In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held that a pretrial detainee may prevail on a § 1983 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 seemed to grant greater protection to pretrial detainees under the 14th Amendment’s Due Process Clause than is given to convicted prisoners under the Eighth Amendment, which still requires proof of a subjective intent to cause harm before a violation will be found.  Frankly, it’s hard to see how that shouldn’t be the case– a pretrial detainee is legally innocent of any charges, and so, as the Court noted, he or she can’t be subjected to any form of punishment.  That is unlike a convicted prisoner, who may be punished so long as the punishment is not “cruel and unusual” under the Eighth Amendment.

Noting some of the broad language in the Kingsley opinion, the Ninth Circuit has recently interpreted its holding to apply to all § 1983 claims brought by pretrial detainees, not just those founded on allegations of excessive force. Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Other circuits have yet to interpret Kingsley outside the excessive force context, but it is surely an issue percolating up through the federal court system. A circuit split could, of course, mean that the issue would be back in front of the Supreme Court. Given the narrow majority in Kingsley itself (it was a 5 to 4 decision), it will be interesting to see whether the case is read expansively or, instead, is cabined solely to the excessive-force context.