[*PG1367]JUDICIAL ILLUMINATION OF THE CONSTITUTIONAL “TWILIGHT ZONE”: PROTECTING POST-ARREST, PRETRIAL SUSPECTS FROM EXCESSIVE FORCE AT THE HANDS OF LAW ENFORCEMENT

Abstract:  Police brutality is one of the most serious and enduring human rights violations in the United States today. One means by which victims may seek redress is under 42 U.S.C.  1983, which provides a civil cause of action against state actors who deprive individuals of their constitutional rights. This Note examines  1983 litigation brought by post-arrest, pre-trial detainees alleging the use of excessive force by law enforcement officials. There is currently a circuit split regarding whether such claims must be brought under the Fourth Amendment’s proscription of unrea-sonable seizures of the person or the Fourteenth Amendment’s guar-antee that no State will deprive a citizen of liberty without due process of law. This issue’s resolution has significance as to the plaintiff’s burden of proof, and thus, his or her likelihood of attaining a favorable verdict. This Note contends that the best approach is a hybrid model that involves a synthesis of both Fourth and Fourteenth Amendment standards because it is both practical and mindful of recent lines of U.S. Supreme Court precedent.

Introduction

As Connie Jo Austin and Steven Snyder returned to the United States from a visit to Mexico, customs agents found a small amount of marijuana inside their car.1 Following this discovery, the agents seized them and transported them to a detention facility.2 While in custody, officers repeatedly assailed Austin and Snyder without provocation.3 Although Austin and Snyder fully cooperated with their inquiries, agents beat them until they fell to the floor.4 These assaults were so [*PG1368]severe that both lost consciousness.5 After Austin and Snyder awoke, these beatings continued.6

Following these attacks, officers fastened Austin’s and Snyder’s handcuffs so tightly that both lost feeling in their hands.7 During this period, officers denied their requests for water.8 Additionally, the agents refused to grant them restroom access, causing both to soil their clothes.9 Austin and Snyder were then forced to remain in these clothes overnight.10 After twelve hours of custody and without filing charges, the officers finally released them.11

As this case exemplifies, police brutality is one of the most serious and enduring human rights violations in the United States today.12 The problem is nationwide and institutional in nature.13 Each year, police officers engage in severe beatings and unnecessarily rough physical treatment14 of suspects in every region of the nation.15 One avenue of redress for victims of police violence is 42 U.S.C.  1983, which provides a civil cause of action against state actors who deprive individuals of their constitutional rights.16

In the context of police brutality,  1983 actions are intended to fulfill two principal purposes.17 First, they are designed to compensate victims of excessive force through an award of compensatory dam[*PG1369]ages.18 Second, Congress intended these actions to make police officers and departments answerable to constitutionally required standards of conduct.19

One important and controversial area of  1983 litigation involves claims brought by post-arrest, pretrial detainees20 alleging the use of excessive force by law enforcement officials.21 The controversy centers upon which constitutional provision these claims must be brought under: the Fourth Amendment’s proscription of unreasonable seizures of the person22 or the Fourteenth Amendment’s guarantee that no State will deprive a citizen of liberty without due process of law.23 Currently, the federal circuit courts of appeals are split on this issue.24

This controversy has significance beyond issues of mere constitutional interpretation because a plaintiff’s burden of proof and likelihood of securing a favorable verdict are significantly influenced by which constitutional standard governs his or her claim.25 If a court determines that the Fourth Amendment applies, a plaintiff need only show that the force exerted was objectively unreasonable based on the totality of the circumstances surrounding the incident.26 If the Fourteenth Amendment governs, however, a plaintiff must demonstrate that an officer applied force maliciously and sadistically to cause harm, irrespective of the unreasonableness of the force.27

[*PG1370] Thus, the use of unreasonable force against a pretrial detainee passes constitutional muster in jurisdictions applying the Fourteenth Amendment when a plaintiff cannot establish an officer’s subjective malice.28 An identical use of force, however, is found to violate the Constitution in jurisdictions utilizing a Fourth Amendment standard.29 In 1989, in Graham v. Connor, the U.S. Supreme Court resolved this issue as it applied to arrestees by holding that during an arrest, the Fourth Amendment provides the proper constitutional standard to assess excessive force claims.30 The Court, however, refused to determine the proper standard applicable to claims brought by pretrial detainees following an arrest.31

Much of the confusion over this issue stems from the elusive constitutional position of pretrial detainees from a textual standpoint.32 The Fourth Amendment forbids the use of excessive force during a “seizure” or arrest whereas the Eighth Amendment supplies a similar protection in the post-arrest context for convicted criminals.33 Arguably, a pretrial detainee fits into neither of these categories.34 One court attempting to resolve this issue noted that the period between arrest and conviction is a constitutional “twilight zone,” due to the absence of a textually explicit source of constitutional protection.35

Because of the need for constitutional consistency and the growing problem of police brutality as a public policy concern, this twilight zone is badly in need of illumination.36 The federal judicial system can accomplish this end by formulating a uniform approach to adjudicate pretrial detainees’ excessive force claims.37 This Note argues that the best approach involves a synthesis of both Fourth and Fourteenth [*PG1371]Amendment standards.38 This approach is both practical and mindful of recent lines of U.S. Supreme Court precedent.39

Part I of this Note reviews the U.S. Supreme Court’s historical applications of the Fourth and Fourteenth Amendments up to its landmark 1989 decision in Graham.40 Part I.A examines the Court’s interpretations of the Unreasonable Seizure Clause of the Fourth Amendment and how the Court has applied it to claims of excessive force.41 Part I.B focuses on the development of the Fourteenth Amendment’s doctrine of substantive due process as it relates to excessive force claims.42 Part I.C discusses the Court’s decision in Graham and then highlights the questions it raises for pretrial detainees’ excessive force claims.43

To answer the questions raised by Graham, Part II of this Note reviews the Court’s post-Graham treatment of the two pertinent constitutional provisions: the Fourth Amendment and the Fourteenth Amendment’s doctrine of substantive due process.44 Part II.A discusses how, following Graham, the Court has steadily expanded the scope of Fourth Amendment protections.45 Part II.B similarly examines the Court’s post-Graham efforts to limit the applicability of substantive due process claims.46

Part III then examines the various approaches adopted by the lower federal courts in adjudicating pretrial detainees’ excessive force claims following Graham.47 Part III.A discusses the approach that relies exclusively on the Fourteenth Amendment’s doctrine of substantive due process.48 Part III.B addresses the continuing seizure approach, which applies the Fourth Amendment until the trial phase of the criminal process.49 Part III.C examines the hybrid approach, which applies the Fourth Amendment until a detainee has been brought before a judicial official for a probable cause hearing and then applies the Fourteenth Amendment.50

