Sept. 18, 2015 – A federal appeals court has ordered a new trial for Michael Kingsley, who was tasered while awaiting trial at a Wisconsin jail. Kingsley took his excessive force case to the U.S. Supreme Court, which decided in his favor this summer.

In a 5-4 decision, the high court ruled that pretrial detainees are not required to prove that jail officials were “subjectively aware” that their use of force was unreasonable. That is, proving an excessive force claim under 42 U.S.C. § 1983 only requires the plaintiff to show the force was objectively unreasonable, a less burdensome requirement.

At his first trial, in the U.S. District Court for the Western District of Wisconsin, the jury ruled against Kingsley. A jury instruction indicated that Kingsley had to prove jail officials knew the force they used against Kingsley was unreasonably excessive.

The U.S. Court of Appeals for the Seventh Circuit affirmed, concluding the jury instruction was “not an erroneous or confusing statement of the law of this circuit.”

The U.S. Supreme Court resolved a circuit split in concluding that a jail official’s state of mind does not matter in excessive force cases. On remand, Kingsley asked for a new trial, and the defendant jail officials invoked other arguments for dismissal.

The defendants, Sergeant Stan Hendrickson and Deputy Fritz Degner, worked at the Monroe County Jail, in Sparta, Wis., when the incident occurred in 2010. Kingsley said Hendrickson ordered Degner to “tase” Kingsley, who had been forced to the ground in a “receiving cell,” so jail officials could remove his handcuffs. They said Kingsley was resisting the jail officials.

The cell contained a video camera, but the five corrections officers involved in Kingsley’s transfer surrounded Kingsley and blocked the camera’s view.

On remand, Hendrickson and Degner argued that the faulty jury instruction was harmless error and, alternatively, that they had qualified immunity because they did not violate a constitutional right that was clearly established at the time of the incident.

But Seventh Circuit Appeals Court, in Kingsley v. Hendrickson et al., No. 12-3639 (Sept. 8, 2015), rejected those arguments and ordered a new trial. In a per curiam opinion, the court first ruled that the jury instruction requiring subjective intent was not harmless.

“True, many of the factors to which the district court invited the jury’s attention were the same factors that a jury would assess under the objective standard now mandated by the Supreme Court,” the court noted.

“Nevertheless, those factors were suggested to the jury not in the context of applying them to an objective test but as circumstantial evidence from which an inference of reckless or malicious intent might be drawn.”

The court explained that a jury could have concluded, on the facts in the record, that the officers acted unreasonably but did not have a reckless or malicious intent.

On the issue of qualified immunity, the court examined whether it was clear, at the time of the incident, that using a Taser against a non-resisting detainee was excessive.

“Our precedent makes clear that when the officers applied the Taser to Kingsley in May 2010, use of the Taser violated Mr. Kingsley’s right to be free from excessive force if he was not resisting,” the court noted.

“If we were to accept the defendants’ argument here, we would untether the qualified immunity defense from its moorings of protecting those acting in reliance on a standard that is later determined to be infirm.”