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Use of force on pretrial detainees: Constitutional amendment controls and constitutional standards

The Supreme Court’s Kingsley decision resolved a federal circuit split regarding an “objective reasonableness” standard vs. a “subjective intent” standard


In Tennessee v. Garner and Graham v. Connor, the United States Supreme Court established the constitutional standards for law enforcement use of force on free citizens. Because Garner, Graham and its progeny involve only the constitutional standards for use of force on free citizens, it begs the question regarding government use of force on convicted prisoners and pre-trial detainees.

Graham expanded the scope of the Fourth Amendment in use of force matters to include all law enforcement use of force, deadly or otherwise, against free citizens. Graham determined that all forms of force used by law enforcement against free citizens would be governed by the Fourth Amendment and its “objective reasonableness” standard. In adopting an “objective reasonableness” standard, the Court declared that the subjective state of mind or subjective intent of the alleged offending officer was irrelevant to the equation. Instead, the Court ruled that in the future only objective factors relevant to the officer’s conduct would be reviewed.

Below is an analysis of the Supreme Court’s Kingsley decision, which establishes the constitutional standard for governmental use of force on pretrial detainees. A previous article reviewed the constitutional use of force standards on convicted prisoners and a future article will review the constitutional use of force on convicted prisoners outside the prison environment.

Kingsley v. Hendrickson, 576 U. S. 389 (2015)

Kingsley was a pretrial detainee in a Wisconsin County jail on 5/20/2010. He refused a deputy’s order to remove a piece of paper covering the light over his cell bunk. He refused two additional subsequent orders to remove the paper and a lieutenant ordered him to be taken from the cell so that the paper could be removed. He refused to cooperate and leave the cell. Officers handcuffed him and carried him from the cell. They placed him face down on a bunk in a new cell.

Officers attempted to remove the handcuffs from Kingsley, but he resisted. Kingsley claimed that Sergeant Hendrickson and Deputy Denger smashed his head into the concrete bunk. Kingsley was then tased for 5 seconds by Deputy Denger at the direction of Sergeant Hendrickson. Kingsley was left handcuffed in the cell for 15 minutes, after which, the officers returned and removed the handcuffs.

Kingsley sued the deputies pursuant to 42 USC § 1983 alleging a violation of his Fourteenth Amendment due process rights by excessive force. A jury trial followed, and the jury ruled against Kingsley. The Seventh Circuit affirmed the jury verdict and ruled that it was proper to require Kingsley to prove that the officers had the subjective state of mind, i.e., the intent, to violate Kingsley’s rights by using inappropriate force.

The Supreme Court reversed and rejected the subjective state of mind or subjective intent standard used by the Seventh Circuit to affirm the jury verdict. The Court ruled that a pretrial detainee must show only that the force used against him was objectively unreasonable in order to prevail on an excessive force claim. The Court eschewed the subjective intent test adopted by the lower court in favor of an “objective reasonableness” test pursuant to the Fourteenth Amendment. This test is quite similar to, if not identical, to that used to determine whether force utilized by police against free citizens violates the Fourth Amendment. Under this test, the officer’s state of mind, i.e., subjective intent, is irrelevant.

The Court stated that the objective reasonableness inquiry must be made from the perspective of a reasonable officer on the scene, including what the officer knew at the time. Moreover, it must include taking into account the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained” [1] and deference to “policies and practices that in the judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” [2]

The Court also listed other factors that should be considered in the objective reasonableness inquiry. They include:

  1. The relationship between the need to use force and the degree of force employed.
  2. The extent of the detainee’s injury.
  3. Efforts, if any, by a deputy to limit or temper the amount of force used.
  4. The severity of the security problem confronted by deputies.
  5. The degree of the threat of harm reasonably perceived by the officer.
  6. Whether the detainee was actively resisting.


The Supreme Court’s Kingsley decision resolved a federal circuit split regarding whether an “objective reasonableness” standard or a “subjective intent” standard should govern the outcome of Fourteenth Amendment due process excessive force claims filed against law enforcement officers by pre-trial detainees. [3]

The Court in a 5-4 decision adopted an “objective reasonableness” standard previously chosen by the Court in its Garner/Graham decisions to apply to Fourth Amendment use of force cases involving law enforcement officers and free citizens. The only practical difference between the Fourth Amendment/free citizen/objective reasonableness standard and the Fourteenth Amendment/pre-trial detainee version is the inclusion of institutional officer/staff and inmate safety, security and discipline concerns not relevant in the free citizen context.


1. Kingsley v. Hendrickson, 576 U.S. 389 (2015) (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979)).
2. Id.
3. See, Jordan A. Shannon, “Reasonableness as Corrections Reform in Kingsley v. Hendrickson,” Vol. 62 Loyola Law Review 578 (2016).

NEXT: Use of force on convicted prisoners: Constitutional amendment controls and constitutional standards

John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.

Contact Mike Callahan.