[*PG1372] Finally, Part IV critically analyzes these approaches and argues that based on U.S. Supreme Court precedent, the hybrid model is the best-reasoned and most practical approach.51 Part IV.A argues that the substantive due process model is unable to account for the Court’s post-Graham expansions of Fourth Amendment protections.52 Part IV.B similarly contends that alternative approaches are unable to account for the Court’s efforts to limit the availability of substantive due process claims.53 Part IV.C maintains that the hybrid model is able to harmonize both lines of U.S. Supreme Court precedent interpreting the Fourth and Fourteenth Amendments.54 Finally, Part IV.D posits that the hybrid approach is the most practical model in terms of institutional feasibility and common sense.55

I.  The U.S. Supreme Court’s Applications of the Fourth Amendment and the Fourteenth Amendment’s Doctrine of
Substantive Due Process to Excessive Force Claims

A.  Fourth Amendment Jurisprudence Prior to Graham v. Connor

To evaluate the merits of applying the Fourth Amendment to pretrial detainees’ excessive force claims, it is important to gain an understanding of that Amendment’s protections.56 The Fourth Amendment is commonly understood as a limitation on the power of police to search for and seize evidence, instrumentalities, and fruits of a crime.57 This Amendment, however, also protects the right of citizens to be secure in their persons.58 An illegal arrest or other unreasonable seizure of a person is itself a violation of the Fourth Amendment.59 Fourth Amendment cases involve balancing an individual’s expectation of privacy against the government’s interest in investigat[*PG1373]ing and preventing crime.60 The Amendment itself sets the minimum standard for a seizure to be constitutional: it must be reasonable.61

In 1985, in Tennessee v. Garner, the U.S. Supreme Court first applied the Fourth Amendment to a suspect’s claim of excessive force during a seizure.62 The Garner Court characterized the Fourth Amendment test as a means of determining whether, under the totality of the circumstances, a particular type of search or seizure was justified.63 Under this analysis, an officer’s use of force becomes excessive when it is objectively unreasonable.64 In an attempt to guide this analysis, the Garner Court noted that an application of the Fourth Amendment must balance the nature and quality of the intrusion against the importance of the governmental interests alleged to justify that intrusion.65

In post-arrest excessive force situations, there is no issue as to whether a seizure has occurred because the suspect is in police custody.66 Rather, the key inquiry is whether the seizure is still taking place at the time the force is exerted.67 If the seizure is still ongoing when force is applied, it is subject to the reasonableness requirement of the Fourth Amendment.68 If it is determined that the seizure has ended, however, the Fourth Amendment will be inapplicable.69 Instead, the source of constitutional protection, if any, must be found in the Due Process Clause of the Fourteenth Amendment.70

[*PG1374]B.  Fourteenth Amendment Substantive Due Process Jurisprudence
Prior to Graham v. Connor

Substantive due process is the body of law created by the courts that uses the Due Process Clause of the Fourteenth Amendment to review government action on its substantive merits.71 This review is accomplished by the application of a means-ends test that determines whether an unacceptable deprivation of liberty has occurred, regardless of the procedures followed by the State.72 Substantive due process law is not governed by a set of controlling principles.73 Instead, the doctrine’s essence is best captured by the most persistently recurring theme in due process cases: the government must not treat citizens arbitrarily.74 Therefore, substantive due process adjudication does not divide into categories but occurs along a continuum.75 This continuum is marked by what the U.S. Supreme Court interprets to be widely shared beliefs and intuitions that impose duties on government and define standards of reasonableness.76

In 1952, in Rochin v. California, the U.S. Supreme Court first applied a substantive due process analysis to a claim of excessive force.77 Addressing the claim of an arrestee whose stomach was forcibly pumped by order of his arresting officer, the Court held that police conduct which “shocks the conscience” offends Fourteenth Amendment due process.78 The Court reached this conclusion by relying on the basic canons of decency and fairness, which embody the concept of ordered liberty.79

[*PG1375] In 1973, in Johnson v. Glick, the Second Circuit Court of Appeals expanded upon the Rochin standard.80 The Glick court introduced a four-part test to determine precisely when the use of police force shocks the conscience.81 These factors include: 1) the need for application of force; 2) the relationship between the need and the amount of force that was used; 3) the extent of the injury inflicted; and 4) whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.82 Most federal courts applying the Fourteenth Amendment to pretrial detainees’ excessive force claims utilize the Glick standard.83 Because the substantive due process test involves a subjective inquiry into the defendant’s state of mind, courts and commentators agree that it is less likely to result in plaintiffs’ verdicts than the objective Fourth Amendment analysis.84

C.  Graham v. Connor: The Fourth Amendment Is the Exclusive Standard Governing Claims of Excessive Force During an Arrest

In 1989, in Graham v. Connor, the U.S. Supreme Court clarified its interpretation of the Fourth and Fourteenth Amendments as each relates to police brutality.85 The Court held that the Fourth Amendment provides the proper constitutional standard to assess claims of excessive force during the course of an arrest.86 In settling this constitutional issue, the Graham Court found that the lower court had erred in applying the Glick substantive due process test to an arrestee’s claim that his arresting officers beat him before and after he was handcuffed and placed in a squad car.87

[*PG1376] The Court held that the Fourth Amendment provides the proper standard in the arrest context because it contains an explicit textual source of constitutional protection against that type of physically intrusive governmental conduct.88 According to the Court, the reasonableness of an officer’s use of force must be determined by reference to the particular facts and circumstances including: 1) the severity of the crime at issue; 2) whether the suspect poses an immediate threat to the safety of the officers or others; and 3) whether the suspect actively resists arrest or attempts to evade arrest by flight.89

The Graham Court explained that this test is completely objective in that it does not consider an officer’s subjective motivation in applying force.90 According to the Court, an officer’s malicious intentions do not make a Fourth Amendment violation out of an objectively reasonable use of force; nor does an officer’s good intentions make an objectively unreasonable use of force constitutional.91 Thus, according to the Graham Court, the substantive due process test improperly inquires into an officer’s state of mind to determine whether the force exerted was excessive.92

The Court noted further that all excessive force claims must be analyzed by first identifying the specific constitutional right allegedly infringed upon.93 In most instances, the Court observed, that will be either the Fourth or Eighth Amendment because they are the two primary sources of constitutional protection against physically abusive governmental conduct.94 In this particular instance, because the force occurred during the course of Dethorne Graham’s arrest, it was clearly a seizure governed by the Fourth Amendment.95 Commentators agree that Graham’s removal of the Fourteenth Amendment’s [*PG1377]subjective malice requirement is more beneficial to plaintiffs alleging the use of excessive force.96

Despite resolving this constitutional issue as it applied to arrestees, the Court declined to address the question of whether the Fourth Amendment continues to provide the accused with protection from excessive force beyond the point at which arrest ends and pretrial detention begins.97 Citing its 1979 decision in Bell v. Wolfish,98 the Court held that at a minimum, the Fourteenth Amendment’s Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.99 In Bell, the Court reviewed due process challenges to institutional practices of a New York penal facility housing pretrial detainees.100 The Court held that the proper inquiry was whether such practices101 amount to punishment of the detainee.102 If such practices are punitive, then the detainee’s due process rights are violated.103 The Bell Court concluded that a practice is not punishment if it is rationally related to a legitimate non-punitive government purpose and is not excessive in relation to that purpose.104

