Kingsley Breathes New Life Into Substantive Due Process as a Check on Abuse of Government Power

Rosalie Berger Levinson, Valparaiso University Law School

Overlooked by Karsjens Plaintiffs and by both Judge Frank and the 8th Circuit, in 2015 SCOTUS decided a case involving application of the substantive due process guarantee in favor of a pretrial detainee suing jail personnel for physical abuse.

Significantly, SCOTUS declined to apply the Lewis requirement that the court’s conscience must be shocked by the government officials’ misconduct (including that it must be malicious and sadistic).

Even more significantly (to us), those confined under commitment to mental health facilities are held to be entitled to greater deference than those held in jails on pretrial detention.

The following article excerpts discuss the limiting effect of Kingsley upon the ‘shocks-the-conscience requirement applicable to other kinds of substantive due process claims and in particular discusses Kingsley’s applicability to lawsuits by committed persons against their custodian-captors based on substantive due process. No SCOTUS case has yet advanced this contention, but this article appears to support the strength of such a claim in avoidance of the Lewis requirement of shocking a court’s conscience.]

Rosalie Berger Levinson, “Kingsley Breathes New Life into Substantive Due Process as a Check on Abuse of Government Power,” 93 Notre Dame L. Rev. 357 (Nov. 2017)

Levinson, 360-61:…[T]he Supreme court has recognized that those civilly committed to state mental institutions have a ;historic liberty interest’ in personal security that is ‘protected substantively by the Due Process Clause.’ Further, involuntarily committed patients ‘are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.’ Although reasoning that the decisions of qualified medical professionals should be deemed presumptively valid, the Court nonetheless acknowledged that the constitutionally protected liberty interest required the state ‘to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.’ After balancing the competing concerns, the Court held that substantive due process is violated if decisions by doctors and nurses constitute ‘such a substantial departure from accepted professional judgement, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgement.’

…[Referring to County of Sacramento v. Lewis] The majority cautioned, however, that the ‘criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a government officer that is at issue.’

Levinson, 365-66: II. Kingsley Resolves Circuit Conflict in Favor of an Objective Reasonableness Test.

Michael Kingsley was a pretrial detainee who claimed he was subjected to excessive force after he refused to remove a piece of paper covering a light above his bed. Although there are conflicting accounts as to whether Kingsley continued to resist the officers after he was handcuffed and moved to a receiving cell, it was uncontested that officers applied a Taser to Kingsley’s back for approximately five seconds. He was then left handcuffed in the receiving cell for fifteen minutes, after which the officers returned and removed the handcuffs.

After Kingsley filed a pro se complaint under 42. U.S.S. 1983 alleging excessive use of force, the four jail officers moved for summary judgment. The district court followed Seventh Circuit precedent, which applied Eighth Amendment standards to pretrial detainees, requiring them to prove that defendants acted with malicious and sadistic intent for the purpose of causing them harm. The trial court denied summary judgment, but in its jury instructions it asserted that (1) ‘excessive force means force applied recklessly that is unreasonable in light of the facts and circumstances of the time,’ and that (2) the plaintiff must prove that the ‘defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety.

On appeal to the Seventh Circuit, Kingsley asserted that these instructions wrongfully conflated the standard for excessive force claims under the Eighth Amendment and the Due Process Clause by requiring him to show that the defendants acted acted with reckless disregard for his rights. The Seventh Circuit rejected this argument and held instead that a pretrial detainee, like a convicted inmate, must show ‘an actual intent to violate [the plaintiff’s] rights or reckless disregard for his rights’, and thus a subjective inquiry into the officer’s state of mind is necessary.

In dissent, Judge Hamilton opined that the appropriate standard for excessive use of force against a pretrial detainee should be an objective reasonableness test, similar to the Fourth Amendment. He expressed his concern that pretrial detainees who cannot post bail may remain in jail for weeks or months, and, citing earlier Seventh Circuit precedent, he asserted that ‘the transition from arrest to pretrial detention does not give officers “greater ability to assault and battery” the detainees.’

 Levinson, 266-67: In a five-four decision, the Supreme Court agreed with Judge Hamilton that the relevant culpability standard is objective, not subjective, deliberate indifference.  Thus, the jury instruction suggesting that Kingsley had to prove the defendant’s subjective state of mind (recklessness) in using excessive force was error. Justice Breyer, in his majority opinion, explained that the lower courts had conflated two separate state-of-mind questions.  ‘The first concerns the defendant’s state of mind with respect to his physical acts’, and here there was no dispute that the officers deliberately intended to restrain and tase Kingsley.  The second question addresses ‘the defendant’s state of mind with respect to whether his use of force was “excessive”, and, as to this question, the Court resolved the circuit split by adopting an objective reasonableness standard for substantive due process excessive force claims.  If the officers intentionally, rather than accidentally or negligently, used a certain level of force, their subjective state of mind when doing so was irrelevant, and the only question was whether their actions were reasonable under the circumstances.  Detainees need not demonstrate that officials subjectively intended to punish the or to ‘maliciously and sadistically’ injure them.

