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The Death of Subjective Deliberate Indifference

In civil rights cases plaintiff typically uses statute called section 1983. This statute which allows for the plaintiff to file suit for violations of their constitutional rights. The statute gives a person the right to file suit against a person who is a government employee for deprivation of any rights, privileges or immunities secured by the Constitution and law. The statute gives the plaintiff the right to recover attorney’s fees incurred. The attorney’s fee shifting provision makes this an attractive statute for victims of constitutional rights violations.

The statute had been interpreted to provide liability if and only if the plaintiff can prove the defendant was deliberately indifferent. This has been the language used in the jury instruction and is cited as black letter law.

Deliberate indifference is a subjective standard. It is subjective because it turns on the subject a state of mind of the defendant.

The court in Kingsley vs Hendrickson appears to have changed the standard. This case was decided June 22, 2015. Justice Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan concurred. Scalia, Roberts, Thomas and Alito dissented. This puts the case squarely down partisan lines. The liberal block got five votes. Scalia has passed away; however, he voted in the minority so a replacement cannot overturn the case.

Kingsley is an excessive force case. The pretrial detainee was tasered by jailers. He claimed that the force was excessive. The court framed the question as whether, to prevail on an excessive force claim, a pretrial detainee must show that the officers were subjectively aware their use of force was unreasonable or only whether it was objectively unreasonable. The jury was instructed that the Plaintiff had to prove that the officers “recklessly disregarded [Plaintiff’s] safety.”  The Supreme Court concluded an objective standard is preferable. It would appear that this logic applies to other constitutional violations. For the court acknowledged that the objective standard may raise questions about the use of the subject is standard in the context of excessive force claims brought by convicted prisoners, as opposed to pretrial prisoners. The court decided to decide that a later date.

This will be a great case for people who are plaintiffs in civil rights cases. As it stands now, the defense gets up and says we have nice well-meaning officers you should award the plaintiff nothing. I recently had a defendants talk about the fact that he had been a policeman at the September 11 attack. Therefore, the jury should conclude he’s a decent person and would not do something bad.  While I objected, this type of conduct at trial is inappropriate. The decision should be based on how the defendant’s act, not what they thought.

The Court in Kingsley did not rule that deliberate indifference is no longer a standard.  However, deliberate indifference is the standard in similar cases.  I, personally do not see how a court can use the deliberate indifference test after Kingsley, but we shall see.

The Seventh Circuit Court of Appeals was prepared new jury instructions.  These leave out the deliberate indifference language. They are found here.

At Ackerman Law Office we take constitutional violation cases seriously. We are selected in these cases so that we have time for you. We find these cases to be very complicated. They take a lot of time and work. However, where the right person is abused by police these cases can be helpful for the people who are injured and for the police to resolve the issues.