These Fourth Amendment principles will continue to apply to arrestees at least until they are secured at the station or jail, and in most jurisdictions will also apply until arraignment or first court appearance of the prisoner. (Fontana v. Haskin.)
Fifth and Fourteenth Amendment
Use of force against pretrial detainees, between the date of arraignment and the date of conviction in criminal court, will be evaluated under the relevant due process clause of either the Fifth Amendment or Fourteenth Amendment. "It is clear," said the court in Graham v. Connor, "that the Due Process Clause protects pretrial detainees from the use of excessive force that amounts to punishment." Fifth Amendment due process applies to federal officers; Fourteenth Amendment due process applies to state and local officers. (Lee v. City of Los Angeles.)
The test is exactly the same under both- namely, whether the use of force is so egregious that it "shocks the conscience." (County of Sacramento v. Lewis.) The court said in Lewis that the kind of test under the Eighth Amendment is whether the use of force against a prisoner amounted to the "unnecessary and wanton infliction of pain, totally without penalogical justification." (Hope v. Pelzer.) Again, institutional security concerns loom large in justifying force to control sentenced prisoners, and second-guessing is discouraged: "The infliction of pain in the course of a prison security measure does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable." (Whitley v. Albers)
As you can see, in all three settings- arrest, pretrial detention, and incarceration of sentenced prisoners-the key to avoiding a finding of excessive force is being able to justify the kind and amount of force used. The accuracy and completeness of the force report are extremely important, not only for purposes of internal investigations, but also for criminal and civil liability and public relations purposes.
All of the prisoner's words and actions, action that is likely to rise to the level of "conscience shocking" would be "conduct intended to harm in some way unjustifiable by any government interest."
This means that where force is reasonably used in furtherance of the strong governmental interest in institutional security, it should not be considered excessive. In Bell v. Wolfish, the court ruled that custodial officers must be given substantial leeway because of the serious considerations involved in maintaining discipline and order in the jail: "In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."
Only after a defendant has been convicted of a crime does the Eighth Amendment prohibition against cruel and unusual punishment apply. "After conviction, the Eighth Amendment serves as the primary source of substantive protection in cases where the deliberate use of force is challenged as excessive and unjustified." (Graham v. Connor.) the surrounding circumstances, and your reasons for employing the particular force you used, as well as conscientiousness in obtaining any necessary follow-up treatment, should be fully detailed and documented.
Where possible, video and photographs should be used to record events and injuries (it will not be helpful if your own language is abusive or unprofessional). Witnesses should be promptly and thoroughly interviewed on tape. And the evidence must be safeguarded so that it is not suspiciously unavailable later. In short, be sure your self-control is adequate to allow you to deal decisively with resistance or assault, without ever going beyond the limits of reasonable force. Then be sure you can justify what you do, and preserve the best possible evidence of your justification and the reasonableness of your response. And remember that police officers can lawfully use force only for defense and control, never for punishment.
Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies at Manning & Marder, Kass, Ellrod, Ramirez.