Lead Opinion
Michael Kingsley brought this action under 42 U.S.C. § 1983 against six staff members of a Wisconsin county jail, where he had been held as a pretrial detainee in 2010. Mr. Kingsley alleged that during his forcible transfer to a new cell, which included the application of a taser, the defendants had violated various of his constitutional and statutory rights. The district court granted partial summary judgment for the defendants; a single claim of excessive force against Sgt. Stan Hen-drickson and Deputy Fritz Degner proceeded to trial. The jury returned a verdict for the defendants.
I
BACKGROUND
A.
In April 2010, Mr. Kingsley was booked into the Monroe County Jail in Sparta, Wisconsin, as a pretrial detainee. On May 1, he was transferred to the facility’s south cell block.
On May 20, 2010, a deputy performing a cell check noticed a sheet of yellow legal paper covering the light above Mr. Kings-ley’s bed and ordered him to take it down. Mr. Kingsley refused the order and answered that he had not put the paper there.
When Deputy Blanton made his morning rounds, he ordered Mr. Kingsley to take down the paper. Mr. Kingsley did not respond and did not remove the paper. A few minutes later, Sgt. Hendrickson came to deliver Mr. Kingsley’s medication, and he again ordered Mr. Kingsley to take down the paper. After several requests, Mr. Kingsley again refused, stating once again that he had not put the paper there. Sgt. Hendrickson next called the jail administrator, Lieutenant Robert Conroy.
Lt. Conroy then went to Mr. Kingsley’s cell. After Mr. Kingsley refused his order, Lt. Conroy said jail staff would take the paper down and would have to transfer Mr. Kingsley to another cell in the interim. He also threatened discipline.
A few minutes later, Sgt. Hendrickson, Deputy Blanton, Lt. Conroy Deputy Fritz Degner and Deputy Sheriff Shisler arrived at the cell. They ordered Mr. Kingsley to stand up and to back up to the door with his hands behind his back. Mr. Kingsley asked why and protested that he had done nothing wrong. Deputy Degner told Mr. Kingsley to follow the order or he would be tasered. He was again ordered to get up, but he continued to lie facedown on his bunk. He did, however, put his hands behind his back.
At this point, Sgt. Hendrickson and Deputy Blanton entered the cell, and, with some difficulty (which they attribute to Mr. Kingsley “tensing” his arms and holding them apart),
Once he was on the receiving-cell bunk, the officers attempted to remove the handcuffs. The evidence at trial was conflicting on the later course of events.
After some further verbal exchange,
B.
In December 2010, Mr. Kingsley, proceeding pro se, brought this action in the district court. His principal theory was that the defendants had violated his due process rights under the Fourteenth Amendment.
The parties cross-moved for summary judgment. The district court granted partial judgment for the defendants on a procedural due process claim relating to Mr. Kingsley’s discipline by jail staff. It concluded, however, that material issues of fact remained that precluded judgment on the excessive force claim based on the officers’ conduct in the receiving cell. Specifically, the court identified “a dispute about whether defendants slammed plaintiffs head into the concrete bed and used a taser against him solely for the purpose of causing him harm.”
The court noted the case law that held that it was reasonable to use force against an inmate who refused to comply with orders but concluded that the issue in the case was “whether [the] defendants’ response to plaintiffs obstinance was reasonable under the circumstances or whether it was excessive and was intended to cause [the] plaintiff harm.”
Following the grant of summary judgment, the parties stipulated to the dismissal with prejudice of all outstanding claims except the excessive force claim against Sgt. Hendrickson and Deputy Degner. Counsel was appointed for Mr. Kingsley and the case proceeded to trial. In pretrial proceedings, the district court proposed an instruction on excessive force to which both parties objected, and the court made various modifications. At the close of the evidence, the parties revisited the instruction and again objected to its content. Again, the district court made some modification and added a clarifying instruction. The court finally settled on the following instruction:
Excessive force means force applied recklessly that is unreasonable in light of the facts and circumstances of the time. Thus, to succeed on his claim of excessive use of force, plaintiff must prove each of the following factors by a preponderance of the evidence:
(1) Defendants used force on plaintiff;
(2) Defendants’ use of force was unreasonable in light of the facts and circumstances at the time;
(3) Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiffs safety by failing to take reasonable measures to minimize the risk of harm to plaintiff; and
(4) Defendants’ conduct caused some harm to plaintiff.