Despite reaffirming Bell’s constitutional minimum that protects the accused from punishment in the post-arrest context, the Graham Court explicitly left open the question of whether additional protection flowed to this class of individuals from the Fourth Amendment.105 By leaving this issue unresolved, Graham has led federal courts to [*PG1378]adopt divergent approaches in adjudicating excessive force claims brought by post-arrest, pretrial detainees.106

II.  The U.S. Supreme Court’s Post-Graham v. Connor Extensions of Fourth Amendment Protections and Restrictions on Substantive Due Process

To answer the question explicitly left open by Graham v. Connor, it is necessary to examine the U.S. Supreme Court’s post-Graham treatment of the two pertinent constitutional provisions: the Fourth Amendment and the Fourteenth Amendment’s doctrine of substantive due process.107 Although the Court has not decided an excessive force case since Graham, its attitudes towards these two constitutional provisions illuminate the major issues present in the excessive force context.108 Section A examines the U.S. Supreme Court’s post-Graham expansions of the scope of Fourth Amendment protections.109 Section B then discusses the Court’s affirmative efforts to limit the applicability of the doctrine of substantive due process.110

A.  Post-Graham Expansions of Fourth Amendment Protections

Although the Graham Court explicitly refrained from deciding whether the Fourth Amendment provides protection to pretrial detainees, the U.S. Supreme Court has since held that the Fourth Amendment does protect this class of individuals.111 Two years after Graham, in 1991, the U.S. Supreme Court decided County of Riverside v. McLaughlin.112 In McLaughlin, the Court reaffirmed and expanded upon its earlier 1975 decision in Gerstein v. Pugh, in which it held that the Fourth Amendment requires a judicial determination of probable [*PG1379]cause before the extended detention of suspects following an arrest.113 The plaintiffs in Gerstein were detained for extended periods without hearings to determine if there was probable cause for their arrests and continued detention.114 The Court held that during the period of pretrial detention, failure to provide detainees with such hearings violated their Fourth Amendment rights.115

The Court in Gerstein explicitly recognized the Fourth Amendment’s general applicability to the period of pretrial detention.116 It noted that the Fourth Amendment was tailored specifically for the criminal justice system and held that its balance between individual and public interests defines the process that is due for seizures of persons in criminal cases, including their pretrial detention.117 According to the Court, during pretrial detention, the Fourth Amendment furnishes protection from all unfounded interferences with liberty.118

Despite this clear and explicit indication that the Fourth Amendment applies to pretrial detainees, the Court in Graham (whose membership had changed considerably since Gerstein)119 appeared to cast doubt on this notion by refusing to state whether the Fourth Amendment protects pretrial detainees from excessive force.120 Two years after Graham, in McLaughlin, however, the Court clarified its position on this issue by reaffirming and expanding upon Gerstein.121

At issue in McLaughlin was what constituted a prompt determination of probable cause for purposes of Gerstein.122 Although reluctant to announce that the Constitution requires a specific time limit, the Court held that jurisdictions providing probable cause hearings within forty-eight hours of arrest, as a general matter, comply with the Fourth Amendment.123 The Court recognized that because of the need to provide police departments with flexibility, under certain circumstances (for example, holidays and three-day weekends), it may be permissible under the Fourth Amendment to wait as long as four [*PG1380]days before providing a probable cause hearing.124 Thus, the Court explicitly recognized, at least in some situations, that the Fourth Amendment continues to apply to pretrial detainees up to four days following an arrest.125

In 1994, in Albright v. Oliver, the U.S. Supreme Court provided another broad post-Graham interpretation of Fourth Amendment protections.126 Albright involved a plaintiff’s claim that the State’s filing of charges against him without probable cause violated his substantive due process rights.127 The Court dismissed his claim, holding that it needed to be brought under the Fourth Amendment.128 Following its reasoning in Graham, the Court held that the Fourth Amendment provides an explicit textual source of constitutional protection against this particular sort of governmental conduct.129 According to the Court, the Fourth Amendment governs claims of malicious prosecution because it was drafted to protect against all pretrial deprivations of liberty.130 The Albright Court clearly interpreted the Fourth Amend-ment more expansively than did the Graham Court, which refused to determine whether the Fourth Amendment applied past the point of arrest into the period of pretrial detention.131

B.  Post-Graham Restrictions on the Doctrine of Substantive Due Process

In addition to expanding the scope of the Fourth Amendment following Graham, the U.S. Supreme Court has also limited the availability of substantive due process claims.132 Commentators attribute this effort to the fact that substantive due process is the most problematic category in constitutional law due to its historic dependence on the personal feelings of justices.133 The U.S. Supreme Court itself [*PG1381]has even acknowledged this problem and has attempted to resolve it.134

In determining that the Fourth Amendment was the proper constitutional standard governing claims of excessive force during an arrest, the Graham Court clearly manifested its intent to limit the doctrine of substantive due process.135 According to the Court,  1983 analysis must begin by identifying the specific constitutional right allegedly infringed upon by a state actor.136 The Court held that when there is an explicit textual source of constitutional protection against the type of governmental conduct alleged, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing that claim.137

The Graham Court recognized that after the Second Circuit’s decision in Johnson v. Glick, the vast majority of lower federal courts had indiscriminately applied a substantive due process standard to all excessive force claims.138 The Court openly chastised this practice and characterized it as an undesirable expansion of substantive due process law.139 Thus, the Court, in mandating the exclusive use of the Fourth Amendment, explicitly recognized the wholesale elimination of a broad range of substantive due process claims.140

The U.S. Supreme Court continued this effort five years later in Albright, which in addition to providing a source of Fourth Amendment expansion also limited the availability of substantive due process claims.141 In holding that Kevin Albright’s  1983 claim of malicious prosecution must be brought under the Fourth Amendment rather than the Fourteenth Amendment, the Court once again expressed its desire to limit the doctrine of substantive due process.142 The Court noted its general reluctance to expand that doctrine because its vague standards lend themselves to irresponsible decision making.143

In his concurring opinion, Justice Scalia noted that Graham requires the rejection of substantive due process claims wherever a [*PG1382]more specific constitutional provision might apply.144 According to Scalia, the pretrial period was no longer an area where substantive due process claims could be maintained against state officials because more specific constitutional protections clearly applied.145 The Court’s effort in Albright to restrict the applicability of substantive due process was also recognized in Justice Kennedy’s concurring opinion.146

According to Kennedy, this narrowing of substantive due process was a trend, traceable back to the Court’s 1981 decision in Parratt v. Taylor.147 In Parratt, the Court held that plaintiffs cannot maintain  1983 claims based on due process violations if a State provides an adequate post-violation remedy.148 The plaintiff in Parratt was a Nebraska prison inmate who filed a  1983 claim against the prison alleging that by negligently losing his property, it violated his Fourteenth Amendment due process rights.149

