Excessive Force

My Son Was Hurt in Jail Before His Trial

Prisoner Legal Aid

If your son was hurt in jail while he was still waiting for trial, his legal footing is different from that of a man who has already been convicted, and in one important way it is better. He has not been found guilty of anything. The jail is holding him so he shows up for court, and that is all it is allowed to do to him. Three things are worth doing this week: help him file the jail's grievance form right away, ask the jail in writing for his jail medical file, and write to the jail administrator asking them to hold on to everything they recorded on the day he was hurt.

If he is hurt right now, start here today

Call the jail and ask for the shift supervisor by name. Say out loud that you are asking for emergency medical care for him, and if he is still in danger, that you are asking for protective housing. Write down the name of the person you spoke to, the number you called, and the time. That note is evidence later, and it costs you nothing now.

If he can get to a phone, have him say the same words to staff himself and write down when he said them. If he was beaten, restrained, sprayed or tased by officers, or if another man assaulted him and staff did not come, he should ask to be seen by medical that same day and should describe every injury out loud so it goes in the jail's own file.

What you can do this week

The grievance is the single most urgent piece of paper. Most county jails give a window counted in days, not months, and missing it can end a federal case that was otherwise strong. Have him file it in writing, describe what happened in plain dates and names, and keep his copy. If staff will not hand him a form, have him write the complaint on whatever paper he has and submit it anyway.

Then build the file yourself:

• Send a written request for his jail medical file for the dates around the injury. Our free medical records request packet has the wording.
• Write to the jail administrator or the sheriff and ask them to hold on to anything recorded in that housing unit that day. Jails overwrite what they record on a schedule, and the schedule is short. How long the jail keeps its video explains the timing.
• Send both by certified mail and keep the receipt.
• Write down the name and jail number of every man who saw it happen.
• If the jail wrote an incident report, ask for a copy of that too.

Before you go further, get the free First 72 Hours guide. It is the same checklist in one page, and it is free.

What the law actually requires

The claim lives in 42 U.S.C. 1983, which says that every person who, acting under color of state law, "subjects, or causes to be subjected" a person to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured."

What makes his situation different is the next step. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court held that "a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." He has not had that adjudication. So the jail has no authority to punish him for anything.

In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Court applied that idea to force. It held that "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." He does not have to prove that an officer hated him or enjoyed it. The Court listed considerations that bear on whether the force was reasonable: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting."

Compare that with the rule for a man who has already been convicted. Under Hudson v. McMillian, 503 U.S. 1 (1992), the question is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Kingsley said plainly that Hudson and cases like it "concern excessive force claims brought by convicted prisoners under the Eighth Amendment's Cruel and Unusual Punishment Clause, not claims brought by pretrial detainees." So check the date he was sentenced before anyone tells you which standard applies.

Now the honest limits, because they decide real cases. An accident is not a claim. Kingsley requires that the officer acted purposely or knowingly as to the force itself. The Court also said a judge must weigh reasonableness "from the perspective and with the knowledge of the defendant officer," and must defer to "policies and practices that in th[e] judgment" of jail officials "are needed to preserve internal order and discipline and to maintain institutional security." And an officer who has not violated a clearly established right can still walk away under qualified immunity.

If another man in the jail hurt him, the question stops being how much force staff used and becomes what staff knew. Farmer v. Brennan, 511 U.S. 825 (1994), describes deliberate indifference this way: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." That is why every warning given to staff before the assault matters so much, and why a written warning beats a spoken one.

One caution worth stating plainly. Kingsley settled the standard for force claims by people held before trial. Whether its objective approach governs every other kind of claim by a detainee is not answered the same way in every part of the country. Be careful with anyone who states one national rule for all of it.

Deadlines and traps

The exhaustion rule comes first because it ends more cases than anything else. 42 U.S.C. 1997e(a) says: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

It reaches him even though he is not serving a sentence. Section 1997e(h) defines "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law."

The one word that gives him room is "available." In Ross v. Blake, 578 U.S. 632 (2016), the Court held that "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end." Documenting every refused form is how he keeps that argument alive.

Two more traps. 42 U.S.C. 1997e(e) bars a federal action "for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act," which is one more reason to get the injury written into the jail's own file within days. And the lawsuit clock has no national answer: Owens v. Okure, 488 U.S. 235 (1989), holds that "courts considering § 1983 claims should borrow the general or residual statute for personal injury actions," so the number comes from the state where the jail sits. Treat it as shorter than you would like.

Your checklist

• Grievance filed in writing, in his name, with a copy kept.
• A dated note of every call you made to the jail and who answered.
• A written request for his jail medical file, sent by certified mail.
• A written request to the jail administrator to hold on to what was recorded that day.
• Names and jail numbers of everyone who saw it.
• Copies of any written warnings he gave staff before he was assaulted.
• The date he was arrested and the date of any sentencing, so the right standard is used.

The next step is the grievance, and it is his to sign. Everything else on that list, a family can do from the outside, and we can do with you. To talk it through with a person today, call the Prisoner Legal Aid Family Help Line at 786-408-5073, or text 727-635-0600. If you would rather start in writing, the excessive force page and the grievances page explain what we prepare and what it costs.