of the officer, in this view, so should the constitutional standard.

In the end, as with many cases, we can learn much about what Kingsley is really about by examining the dissents. Justice Scalia’s dissent, with its emphasis on an intent to punish, helps brings into focus what was may have practically motivated the majority: adopting a subjective intend-to-punish rule—where officers can engage in violent, objectively unreasonable conduct but face no constitutional ramifications if an “intent to punish” cannot be proven—simply does not sit well with the majority of the Court. And for good reason. Basic conceptions of human dignity and “ordered liberty” suggest that regardless of whether you’re a citizen on the street (covered by the Fourth Amendment), a detainee awaiting trial (at least protected by Due Process), or even a convicted prisoner (protected by the Eighth Amendment), that the Constitution should universally prohibit “objectively unreasonable” force from being used against you. Kingsley, therefore, takes important steps into seeing that universal conception become a reality.