Although the Court recognized that the plaintiff’s claim satisfied the prerequisites of a valid due process claim, it held that he could not proceed under  1983 because the State’s tort remedies provided a means of redress for that deprivation.150 According to the Court, these remedies were adequate to protect plaintiffs’ Fourteenth Amendment rights on their own, without the need for an additional federal cause of action under  1983.151

According to Justice Kennedy’s Albright concurrence, Parratt represents an affirmative effort by the Court to limit the scope of substantive due process claims by preventing such actions from creating a system of federal tort law under the Fourteenth Amendment.152 Commentators agree that Parratt is best understood as an “abstention decision,” which calls upon federal courts to avoid substantive due [*PG1383]process rulings where state tort law adequately protects constitutional values.153

III.  Judicial Approaches to Excessive Force Claims
in the Post-Arrest Context

Despite recent cases clearly articulating its interpretations of the Fourth and Fourteenth Amendments, the U.S. Supreme Court’s failure in Graham v. Connor to specify whether pretrial detainees are protected by the Fourth Amendment has led the lower federal courts to answer that question in three different ways.154 Each of these approaches differs in regard to its interpretation of constitutional protections.155 Section A discusses those jurisdictions refusing to apply the Fourth Amendment beyond the initial act of arrest.156 These jurisdictions interpret the Fourteenth Amendment to be the sole source of protection for pretrial detainees.157

Section B examines those jurisdictions that interpret the Fourth Amendment to furnish protection for the entire time a suspect remains in state custody.158 Finally, Section C addresses those circuits that apply the Fourth Amendment until a suspect has been brought before a judicial officer for a probable cause hearing and thereafter apply the Fourteenth Amendment.159

A.  The Substantive Due Process Approach: Excessive Force Claims of Pretrial Detainees Are Governed Exclusively by the Fourteenth Amendment

One approach taken by the federal courts to protect post-arrest suspects from excessive force relies exclusively on the Due Process Clause of the Fourteenth Amendment.160 For example, in 1989, in Wilkins v. May, the Seventh Circuit Court of Appeals refused to apply the Fourth Amendment to a claim of excessive force during an interrogation.161 Luther Wilkins, Jr., following his arrest for suspicion of bank robbery, was taken to a police station and placed in a holding [*PG1384]cell.162 Later that day, in an interrogation room, two FBI agents questioned Wilkins.163 Wilkins alleged that during questioning, one of the agents pressed a handgun against his temple.164

Finding the Fourth Amendment to be inapplicable in this context, the court noted that the seizure of Wilkins ended upon the completion of his arrest.165 The opinion noted that the pertinent question was whether the constitutionality of the manner or duration of Wilkins’s detention shifted from a Fourth Amendment question to one of due process.166 The court recognized that after conviction, excessive force claims must be brought under the Eighth Amendment.167 It noted the unusual situation that would arise if the Constitution forbade the use of excessive force during an arrest, allowed it as soon as the arrest was complete, and then forbade it again after the suspect was convicted.168

The court suggested that one way of filling this unattractive gap in the Constitution is to interpret a seizure as continuing beyond the point of arrest in order to place it within the scope of the Fourth Amendment.169 The court, however, rejected this notion based on two objections.170 First, the court noted that the criteria used to determine reasonableness under the Fourth Amendment do not apply after an arrest ends.171 The usual issue in a Fourth Amendment excessive force case is whether there was probable cause for the force used.172 As the court observed, probable cause is determined by examining whether the force used to seize a suspect was excessive in relation to the danger he or she posed if left at large.173 The court noted that these issues are not present when a suspect is already in custody.174

Second, the court objected that such an application of the Fourth Amendment would be an unwarranted expansion of constitutional law.175 To illustrate this point, the court hypothesized an alter[*PG1385]nate situation in which the defendant merely stuck his tongue out at Wilkins.176 According to the court, this would be unreasonable but there are no limiting principles within the Fourth Amendment to prevent such behavior from being deemed unconstitutional.177 For the Wilkins court, the problem with this continuing seizure concept is that it attenuates the element that makes police conduct problematic: the unreasonable deprivation of a person’s liberty.178 After an arrest is complete, the court noted, the arrestee has already lost his or her liberty.179 Thus, the court rejected the prospect of a seizure continuing past the point of initial arrest.180

Instead, the Wilkins court found that the proper constitutional standard to analyze this claim was the Due Process Clause of the Fourteenth Amendment.181 The court noted that if there was ever a strong case for a substantive due process claim, it was where a post-arrest, pretrial suspect has been brutalized while in custody.182 Employing the Johnson v. Glick test, the court noted that the question before it was whether police questioning at gunpoint was so conscience shocking as [*PG1386]to constitute a deprivation of liberty within the meaning of the Due Process Clause.183

Applying similar reasoning, in 1993, in Valencia v. Wiggins, the Fifth Circuit Court of Appeals held that the Due Process Clause of the Fourteenth Amendment provides the exclusive constitutional standard protecting pretrial detainees from excessive force.184 There, Raul Jose Valencia claimed that three weeks into his pretrial detention for drug charges, jail officials choked him to the point of unconsciousness, and upon his awakening, handcuffed and beat him.185 The court held that the Fourteenth Amendment was the appropriate standard because the force was applied after the incidents of arrest were completed, after the plaintiff had been released from the custody of his arresting officer, and after he had been in detention awaiting trial for a significant period of time.186

The court next cited three justifications for its refusal to apply the Fourth Amendment to Valencia’s claim.187 First, the court held, the Fourth Amendment provides weak textual support for an extension to pretrial detainees.188 Because it protects against unreasonable “seizures,” the court noted, the Fourth Amendment is directed to the initial act of restraining an individual’s liberty.189 According to the court, the three-week duration of Valencia’s detention made it especially clear that his seizure had ended.190

The second justification the Wiggins court advanced for its refusal to extend the Fourth Amendment to the post-arrest context centered on the U.S. Supreme Court’s unwillingness to do so in similar contexts.191 For example, in Bell v. Wolfish, the court noted, the U.S. Supreme Court was unwilling to hold that a pretrial detainee had a privacy interest in his person protected by the Fourth Amendment.192 The third justification the court gave was the U.S. Supreme Court’s [*PG1387]explicit recognition in Graham that the Fourteenth Amendment provides a constitutional basis for pretrial detainees’ excessive force claims.193 The court noted that although Graham left open the question of whether the Fourth Amendment applies post-arrest, it did hold that the Due Process Clause shields pretrial detainees from the use of excessive force that amounts to punishment.194

More recently, in 1997, in Riley v. Dorton, the Fourth Circuit Court of Appeals also held that the Fourteenth Amendment’s Due Process Clause provides the exclusive standard governing pretrial detainees’ excessive force claims.195 At issue there was Charles Riley’s claim that police officers beat him at a booking facility following his arrest.196 Rejecting Riley’s suggestion that the Fourth Amendment governed his claim, the court emphasized that the events at issue took place two hours and almost one hundred miles from the time and place of his arrest.197 The court declined to apply the Fourth Amendment until an arrestee leaves his or her arresting officer’s custody because that approach makes Fourth Amendment coverage depend on the fortuity of how long an arresting officer happens to remain with a suspect.198