In deciding whether one or more defendants used “unreasonable” force against plaintiff, you must consider whether it was unreasonable from the perspective of a reasonable officer facing the same circumstances that defendants faced. You must make this decision based on what defendants knew at the time of the incident, not based on what you know now.
Also, in deciding whether one or more defendants used unreasonable force and acted with reckless disregard of plaintiffs rights, you may consider such factors as:
• The need to use force;
• The relationship between the need to use force and the amount of force used;
• The extent of plaintiffs injury;
• Whether defendants reasonably believed there was a threat to the safety of staff or prisoners; and
*448 • Any efforts made by defendants to limit the amount of force used.[10 ]
Mr. Kingsley’s counsel objected to the inclusion of “harm” as an element of an excessive force claim. He contended that the jury might confuse the element of harm for some sort of lasting or significant injury. Counsel first requested a clarifying instruction that “pain is considered harm.”
The jury returned a verdict for the defendants, and the district court entered judgment dismissing the case. Mr. Kings-ley timely appeals the judgment. He submits that the instruction misstated the law and confused the jury on the subjects of both the intent and harm necessary to establish an excessive force claim in the pretrial detainee context.
II
DISCUSSION
On appeal, Mr. Kingsley raises two challenges to the jury instructions. First, he claims that the instruction wrongfully conflated the standard for excessive force claims under the Eighth and Fourteenth Amendments and that, as a result, the instructions incorrectly required him to demonstrate that the defendants acted with reckless disregard for his safety. Second, Mr. Kingsley claims that the instruction regarding harm, which stated that harm was an element of the claim and that it could be demonstrated without a showing of “severe injury,” was both incorrect and confusing.
We shall assess each of his objections to the instructions in turn. Our review of jury instructions is de novo. Huff v. Sheahan,
A.
1.
A claim of excessive force, like the one at issue here, is, at bottom, one that seeks to impose liability for “physically abusive governmental conduct.” Graham v. Conor,
In sum, we evaluate a claim of excessive force not under “some generalized ‘excessive force’ standard,” but “by reference to the specific constitutional standard which governs that right.” Graham,
2.
In examining the contours of the right to be free from excessive force as an element of due process, Bell v. Wolfish,
Our cases also have noted that the protection afforded by the Due Process Clause is broader than that afforded under the Eighth Amendment. See Lewis v. Downey,
While these cases make clear the basic theoretical and doctrinal distinction among the constitutional standards governing the various categories of confinement, they do not provide a practical framework for distinguishing the obligations of those constrained by each of the constitutional provisions. Indeed, on more than one occasion, while noting the distinction between pretrial and posttrial incarceration, we have decided the case before us by employing the more familiar Eighth Amendment standard. See, e.g., Rice ex rel. Rice v. Corr. Med. Servs.,
Here, we also have no need to delineate, in any comprehensive fashion, the differences between the rights of pretrial detainees and adjudicated criminals. Our task is less ambitious. We must determine the adequacy of an instruction given to a jury tasked with determining whether excessive force was employed against a pretrial detainee. We simply must determine whether the instruction at issue was sufficiently precise in its description of the due process right of a pretrial detainee to ensure that Mr. Kingsley’s case was fairly presented to the jury.
Several of our cases have explored the problem of describing, in the due process context, the right of a detainee to be free from excessive force. In Titran v. Ackman,
Wilson v. Williams,
In Wilson, the plaintiff had objected that the instruction wrongfully excluded the officer’s subjective intent from the jury’s consideration. We perceived no error in this regard. We stated that, where the issue of intent is contested, “a jury may properly rely on objective factors to arrive at their determination of that intent.” Id. at 876. Notably, we also reaffirmed the pointed holdings of Anderson v. Gutschenritter,
Again in Rice ex rel. Rice v. Correctional Medical Services,
Where, as here, force is employed in the course of resolving a disturbance, the pertinent inquiry is 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. Factors relevant to that inquiry include whether jail officials perceived a threat to their safety and the safety of other inmates, whether there was a genuine need for the application of force, whether the force used was commensurate with the need for force, the extent of any injury inflicted, and whatever efforts the officers made to temper the severity of the force they used. See also Forrest v. Prine,620 F.3d 739 , 744-45 (7th Cir.2010); Lewis v. Downey,581 F.3d 467 , 475-77 (7th Cir.2009).
