1 Austin v. Hamilton, 945 F.2d 1155, 1157 (10th Cir. 1991).
2 Id.
3 Id.
4 Id.
5 See id.
6 See Austin, 945 F.2d at 1157.
7 Id.
8 Id.
9 Id.
10 Id.
11 Austin, 945 F.2d at 1157.
12 Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States 1 (Human Rights Watch ed., 1998).
13 Id.
14 This type of unnecessarily rough police behavior is what this Note refers to as excessive force. Excessive force can be generally understood as force applied by a police officer where the amount of force used is disproportionate to the amount that was actually needed. See Graham v. Connor, 490 U.S. 386, 390 (1989).
15 See Human Rights Watch, supra note 12, at 1. This information is based on research conducted in fourteen U.S. cities over two and a half years. Id. In researching this data, Human Rights Watch interviewed and corresponded with attorneys representing victims alleging ill treatment by police, representatives of police department internal affairs units, police officers, citizen review agency staff, city officials, Justice Department officials, representatives of federal U.S. Attorneys’ offices, local prosecutors’ office representatives, experts on police abuse, and victims of abuse. Id.
16 42 U.S.C. � 1983 (2000). Thus, in order to maintain a � 1983 action, plaintiffs must allege a specific constitutional violation. See id.
17 Human Rights Watch, supra note 12, at 119; see also 42 U.S.C. � 1983.
18 Human Rights Watch, supra note 12, at 119; see also 42 U.S.C. � 1983.
19 Human Rights Watch, supra note 12, at 119; see also 42 U.S.C. � 1983.
20 This term refers to suspects whom police have already arrested but remain in custody either for administrative booking procedures or for extended confinement, as in the case of a suspect who is denied bail. Because not all post-arrest detainees proceed to the trial phase of the criminal process, with instances of police brutality during early custodial phases, it is not yet clear if an arrestee will be charged and brought to trial. Thus, use of the term “pretrial detainee” refers both to those suspects detained pending trial and those suspects in early post-arrest custody who may or may not eventually proceed to trial. See cases cited infra note 316.
21 See, e.g., Wilson v. Spain, 209 F.3d 713, 714 (8th Cir. 2000).
22 U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”).
23 U.S. Const. amend. XIV, � 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”).
24 See cases cited infra note 106.
25 See E. Bryan MacDonald, Graham v. Connor: A Reasonable Approach to Excessive Force Claims Against Police Officers, 22 Pac. L.J. 157, 180 (1990).
26 Graham, 490 U.S. at 388, 396.
27 See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); MacDonald, supra note 25, at 180.
28 See, e.g., Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir. 1993).
29 See, e.g., Graham, 490 U.S. at 397.
30 Id. at 394.
31 Id. at 395 n.10.
32 See Wilson, 209 F.3d at 715.
33 U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).
34 Wilson, 209 F.3d at 715. It is unclear if a pretrial detainee is still being “seized” or arrested for purposes of the Fourth Amendment. See id. It is clear, however, that the Eighth Amendment’s ban on cruel and unusual punishment does not protect individuals who have not yet been convicted and sentenced. Graham, 490 U.S. at 392 n.6 (citing Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)).
35 Wilson, 209 F.3d at 715.
36 See Human Rights Watch, supra note 12, at 1.
37 See id.
38 See infra notes 270–377 and accompanying text.
39 See infra notes 270–377 and accompanying text.
40 See infra notes 56–106 and accompanying text.
41 See infra notes 56–70 and accompanying text.
42 See infra notes 71–84 and accompanying text.
43 See infra notes 85–106 and accompanying text.
44 See infra notes 107–153 and accompanying text.
45 See infra notes 111–131 and accompanying text.
46 See infra notes 132–153 and accompanying text.
47 See cases cited infra note 106.
48 See infra notes 160–201 and accompanying text.
49 See infra notes 202–225 and accompanying text.
50 See infra notes 226–269 and accompanying text.
51 See infra notes 270–377 and accompanying text.
52 See infra notes 275–303 and accompanying text.
53 See infra notes 304–324 and accompanying text.
54 See infra notes 325–346 and accompanying text.
55 See infra notes 347–377 and accompanying text.
56 See U.S. Const. amend. IV.
57 3 Wayne R. LaFave, Search And Seizure: A Treatise on the Fourth Amendment � 5.1 (3d ed. Supp. 2003).
