Pretrial Detainees and the Objective Standard ... - Georgetown University

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 detainees bring ? 1983 claims under the Fourteenth Amendment's Due Process Clause because they are detained but are not yet convicted. Thus, constitutional violations 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.

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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 relentlessly 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.

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Jane and Tanya might consider suing prison officials under 42 U.S.C. ? 1983 for excessive force and inadequate medical care, respectively. Jane's excessive force claim against the officials would be measured under an objective standard, requiring Jane to show that the use of force was objectively unreasonable in light of the facts and circumstances.1 By contrast, the standard governing Tanya's inadequate medical care claim would depend on where she brought the claim. Some circuits would apply the objective standard both to Jane's excessive force claim and Tanya's inadequate medical care claim.2 Other circuits, however, would measure Tanya's inadequate medical care claim under a subjective standard known as deliberate indifference. Whereas the objective standard requires that the official should have known of the risk to Tanya, the subjective standard requires that the official was actually aware that she suffered a substantial risk to her health and did nothing to abate the risk.3

The objective standard applied to Jane's claim comes from the Supreme Court's decision in Kingsley v. Hendrickson. In Kingsley, the Court held that if a pretrial detainee, like Jane, brings an excessive force claim against state prison officials, the claim will be measured under an objective reasonable person standard.4 The circuits are split, however, on whether the objective or subjective standard applies to pretrial detainees' primary claims of inadequate medical care, conditions of confinement, and failure-to-protect.5

This Note reviews the split and argues that the objective standard should be extended to these remaining pretrial detainee claims because Supreme Court precedent and the text and scope of the Fourteenth Amendment's Due Process Clause support the objective standard's universal application. Many circuits, however, still apply the subjective deliberate indifference standard to pretrial detainees' claims

1. See Kingsley v. Hendrickson, 576 U.S. 389, 396?97 (2015). 2. See, e.g., Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018). 3. See, e.g., Whitney v. City of St. Louis, 887 F.3d 857, 860 (8th Cir. 2018). Tanya is not likely to succeed on her claim. In this hypothetical scenario, Tanya did not tell the guard the severity of her symptoms. Although Jane alerted the guard to Tanya's illness earlier, the guard likely believed that Jane was just causing a scene and cannot be shown to have known of Tanya's condition. Even once the guard entered the cell, the presence of the sanitary products may be enough to show that the guard believed Tanya was suffering from menstrual pain. Once Tanya began exhibiting more serious symptoms--vomiting and sweating--the guard called the ambulance and therefore ameliorated the risk to Tanya. Under an objective standard, Tanya has a much stronger case; a reasonable guard would have at least checked on Tanya after Jane first alerted them and likely would have called a physician as a precaution. Compare Miranda, 900 F.3d at 354 (finding doctors' actions potentially unreasonable when taking a "wait and see" approach regarding a detainee who would not eat or drink), with Johnson v. Bessemer, 714 F. App'x 694, 697?98, 701 (11th Cir. 2018) (finding no deliberate indifference in drug overdose where defendant suspected that plaintiff had consumed drugs but believed plaintiff was sleeping deeply although the plaintiff did not respond to physical manipulation), and Ryan v. Armstrong, 850 F.3d 419, 426 (8th Cir. 2017) (holding officers could have been deliberately indifferent where the supervising officer notified the officers that the plaintiff requested medical help during a shift change and the officers did not check on plaintiff), and Edwards v. Northampton, 663 F. App'x 132, 137 (3d Cir. 2016) (finding no deliberate indifference where "defendant tailored [plaintiff's] treatment to the symptoms he was displaying at the time"). 4. See 576 U.S. at 396?97. 5. See infra Part III (discussing how circuits have applied the two standards to each claim).

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of inadequate medical care, conditions of confinement, and failure-to-protect. In doing so, these circuits rely on outdated circuit precedent, which distorts Supreme Court precedent and bypasses critical analysis of the Fourteenth Amendment's parameters.

