A Legal Twilight Zone: From the Fourth to the Fourteenth Amendment, What Constitutional Protection is Afforded a Pretrial Detainee? Skip over navigation
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Copyright (c) 2003 Board of Trustees of Southern Illinois University
Southern Illinois University Law Journal

A Legal Twilight Zone: From the Fourth to the Fourteenth Amendment, What Constitutional Protection is Afforded a Pretrial Detainee?

Spring, 2003

27 S. Ill. U. L. J. 613


Tiffany Ritchie *



In the past three decades, a circuit split has developed over which provision of the Constitution protects individuals from excessive force by law enforcement officials during the period after arrest, but before trial and conviction. 1 Several jurisdictions, each employing individual reasoning, have determined that the Due Process Clause of the Fourteenth Amendment affords this protection; others have determined that it derives from the Fourth Amendment's protection from unreasonable seizures. 2 Although the circuits are, and have long been, split on this issue, the Supreme Court has repeatedly denied its duty to ensure that pretrial detainees are afforded the Constitutional protection they rightfully deserve. 3 This ignorance has not helped the problem disappear its ugly head has most recently reared this term in the 2002 decisions of the Sixth and Ninth Circuits. 4

The importance of the distinction between Fourth and Fourteenth Amendment protection is ultimately great, as the standards of liability vary significantly according to which amendment applies. 5 A substantially higher hurdle must be surpassed to make a showing of excessive force under the Fourteenth Amendment than under the Fourth. 6 In several jurisdictions, under the present Fourteenth Amendment standard, pretrial detainees, presumably innocent citizens, will only be protected from excessive force by law enforcement officials if they can show that the force used was enough to "shock the conscience." 7 In this scenario, the extreme burden of proof lies on the innocent citizen to combat the testimony of those who ...
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