In holding that post-arrest excessive force claims are governed exclusively by the Due Process Clause, the court noted that a deprivation of liberty must be distinguished from a condition of detention.199 The court observed that, in evaluating the constitutionality of such conditions, the U.S. Supreme Court in Bell specifically directed that the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee under the Due Process Clause.200 According to the Riley court, this interpretation results in the best fit with the body of U.S. Supreme Court precedent interpreting the Fourth Amendment as governing the initial decision to detain the accused, and interpreting a seizure as a single act, not a continuing process.201

[*PG1388]B.  The Continuing Seizure Approach: The Fourth Amendment Continues to Provide Protection in the Post-Arrest Context

In contrast to those courts relying exclusively on the Fourteenth Amendment to adjudicate excessive force claims in the post-arrest context, other circuits have interpreted the Fourth Amendment to provide concurrent protection.202 For example, in 1997, in United States v. Johnstone, the Third Circuit Court of Appeals held that the Fourth Amendment continues to provide protection after a suspect is taken into custody.203 The case involved a suspect’s allegation that his arresting officer beat him in a stationhouse garage following his arrest.204 The defendant argued that the district court erred by applying the Fourth Amendment because the arrest was over when he applied the force at issue.205 Without determining the precise point at which an arrest ends and pretrial detention begins, the court adopted the continuing seizure concept.206 According to the court, the stationhouse beating occurred while the arrest was still in progress and was therefore governed by the Fourth Amendment as required by Graham.207

The Johnstone court interpreted Graham to hold that an arrest is a continuing event because the force used against Graham occurred after police took him into custody.208 In holding that the defendant committed the assault during the arrest, the Johnstone court observed that a seizure can be a process or a continuum, which is not necessarily a discrete moment of initial arrest.209 The court read Graham to hold that a person can remain free for purposes of the Fourth Amendment for some time after being taken into police custody.210 Thus, the seizure did not automatically end at the moment of arrest and Fourth Amendment protection continued beyond that point.211 Similarly, in 1998, in Moore v. Novak, the Eighth Circuit Court of Appeals found that the Fourth Amendment continues to protect the accused from excessive force in the post-arrest context.212 There, Fre[*PG1389]derick Darnell Moore claimed that following his arrest, and while his arms were handcuffed behind his back, jail corrections officers threw him to the floor and repeatedly shocked him with a stun gun until he was unconscious.213 These events occurred after Moore’s arrest had been completed and while he was securely in the custody of jail officials.214 Despite the termination of Moore’s initial seizure, the court found the proper standard governing his claim to be the reasonableness test of the Fourth Amendment.215 According to the court, Moore was still being seized for purposes of the Fourth Amendment even though his arrest had ended and he was being held in a detention facility.216

In 2001, in Fontana v. Haskin, the Ninth Circuit Court of Appeals reaffirmed its pre-Graham position that the Fourth Amendment applies after an arrestee is in custody.217 The Haskin court held that a seizure continues throughout the course of a criminal trial.218 Haskin involved an arrestee’s claim that one of her arresting officers inappropriately touched and sexually harassed her during transport to a police station.219 The court noted that although this was not traditional excessive force, it fell within the Fourth Amendment’s reasonableness standard, which forbids unreasonable intrusions of an arrestee’s bodily integrity.220

According to the Ninth Circuit, once a seizure begins, it continues while the arrestee remains in the custody of an arresting officer and until the termination of criminal proceedings.221 Therefore, the use of excessive force by the defendant during transport to a police station gave rise to a Fourth Amendment claim.222 The Haskin court recognized that Mia Fontana’s claim could have also been brought [*PG1390]under the Fourteenth Amendment’s Due Process Clause.223 It noted, however, that because the force occurred while she was being “seized” by the police, it was better framed as a Fourth Amendment issue.224 That is, under Graham, if a claim is covered by a specific constitutional provision, it should be brought under that standard rather than the doctrine of substantive due process.225

C.  The Hybrid Model: The Fourth Amendment Applies
Until a Probable Cause Hearing

A third approach taken by federal courts combines the continuing seizure and substantive due process approaches by applying the Fourth Amendment to post-arrest claims of excessive force until the suspect receives a probable cause hearing.226 After that point, the Fourteenth Amendment is applied.227 For example, in 1991, in Austin v. Hamilton, the Tenth Circuit Court of Appeals held that the end of an arrest does not preclude application of the Fourth Amendment.228 There, the plaintiffs’ complaint alleged that following their arrest for marijuana possession, they were repeatedly assaulted without provocation, denied water, refused restroom access, and forced to remain overnight in the clothes they subsequently soiled.229

At the outset of its inquiry into the appropriate constitutional standard, the Austin court recognized that there are different points along the “custodial continuum” along which variable constitutional standards attach.230 This continuum runs through initial arrest, pre-hearing custody, pretrial detention, and post-conviction incarceration.231 The court noted that although Graham avoided a direct pronouncement on whether the Fourth Amendment applied following [*PG1391]an arrest, Graham’s recognition of the broad applicability of the Fourth Amendment led to its application to post-arrest police conduct.232 According to the Austin court, despite U.S. Supreme Court precedent suggesting that Fourth Amendment protection was limited to the initial act of arrest, Graham reopened that question.233

In holding that the Fourth Amendment applies until a probable cause hearing, the court pointed out that, according to the U.S. Supreme Court’s decisions in Gerstein v. Pugh and County of Riverside v. McLaughlin, the Fourth Amendment provides the standard to assess the constitutionality of prolonged, post-arrest custody of pretrial detainees.234 The Austin court recognized that although this was not conclusive authority in the context of excessive force, it found it persuasive in the absence of other guiding principles.235 The court concluded that just as the Fourth Amendment provides the applicable limitations regarding both duration and legal justification for pretrial detention, its protections also persist to restrict the treatment of pretrial detainees prior to a probable cause hearing.236

The Austin court next responded to the two arguments advanced by the Seventh Circuit in Wilkins against extending the Fourth Amendment to pretrial detainees.237 The court first addressed the assertion that the Fourth Amendment issues of whether a suspect poses a danger to an arresting officer and the surrounding community are mooted once a suspect is in custody.238 The Austin court held that these concerns were not inapposite because suspects remain a threat to arresting officers and nearby persons.239 The court also noted that as escape risks, suspects remain a threat to the general community.240

Next, the court responded to the Wilkins court’s objection that application of the Fourth Amendment would be an unwarranted expansion of constitutional law due to a lack of limiting principles within the Amendment itself.241 The court observed that the same objection could be made in any excessive force context and noted that [*PG1392]the standard of reasonableness is an adequate safeguard against trivial claims.242