Part I of this Note proceeds in two Sections. Section A discusses the history of Title 42, ? 1983 of the U.S. Code. Section 1983 is the primary tool convicted criminals, arrestees, and pretrial detainees can use to address infringements of their constitutional rights by state officials while they are detained.6 Although ? 1983 governs these claims for convicted criminals, arrestees, and pretrial detainees alike, each specific group of individuals brings their claims under separate constitutional provisions: arrestees bring ? 1983 claims under the Fourth Amendment's Unreasonable Search and Seizure Clause; pretrial detainees bring these claims under the Fourteenth Amendment's Due Process Clause; and convicted criminals bring these claims under the Eighth Amendment's Cruel and Unusual Punishment Clause. The distinct constitutional grounds for ? 1983 claims have also required different standards for analyzing the claims. Section B explains these different standards.7

Part II explains the Court's analysis in Kingsley and highlights key reasoning on which circuit courts extending the objective standard have relied. Part III demonstrates how the circuits have split as to pretrial detainee claims regarding: (1) conditions of confinement, (2) inadequate medical care, and (3) failure-to-protect. Part IV sets forth the arguments in favor of extending the objective standard to all pretrial detainees' claims and explains why circuits refusing to do so employ reasoning inconsistent with Supreme Court precedent and the Constitution. The Note concludes that extending Kingsley's objective standard to all pretrial detainee claims would be most consistent with those precedents and constitutional principles.

I. THE BUILD UP TO KINGSLEY

Section 1983 has an important and complicated history in civil rights litigation. For many years it laid essentially dormant due to a series of decisions handed down by the Supreme Court. Today, however, it serves as a crucial cause of action against state officials for those in the criminal justice system. Section A briefly outlines this history. Section B then discusses the origins of the standards applied to

6. There is no statutory corollary cause of action for prisoners against federal officials. Prisoners seeking monetary relief from constitutional violations against federal officials must do so under a judicial doctrine known as a Bivens claim. However, Bivens is extremely limited, allowing only Eighth Amendment deliberate indifference inadequate medical care claim, Fifth Amendment gender discrimination claims, and Fourth Amendment unreasonable search and seizure claims. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971) (allowing Fourth Amendment claims); see also Davis v. Passman, 442 U.S. 228, 229?30 (1979) (allowing Fifth Amendment claims); Carlson v. Green, 446 U.S. 14, 16, 18 (1980) (allowing Eighth Amendment deliberate indifference claims).

7. For a full explanation of these standards, see infra Section I.B.

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? 1983 claims and how they coalesced in the Supreme Court's jurisprudence leading to the Court's decision in Kingsley.

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

Section 1 of the Civil Rights Act of 1871, codified as 42 U.S.C. ? 1983, establishes a federal cause of action for constitutional violations inflicted by state actors.8 In the prison context, ? 1983 is the primary avenue a person has to receive relief for a constitutional violation committed by a state actor, including state correctional officers.9 Historically, ? 1983 was not a useful tool for remedying constitutional wrongs. In 1882, the Supreme Court weakened ? 1983 when it held that the Fourteenth Amendment applies only to "the acts of the State government itself" and not to acts of private individuals.10 Under this interpretation, ? 1983 applied only to actions that were "sanctioned by the state."11 If an individual law enforcement officer violated a constitutional right, ? 1983 did not provide redress because the officer acted contrary to state law, not "under color of law."12 Without a federal cause of action to bring against state officials for inflicting constitutional violations, the remaining option was to bring the claim in state courts, which were often hesitant to penalize their state officials.13

More than a century later, the Court resurrected ? 1983 in Monroe v. Pape.14 There, the Court found that ? 1983 applied to actions of state law enforcement, even if they were not sanctioned by the state.15 Monroe represents a watershed moment for civil rights law: "Before it, state and local law enforcement officials were not subject to federal liability; after it, such suits became possible."16 Since Monroe, ? 1983 has been heavily utilized, earning its reputation as the "workhorse of modern civil rights litigation."17

8. 42 U.S.C. ? 1983; see also Alan W. Clarke, The Klu Klux Klan Act and the Civil Rights Revolution: How Civil Rights Litigation Came to Regulate Police and Correctional Officer Misconduct, 7 SCHOLAR 151, 152 (2005) (referring to ? 1983 as "Section One of the Ku Klux Klan Act [otherwise] known as the Civil Rights Act of 1871").

