Appellate Case: 20-4083 Document: 010110725103 Date Filed: 08/16/2022 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 16, 2022
`
`Christopher M. Wolpert
`Clerk of Court
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`HYRUM JAMES GEDDES,
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` Plaintiff - Appellant,
`
`v.
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`WEBER COUNTY; WAYNE MOSS;
`ROBERT SHANER; KARLEE DRAKE;
`JAMIE TOONE,
`
` Defendants - Appellees.
`_________________________________
`
`
`
`
`
`No. 20-4083
`(D.C. No. 1:18-CV-00136-HCN)
`(D. Utah)
`
`ORDER AND JUDGMENT*
`_________________________________
`
`Before HOLMES, BACHARACH, and CARSON, Circuit Judges.
`_________________________________
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`Mr. Hyrum Geddes sued Weber County and several officers in the Weber
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`County Sheriff’s Department for an excessive-force incident that occurred while he
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`was detained at the Weber County Correctional Facility but before a probable cause
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`hearing. Mr. Geddes brought his claim pursuant to 42 U.S.C. § 1983 and alleged the
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`officers had violated his Fourteenth Amendment rights. The question before us is not
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`whether the officers’ actions indeed constituted excessive force. It is instead whether
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`Mr. Geddes can bring an excessive-force claim—as an arrestee—under the
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`This order and judgment is not binding precedent, except under the
`*
`doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
`however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
`Cir. R. 32.1.
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`Appellate Case: 20-4083 Document: 010110725103 Date Filed: 08/16/2022 Page: 2
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`Fourteenth Amendment. We conclude that he cannot. And we, therefore, agree with
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`the district court’s grant of summary judgment and conclusion that Mr. Geddes did
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`not have “a cognizable claim under the Fourteenth Amendment” because the alleged
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`excessive force did not occur “after a determination of probable cause and before
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`conviction.” Geddes v. Weber Cnty., No. 1:18-cv-00136, 2020 WL 4437405, at *2
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`(D. Utah Aug. 3, 2020) (unpublished). Only the Fourth Amendment supplied a valid
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`legal basis for Mr. Geddes’s § 1983 claim, and yet, as we will discuss below, Mr.
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`Geddes stubbornly refused to concede this fact.
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`We have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s
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`grant of summary judgment de novo and for the reasons that follow, we affirm.
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`I
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`A Utah Highway Patrol Trooper pulled over Mr. Geddes for speeding in July
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`2017. Smelling alcohol, and noticing that Mr. Geddes slurred his speech, the trooper
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`searched the vehicle. The trooper found unopened cans of beer and two rifles. The
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`trooper arrested Mr. Geddes for speeding, driving under the influence, and carrying a
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`dangerous weapon while under the influence of alcohol. The trooper then took
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`Mr. Geddes to the Weber County Correctional Facility.
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`When he arrived at the facility, Mr. Geddes was searched and placed in a
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`holding cell. In his operative complaint,1 Mr. Geddes alleged that officers demanded
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`The operative complaint is Mr. Geddes’s amended complaint, filed on
`1
`February 11, 2019. For simplicity’s sake, we refer to the amended complaint herein
`simply as Mr. Geddes’s “complaint”; as relevant to the matters we address and
`resolve here, there is no material difference between the two complaints.
`2
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`Appellate Case: 20-4083 Document: 010110725103 Date Filed: 08/16/2022 Page: 3
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`that he remove his boots and then “rushed him, grabbed him, and violently attacked
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`[him], . . . slamm[ing] his head into [a] brick wall and concrete floor with substantial,
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`potentially deadly force.” Aplt.’s App. at 35 (Am. Compl., filed Feb. 11, 2019). The
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`officers then forcibly removed Mr. Geddes’s boots. An incident report regarding the
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`officers’ use of force shows that it occurred soon after 4:00 p.m. A magistrate judge
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`made a probable cause determination shortly after 5:30 p.m.
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`As a result of the officers’ actions in removing his boots, Mr. Geddes claimed
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`that he later suffered “blurry vision, cognitive difficulties, and substantial pain to the
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`back and side of his head.” Id. at 39. Mr. Geddes eventually filed a § 1983 action
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`against Weber County and four officers in the Weber County Sheriff’s Department.
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`In his complaint, Mr. Geddes alleged that the officers “employed deadly force”
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`against him in violation of the Fourteenth Amendment. Id. at 42. He further alleged
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`that Weber County “engaged in deliberate indifference and/or reckless disregard of
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`the deprivation of [his] rights under the Fourteenth Amendment.” Id. at 44.
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`Defendants filed a motion for summary judgment. They argued that
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`Mr. Geddes’s complaint did not “state a cognizable cause of action” because it
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`invoked the Fourteenth Amendment “as the sole basis for the alleged legal violation.”