Id. at 668 (additional citations omitted) (internal quotation marks omitted).
Our dissenting colleague believes that our cases have been ambiguous on the question of intent, but we see no serious ambiguity here. Our cases make clear that, although we employ the objective criteria of the Fourth Amendment as a touch
We think at this point it is useful to pause and be certain that we have not lost sight of the basic point of Bell. Bell teaches that the central inquiry relevant in a Fourteenth Amendment case brought by a pretrial detainee is whether the state punished him — as opposed to whether it had merely held him, restricted him, or applied a measure of force in a manner consistent with and expected of constitutional restraints on liberty prior to trial. Bell was, of course, a conditions of confinement case, see supra n. 14, but it notes the necessity of determining from the facts whether there is an intent to punish.
Finally, we note that although some consideration of intent is embraced by our cases, it is limited in significant measure by the fact that it is discernable from objective considerations
3.
With these principles in mind, we now turn to the jury instruction at issue in the case before us.
On the subject of excessive force, the jury was instructed as follows:
Excessive force means force applied recklessly that is unreasonable in light of the facts and circumstances of the time.
(1) Defendants used force on plaintiff;
(2) Defendants’ use of force was unreasonable in light of the facts and circumstances at the time;
(3) Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiffs safety by failing to take reasonable measures to minimize the risk of harm to plaintiff; and
(4) Defendants’ conduct caused some harm to plaintiff.
In deciding whether one or more defendants used “unreasonable” force against plaintiff, you must consider whether it was unreasonable from the perspective of a reasonable officer facing the same circumstances that defendants faced. You must make this decision based on what defendants knew at the time of the incident, not based on what you know now.
Also, in deciding whether one or more defendants used unreasonable force and acted with reckless disregard of plaintiffs rights, you may consider such factors as:
• The need to use force;
• The relationship between the need to use force and the amount of force used;
• The extent of plaintiffs injury;
• Whether defendants reasonably believed there was a threat to the safety of staff or prisoners; and
• Any efforts made by defendants to limit the amount of force used.[18 ]
Mr. Kingsley argues that the instructions were erroneous and confusing because he was required to establish that the officers had acted with “reckless disregard” for his safety when the instruction should have allowed the jury to find the existence of punishment on the basis of wholly objective factors.
A faithful adherence to the case law that we have discussed precludes our accepting this contention. As we have noted earlier, our cases are clear that the existence of intent — at least recklessness — is a requirement in Fourteenth Amendment excessive force cases. The court’s instruction reflected this requirement in our case law. The jury was told specifically that, in determining whether the intent element is satisfied, that is, whether the defendants “acted with reckless disregard of plaintiffs rights,” it “may consider” a non-exhaustive list of five factors, drawn almost verbatim from Wilson. In short, the instruction required a level of intent at least equivalent to recklessness, measured largely by the objective factors that we already have identified.
The jury was instructed adequately on the elements of Mr. Kingsley’s Fourteenth Amendment cause of action.
Mr. Kingsley next submits that the district court erred in instructing the jury on the issue of harm. He contends that he should not have been required to demonstrate harm at all and, if harm is an element, that the use of a taser establishes the requisite injury as a matter of law. For this latter proposition, Mr. Kingsley relies on Lewis v. Downey,
1.
We begin with the question of waiver. At trial, Mr. Kingsley did object to the inclusion of harm as an element of the excessive force claim. Our reading of the transcript makes clear, however, that his objection was that, because the defendants repeatedly had contended that there had been no lasting injury the inclusion of the element of harm might be misread as requiring more than de minimis harm. Counsel for Mr. Kingsley therefore requested a clarifying instruction that “pain is considered harm.”
