Pretrial Detainees and the Objective Standard After Kingsley v. Hendrickson

NOTES

PRETRIAL DETAINEES AND THE OBJECTIVE STANDARD

AFTER KINGSLEY V. HENDRICKSON

Kate Lambroza*

ABSTRACT

In 2015, the Supreme Court held in Kingsley v. Hendrickson that 42 U.S.C.

§ 1983 excessive force claims brought by pretrial detainees against state prison

off‌icials are measured by an objective reasonableness standard. Pretrial detain-

ees bring § 1983 claims under the Fourteenth Amendment’s Due Process Clause

because they are detained but are not yet convicted. Thus, constitutional viola-

tions under § 1983 are viewed as an infringement of their due process rights.

Since Kingsley, circuit courts have split on whether the objective reasonableness

standard extends to other kinds of pretrial detainee claims. These claims include

conditions of conf‌inement, failure-to-protect, and inadequate medical care claims.

Some circuits apply the objective reasonableness standard articulated by the

Court in Kingsley to these additional claims. The objective standard requires that

an off‌icial should have known of a risk to the pretrial detainee and did nothing to

abate the risk. Other circuits, however, apply a subjective standard, also known as

deliberate indifference. The subjective standard requires that the off‌icial actually

knew of the risk to the pretrial detainee and did nothing to mitigate the risk. The

practical consequence of the split is that a pretrial detainee will face drastically

different standards depending on where the claim is brought. This Note argues

that the Supreme Court should extend the objective standard to all pretrial

detainee claims, not just those of excessive force. The objective standard is more

consistent with the demands of the Fourteenth Amendment and Supreme Court

precedent. Circuits that continue to apply the subjective deliberate indifference

standard rely on circuit precedent that is inconsistent with Kingsley and conf‌licts

with the guarantees of due process.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430

I. THE BUILD UP TO KINGSLEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432

A. The Evolution of § 1983: Its History and How It Works Today. 433

* Georgetown University Law Center, J.D. 2021; Georgetown University, B.A. 2018. My strongest thanks to

Professor Shon Hopwood for inspiring the topic of this Note and his encouragement to take a stance on an

important issue. I am indebted to the American Criminal Law Review staff for their hard work in helping to

prepare this Note for publication. And thank you to my parents and brothers for their unwavering support. The

views expressed in this Note are entirely my own. © 2021, Kate Lambroza.

429

B. Origins of the Kingsley Dispute . . . . . . . . . . . . . . . . . . . . . . . 434

II. THE KINGSLEY DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437

A. Kingsley’s Journey to the Supreme Court . . . . . . . . . . . . . . . . 437

B. The Court’s Analysis: Getting to Objectivity . . . . . . . . . . . . . . 438

III. THE POST-KINGSLEY CIRCUIT SPLIT . . . . . . . . . . . . . . . . . . . . . . . . . . 441

A. Conditions of Conf‌inement. . . . . . . . . . . . . . . . . . . . . . . . . . . 442

1. The Second Circuit Applies the Objective Standard . . . . . 442

2. The Eleventh Circuit Applies the Subjective Standard . . . 443

B. Inadequate Medical Care . . . . . . . . . . . . . . . . . . . . . . . . . . . 445

1. The Seventh Circuit Applies the Objective Standard . . . . . 446

2. The Eighth Circuit Applies the Subjective Standard . . . . . 447

C. Failure-to-Protect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447

1. The Ninth Circuit Applies the Objective Standard . . . . . . 448

2. The Fifth Circuit Applies the Subjective Standard . . . . . . 450

IV. THE SUPREME COURT SHOULD APPLY THE OBJECTIVE STANDARD TO ALL

PRETRIAL DETAINEE CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451

A. The Fourteenth Amendment Requires Application of the

Objective Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451

B. Bell v. Wolf‌ish Supports Application of the Objective Standard 453

C. The Objective Standard is Separate and Distinct from

Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454

1. The Objective Standard Protects Off‌icials from Liability for

Negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455

2. Facts Alleging Negligence Do Not Warrant Dodging the

Kingsley Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458

INTRODUCTION

Consider two cellmates, Tanya and Jane, who are pretrial detainees in a state

prison. Tanya wakes up one morning with a piercing pain in her abdomen. Jane bangs

on the door of the cell, yelling, “my cellmate, she’s sick! She’s on the f‌loor.” But Jane

has a habit of making a scene and the guard ignores her. Nevertheless, Jane relent-

lessly attempts to attract the guard’s attention. An hour later, the guard looks through

the window of the cell door to see Tanya in the fetal position on the ground. The

guard opens the door and enters the cell. Jane says that she is concerned about Tanya

and moves towards her. The guard misconstrues Jane’s movement as an attack, takes

his baton and strikes her several times, breaking her nose and collarbone. Turning

towards Tanya, the guard notices that Tanya is clutching her right side, but Tanya

does not say anything, and noticing female sanitary products in the corner, the guard

assumes Tanya is suffering from menstrual cramps. Eventually, Tanya’s condition

worsens; she is now vomiting and sweating. The guard calls an ambulance, but by the

time it arrives, Tanya’s appendix has burst, resulting in severe damage to her health.

430 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:429