9. See ? 1983 (stating that "any citizen of the United States or other person within the jurisdiction thereof" may sue a state actor who deprives the person of "any rights, privileges, or immunities secured by the Constitution and laws"); Clarke, supra note 8, at 152 ("[N]o other law is more central to present day police and correctional officer accountability.").

10. See United States v. Harris, 106 U.S. 629, 638 (1883) (quotations and citations omitted); Clarke, supra note 8, at 156.

11. Michael S. DiBattista, A Force to Be Reckoned With: Confronting the (Still) Unresolved Questions of Excessive Force Jurisprudence After Kingsley, 48 COLUM. HUM. RTS. L. REV. 203, 208 (2017).

12. See Michael K. Cantwell, Constitutional Torts and the Due Process Clause, 4 TEMP. POL. & CIV. RTS. L. REV. 317, 317?18 (1995).

13. See DiBattista, supra note 11, at 209. 14. See Clarke, supra note 8, at 158 (citing Monroe v. Pape, 365 U.S. 167 (1961)). 15. See id. at 163?67 (describing the case and its reasoning). 16. Id. at 164. 17. Id. at 152.

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Though individuals now have a right to bring suit in federal court against state law enforcement officials for constitutional violations, their legal status as arrestees, pretrial detainees, or convicted criminals18 affects how a court analyzes the claim.19 This is in large part because the claims arise under different constitutional provisions. As noted, arrestees bring ? 1983 claims under the Fourth Amendment's Unreasonable Search and Seizure Clause.20 Pretrial detainees bring the same claims under the Fourteenth Amendment's Due Process Clause.21 Convicted criminals bring their ? 1983 claims under the Eighth Amendment's Cruel and Unusual Punishment Clause.22

B. Origins of the Kingsley Dispute

In Kingsley, the Court faced the question of whether the subjective or objective standard applied to pretrial detainees' excessive force claims.23 Under the subjective standard, Mr. Kingsley would have to show that the state law enforcement

18. For the purposes of this Note, a convicted criminal is a person found guilty of a crime serving a sentence of imprisonment.

19. There is considerable debate as to when an individual is arrestee rather than a pretrial detainee. The distinction is significant because it changes the constitutional grounds on which the individual brings their claim. There are two primary theories in the circuit courts. The first is the "continuing seizure approach," which applies the Fourth Amendment to arrestees whilst they are in the custody of the arresting officers; the continuing seizure approach has been applied to include interactions with officials while the individual is in a holding cell. See Erica Haber, Demystifying a Legal Twilight Zone: Resolving the Circuit Court Split on When Seizure and Pretrial Detention Begins in ? 1983 Excessive Force Cases, 19 N.Y. L. SCH. J. HUM. RTS. 939, 948 (2003). The second approach, "the substantive due process approach," applies the Fourteenth Amendment as soon as the "initial decision to detain the accused" is made. Id. at 949?50 (quoting Bell v. Wolfish, 441 U.S. 520, 533?34 (1979)). Thus, once the arrest or stop is complete, individuals must bring ? 1983 excessive force claims under the Due Process Clause of the Fourteenth Amendment.

20. Graham v. Connor, 490 U.S. 386, 394?95 (1989) (holding that "where the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment").

