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

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


           The Fourteenth Amendment applies to excessive force claims brought by pretrial detainees.  Specifically, the Supreme Court has held, “It is clear … that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”  Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).  More recently, in Kingsley v. Hendrickson135 S. Ct. 2466, 2472 (2015), the Supreme Court held that to prove an excessive force claim under the Fourteenth Amendment, a pretrial detainee must show that the officers’ use of force was “objectively” unreasonable; the detainee is not required to show that the officers were “subjectively” aware that their use of force was unreasonable.
In Hyde v. City of Willcox, 23 F.4th 863 (9th Cir. 2022), the Ninth Circuit held that the use of force is constitutionally excessive when officers continue to use force after a pretrial detainee had been restrained and is not resisting, at least where the officers had sufficient time to realize that the defendant could no longer resist and did not pose a threat.  “The following considerations may bear on the reasonableness (or unreasonableness) of the force used: ‘the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.’”  Id. at 870 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)).  “The most important factor is whether the suspect posed an immediate threat.”  Id. (citng 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.”  Id. (citing Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1130 (9th Cir. 2017)).
            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 has 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) (applying Fourth Amendment to assess constitutionality of duration, conditions, or legal justification for prolonged warrantless post-arrest pre-arraignment custody). 

Revised June 2022