The Court explained that the Due Process Clause, unlike the Eighth Amendment that applies to convicted criminals, protects pretrial detainees from the use of ‘force that amounts to punishment.’  Further, even absent an express intent to punish, a pretrial detainee may prevail by producing ‘objective evidence that the challenged governmental action is not rationally related to a legitimate government objective or that it is excessive in relation to that purpose.

In justifying its rejection of subjective deliberate indifference, the Court asserted that an objective standard comported with the training already provided to officers who interact with detainees.  In addition, it sufficiently protected officers who act in good faith because ‘a court must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer.’  The use of force will be actionable only where it was ‘an intentional and knowing act,’ and officers will enjoy qualified immunity unless the use of excessive force violated a clearly established right.  Further, the Court noted that the objective standard was already part of pattern jury instructions in several circuits, and in those circuits there was no evidence of frivolous filings by pretrial detainees.”

Levinson, 368-69: It is noteworthy that the majority did not mention the rigorous shocks-the-conscience standard in adjudicating the substantive due process claim.  Nor did it discuss the need to identify a ‘fundamental right’ or the difference between acts and failure to act – all theories relied upon by appellate courts to restrict substantive due process claims.  Instead, the majority based its analysis on the 1979 decision in Bell v. Wolfish where the Supreme Court adopted an objective standard to evaluate the detainees’ substantive due process challenge to prison conditions, including a prison’s practice of double-bunking.  The Bell Court did not examine the prison officials’ subjective beliefs about the policy, but rather, looked only to objective evidence to assess whether the conditions were reasonably related to the legitimate purpose of holding detainees for trial and whether they were excessive in relation that purpose. Levinson, 377: [After Kingsley,] …. Failure to meet the nebulous shocks-the-conscience standard should no longer provide a rationale for subjecting detainees to conditions that are not reasonably related to legitimate governmental objective. Levinson, 387-88: IV. Kingsley’s Impact on Substantive Due Process Claims Brought by the Civilly Committed and Students

“…In a unanimous decision, the Court held that when medically trained government officials make decisions that constitute a substantial departure from professional judgement, they violate the substantive due process guarantee of the Fifth and Fourteenth Amendments. ….

Despite the Supreme Court’s admonition that those who are civilly committed in state institutions do not lose their core liberty interests and that they enjoy greater protection than convicted criminals, appellate courts have seriously eroded the substantive due process protection recognized in Youngberg.  Many of these courts have relied on language in Lewis that ‘only the most egregious official conduct can be said to be “arbitrary in the constitutional sense.’”  Although the Supreme Court in Lewis did not overturn Youngberg, and in fact cited it as valid authority, some federal courts have ruled that the shocks-the-conscience test superseded the Youngberg standard.  Further, most of these courts have held that this ‘new’ test required that the civilly committed satisfy the rigorous Eighth Amendment standard, which Youngberg specifically rejected.  Other courts acknowledge that Youngberg’s ‘professional judgement standard… is at least as demanding as the Eighth Amendment “deliberate indifference” standard’, but they have then rejected the notion that the Youngberg standard is more demanding.

Levinson, 388-89: These courts have misconstrued Lewis as having displaced or weakened Youngberg’s protection of the rights of the civilly committed.   Lewis in fact recognized Youngberg’s holding that, in the context of civil commitment, substantive due process is violated when state medical personnel fail to exercise professional judgement.  Further, those courts that have equated the professional judgement standard with the Eighth Amendment’s criminal recklessness standard have ignored Youngberg’s core holding that the rights of the involuntarily committed are greater than the rights of convicted inmates.  Those who are in state custody due to mental incapacity arguably enjoy even greater rights to adequate care and treatment than pretrial detainees who are taken into custody because the state has reasonable cause to believe they have committed a crime.  Further, although pretrial detainees are housed in jails or prisons that law enforcement officials supervise, those in state institutions are often housed in hospitals staffed by medical professionals.  Because those committed in state institutions for mental incapacity often face lengthy and even lifelong confinement, the Court in Youngberg protected their rights by requiring that professional decisions exhibit professional concern and judgement.

“Further, as to nonmedical personnel. Bells holding, now reinvigorated by Kingsley, mandates that the deliberate misconduct of those assigned to care for the civilly committed be assessed under an objective reasonableness standard. Kingsley confirmed that using an Eighth Amendment criminal recklessness standard for those who have not been convicted of a crime provides insufficient protection from abuse of power.  Some courts have acknowledged that where the claim involves excessive force, the substantive due process analysis is the same for pretrial detainees and the civilly committed, and thus Kingsley’s objective standard governs.  Further, as explained in Part III, Kingsley should not be restricted to excessive force claims, but rather, should be interpreted as a general rejection of the Eighth Amendment’s criminal recklessness mens rea for all claims brought by detainees as well as the civilly committed.”

Originally appeared in “The Legal Pad” Volume 2, Issue 10 (October 20th, 2018) by Cyrus P. Gladden Ⅱ

Kingsley Breathes New Life Into Substantive Due Process as a Chec

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