21. The Fourteenth Amendment is a more appropriate source for the claim than the Fourth Amendment because the pretrial detainee alleges a violation of their right to be treated fairly in the course of their treatment by the criminal justice system. See, e.g., Rosalie Berger Levinson, Kingsley Breathes New Life into Substantive Due Process as a Check on Abuse of Government, 93 NOTRE DAME L. REV. 357, 360 (2017). Prior to Graham v. Connor, some circuits applied the Fourth Amendment to individuals in these scenarios, but many applied the Fourteenth Amendment. The confusion arose from Judge Friendly's opinion in Johnson v. Glick. See Graham, 490 U.S. at 392 (citing Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973)). Writing for the Second Circuit, Judge Friendly applied the Fourteenth Amendment Due Process Clause to an individual detained prior to trial. In doing so, Judge Friendly invoked the Court's "shocks the conscience language" from the seminal due process case, Rochin v. California. Id. at 393 (citing Rochin v. California, 342 U.S. 165, 175 (1952) (overturning a criminal conviction based primarily on pills pumped from the defendant's stomach because the conduct "shock[ed] the conscience" and therefore the admission of pills as evidence violated defendant's due process)). Judge Friendly then applied a four-factor test to determine whether an official was liable for excessive force: (1) "the need for the application of force," (2) "the relationship between the need and the amount of force that was used," (3) "the extent of injury inflicted," (4) "and 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." Glick, 481 F.2d at 1033.

22. See Whitley v. Albers, 475 U.S. 312, 318?19 (1985) (noting that "[t]he Cruel and Unusual Punishments Clause `was designed to protect those convicted of crimes'" (citation omitted)).

23. Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015).

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officer "maliciously and sadistically" used force against him.24 Conversely, under the objective standard, Mr. Kingsley would have to show that the state law enforcement officer used an "objectively unreasonable" degree of force.25 These standards are rooted in the Eighth and Fourth Amendments, respectively.

The subjective standard has long been applied to claims brought by convicted criminals under the Eighth Amendment's Cruel and Unusual Punishment Clause.26 For such a claim to be successful, the offending official must have acted with a certain state of mind--an inquiry that is necessarily subjective.27 Not all cruel and unusual punishment claims, however, require an official to have the same state of mind. Excessive force claims, for example, require officials to inflict the force maliciously and sadistically and without a good faith attempt to maintain order.28 A malicious and sadistic use of force is that which is imposed "for the very purpose of causing harm."29 But inadequate medical care claims, failure-to-protect claims, and conditions of confinement claims under the Eighth Amendment require officials to have acted with deliberate indifference.30 Deliberate indifference requires that the official was actually aware of and disregarded a substantial risk of harm to the inmate's safety.31 That is, the official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."32

Within the subjective standard, then, there are two discrete states of mind that can give rise to an Eighth Amendment claim: the malicious and sadistic state of mind that is used to analyze excessive force claims or the deliberately indifferent

24. Id. at 400 (citation omitted). 25. Id. at 396?97. 26. See, e.g., Wilson v. Seiter, 501 U.S. 294, 299 (1991) (Eighth Amendment jurisprudence "mandate[s] inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment."). 27. Id. at 298 (characterizing this approach as the "subjective component"); Hudson v. McMillian, 503 U.S. 1, 23 (1992) (Thomas, J., dissenting) ("Ascertaining prison officials' state of mind, in other words, is the only relevant inquiry in" determining an Eighth Amendment claim). 28. Kingsley, 576 U.S. at 400; see Wilson, 501 U.S. at 301?02 (describing the various standards). 29. See Wilson, 501 U.S. at 302?03 (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)). 30. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Wilson, 501 U.S. at 302?03 (holding that conditions of confinement claims brought by prisoners should be measured by deliberate indifference). Although the Court did not prescribe a state of mind requirement to deliberate indifference, it noted that liability cannot be imposed for mere negligence. See Estelle, 429 U.S. at 106. Justice Stevens in his dissent, however, warned that the Court's contrast to deliberate indifference with negligence inadvertently applies a subjective state of mind requirement to deliberate indifference. See id. at 116 (Stevens, J., dissenting). His prediction would come to fruition later in Farmer v. Brennan, where the Supreme Court refined the deliberate indifference test to ascribe a subjective showing that the officer intended to punish. See 511 U.S. 825, 834 (1994). 31. Farmer, 511 U.S. at 836?37. In Wilson, the Court distinguished excessive force claims from conditions of confinement claims. The Court reasoned that because excessive force claims arise in situations where officials have less time to react, often having to act immediately, the state of mind requirement should be higher than deliberate indifference. Wilson, 501 U.S. at 302. Therefore, prisoners in excessive force claims cases must prove "malicious and sadistic" intent "with the very purpose of causing harm." See Whitley, 475 U.S. at 320?21 (citations omitted). 32. Farmer, 511 U.S. at 837.