This same approach was adopted by the Ninth Circuit, in 1996, in Pierce v. Multonmah County.243 That case involved Stephanie Pierce’s allegations that during the four hours she spent in jail, following her arrest for furnishing false information to a police officer, she was repeatedly assaulted by corrections officers.244 Pierce argued that the trial court erred in utilizing the Eighth Amendment to determine whether the officers’ use of force was excessive.245 According to the court, the question before it was whether the Fourth Amendment protects an arrestee during the second custodial stage: post-arrest but pre-arraignment custody.246

The court noted that after Graham, the appropriate constitutional standard governing treatment at various stages of custody is an open question of law subject to de novo review.247 The court observed that the defendant’s argument that the Eighth Amendment controlled the situation was clearly erroneous because that Amendment does not attach until after conviction and sentencing.248 To determine the applicable constitutional standard, the court held, it must determine what constitutional protection governs this particular point on the custodial continuum.249

The court recognized that in a prior case, it held that a seizure continues throughout the time an arrestee is in the custody of arresting officers and that any use of excessive force during this period is subject to Fourth Amendment scrutiny.250 Pierce contended that the Fourth Amendment should also supply constitutional protection to an arrestee who is kept at a booking facility prior to a probable cause hearing or arraignment.251 The court reasoned that in order to accept this argument, it would have to assume that a seizure continues past the point of initial arrest.252

[*PG1393] Like the Tenth Circuit in Austin, the Pierce court was persuaded by the U.S. Supreme Court’s decision in Gerstein, which applied the Fourth Amendment to assess the duration of and legal justification for pretrial detention.253 This authority, according to the court, provided sufficient justification for assessing the conditions of such custody under the Fourth Amendment.254 Accordingly, the court held that the Fourth Amendment sets the applicable constitutional limits on the treatment of an arrestee detained without a warrant until a probable cause hearing is provided.255

In 1989, in Henson v. Thezan, the U.S. District Court for the Northern District of Illinois adopted this same line of reasoning.256 According to Kenneth Ray Henson’s complaint, after his arrest for suspicion of rape and attempted murder, his arresting officers threw him down a flight of stairs before beating him in an interrogation room.257 Henson argued that because the officer in Graham exerted most of the force at issue after the suspect was in police custody, the U.S. Supreme Court implicitly held that a seizure continues beyond the point of arrest.258 Therefore, Henson argued, the Fourth Amendment properly governed his claim.259

In addressing the defendant’s reliance on Wilkins, the court agreed that Graham calls Wilkins’s analysis into question.260 In Wilkins, the Seventh Circuit drew a line between seizure and detention by holding that the former ends when the police have the individual in custody.261 The court noted that Graham applied the Fourth Amendment despite the fact that the plaintiff was in custody.262 In other words, according to the Henson court, Graham undercut the view that a seizure ends at the moment the police gain custody and control of the suspect.263

[*PG1394] Similar to the courts in Austin and Pierce, the Henson court acknowledged a parallel to Gerstein, in which the U.S. Supreme Court applied the Fourth Amendment to assess the duration of post-arrest, pre-arraignment custody.264 The court noted that although Graham made no mention of Gerstein, its willingness to apply the Fourth Amendment to the officer’s use of force after Graham was in custody, makes it more likely that the Fourth Amendment should at least apply until an arrestee has appeared before a judicial officer for a probable cause hearing.265

As the foregoing discussion shows, the federal circuit courts of appeals have adopted divergent approaches to adjudicate the excessive force claims of pretrial detainees.266 Each approach varies with respect to whether the Fourth Amendment applies only to the precise moment an individual is seized or if it also applies to events beyond that point.267

Among those courts interpreting the Fourth Amendment to apply beyond initial arrest under the continuing seizure and hybrid approaches, there is additional disagreement over precisely how long that Amendment continues to apply.268 The next Part of this Note argues that those jurisdictions adopting the hybrid approach employ the most practical and accurate reading of the Fourth and Fourteenth Amendments as they have been expounded by the U.S. Supreme Court.269

IV.  Analysis: The Hybrid Approach Is the Most Consistent with U.S. Supreme Court Precedent and the Most
Institutionally Feasible

The hybrid approach is the best-reasoned and most practical method of adjudicating the excessive force claims of post-arrest, pretrial suspects.270 This model is the most faithful to recent U.S. Supreme Court precedents interpreting the Fourth and Fourteenth Amendments.271 Since Graham v. Connor, the Court has clearly manifested its intention to expand Fourth Amendment protections and to [*PG1395]limit the availability of substantive due process claims.272 The hybrid approach best achieves this dual aim.273 This approach also has superior practicality because: 1) it supplies a bright line of constitutional demarcation; 2) by making use of already required judicial proceedings, it imposes no additional procedural barriers on law enforcement officials; and 3) due to its furnishing of judicial approval of pretrial detention, it supplies a logical point at which to impose a more demanding burden of proof on plaintiffs under the Fourteenth Amendment.274

A.  Courts Holding That Fourth Amendment Protection Ends with the Completion of an Arrest Ignore U.S. Supreme Court Precedent

Lower federal courts refusing to apply the Fourth Amendment past the point of initial arrest often rely on the argument that its application to pretrial detainees would be an unwarranted expansion of constitutional law.275 This view, however, ignores U.S. Supreme Court precedents that have already interpreted the Fourth Amendment to protect this class of individuals.276 The U.S. Supreme Court’s decisions in Gerstein v. Pugh and County of Riverside v. McLaughlin expanded the scope of Fourth Amendment protection to the area of pretrial detention.277 These cases provide a  1983 cause of action under the Fourth Amendment for pretrial suspects detained without probable cause hearings.278 Courts citing these cases have properly noted that because they did not relate to excessive force they are only persuasive authority.279 These courts, however, have failed to acknowledge the dicta in these cases that show that their reasoning is directly applicable to excessive force claims.280

Although Gerstein and McLaughlin pertained to the duration of, and legal justification for, prolonged custody of pretrial detainees, the Court discussed the Fourth Amendment in broader terms.281 The Court explicitly recognized that the Fourth Amendment applies to [*PG1396]the entire criminal justice system, not merely one aspect of it.282 The Court observed that the requirements of the Fourth Amendment apply broadly to the rights of suspects incident to their detention pending trial, not simply the duration of and justification for that detention.283 Most importantly, the Court noted that the standards for pretrial detention, not merely the procedures, are derived from the Fourth Amendment.284 Thus, after Gerstein and McLaughlin, it is difficult to maintain that the Fourth Amendment is inapplicable to pretrial detainees’ excessive force claims.285

One possible argument against Gerstein’s support for the Court’s effort to expand Fourth Amendment protection to pretrial detainees is that it was decided before Graham, which explicitly left open the question of whether pretrial detainees were protected by the Fourth Amendment.286 Two years after Graham, in McLaughlin, however, the Court clarified its position by reaffirming and expanding upon Gerstein.287