58 Id.
59 Id.
60 Thomas K. Clancy, The Supreme Court’s Search for a Definition of a Seizure: What Is a “Seizure” of a Person Within the Meaning of the Fourth Amendment?, 27 Am. Crim. L. Rev. 619, 620 (1990).
61 Id. (citing U.S. Const. amend. IV).
62 471 U.S. 1, 7 (1985). Garner involved a � 1983 action filed after a police officer killed a fleeing teenage burglar despite being reasonably sure the suspect was unarmed. Id. at 3. The officer had acted in accordance with a Tennessee statute providing that if, after an officer gave notice of an intent to arrest, the suspect resists or flees, the officer may use all necessary means to effect the arrest. Id. at 4. Applying the Fourth Amendment balancing test, the Court concluded that the suspect’s fundamental interest in his own life outweighed the government interest in effective law enforcement. Id. at 9–10.
63 Id. at 8–9.
64 Id. at 7.
65 Id. at 8.
66 See Valencia v. Wiggins, 981 F.2d 1440, 1444 (5th Cir. 1993).
67 See Pierce v. Multonmah County, 76 F.3d 1032, 1042 (9th Cir. 1996).
68 Graham v. Connor, 490 U.S. 386, 388 (1989).
69 See, e.g., Wilkins v. May, 872 F.2d 190, 192–93 (7th Cir. 1989). This is because the Fourth Amendment, by its own terms, regulates “seizures.” See U.S. Const. amend. IV. Therefore if the police conduct in question did not occur during the course of a seizure, it is not within the ambit of that Amendment’s protection. See id.
70 See Wilkins, 872 F.2d at 194.
71 Michael J. Phillips, The Non-Privacy Applications of Substantive Due Process, 21 Rutgers L.J. 537, 539 (1990). One commentator states:
Although substantive due process as just defined differs considerably from the procedural due process that traditionally has been the focus of the due process clauses, these two forms of due process do share common features. First, both require the government to have deprived the claimant of life, liberty or property before their distinct protections come into play. Second, neither a procedural nor a substantive due process claim can be based on merely negligent government behavior.
Id. at 540–41.
72 Id. at 540.
73 Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309, 322 (1993).
74 Id. at 322–23.
75 Id. at 323.
76 Id.
77 342 U.S. 165, 172 (1952).
78 Id.
79 Id. at 174.
80 Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
81 Id.
82 Id.
83 See Graham, 490 U.S. at 393.
84 See, e.g., Wilson v. Spain, 209 F.3d 713, 716 (8th Cir. 2000) (noting that the substantive due process test is “more burdensome” than the Fourth Amendment standard); Jill I. Brown, Comment, Defining “Reasonable” Police Conduct: Graham v. Connor and Excessive Force During Arrest, 38 UCLA L. Rev. 1257, 1271 (1991) (characterizing the substantive due process test as a more “onerous” burden of proof than the Fourth Amendment objective reasonableness standard); see also MacDonald, supra note 25, at 180 (noting that under the Fourth Amendment standard, more � 1983 excessive force claims will withstand motions for summary judgment and directed verdict than under a Fourteenth Amendment standard).
85 See 490 U.S. at 393.
86 Id. at 388.
87 Id. at 393.
88 Id. at 395.
89 Id. at 396.
90 490 U.S. at 397.
91 Id.
92 Id. (rejecting the applicability of the substantive due process test in these circumstances and disagreeing with the suggestion of the Court of Appeals that the subjective elements of the substantive due process test are merely another way of describing conduct that is objectively unreasonable).