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state of mind that is used to analyze claims of inadequate medical care, conditions of confinement, and failure-to-protect claims. Both of these states of mind impose a high burden on the convicted criminal, albeit the malicious and sadistic standard is higher than the deliberate indifference standard.33 In the former, the convicted criminal must prove that the official imposed a force so excessive for the particular circumstances that the official was motivated by a sadistic purpose. In the latter, the convicted criminal must prove that the official had actual first-hand knowledge of a particular risk and did nothing to abate it.

The objective standard, on the other hand, originates from the Fourth Amendment's Unreasonable Search and Seizure Clause. In Graham v. Connor, the Supreme Court rejected the argument that the malicious and sadistic standard should apply to arrestees' excessive force claims and instead held that these claims must be analyzed by an objective reasonable person standard.34 In the Court's view, because the Fourth Amendment protects arrestees from unreasonable searches and seizures, the Amendment lends itself to an objective reasonableness standard.35

With the proper excessive force standards settled for convicted criminals and arrestees, all that remained was for the Court to determine the proper standard to apply to pretrial detainees' excessive force claims. Prior to Kingsley,36 some circuits applied the subjective malicious and sadistic standard to pretrial detainees' excessive force claims, while others applied the objective reasonableness standard articulated in Graham.37 In Kingsley, the Court held that the objective reasonableness standard applies.38

33. See id. at 835?36 (describing deliberate indifference as a lower standard than the malicious and sadistic standard).

34. See Graham v. Connor, 490 U.S. 386, 397 (1989). 35. See id. at 397?99. The Court explicitly rejected the argument that a good-faith analysis, including whether the force was applied maliciously or sadistically, could be measured by objective factors. Instead, the Court explained that a malicious and sadistic standard injects a determination of the subjective motivations of the officer inflicting the force. Id. at 397?98. 36. Kingsley v. Hendrickson, 576 U.S. 389 (2015). 37. The doctrine around excessive force claims was further confused by the Court's decision in County of Sacramento v. Lewis. 523 U.S. 833, 851?54 (1998). In Lewis, the Court proscribed two different standards for pretrial detainees' Fourteenth Amendment claims. The Court reasoned that in high-speed chases, or emergency situations, officials only shock the conscience, thereby offending Due Process, where there is "intent to harm." Id. at 854. The Court analogized the high-speed chase in Lewis to the prison riot in Whitley v. Albers. See id. at 851?52. In Whitley, the Court held that in prison security scenarios, only measures taken with a malicious and sadistic state of mind violate the Eighth Amendment. 475 U.S. 312, 320?21 (1986). The Court in Lewis, however, also explained that where actual deliberation is possible, such as conditions of confinement, actions that are deliberately indifferent can suffice to shock the conscience. Lewis, 523 U.S. at 851. After Lewis, several courts interpreted the "intent to harm standard" in the Fourteenth Amendment context to be identical to the malicious and sadistic standard of the Eighth Amendment, thus requiring pretrial detainees to show a subjective state of mind in excessive force claims in any emergency situation. See Levinson, supra note 21, at 369 & n.86 (collecting cases). 38. See Kingsley, 576 U.S. at 396?97.

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