Although Mr. Kingsley objected to the inclusion of “harm” as an element, counsel described the objection as concern that the inclusion of “harm” might be construed erroneously by the jury to require some lasting injury. Notably, counsel stated: “[W]e submit that in the Seventh Circuit, injury isn’t a required element of an excessive force claim. I think the use of harm is an element.”
2.
We now turn to the question whether the district court’s clarifying instruction introduced confusion by suggesting to the jury that some unspecified level of injury was required to establish harm. The transcript makes clear that, after voicing the objection to the inclusion of harm and stating that it was out of concern that the defendants would argue need for a lasting injury, counsel for Mr. Kingsley participated in the modification of the instruction and specifically suggested the inclusion of the “[o]r severe injury” language that ultimately was given by the district court to ameliorate the concerns raised in the prior objection. In short, the clarifying instruction was offered at Mr. Kings-ley’s request, and for the very purpose of minimizing any risk that the jury would construe harm as a significant injury. Mr. Kingsley’s counsel actively participated with the district court in achieving an instruction that would be satisfactory in that regard and did not continue an objection to the language as presenting further difficulty or insist on a more specific instruction that any amount of pain qualified as harm. Accordingly, the current objection is waived.
In any event, even if the merits of these objections were properly before us, we previously have approved an instruction in this context that included a requirement of “some harm.” See Wilson,
There was no reversible error with respect to the requirement of a showing of “harm” in this case.
Conclusion
Because the jury instructions were neither erroneous nor confusing statements of the law of this circuit, the judgment in favor of the defendants is affirmed.
AFFIRMED
Notes
. Apparently, covering the lights with paper is a common practice by inmates in an effort to dim some of the brightness of the jail's lights.
. R.27 at 7.
. The record contains several videos, including one of the transfer and one of the incident in the receiving cell. However, the district court found them of limited value on the disputed points because the camera angle is such that Mr. Kingsley is nearly entirely blocked by the defendants.
. Mr. Kingsley claims Sgt. Hendrickson ordered Deputy Degner to "[t]ase his ass.” R.157 at 52. The defendants deny that these words were used but agree that Sgt. Hendrickson told Deputy Degner to apply the taser in contact stun mode to Mr. Kingsley.
. Following the incident, Mr. Kingsley was given a major violation report showing four rule violations. The events surrounding the issuance of that report and the consequences were a part of Mr. Kingsley’s procedural due process claim, which is not at issue in this appeal.
. He brought the federal claims under 42 U.S.C. § 1983. A state law claim for assault and battery initially was presented as well. That claim is not at issue in this appeal.
. R.69 at 12.
. Id. at 7.
. Id. at 14 (emphasis added).
. R.146 at 3-4.
. R.156 at 79.
. Id. (internal quotation marks omitted).
. R.146 at 4.
. As we already have noted, Bell v. Wolfish,
. The Supreme Court has noted, at least in the context of the Eighth Amendment, that "punishment” itself requires " 'a deliberate act intended to chastise or deter.’ ” Wilson v. Seiter,
. The dissent also suggests that under Daniels v. Williams,
. We acknowledge and are grateful for the fine work of the Committee that developed this circuit’s impressive Pattern Civil Jury Instructions. Nevertheless, while those instructions represent learned studies of the law of this circuit, they are persuasive only to the extent that they accurately restate the law of this circuit. See United States v. Burke,
. R.146 at 3-4.
. The dissent contends that “[t]he clearest thing about Wilson is that it reversed the use of the confusing amalgam of an instruction.” Dissent at 457. In Wilson, this court approved an instruction that tracked very closely the language used in this case, and turned on ‘‘whether the prohibited punitive intent was present.” Wilson v. Williams,
.The dissent also contends that the instruction was confusing not only because it introduced the extraneous concept of intent, but also because it did so in three separate and quite different ways. See dissent at 459-60. We think this overstates the point and overly parses the instruction, which is not our settled approach on review of such matters. True enough, the instruction uses the term
. R.146 at 4.