93 Id. at 394.
94 Id. at 394–95.
95 Graham, 490 U.S. at 394, 395 (explaining that this holding merely makes explicit what was implicit in the Garner Court’s analysis: that all claims of excessive force during the course of an arrest should be analyzed under the Fourth Amendment’s reasonableness standard).
96 See, e.g., MacDonald, supra note 25, at 180. But see Michael C. Fayz, Comment, Graham v. Connor: The Supreme Court Clears the Way for Summary Dismissal of Section 1983 Excessive Force Claims, 36 Wayne L. Rev. 1507, 1527 (1990) (arguing that by eliminating the question of an officer’s subjective malice, an important factual determination for a jury is removed from excessive force cases; therefore, excessive force claims are more likely to be disposed of at the summary judgment phase).
97 Graham, 490 U.S. at 395 n.10.
98 441 U.S. 520, 535 (1979).
99 Graham, 490 U.S. at 395 n.10.
100 441 U.S. at 523.
101 The practices at issue included: housing inmates in cells containing double bunk beds; preventing detainees from receiving books and magazines unless mailed directly from a publisher; refusing to allow detainees to receive packages containing food or personal property; conducting unannounced searches of prisoners’ cells at irregular intervals; and conducting body cavity searches following visits from outsiders. Id. at 525–30.
102 Id.
103 See id.
104 Id.; see Phillips, supra note 71, at 558 (noting that although the majority opinion did not use the term “substantive due process,” the case involved a due process challenge to substantive prison regulations and used a means-ends standard to review that challenge).
105 See Graham, 490 U.S. at 395 n.10.
106 See, e.g., Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998) (holding that the Fourth Amendment continues to provide the accused with constitutional protection following an arrest); Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991) (holding that the Fourth Amendment provides the accused with constitutional protection until the accused has been brought before a judicial officer for a probable cause hearing); Wilkins, 872 F.2d at 192–93 (holding that the Fourteenth Amendment exclusively governs excessive force claims in the post-arrest context).
107 See, e.g., Albright v. Oliver, 510 U.S. 266, 274 (1994); County of Riverside v. McLaughlin, 500 U.S. 44, 47, 56 (1991); Parratt v. Taylor, 451 U.S. 527, 535 (1981); Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
108 See Pierce v. Multnomah County, Or., 76 F.3d 1032, 1043 (9th Cir. 1996).
109 See infra notes 111–131 and accompanying text.
110 See infra notes 132–153 and accompanying text.
111 See McLaughlin, 500 U.S. at 47, 56.
112 Id. at 44.
113 Id. at 47, 56.
114 See 420 U.S. at 105 n.1.
115 Id. at 114.
116 Id. at 125 n.27.
117 Id.
118 See id. at 114.
119 In the period between Gerstein and Graham, Justices Douglas, Stewart, Burger, and Powell were replaced by Justices Stevens, O’Connor, Scalia, and Kennedy, respectively.
120 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).
121 McLaughlin, 500 U.S. at 56.
122 Id. at 50.
123 Id. at 56.
124 Id. at 58–59.
125 See id. In all situations, however, the Fourth Amendment applies to pretrial detainees for at least two days into their detention. Id.
126 510 U.S. at 274.
127 Id. at 271.
128 Id.
129 Id. at 273–74.
130 Id. at 274.
131 See Albright, 510 U.S. at 274; Graham, 490 U.S. at 395 n.10.
132 See, e.g., Albright, 510 U.S. at 271–72.
133 See Eric S. Connuck, Constitutional Law: The Viability of Section 1983 Actions in Response to Police Misconduct, 1990 Ann. Surv. Am. L. 747, 777 (1992) (classifying substantive due process as “shorthand for judicial privilege to condemn things that the judges do not like or cannot understand”) (quoting Gumz v. Morrissette, 772 F.2d 1395, 1406 (7th Cir. 1985) (Easterbrook, J., concurring)); Fallon, supra note 73, at 314.
