CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, May 14, 2016

DiBattista on Excessive Force

Michael S. DiBattista has posted A Force to Be Reckoned With: Confronting the (Still) Unresolved Questions of Excessive Force Jurisprudence After Kingsley (Columbia Human Rights Law Review, Vol. 48, Forthcoming) on SSRN. Here is the abstract:

In Kingsley v. Hendrickson, the Supreme Court finally resolved the outstanding question of what standard is used to determine whether a pretrial detainee’s right to be free from excessive force under the Fourteenth Amendment’s Due Process Clause has been violated. The Court held that the appropriate standard is an objective reasonableness test similar to the Fourth Amendment’s test for excessive force, rather than a subjective test similar to the malicious and sadistic purpose test under the Eighth Amendment. While resolving this longstanding question, the Court expressly reserved two related questions — the answers to which will either broaden or restrict the boundaries and definitions of what constitutes excessive force, and the rights of pretrial detainees and convicted prisoners. These questions are: (1) whether reckless acts (as opposed to purposeful acts) that cause objectively unreasonable force are sufficient to state a claim under the Fourteenth Amendment, and (2) whether the Court’s holding that an objective standard is sufficient to assess excessive force claims brought by pretrial detainees under the Fourteenth Amendment is in conflict with the Court’s prior holdings that a subjective standard is required to assess excessive force claims brought by convicted inmates under the Eighth Amendment. The note discusses these unresolved questions and predicts how the Court will eventually resolve them in the future.

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