. Appellant’s Br. 20.
. R.156 at 79.
. Id.
. Id.
. Id. at 78 (emphasis added).
. Id. at 79 (emphasis added).
Dissenting Opinion
dissenting.
I respectfully dissent. This case presents an important issue about the extent of a pretrial detainee’s constitutional right to be free from punishment and excessive force. If a pretrial detainee can prove that a correctional officer used objectively unreasonable force against him, it should be self-evident that the detainee was “punished” without due process of law. In this case, however, the district court’s jury instruction on excessive force added an unnecessary and confusing element of “reckless” conduct or purpose to the required elements of plaintiffs claim.
The Committee on Pattern Civil Jury Instructions of the Seventh Circuit considered this question in 2009. The committee wisely omitted such language of recklessness or purpose from its Pattern Instructions 7.08 and 7.09 for excessive force claims by pretrial detainees. We should remand for a new trial with instructions tracking those pattern instructions. That way we could avoid the puzzle posed by
I. The Problem: Excessive Force Claims by Pretrial Detainees
As the majority explains, when law enforcement officers apply physical force to suspects, detainees, or prisoners, the constitutional standard depends on the status of the person on the receiving end. A person who is not in custody and who is a target of police force, such as in an arrest or investigative stop, is protected by the Fourth Amendment’s prohibition on unreasonable seizures of the person. The Fourth Amendment standard is objective: was the application of force unreasonable in light of all the relevant circumstances confronting the officer at the time? Graham v. Connor,
A person convicted of a crime and serving a custodial sentence is protected by the Eighth Amendment’s prohibition on cruel and unusual punishment. The Eighth Amendment standard differs from the Fourth because the officer’s state of mind is critical. The plaintiff must prove that the correctional officer intentionally used extreme or excessive cruelty toward the plaintiff for the purpose of harming him, and not in a good faith effort to maintain or restore security or discipline. Whitley v. Albers,
Both the objective standard under the Fourth Amendment for free citizens and the subjective standard under the Eighth Amendment for sentenced prisoners are well established in the law. The person in between is the pretrial detainee. That person is protected from excessive force by the Due Process Clauses of the Fifth or Fourteenth Amendments because he may not be “punished” until he has been adjudged guilty through due process of law. Bell v. Wolfish,
Just what the excessive force standard for a pretrial detainee looks like in detail is not as clear. The detainee may often be held in a jail with convicted offenders under conditions that seem indistinguishable from prison, yet he has not been convicted and is still entitled to a presumption of innocence. The Supreme Court has not settled the question of the standard for pretrial detainees. Graham explicitly left it open.
My colleagues rely heavily on Wilson v. Williams,
On this last point, though, recall the caution in Bell and Graham that the Eighth Amendment standard applies only after the state has complied with the constitutional protections needed to convict a person of crime.
More enlightening is Titran v. Ackman,
II. The Pattern Jury Instructions
The Committee on Pattern Civil Jury Instructions of the Seventh Circuit took up this problem in 2009 and published with approval of the Circuit Council the pattern jury instructions that advise using the same objective reasonableness standards for excessive force claims by pretrial detainees as well as arrestees. The Circuit Council’s publication does not imply substantive approval for every line of the instructions, but the committee chaired by Judge Robert H. Miller, Jr., included talented judges and practitioners representing a range of perspectives, and the committee invited and received public comment on its draft instructions. The committee’s work deserves our respect and close attention.
Pattern Instructions 7.08 and 7.09 were drafted for use in excessive force cases for both arrestees under the Fourth Amendment and pretrial detainees under the Fifth and Fourteenth Amendments. The full texts of the instructions and committee comments are attached as an appendix to this opinion.
The elements instruction, 7.08, includes three elements:
1. Defendant used unreasonable force against Plaintiff;
[2. Because of Defendant’s unreasonable force, Plaintiff was harmed;]
[8. Defendant acted under color of law.]
The second and third elements are in brackets because there will often be no dispute about them and because it is not clear whether “harm” is a distinct element, as the committee’s comment explains.