134 Albright, 510 U.S. at 271–72 (noting that the doctrine of substantive due process should not be expanded because it lacks guideposts for responsible decision making).
135 490 U.S. at 395.
136 Id. at 394.
137 Id. at 395.
138 Id. at 393.
139 Id.
140 See Graham, 490 U.S. at 395.
141 510 U.S. at 271.
142 Id. at 271–72.
143 Id. (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
144 See id. at 276 (Scalia, J., concurring).
145 Id. (Scalia, J., concurring) (“The Bill of Rights sets forth, in the Fifth and Sixth Amendments, procedural guarantees relating to the period before and during trial . . . . Those requirements are not to be supplemented through the device of ‘substantive due process.’”).
146 See 510 U.S. at 284 (Kennedy, J., concurring).
147 See id. (Kennedy, J., concurring) (citing Parratt, 451 U.S. at 535–44).
148 See 451 U.S. at 544.
149 Id. at 529.
150 Id. at 536–37.
151 Id. at 545.
152 Albright, 510 U.S. at 284 (Kennedy, J., concurring) (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).
153 See Fallon, supra note 73, at 311.
154 See, e.g., Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998); Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991); Wilkins v. May, 872 F.2d 190, 192–93 (7th Cir. 1989).
155 See, e.g., Moore, 146 F.3d at 535; Austin, 945 F.2d at 1160; Wilkins, 872 F.2d at 192–93.
156 See infra notes 160–201 and accompanying text.
157 See, e.g., Wilkins, 872 F.2d at 192–93.
158 See infra notes 202–225 and accompanying text.
159 See infra notes 226–269 and accompanying text.
160 See, e.g., id.
161 See id. at 191, 192.
162 Id. at 191.
163 Id.
164 Wilkins, 872 F.2d at 191.
165 Id. at 192.
166 Id. at 193.
167 Id.
168 Id.
169 Wilkins, 872 F.2d at 193.
170 Id.
171 Id.
172 Id.
173 Id.
174 Wilkins, 872 F.2d at 193–94.
175 Id. at 194.
176 Id.
177 Id.
178 Id.
179 Wilkins, 872 F.2d at 194.
180 Id.
181 See id. There is considerable support among commentators for this approach. See H.L. “Mike” McCormick, Excessive Force Claims Under the Fourteenth Amendment, 29 Urb. Law. 69, 72 (1997). For example, one commentator states:
The logical basis for application of the Fourteenth Amendment to excessive force claims is the Amendment’s prohibition against punishment without due process. . . . [S]uch excessive force violates the detainee’s substantive due process rights. In the case of a suspect who has been handcuffed and placed in a police cruiser, any use of force thereafter could very well constitute “punishment” prior to conviction in violation of the Fourteenth Amendment. . . . The federal courts of appeals continue to properly apply the Fourteenth Amendment substantive due process standard in the context of persons in custody awaiting trial.
Id.; see also Phillips, supra note 71, at 557 (noting that the most important set of protections for pretrial detainees stems from the Fourteenth Amendment as a matter of substantive due process). But see Connuck, supra note 133, at 751 (noting that the substantive due process test is internally inconsistent because it simultaneously requires both an objective and a subjective analysis; that is, its first two factors, the need for force and the relationship between this need and the amount of force used, call for a determination of whether the police conduct was objectively unreasonable, whereas the fourth factor requires an examination of the officer’s subjective intent).
182 Wilkins, 872 F.2d at 194.
183 See id. at 195.
184 981 F.2d 1440, 1445 (5th Cir. 1993).