The McLaughlin Court explicitly recognized that the Fourth Amendment continues to protect pretrial detainees past the point of initial arrest.288 Indeed, the Court held that under the Fourth Amendment, it may be permissible in certain cases to wait four days before providing a detainee with a probable cause hearing.289 Thus, the Court acknowledged that the Fourth Amendment can protect pretrial detainees up to four days following an arrest.290 Although Graham cast doubt on whether the Court would continue to apply the Fourth Amendment past the point of initial arrest, McLaughlin reestablished the Court’s broad interpretation of the Amendment’s breadth.291

It can also be argued that the probable cause determinations required by Gerstein and McLaughlin relate back to the initial act of arrest.292 This argument suggests that a probable cause determination is [*PG1397]not concerned with the standards or conditions of pretrial detention but focuses instead on whether there was an adequate legal justification for the arrest and subsequent detention.293 Therefore, it is suggested that these cases do not apply to the conditions of pretrial detention such as the use of force.294 This argument, however, is unpersuasive.295

Although a probable cause determination examines the circumstances surrounding an arrest, that does not explain why, according to the U.S. Supreme Court, the act of detaining an individual without such a hearing, days after an arrest, is itself an independent violation of the Fourth Amendment.296 In Gerstein and McLaughlin, Fourth Amendment claims did not arise from the arrests themselves but from the continued detention of suspects without hearings.297 This is convincing proof that the U.S. Supreme Court interprets the Fourth Amendment to provide protection past the point of arrest regarding the conditions of pretrial detention.298

A final argument against application of the Fourth Amendment to pretrial detainees’ excessive force claims is that Gerstein and McLaughlin involved interpretations of the Fourth Amendment’s probable cause requirement.299 This argument notes that in cases of excessive force, it is the Fourth Amendment’s reasonable seizure requirement that is actually violated.300 This portion of the Amendment, it is suggested, is not advanced by Gerstein and McLaughlin into the period of pretrial detention.301 This argument, however, ignores the fact that the U.S. Supreme Court has historically interpreted the Fourth Amendment’s probable cause and reasonable seizure requirements in tandem.302 Consequently, it is illogical to argue that one requirement of the Fourth Amendment can be applied to pretrial detainees to the exclusion of others.303

[*PG1398]B.  Exclusive Reliance on the Doctrine of Substantive Due Process Conflicts with U.S. Supreme Court Precedent Limiting That Doctrine

In addition to ignoring the U.S. Supreme Court’s recent Fourth Amendment jurisprudence, courts relying exclusively on the doctrine of substantive due process in the post-arrest, pretrial context disregard the U.S. Supreme Court’s recent efforts to limit the availability of substantive due process claims.304 In Parratt v. Taylor, Graham, and Albright v. Oliver, the U.S. Supreme Court clearly expressed its growing distaste for the vague and open-ended area of substantive due process law where a more specific constitutional provision might apply.305 In each of these cases, the Court explicitly acknowledged its intent to limit the availability of substantive due process claims.306

In Graham the Court openly criticized the lower federal courts for utilizing substantive due process analyses where the Fourth Amendment could have been applied instead.307 This criticism continued in Albright, in which the Court described substantive due process as an impetus for irresponsible judicial decision making.308 Justice Scalia wrote separately in Albright to emphasize that the pretrial period was no longer an area where substantive due process claims could be maintained against law enforcement officials.309 According to Scalia, this foreclosure stems from the availability of more specific constitutional protections.310 Justice Kennedy also wrote separately in Albright to point out that the Court’s recent limitations on the doctrine of substantive due process were not a series of isolated decisions but part of a cohesive pattern that sought to minimize the circumstances in which such claims could be advanced.311 According to Kennedy, this pattern began with the Court’s 1981 decision in Parratt.312

One possible response to Kennedy’s contention is that this shrinkage of substantive due process does not reach pretrial detainees’ excessive force claims due to Graham’s incorporation of Bell v. Wolfish.313 In leaving open the question of whether the Fourth [*PG1399]Amendment protects pretrial detainees from excessive force, the Graham Court held that under Bell, the Due Process Clause protects pretrial detainees from the use of excessive force that amounts to punishment.314 Thus, despite the Court’s efforts to limit the availability of substantive due process claims in other areas, it is argued, the Court chose not to do so in the context of pretrial detainees’ excessive force claims.315 The persuasiveness of this argument is diminished, however, when the class of individuals protected in Bell by the Fourteenth Amendment is distinguished from individuals detained at earlier stages on the custodial continuum.316

The plaintiffs protected under the Fourteenth Amendment in Bell were individuals housed at a facility specifically built for the long-term housing of detainees who, for security reasons, were required to remain in custody until trial.317 As the Court pointed out, this class of individuals shares more in common with convicted criminals than with post-arrest detainees merely in custody for booking procedures.318 The Court acknowledged that the Eighth Amendment’s proscription of cruel and unusual punishment could not protect these plaintiffs because that Amendment did not apply until after conviction and sentencing.319

Instead, the Bell Court relied on the Due Process Clause of the Fourteenth Amendment to provide pretrial detainees with protection analogous to that supplied by the Eighth Amendment.320 As one court applying the Bell standard observed, it is impractical to distinguish the claims brought by the plaintiffs in Bell from the claims of convicted prisoners due to the similarity of the conditions surrounding their confinement.321 Thus, although using the broad term “pretrial de[*PG1400]tainee,”322 the Bell Court referred specifically to those detainees kept in detention after administrative booking for extended periods of time prior to trial.323 Therefore, foreclosing the availability of substantive due process claims to pretrial detainees at earlier stages on the custodial continuum does not conflict with the holdings of Bell or Graham.324

C.  The Hybrid Approach Accounts for Both Lines of U.S. Supreme Court Precedent Expanding the Fourth Amendment and Limiting the
Availability of Substantive Due Process Claims

The hybrid approach adopted by the lower federal courts in adjudicating the excessive force claims of pretrial detainees is able to synthesize both lines of precedent discussed above.325 Those courts refusing to apply the Fourth Amendment past the point of initial arrest are unable to account for the U.S. Supreme Court’s rulings that the Fourth Amendment may apply for several days beyond that point.326 Additionally, courts relying exclusively on the doctrine of substantive due process ignore the efforts by the U.S. Supreme Court to limit that doctrine’s availability where a more specific constitutional provision may apply.327 The Court’s decisions in Albright, Gerstein, and McLaughlin clearly demonstrate that the Fourth Amendment does, in fact, apply to pretrial detainees.328

Equally flawed are those courts that adopt the “continuing seizure” approach.329 Although this approach properly recognizes that a seizure continues past the point of initial arrest, it is unable to supply a clear stopping point to Fourth Amendment protection.330 Taken to its logical conclusion, this approach envisions a seizure lasting from the time a suspect is arrested until the time he or she is either acquitted or convicted.331 This mode of analysis is unable to account for the U.S. Supreme Court’s recognition in Graham that under Bell, a due [*PG1401]process analysis governs pretrial detainees’ excessive force claims after prolonged periods of detention.332

