By Barbara L. Jones
The Daily Record Newswire
MINNEAPOLIS — The story of Kingsley v. Harrison gives new meaning to the term “legal fiction.” It could connote a case with a back story that conjures up stacks of shiny new novels or demands the attention of script writers at Universal.
Kingsley has it all — an intellectual property lawyer who takes prisoner civil rights cases pro bono and ends up at the U.S. Supreme Court, five prison officials in a cell with one man who ends up handcuffed and tased, and a client who starts out representing himself and does a good job.
Then add in the IP lawyer’s interested and supportive spouse who is also a lawyer, a law firm that gives the lawyer time and space and colleagues who pick up her cases for a time.
Give her some seasoned advocates to moot her cases and make her opponent a Supreme Court rock star.
Then, let her win. That’s the story of Wendy Ward’s first appearance at the U.S. Supreme Court in Kingsley, which resolved a split in the circuits and set a new 14th Amendment objective standard for evaluating claims of excessive force brought by pretrial detainees. Kingsley says the facts of the excessive force claim must be evaluated from the viewpoint of a reasonable officer in similar circumstances, without benefit of hindsight. It differs from the Eighth Amendment standard used for persons who are convicted of crimes.
Those claimants must prove their case under a subjective standard — that the officer acted sadistically and maliciously toward the prisoner. Ward is a partner in the Madison, Wisconsin, office of Merchant & Gould.
Crucially to the plot of this story, she is a patent litigator who works primarily with generic medicine manufacturers.
Her technical background includes research in molecular virology. Her pro bono focus is prisoner civil rights, and she received Kingsley’s case through the pro bono committee of the western district Federal Bar Association Wisconsin chapter.
The United States entered the case as amicus curiae but later sought, and was granted, permission to argue.
The United States was represented by Assistant to the Solicitor General John Bash who was “on our side,” Ward said.
The government agreed that the standard should be objective but also defended the jury instructions and said they didn’t warrant a reversal.
Consistent with the lawyer’s-dream-come-true nature of the case, the jailers were represented by former solicitor general and SCOTUS rock star Paul Clement.
As Minneapolis attorney John Baker, who helped moot the case put it, “It was a case that started as a pro bono matter ends with the attorney beating the most decorated U.S. Supreme Court advocate Paul Clement, in front of a court he appears in regularly.”
Kingsley got into a dispute with guards at the Monroe County jail in Sparta, Wisconsin, over some paper that had been taped over a light fixture. After Kingsley’s repeated refusals to remove the paper, five officers entered his cell and attempted to handcuff him. As the confrontation continued, Kingsley was tased.
Representing himself, Kingsley sued for violation of his 14th Amendment rights and defeated the defense motion for summary judgment on excessive force. Counsel was appointed for Kingsley prior to trial and the case went to a jury, which returned a defense verdict.
Kingsley then challenged the jury instructions at the 7th U.S. Circuit Court of Appeals.
Kingsley argued that the instructions were erroneous and confusing because he was required to meet the subjective test of whether the officers had acted with “reckless disregard” for his safety, rather than an objective test of whether the conduct of the government actors was reasonable. A divided 7th Circuit panel affirmed.
The Supreme Court reversed, 5-4.
It applied the standard of a “reasonable officer on the scene” based on what the officer knew at the time and taking into account the need for discipline and order in the facility. Under this standard, the plaintiff need not prove the defendant’s actual state of mind.
The court said that reasonableness may be established by factors including, but not limited to, 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.
To Ward, the standard adopted by the Kingsley court makes sense because prison guards are already trained to use objectively reasonable force. “It makes sense to train to the lowest common denominator,” she said. “If [officials] are trained to use objectively reasonable force then they will do the right things.”
Although Ward was very sure that the standard in excessive force cases was objective, she had no sense after the argument about which way the court was inclined.
She does not believe the court considered the country’s recent history of police/civilian violence in reaching its decision, but that the context could have played a role in getting the cert petition granted.
Ward gives credit where credit is due for her success, both to all the lawyers who participated in her moot courts and to her husband, Jeff, who was heavily involved and sat with her at the counsel table (another nice novelistic touch). Jeff would ask her questions about the case over the family dinner table. That likely wouldn’t work for everyone, but Ward enjoyed it and the rest of the moots. When she took her place at the podium on April 27, 2015, she wasn’t met with any questions that she hadn’t fielded in some iteration.
Ward said that she was nervous until the argument got started and then she became comfortable. “I blinked, and it was over,” Ward said.
She had no sense of the direction in which the court was leaning and felt that the decision could have gone either way. She was worried about the questioning by the more conservative judges on the court but didn’t have much difficulty with them, she said. She was asked more questions that the other attorneys, defying the theory that the hotter the bench, the less it likes your case.
Baker listened to a podcast of the argument and also found it very hard to predict what the outcome of the case would be.
“It seemed as if during Wendy’s presentation none of the justices were defending her rule of law,” he said. It also seemed as if the court wanted to discuss what the standard would be if the case involved an Eighth Amendment violation, he said. And the jailers were looking for additional ground which they certainly didn’t get, he said.
Ward does not believe that Kingsley presages a new standard for excessive force where plaintiffs are in prison, having been convicted of a crime. “The Eighth Amendment standard isn’t in danger of falling,” she said.
Maybe not, but some commentators believe that Kingsley might signal an eventual shift toward an objective standard in Eighth Amendment cases as well, since the court said that a pretrial detainee could prevail on objective evidence that the challenged government action is not rationally related to a legitimate government purpose.
Justice Stephen Breyer wrote for the majority, “We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the 14th Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.”
After the argument, Wendy and Jeff repaired to an Italian restaurant near the court, along with their managing partner.
Ward credits Merchant and Gould for its “amazing” support of her venture outside of her regular practice and points out that she wasn’t required to maintain her regular caseload while preparing the Kingsley case.
Kingsley illustrates one more reason to take pro bono cases — for the opportunities they can bring, Baker said.
And it is also a good reason for firms to support the pro bono work, he said. “It’s really a good reflection on the firm.”
Ward is now hard at work with her caseload against Big Pharma (her phrase).
She was asked who were the tougher opponents, Clement and the Solicitor General’s office, or Big Pharma lawyers.
Her answer revealed that she has earned some chops as an oral advocate.
“It depends,” she said.
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