KINGSLEY BREATHES NEW LIFE INTO SUBSTANTIVE DUE PROCESS AS A CHECK ON ABUSE OF GOVERNMENT POWER.

Author:Levinson, Rosalie Berger
 
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INTRODUCTION 357 I. ORIGINS AND DEVELOPMENT OF SUBSTANTIVE DUE PROCESS IN THE SUPREME COURT 359 II. KINGSLEY RESOLVES CIRCUIT CONFLICT IN FAVOR OF AN OBJECTIVE REASONABLENESS TEST 365 III. KINGSLEY'S IMPACT ON FUTURE SUBSTANTIVE DUE PROCESS LITIGATION INVOLVING PRETRIAL DETAINEES 371 A. Conditions of Confinement 372 B. Failure to Protect from Others 377 C. Denial of Prompt, Appropriate Medical Treatment 381 D. Suicide Prevention 386 IV. KINGSLEY'S IMPACT ON SUBSTANTIVE DUE PROCESS CLAIMS BROUGHT BY THE CIVILLY COMMITTED AND STUDENTS 387 CONCLUSION 391 INTRODUCTION

For over twenty-five years I have written law review articles criticizing the Supreme Court's emasculation of substantive due process as a check on the abuse of power by government officials, such as police, jailers, public school teachers, and social workers. The Court has ratcheted up the standard to hold that only the most egregious official misconduct--that which "shocks the conscience"--will be considered arbitrary in a constitutional sense. The Court has made it much more difficult for individuals to challenge executive, as opposed to legislative, action, despite the fact that substantive due process was intended, like its forbearer, Magna Carta, to limit the power of the King--the executive branch. Further, many courts have borrowed the Eighth Amendment's "cruel and unusual punishment" standard, thereby treating all victims the same as convicted criminals, who must prove subjective criminal recklessness in order to hold government officials liable for their wrongdoing. Although the question of what is an "abuse of government power" is not easily answered, superimposing the Eighth Amendment subjective state-of-mind requirement on those who have never been convicted of a crime, such as the civilly committed, students, and pretrial detainees, is totally unwarranted.

In 2015 the Supreme Court, in Kingsley v. Hendrickson, (2) for the first time in decades, issued an opinion that favors victims of abuse of power. It held that a pretrial detainee alleging excessive force must show only that the force purposefully used against him was objectively unreasonable in order to demonstrate a due process violation. (3) The Court specifically rejected jury instructions mandating that pretrial detainees satisfy the Eighth Amendment subjective deliberate indifference test, which requires proof that the official acted with malicious, sadistic intent to harm. (4) The opinion has significance for detainees alleging excessive force, but also for those challenging conditions of confinement, including the denial of prompt, adequate medical care and the failure to protect from other inmates. Further, Kingsley's rationale provides a basis for overturning appellate court cases that have used Eighth Amendment standards to reject claims brought by others, such as the civilly committed and students who are mistreated by public officials.

Part I of this Article briefly summarizes the origin and judicial development of substantive due process, focusing on the lead cases that have led appellate courts to narrowly construe the substantive due process guarantee. Part II discusses the Kingsley opinion, both the majority's analysis and the dissent's objection to the use of an objective reasonableness test. Part III suggests how Kingsley can be used by litigators seeking to protect pretrial detainees, not only from excessive force, but also from an official's failure to protect or failure to care for the medical and other needs of pretrial detainees. Part IV explains how this case can be used to overturn restrictive holdings involving corporal punishment in schools as well as the mistreatment of the civilly committed.

For many years I have argued that federal substantive due process should be given its intended meaning as a limitation on arbitrary abuses of executive power and that victims of such abuse should not be relegated to the vagaries of the shocks-the-conscience test. Kingsley's rejection of criminal recklessness in favor of an objectively unreasonable standard of culpability is a promising step forward.

  1. ORIGINS AND DEVELOPMENT OF SUBSTANTIVE DUE PROCESS IN THE SUPREME COURT

    The concept of substantive due process has strong historical roots dating back to Magna Carta and the Lockean tradition. (5) The use of substantive due process as the source for protecting nontextual rights from state and federal legislation has a long and contested history, including, most recently, the Supreme Court's reliance on substantive due process, coupled with equal protection, to strike down state bans on same-sex marriage. (6)

    In 1952, the Supreme Court officially recognized substantive due process as a limitation on the power of the executive branch in Rochin v. California. (7) The Court invoked substantive due process defensively in a criminal proceeding to exclude evidence that was obtained by pumping the defendant's stomach. (8) The Court stated that substantive due process is violated by official conduct that "shocks the conscience" or constitutes force that is "brutal" and "offend[s] even hardened sensibilities." (9) The "shocks the conscience" standard emerged as the test for determining whether misconduct by executive officials is so aggravated that it violates substantive due process. (10)

    The Supreme Court decided Rochin before incorporation of the Fourth Amendment, which prohibits states from conducting unreasonable searches and seizures. (11) The Court has subsequently clarified that it will reject any substantive due process claim that falls under a more explicit constitutional guarantee, such as the Fourth or Eighth Amendment. (12) However, the Court has recognized that pretrial detainees, who are no longer protected by the Fourth Amendment but who have not been convicted so as to trigger the Eighth Amendment, have a liberty interest in being free from arbitrary treatment, and that substantive due process creates a duty to protect detainees from guards and other inmates and to provide them with safe conditions of confinement and necessary medical care. (13)

    In addition, the 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." (14) Further, involuntarily committed patients "are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." (15) 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." (16) 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 judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." (17)

    In 1998, the Supreme Court revisited and significantly restricted the meaning of substantive due process as a limitation on executive power in County of Sacramento v. Lewis. (18) The case involved alleged reckless conduct by a deputy sheriff who conducted a deadly high-speed chase of two boys riding a motorcycle after they failed to obey an officer's command to stop. (19) Philip Lewis, the passenger on the motorcycle, was struck and killed. (20) The Court confirmed that substantive due process may be used to challenge abuses of government power: "Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action ...." (21) 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." (22) With regard to the latter, only "the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.'" (23) The Court explained that executive action raises "a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law." (24) Invoking Rochin, the Court imposed a threshold mandate that the behavior be "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." (25)

    In Lewis, the Court refined the Rochin test by addressing the substantive due process state-of-mind requirement, which is also the subject of Kingsley. (26) The Supreme Court has imposed different culpability (state-of-mind) requirements depending on the type of wrongdoing and the constitutional guarantee at issue. For example, to succeed on a Fourth Amendment excessive force claim there must be evidence that the force used was "objectively unreasonable." (27) On the other hand, a convicted inmate bringing an excessive force claim under the Eighth Amendment's Cruel and Unusual Punishment Clause must prove that the force was utilized for the purpose of punishing him--"[an] unnecessary and wanton infliction of pain" (28) applied "maliciously and sadistically." (29)

    The commingling of the standard for inmates and pretrial detainees began in 1973 when the Second Circuit, in an opinion by Judge Friendly, produced a four-factor test to determine whether the use of force against a detainee "shocks the conscience." (30) The fourth criterion asked "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." (31) Many lower courts took this fourth criterion and made "malicious and sadistic intent" a determinative factor in assessing a substantive...

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