Instruction 7.09 then explains what is meant by excessive or unreasonable force, and it does so in purely objective terms:
You must decide whether Defendant’s use of force was unreasonable from the perspective of a reasonable officer facing the same circumstances that Defendant faced. You must make this decision based on what the officer knew at the time of the arrest, not based on what you know now. In deciding whether Defendant’s use of force was unreasonable, you must not consider whether Defendant’s intentions were good or bad.
In performing his job, an officer can use force that is reasonably necessary under the circumstances.
The committee chose not to identify specific factors, but offered a proposed list for judges who believe such a list might aid a jury:
— the need for the use of force;
— the relationship between the need for the use of force and the amount of force used;
— the extent of the plaintiffs injury;
*459 — any efforts made by the defendant to temper or limit the amount of force;
— the severity of the crime at issue;
— the threat reasonably perceived by the officer(s);
— whether the plaintiff was actively resisting arrest or was attempting to evade arrest by fleeing.
These pattern instructions are more consistent with the applicable constitutional standard, see Graham, Titran, and Wilson, and much less confusing than the instruction used in this case. The problem is the concept of “recklessness” in the district court’s instruction.
III. The Instruction Given in This Trial
The jury instruction given in plaintiff Kingsley’s trial, quoted by the majority at pages 447-48, goes astray by introducing the concept of reckless conduct as an additional element the plaintiff must prove. The first line of the instruction given in this trial told the jury that excessive force is “force applied recklessly that is unreasonable in light of the facts and circumstances of the time.” In the Fourth Amendment context, excessive force is force that is unreasonable in light of the facts and circumstances the officer faced. Graham,
Assuming the pretrial detainee plaintiff can prove force “that is unreasonable in light of the facts and circumstances of the time,” which is the correct standard, the concept “recklessly” adds a vague and confusing extra hurdle for the plaintiff. Put another way, how and why would it be constitutional for an officer to use force against a pretrial detainee that was “unreasonable in light of the facts and circumstances of the time,” since this instruction invites that very possibility? How and why would-objectively unreasonable force be deemed anything other than “punishment” that would be imposed on the detainee without due process of law? See Bell,
The instruction here also introduced a second version of recklessness in the third element, saying the plaintiff must show: “Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiffs safety by failing to take reasonable measures to minimize the risk of harm to plaintiff.” I am not at all sure what that means, and I don’t know how a juror should have interpreted it. Must the plaintiff come forward with evidence of reasonable measures that would have minimized the risk of harm? Would simply refraining from the alleged use of force — in this case, using a taser on an allegedly compliant prisoner, or refraining from smashing his head into a concrete bed — have been sufficient? Or was something else required? (I realize that whether the - plaintiff was actually compliant by that time and how force was used were hotly debated at trial, but jury instructions must guide the jury on the law applicable to both sides’ versions of the facts.)
Adding to the confusion, the same jury instruction then used a third version of recklessness, telling the jury: “in deciding whether one or more defendants used unreasonable force and acted with reckless disregard of plaintiff’s rights, you may consider such factors as....” A juror trying to follow the instructions carefully might ask at this point where the idea of reckless disregard of plaintiffs rights came from and what it means. Something different from use of excessive force?
So the district court’s instruction was erroneous for two reasons. First, it introduced an extra element — recklessness— that is simply not required in a pretrial detainee’s claim for excessive force. Second, its treatment of that extra element in three different ways made this instruction a confusing amalgam that a jury could not reasonably be expected to follow.