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`Id. at 55, 57–58 (Defs.’ Mot. for Summ. J., filed Oct. 18, 2019). Defendants insisted
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`that because Mr. Geddes was an “‘arrestee’ who was detained without a warrant and
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`prior to a judicial probable cause determination,” the only valid basis for his
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`excessive-force claim was the Fourth Amendment, not the Fourteenth Amendment.
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`Id. at 58. Defendants also argued that if Mr. Geddes had properly pleaded his claim
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`under the Fourth Amendment they still would be entitled to qualified immunity. See
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`Id. at 294–97 (Defs.’ Reply Mem. in Supp. of Mot. for Summ. J., filed Nov. 15,
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`2019).
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`In response, Mr. Geddes said that he could bring his claim “only pursuant to
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`the Fourteenth Amendment, because that Amendment incorporates the Fourth
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`Amendment’s protections against the states and their political subdivisions.” Id.
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`at 114 n.2 (Pl.’s Mem. in Opp.’n to Defs.’ Mot. for Summ. J., filed Nov. 1, 2019).
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`Mr. Geddes made two additional related arguments. First, he stated that no matter
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`which amendment he cited in his complaint, Defendants were “put on notice that [he]
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`was pursuing a claim under Section 1983 for use of excessive force,” because “the
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`Amended Complaint repeatedly alleges that the Individual Defendants violated Mr.
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`Geddes’[s] rights when they used force that was ‘objectively unreasonable’ in light of
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`the circumstances presented. That is the Fourth Amendment standard applicable to
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`excessive force claims.” Id. (quoting id. at 31, 37, 38).
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`Second, he insisted that because “there is really no practical difference
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`between application of the standards applicable under the Fourth and Fourteenth
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`Amendment to a claim of use of excessive force,” any error in pleading his claim as a
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`Fourteenth Amendment violation was immaterial. Id. at 143 n.6; see also id. at 138–
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`39 n.5 (“[O]ne could make an [argument] that there was [a] continuing seizure and
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`apply the Fourth Amendment, as Defendants say we should do; or, alternatively, one
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`could also argue that the Fourteenth Amendment should apply because Mr. Geddes
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`had already been seized. In reality, . . . in light of the facts presented here, there is no
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`practical difference in the outcome in application of the two standards.” (citation
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`omitted)). Finally, Mr. Geddes argued at length that Defendants were not entitled to
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`qualified immunity.
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`The district court granted Defendants’ motion for summary judgment. It found
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`that Mr. Geddes “d[id] not have a cognizable claim under the Fourteenth
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`Amendment” because the alleged excessive force occurred before a probable cause
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`determination.2 Geddes, 2020 WL 4437405, at *2. The court also rejected Mr.
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`Geddes’s argument that he pleaded a valid basis for his claim because the Fourteenth
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`Amendment incorporates the Fourth Amendment against state and local officials.
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`According to the court, “[i]t would follow from Mr. Geddes’s argument that merely
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`invoking the Fourteenth Amendment would suffice as notice for any number of
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`constitutional claims—from free exercise or free speech claims to Second
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`Amendment or takings claims, to claims based on any of the various rights relating to
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`The district court also disagreed with Mr. Geddes’s argument that at the
`2
`time of the incident he was a pretrial detainee. Geddes, 2020 WL 4437405, at *3 n.3.
`Although Mr. Geddes argued he “‘had already been seized . . . based on the
`Trooper’s finding of probable cause’ and that the subsequent judicial hearing was not
`an ‘actual probable cause hearing [but] merely a judicial stamp of approval on the
`Trooper’s finding of probable cause for the arrest and detention,’” the district court
`explained, “Mr. Geddes offers no authority in support of this novel theory, and the
`court is aware of none.” Id. (alteration and omission in original) (quoting Aplt.’s
`App. at 138–39 n.5).
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`criminal procedure set forth in the Bill of Rights,” upending federal pleading
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`requirements. Id. at *3.
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`The court also disagreed with Mr. Geddes that his complaint put Defendants
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`on notice of his precise claim. As the court explained, “the complaint nowhere
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`references the Fourth Amendment, and in the specific context of excessive force
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`claims, there is a significant difference between the rights secured by the Fourth
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`Amendment and those secured by the Fourteenth Amendment”; therefore, the
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`complaint did not put Defendants on notice of his Fourth Amendment claim. Id.
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`Finally, and relatedly, the district court rejected Mr. Geddes’s argument that there
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`was no practical difference between Fourth and Fourteenth Amendment claims of
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`excessive force. In doing so, it emphasized that the choice of amendment matters,
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`especially here, because the “test of excessive force under the Fourth Amendment is
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`different than under the Fourteenth.” Id. at *4. The court consequently granted
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`Defendants’ motion for summary judgment and dismissed Mr. Geddes’s claim with
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`prejudice.
