Pre-Trial detainees v. Post-Conviction prisoners: did Kingsley mark a sea change or is it a distinction without a difference?

In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held that a pretrial detainee may prevail on an excessive force claim if he or she shows that the force used was objectively unreasonable, regardless of whether the officer had a subjective intent to cause the detainee harm. In reaching this decision, the Court granted greater protections to pretrial detainees under the 14th Amendment’s Due Process Clause than convicted prisoners enjoy under the Eighth Amendment. The Eighth Amendment still requires proof of a subjective intent to cause harm before a violation will be found. The Ninth Circuit has interpreted the Kingsley decision to apply to all claims brought by pretrial detainees, not just those based on allegations of excessive force. This panel explored the ramifications of Kingsley and queried whether other circuits are likely to follow the Ninth Circuit’s expansive reading of Kingsley. If so, what would that mean for jail litigation?

MODERATOR: Stephen Haedicke, Law Office of Stephen Haedicke, NOLA

PANEL:

Liz Cumming, Law Offices of Elizabeth Cumming, NOLA;

Jim Mullaly, Martiny & Associates, NOLA;

Theresa Powell, Heyl, Roster, Voelker & Allen, PC, Springfield.