As we consider the district court’s instruction, we should also step back a moment from the details of the case law and ask whether and why a pretrial detainee’s claim for excessive force should differ at all from that of a person being arrested or stopped. The pretrial detainee is still cloaked in the presumption of innocence and may not be punished. Bell,
Even those federal detainees are still presumed innocent, though, and should not be subject to punishment before a conviction. And in many state justice systems, a pretrial detainee may remain in jail for weeks or even months simply because he cannot afford the premium for the presumptive bond set in his case. For those many thousands of people in the criminal justice system, we should recognize that the intentional use of objectively unreasonable force against them amounts to punishment without due process of law and violates the Constitution. They are not and should not be required to prove more in terms of reckless disregard for or intentional violation of their rights. The transition from arrest to pretrial detention does not give officers “greater ability to assault and batter” the detainees. Titran,
IV. The Role of Intentional or Reckless Conduct
To support the subjective recklessness element in the district court’s instruction, my colleagues cite the case law holding that a plaintiff suing under 42 U.S.C. § 1983 for a constitutional violation must show intentional conduct. They then treat reckless conduct as a form of intentional conduct. See above at 13, citing Daniels v. Williams,
In Daniels the Supreme Court resolved a circuit split on whether negligent conduct can violate the individual rights guaranteed by the Constitution. The Court’s answer was no. In Daniels a jail inmate
In the context of an excessive force claim, Daniels means that if, during the removal of Kingsley from his cell, the application of force was not intentional — the taser went off by accident, for example, or a guard slipped, fell, and knocked the handcuffed inmate down so that his head hit the floor — then there would have been no constitutional violation. Reckless conduct is generally recognized as equivalent to intentional conduct for these purposes, when it is equivalent to criminal recklessness, meaning that the actor is subjectively aware of the high risk of harm and then disregards it. See Farmer v. Brennan,
In an appropriate case, therefore, it could be appropriate to instruct a jury that if the defendant’s use of force was reckless (perhaps, for example, running through a crowd with a finger on the trigger of an unaimed gun), that would be sufficient to show intentional use of force. That would be an appropriate role for the concept of recklessness in an excessive force case. But there is no need for such an instruction unless the defense contends the use of force was unintended. The defense did not argue that here, so there was no need for a subjective element in the instruction.
My colleagues’ reliance on the need for intentional conduct to justify the subjective recklessness elements of the instruction given here also proves too much. As explained above, intentional conduct is needed to show any constitutional violation, including the Fourth Amendment, where the standard for excessive force is objective. See County of Sacramento v. Lewis,
The court in Fisher explained precisely the difference that my colleagues’ reasoning overlooks. After recognizing that a Fourth Amendment violation requires intent, not negligence, the Sixth Circuit explained: “However, the intent in question is the intent to commit the act, not the intent that a certain result be achieved. Therefore, Officer Taylor’s act of firing the gun was intentional, even if the result was not one he sought to achieve. Instructing the jury that more than negligence was required would likely confuse the jury as to the intent question.” Id. at 317. Again, because the defendants at this trial did not claim the use of force was accidental, there was no reason to introduce the concept of recklessness into the excessive force instruction.
Before closing, I should add that I have considerable sympathy for both this district judge and any other judge trying to distill our case law into a coherent elements instruction for a pretrial detainee’s excessive force claim. Some of the cases cited by the majority — especially Wilson— reflect similar confusion. But that is why the work of the Pattern Instruction Committee was so valuable. We should endorse their work, not reject it.
Finally, I agree with the majority that plaintiff Kingsley waived in the district court his challenge to the “harm” element of the court’s instruction on excessive force. As for the merits of that challenge, which the majority also addresses, I see no prejudicial error by including harm as an element. The Pattern Instruction Committee also confronted this issue as part of its Instruction 7.08 and could not come to a definitive conclusion. The committee’s comment gives good advice and leaves the choice to the sound judgment of the district court. In most excessive force cases, harm is likely to be so obvious that it does not require treatment as a separate element. (It will ordinarily be relevant in deciding whether the force applied was excessive or in deciding on an amount of damages.) If the defense argues that the force used was too minimal to violate the plaintiffs rights, the plaintiff should not be prejudiced if the district judge includes harm as an element but also instructs the jury, as the court did here, that pain can be harm for purposes of proving that element.
For these reasons, I would reverse the judgment of the district court and remand for a new trial with jury instructions that track Seventh Circuit Pattern Jury Instructions 7.08 and 7.09.