Proponents of the continuing seizure model may argue that Bell and Graham do not present a problem because under their approach, the Fourth and Fourteenth Amendments are interpreted to provide concurrent protection.333 Therefore, it may be suggested, a due process excessive force claim may be advanced contemporaneously with a Fourth Amendment excessive force claim.334 This argument, however, ignores the Graham Court’s admonition that where a Fourth Amendment claim is available, a plaintiff cannot also assert a substantive due process claim.335 Thus, the Court in Graham implicitly reasoned that plaintiffs bringing excessive force claims under Bell’s due process standard could not also avail themselves of a Fourth Amendment claim.336

Unlike the continuing seizure and substantive due process approaches, the hybrid approach accounts for U.S. Supreme Court precedent regarding both the Fourth Amendment and the doctrine of substantive due process.337 Under the hybrid approach, Fourth Amendment protection ends when a suspect is brought before a judicial officer for a probable cause hearing.338 After that point, a detainee’s  1983 claim must be brought under the Fourteenth Amendment.339

[*PG1402] This mode of analysis is able to account for the U.S. Supreme Court’s holdings in Gerstein and McLaughlin that the Fourth Amendment applies to pretrial detainees until a probable cause hearing.340 Thus, the hybrid approach renders arguments inapposite that such application of the Fourth Amendment is an unwarranted expansion of constitutional law.341 Additionally, by foreclosing the availability of a substantive due process claim prior to a probable cause hearing, the hybrid approach complies with the U.S. Supreme Court’s efforts in Parratt, Graham, and Albright to eliminate substantive due process claims where a more specific constitutional claim is available.342

Finally, the hybrid approach is able to account for the Court’s pronouncements in Bell and Graham that after a prolonged period of custody, pretrial detainees’ excessive force claims must be brought under the Due Process Clause of the Fourteenth Amendment.343 Under the hybrid approach, Fourth Amendment protections end after a probable cause hearing.344 Thus, that Graham and Bell require individuals detained for extended periods to bring excessive force claims under the Fourteenth Amendment is perfectly consistent with the hybrid approach.345 This approach would also apply the Fourteenth Amendment because under Gerstein and McLaughlin those suspects would have already received probable cause hearings.346

D.  The Hybrid Model Is the Most Practical Approach

One of the major criticisms of applying the Fourth Amendment in the post-arrest context is that there is no clear and non-arbitrary point at which to terminate its protections.347 According to the Fourth Circuit in Riley v. Dorton, the most logical point at which to cut off Fourth Amendment protections following an arrest would be when the suspect leaves the custody of his or her arresting officer.348 As the Riley court pointed out, however, this is not a bright line of constitutional demarcation because it makes application of the Fourth Amendment depend on the fortuity of how long an arresting officer [*PG1403]happens to remain with the suspect.349 This perceived absence of a practical point at which to cut off Fourth Amendment protection led the court to rely exclusively on the Fourteenth Amendment.350

The hybrid model, however, cannot be criticized for failing to provide a clear stopping point of Fourth Amendment protection.351 Under this approach, Fourth Amendment protections end when a suspect receives a probable cause hearing.352 This line is neither fortuitous nor arbitrary, in light of the U.S. Supreme Court’s decisions in Gerstein and McLaughlin, which clearly set out the guidelines for when a probable cause hearing must be granted.353 In most cases, according to the Court, a probable cause hearing will be granted within forty-eight hours of arrest.354 Therefore, the hybrid model eliminates the opportunity for police to avail themselves of the more deferential Fourteenth Amendment standard by immediately taking a suspect from the custody of his or her arresting officer.355

The hybrid model’s provision of a clear point of constitutional demarcation fulfills the need recognized by the U.S. Supreme Court for readily applicable bright-line rules in the Fourth Amendment context.356 According to the Court, the need for bright-line rules in this area relates to the Fourth Amendment’s purpose of regulating police behavior.357 That is, Fourth Amendment doctrine must be expressed in terms that are readily applicable by the police in the context of their daily activities.358 The hybrid model, through its utilization of a bright line at a preexisting point in the criminal process, fulfills this end.359

The hybrid model’s utilization of procedures already required by U.S. Supreme Court precedent demonstrates its institutional practicality in an additional way.360 In holding that the Fourth Amendment requires a probable cause hearing prior to extended detention, the Court in Gerstein expressed concern with imposing cumulative hear[*PG1404]ing requirements on law enforcement.361 According to the Court, this concern could be met by the States’ ability to combine the probable cause hearing with preexisting procedural requirements such as bail hearings or arraignments.362

In contrast to Gerstein, which involved a new procedure to be integrated with established ones, the hybrid model merely makes additional use of an established procedure.363 Thus, the hybrid approach is able to account for the Gerstein Court’s concern with imposing cumulative procedural requirements on law enforcement.364 The hybrid approach is even better suited to address this concern because it adds nothing new to criminal procedure.365 Although the continuing seizure and substantive due process approaches do not impose additional procedural requirements on law enforcement, they lack the additional advantage of complying with U.S. Supreme Court precedents as the hybrid model does.366 Thus, the hybrid model is the superior approach because it both harmonizes U.S. Supreme Court precedents and has a negligible effect on criminal procedure.367

Finally, the hybrid model supplies the most practical approach because it provides a logical point at which to terminate Fourth Amendment protections and impose a more demanding burden of proof under the Fourteenth Amendment.368 Under this approach, Fourth Amendment protections end when a suspect receives a probable cause hearing.369 This line of constitutional division is inherently sensible from a practical standpoint.370 At a probable cause hearing, a judicial officer either ratifies or rejects the actions of the police in seizing a suspect.371 At this stage, state officials also decide whether to charge a suspect, and if so, whether to release or detain him or her until trial.372

In the period before a probable cause hearing, however, a suspect’s custody may be based solely on the discretion of a single police [*PG1405]officer.373 At that point it remains to be seen if the arrest should have even occurred.374 At this stage, it makes intuitive sense to subject claims of excessive force to the less deferential Fourth Amendment standard because the custody lacks judicial sanction.375 In the period following a probable cause hearing, however, the propriety of an arrest and continued detention have been judicially assessed.376 Judicial approval of arrest and continued detention thus marks a practical point at which to impose the more demanding burden of proof upon plaintiffs under the Fourteenth Amendment because it provides an objective evaluation of police behavior.377

Conclusion

The hybrid model is the soundest method of adjudicating the excessive force claims of post-arrest, pretrial detainees. Unlike the substantive due process and continuing seizure models, this approach is able to account for the U.S. Supreme Court’s recent expansions of Fourth Amendment protections and its limitations on the availability of substantive due process claims. Additionally, the hybrid model is an inherently practical approach to adjudicating these claims. This practicality stems from its ability to supply a bright line of constitutional demarcation and its use of preexisting judicial proceedings that impose no further procedural burdens on law enforcement. The hybrid model’s provision of judicial approval of an arrest and continued detention further demonstrates its practicality because such approval provides a logical point at which to impose a more demanding burden of proof under the Fourteenth Amendment. Because of the hybrid model’s doctrinal consistency and inherent practicality, it is the approach best suited to illuminate the constitutional twilight zone.

Eamonn O’Hagan

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