185 Id. at 1442.
186 Id. at 1444.
187 Id.
188 Id.
189 Wiggins, 981 F.2d at 1444.
190 Id.
191 Id.
192 Id.; see also Bell v. Wolfish, 441 U.S. 520, 557 (1979). Similarly, the Wiggins court observed, in Hudson v. Palmer, the U.S. Supreme Court concluded that the Fourth Amendment does not protect a prisoner’s privacy interest in his cell or his possessory interest in personal property contained in his cell. Wiggins, 981 F.2d at 1444 (citing Hudson v. Palmer, 468 U.S. 517, 526 (1984)).
193 Wiggins, 981 F.2d at 1444.
194 Id.
195 115 F.3d 1159, 1166 (4th Cir. 1997).
196 Id. at 1160.
197 Id. at 1161.
198 Id. at 1164.
199 Id. at 1162.
200 Riley, 115 F.3d at 1162.
201 Id. at 1163 (citing California v. Hodari D., 499 U.S. 621, 625 (1991); Bell, 441 U.S. at 533–34)).
202 See, e.g., Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir. 1985).
203 107 F.3d 200, 206–07 (3d Cir. 1997).
204 Id. at 203.
205 Id. at 205.
206 See id. at 205, 206–07.
207 See id. at 205.
208 Johnstone, 107 F.3d at 205.
209 Id. at 206.
210 Id. at 206–07.
211 See id. at 207.
212 See 146 F.3d at 535.
213 Id. at 534.
214 Id. at 532, 534.
215 See id. at 535.
216 See id.
217 262 F.3d 871, 879 (9th Cir. 2001).
218 Id. (citing Albright v. Oliver, 510 U.S. 266, 278 (1994) (Ginsburg, J., concurring) (noting that a seizure continues throughout a criminal trial)). According to one commentator, the continuing seizure approach best achieves a balance between individual liberties and the public’s interest in law enforcement because it promulgates a single objective standard. See Connuck, supra note 133, at 777. Connuck argues that consistency is better served by this objective inquiry than a Fourteenth Amendment analysis because the latter generates too much uncertainty by inquiring into an officer’s subjective motivations. Id.
219 262 F.3d at 875.
220 Id. at 878–79.
221 See id. at 879.
222 See id.
223 Id. at 881.
224 Haskin, 262 F.3d at 881.
225 Id. at 882.
226 See, e.g., Austin, 945 F.2d at 1160. According to some commentators, this is the best-reasoned approach taken by the lower federal courts. See, e.g., Wayne C. Beyer, Police Misconduct: Claims and Defenses Under the Fourteenth Amendment Due Process and Equal Protection Clauses, 30 Urb. Law. 65, 74 (1998). According to Beyer, applying the Fourth Amendment until a probable cause hearing makes sense from both a legal and common-sense perspective because at this stage the actions of the police in seizing the individual are either ratified or rejected. Id. at 76 (citing Grant v. City of Twin Falls, 813 P.2d 880, 886–87 (Idaho 1991)).
227 See Austin, 945 F.2d at 1160.
228 See id.
229 Id. at 1157.
230 Id. at 1158–59.
231 Id. at 1158.
232 See Austin, 945 F.2d at 1159.
233 See id.
234 Id. at 1162.
235 Id.
236 Id.
237 See Austin, 945 F.2d at 1160 n.3.
238 See id.
239 Id.
240 Id.
241 See id. This refers to the contention that the Fourth Amendment could be used to sue an officer who merely sticks his tongue out at a suspect. See Wilkins, 872 F.2d at 194.
242 Austin, 945 F.2d at 1160 n.3.
243 See 76 F.3d 1032, 1043 (9th Cir. 1996).
244 Id. at 1036.
245 Id. at 1042.
246 See id.
247 Id.
248 Pierce, 76 F.3d at 1042 (citing Graham v. Connor, 490 U.S. 386, 392 n.6 (1989) (noting that the Eighth Amendment does not apply until after conviction and sentence)).
