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

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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. Hendrickson, 135 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 Thompson v. Raheem, 885 F. 3d 582, 586 (9th Cir. 2018), the Ninth Circuit clarified that a qualified immunity defense to an excessive force claim is analyzed in three stages. In the first stage, the court assesses the severity of the intrusion by evaluating the type and amount of force inflicted. In the second stage, the court evaluates the government’s interest by assessing the severity of the crime; whether the suspect posed an immediate threat to the officers’ or public’s safety; and whether the suspect was resisting arrest or attempting to escape. In the third and final stage, the court balances the gravity of the intrusion against the government’s need for the intrusion. 

After the Supreme Court decided Kingsley, the Ninth Circuit decided Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). In Castro, the Ninth Circuit held that Castro, who was injured by an inmate while detained in a sobering cell, "had a due process right to be free from violence from other inmates." Id. at 1067. The Ninth Circuit focused its discussion on the Fourteenth Amendment, but "neither Castro nor the majority claim[ed] that any other constitutional right [was] at issue." Id. at 1067-70, 1084 (Ikuta, J., dissenting). Analogizing to the Supreme Court’s excessive force analysis in Kingsley, the Ninth Circuit approved the following elements for a pretrial detainee’s failure-to-protect claim under the Fourteenth Amendment: 

(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 

Id. at 1071. 

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 2018