APPENDIX
7.08 FOURTH AMENDMENT/ FOURTEENTH AMENDMENT: EXCESSIVE FORCE AGAINST ARRESTEE OR PRETRIAL DETAINEE — ELEMENTS
In this case, Plaintiff claims that Defendant used excessive force against him. To succeed on this claim, Plaintiff must prove each of the following things by a preponderance of the evidence:
1. Defendant used unreasonable force against Plaintiff;
[2. Because of Defendant’s unreasonable force, Plaintiff was harmed;]
[3. Defendant acted under color of law.]
If you find that Plaintiff has proved each of these things by a preponderance of the
If, on the other hand, you find that Plaintiff did not prove any one of these things by a preponderance of the evidence, then you should find for Defendant, and you will not consider the question of damages.
Committee Comments
a. Unreasonable Force: For authority regarding the “unreasonable force” element of the claim, see Graham v. Connor,
If the defendant contends that the application of force was accidental, the court may wish to break the first element into two:
1. Defendant intentionally used force against Plaintiff;
2. The force Defendant used was unreasonable;
b. Harm to Plaintiff: Although some other circuits include an element of “damage” in their pattern instruction, see, e.g., Eighth CIRCUIT Manual of Model Civil Jury Instructions § 4.30 (1999), the Committee believes that there is significant doubt as to whether damage, or “harm” as that term is commonly understood, is actually required for a finding of liability under § 1983. Though “harm” in the commonly-understood sense is likely to exist in most excessive force cases, some cases will arise in which it does not, e.g., a situation in which an officer strikes the plaintiff with his hand but leaves no mark and causes no lingering injury or pain. In such cases, the court will need to determine whether the jury should be instructed on this point.
In Gumz v. Morrissette,
c. Third element: The third element should be eliminated if the “color of law” issue is not in dispute.
d. Single Element Instruction: If the second and third elements are eliminated, only one element will remain, and the instruction’s second sentence should read as follows: “To succeed on this claim, Plaintiff must prove by a preponderance of the evidence that Defendant used unreasonable force against him.”
7.09 FOURTH AMENDMENT/ FOURTEENTH AMENDMENT: EXCESSIVE FORCE-DEFINITION OF “UNREASONABLE”
You must decide whether Defendant’s use of force was unreasonable from the perspective of a reasonable officer facing the same circumstances that Defendant faced. You must make this decision based on what the officer knew at the time of the arrest, not based on what you know now. In deciding whether Defendant’s use of force was unreasonable, you must not consider whether Defendant’s intentions were good or bad.
In performing his job, an officer can use force that is reasonably necessary under the circumstances.
[An officer may use deadly force when a reasonable officer, under the same circumstances, would believe that the suspect’s actions placed him or others in the immediate vicinity in imminent danger of death or serious bodily harm. [It is not necessary that this danger actually existed.] [An officer is not required to use all practical alternatives to avoid a situation where deadly force is justified.]]
Committee Comments
a. Authority: Graham v. Connor,
b. Factors: Case law establishes a number of factors that may be relevant to the jury’s determination of whether a particular use of force was unreasonable. The Committee did not list these factors in the instruction because the jury is to consider all circumstances, and the listing of some might suggest that others are irrelevant. However, a court may wish to consider giving a list of factors for the jury’s consideration, and if it elects to do so the following is proposed:
— the need for the use of force;
— the relationship between the need for the use of force and the amount of force used;
— the extent of the plaintiffs injury;
— any efforts made by the defendant to temper or limit the amount of force;
*465 — the severity of the crime at issue;
— the threat reasonably perceived by the officer(s);
— whether the plaintiff was actively resisting arrest or was attempting to evade arrest by fleeing.
See Graham v. Connor,
c. Deadly Force: The final (bracketed) paragraph applies only in cases involving an officer’s use of deadly force. Tennessee v. Garner,
. There is a long-standing circuit split on the substantive standard for these excessive force claims by pretrial detainees. Compare, e.g., Gibson v. County of Washoe,
. Section 1983 and Bivens excessive force cases in which defendants contend the application of force was accidental appear to be relatively unusual/ but they do arise. The Pattern Instruction Committee allowed for them. Its comment on Instruction 7.08 advises judges in such cases to break the first element of unreasonable force into two parts: intentional use of force and unreasonable use of force.