249 Id.
250 Id. (citing Robins, 773 F.2d at 1010).
251 Id. at 1042.
252 Id.
253 See Pierce, 76 F.3d at 1043.
254 See id.
255 Id.
256 See 717 F. Supp. 1330, 1336 (N.D. Ill. 1989).
257 Id. at 1331.
258 See id. at 1334.
259 See id.
260 Id.
261 Henson, 717 F. Supp. at 1334.
262 Id.
263 Id. at 1335 (“Graham seems to hold, contrary to Wilkins, that when the police beat an individual senseless after gaining control over (initially seizing) him, the Fourth Amendment still can provide the appropriate framework for assessing the lawfulness of their conduct.”).
264 See id.
265 See id. at 1335–36.
266 See supra notes 160–265 and accompanying text.
267 Compare Haskin, 262 F.3d at 879, with Wilkins, 872 F.2d at 192.
268 Compare Haskin, 262 F.3d at 879, with Austin, 945 F.2d at 1160.
269 See infra notes 270–377 and accompanying text.
270 See infra notes 275–377 and accompanying text.
271 See supra notes 111–153 and accompanying text.
272 See Albright v. Oliver, 510 U.S. 266, 271–72 (1994); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
273 See infra notes 275–377 and accompanying text.
274 See infra notes 347–377 and accompanying text.
275 See Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989).
276 Pierce v. Multonmah County, 76 F.3d 1032, 1043 (9th Cir. 1996).
277 See, e.g., Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991).
278 See McLaughlin, 500 U.S. at 56; Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
279 See Austin, 945 F.2d at 1160.
280 See Gerstein, 420 U.S. at 125 n.27.
281 See McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 125 n.27.
282 Gerstein, 420 U.S. at 125 n.27.
283 Id.
284 Id. at 111.
285 See McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 125 n.27.
286 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). At first glance, this seems to be a plausible argument, especially in light of the significant changes in the Court’s membership from Gerstein to Graham. See supra note 119 and accompanying text.
287 See McLaughlin, 500 U.S. at 56.
288 See id.
289 See id. at 58–59.
290 See id.
291 See id.
292 See McLaughlin, 500 U.S. at 50; Gerstein, 420 U.S. at 111.
293 See McLaughlin, 500 U.S. at 50; Gerstein, 420 U.S. at 111.
294 See McLaughlin, 500 U.S. at 50; Gerstein, 420 U.S. at 111.
295 See infra notes 296–298 and accompanying text.
296 See McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 114.
297 See McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 114.
298 See McLaughlin, 500 U.S. at 55; Gerstein, 420 U.S. at 114.
299 See Wilkins, 872 F.2d at 193.
300 See id.
301 See id.
302 See, e.g., Katz v. United States, 389 U.S. 347, 356–57 (1967).
303 See id.
304 See, e.g., Albright, 510 U.S. at 271–72.
305 Albright, 510 U.S. at 271–72; Graham, 490 U.S. at 395; Parratt v. Taylor, 451 U.S. 527, 543 (1981).
306 See, e.g., Albright, 510 U.S. at 271–72.
307 490 U.S. at 393.
308 See 510 U.S. at 271–72.
309 See id. at 276 (Scalia, J., concurring).
310 See id. (Scalia, J., concurring).
311 See id. at 284 (Kennedy, J., concurring).
312 See id. (Kennedy, J., concurring).
313 See Graham, 490 U.S. at 395 n.10.
314 Id.
315 See id.
316 Compare Bell v. Wolfish, 441 U.S. 520, 524–25 (1975) (plaintiffs protected by the Fourteenth Amendment were pretrial detainees required to remain in custody until trial; these detainees were housed in a penal facility for extended periods of time), with Pierce, 76 F.3d at 1036 (plaintiff receiving Fourth Amendment protection was also technically a “pretrial detainee” but was only kept in custody for four hours until administrative booking procedures were completed).
317 441 U.S. at 524.
318 See id. at 546 n.28. Indeed, the housing facility in Bell not only housed pretrial detainees but convicted inmates as well. Id. at 524.
319 See id. at 535 n.16.
320 Id.; see Beyer, supra note 226, at 69 (noting that the Bell Court discusses the Eighth Amendment at length because the due process standard it formulates is borrowed from the Eighth Amendment).
321 Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993).
322 See cases cited supra note 316.
323 See 441 U.S. at 524.
324 See id.
325 See supra notes 111–153 and accompanying text.
326 See Gerstein, 420 U.S. at 125 n.27.
327 Graham, 490 U.S. at 395.
328 Albright, 510 U.S. at 274; McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 125 n.27.
329 See, e.g., Fontana v. Haskin, 262 F.3d 871, 879 (9th Cir. 2001).
330 See id.
331 See, e.g., Albright, 510 U.S. at 279 (Ginsburg, J., concurring).
332 See Graham, 490 U.S. at 395 n.10.
333 See, e.g., Haskin, 262 F.3d at 881.
334 See id.
335 490 U.S. at 395.
336 See id. One response to this argument is that the Bell Court’s due process standard incorporated by Graham is one of procedural, not substantive, due process. See MacDonald, supra note 25, at 183–84. Therefore, it may be suggested, the availability of such a claim to pretrial detainees would not conflict with the Court’s efforts to limit substantive due process claims. See id. This argument, however, ignores the fact that the primary issue in procedural due process cases is whether a plaintiff was deprived of a protected liberty interest without a hearing. See Beyer, supra note 226, at 143. Graham, however, was not concerned with any pre- or post-excessive force hearing. See Phillips, supra note 71, at 559. Rather, the Court was concerned with the substantive rights of detainees to be free from the arbitrary beatings, a hallmark of substantive due process. See McCormick, supra note 181, at 72 (characterizing the Bell standard as one of substantive due process). Indeed, it would be quite unusual for the Court to declare that force that is excessive somehow becomes permissible because a hearing has been provided. See id. Thus, the most feasible reading of the Graham Court’s reference to Fourteenth Amendment protections is one of substantive due process. See id.
337 See supra notes 111–153 and accompanying text.
338 See Austin, 945 F.2d at 1160.
339 See id.
340 McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 114.
341 Austin, 945 F.2d at 1160.
342 Albright, 510 U.S. at 271–72; Graham, 490 U.S. at 395; Parratt, 451 U.S. at 543.
343 See Graham, 490 U.S. at 395 n.10.
344 Pierce, 76 F.3d at 1043.
345 See McLaughlin, 500 U.S. at 56.
346 See id.
347 See, e.g., Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997).
348 See id. at 1162, 1163–64.
349 Id. at 1164.
350 See id. at 1166.
351 See Pierce, 76 F.3d at 1043.
352 Id.
353 McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 114.
354 See McLaughlin, 500 U.S. at 56.
355 See Riley, 115 F.3d at 1164.
356 See New York v. Belton, 453 U.S. 454, 458 (1981); Mitchell W. Karsch, Excessive Force and the Fourth Amendment: When Does Seizure End?, 58 Fordham L. Rev. 823, 827–29 (1990).
357 Belton, 453 U.S. at 458.
358 See id.
359 See id.
360 See Gerstein, 420 U.S. at 113.
361 See id.
362 See id. at 123–24.
363 See, e.g., Pierce, 76 F.3d at 1043.
364 See 420 U.S. at 113.
365 See Pierce, 76 F.3d at 1043.
366 See supra notes 111–153 and accompanying text.
367 See id.
368 See Beyer, supra note 226, at 76 (citing Grant v. City of Twin Falls, 813 P.2d 880, 886–87 (Idaho 1991)).
369 Pierce, 76 F.3d at 1043.
370 See Beyer, supra note 226, at 76 (citing Grant, 813 P.2d at 886–87).
371 Id.
372 Id.
373 See id.
374 See id.
375 See Beyer, supra note 226, at 76 (citing Grant, 813 P.2d at 886–87).
376 See id.
377 See id.