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`Mr. Geddes then brought this timely appeal.
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`II
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`Our resolution of this appeal will proceed in three steps. First, we will explain
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`why a plaintiff must precisely identify the constitutional basis for a § 1983 excessive-
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`force claim. Because different amendments supply the basis for suit at different
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`phases of the criminal justice process, we will explain which amendment properly
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`applies at each phase and the unique interests that each amendment protects.
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`Next, we will establish that Mr. Geddes was an “arrestee” when Weber County
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`officers allegedly used excessive force against him; that is, the incident in question
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`occurred before a probable cause determination. And as a result, the Fourth
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`Amendment—not the Fourteenth Amendment—provides the only valid basis for his
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`excessive-force claim. We will show that Mr. Geddes has only ever pleaded his
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`claim as a Fourteenth Amendment violation. This error—which Mr. Geddes has
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`maintained throughout the duration of his suit—forecloses the possibility of granting
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`him relief.
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`Finally, we will consider three additional arguments made by Mr. Geddes for
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`why the district court erred in granting summary judgment to Defendants. We will
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`explain why none are persuasive, and why we therefore affirm the district court’s
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`grant of summary judgment.
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`A
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`“Our first task in any § 1983 suit alleging a constitutional violation is ‘to
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`isolate the precise constitutional violation with which [the defendant] is charged.’”
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`Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010) (alteration in original)
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`(quoting Baker v. McCollan, 443 U.S. 137, 140 (1979)). After all, “§ 1983 ‘is not
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`itself a source of substantive rights,’ but merely provides ‘a method for vindicating
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`federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393–94
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`(1989) (quoting Baker, 443 U.S. at 144 n.3); see also Gonzaga Univ. v. Doe, 536
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`U.S. 273, 285 (2002) (Ҥ 1983 merely provides a mechanism for enforcing individual
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`rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and
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`laws’ of the United States.”). As a result, not all “claims brought under § 1983 are
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`governed by a single generic standard.” Graham, 490 U.S. at 393. Instead, we must
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`judge the “validity of the claim . . . by reference to the specific constitutional
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`standard which governs that right.” Id. at 394; see United States v. Lanier, 520 U.S.
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`259, 272 n.7 (1997) (“Graham simply requires that if a constitutional claim is
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`covered by a specific constitutional provision, such as the Fourth or Eighth
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`Amendment, the claim must be analyzed under the standard appropriate to that
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`specific provision, not under the rubric of substantive due process.”); see also
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`Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992) (“All excessive force
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`claims are not governed by a single generic standard. Our analysis must begin with
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`identification of the specific constitutional right infringed . . . .”).
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`It is especially critical to identify the precise constitutional basis for an
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`excessive-force claim because it “can be maintained under the Fourth, Fifth, Eighth,
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`or Fourteenth Amendment . . . and each carries with it a very different legal test.”
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`Est. of Booker v. Gomez, 745 F.3d 405, 418–19 (10th Cir. 2014) (quoting Porro,
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`624 F.3d at 1325); see also Emmett v. Armstrong, 973 F.3d 1127, 1134 (10th Cir.
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`2020) (“Excessive force claims are cognizable under the Fourth, Fifth, Eighth, and
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`Fourteenth Amendments.”); accord DeLade v. Cargan, 972 F.3d 207, 210 (3d Cir.
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`2020) (“Simply put, if [the plaintiff’s] claim of unlawful arrest and pretrial detention
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`sounds in the Fourth Amendment, then it cannot be asserted under the Due Process
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`Clause of the Fourteenth Amendment.”). The appropriate amendment for a § 1983
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`excessive-force action “depend[s] on ‘where the plaintiff finds himself in the
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`criminal justice system’ at the time of the challenged use of force.” McCowan v.
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`Morales, 945 F.3d 1276, 1282–83 (10th Cir. 2019) (quoting Est. of Booker, 745 F.3d
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`at 419); see also Porro, 624 F.3d at 1325 (“The choice of amendment matters.
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`Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or
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`Fourteenth Amendment—all depending on where the defendant finds himself in the
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`criminal justice system . . . .”).
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`We have previously explained at length which amendment applies to
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`excessive-force claims at each phase of the criminal justice process and what type of
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`government intrusion the corresponding amendment protects against. Because the
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`Fourth Amendment protects against unreasonable searches and seizures, it applies at
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`the earliest phase, beginning with any claim that “arises in the context of an arrest or
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`investigatory stop of a free citizen.” Emmett, 973 F.3d at 1134 (quoting Graham,
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`490 U.S. at 394); see also Est. of Booker, 745 F.3d at 419 (“Any force used ‘leading
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`up to and including an arrest’ may be actionable under the Fourth Amendment’s
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`prohibition against unreasonable seizures.” (quoting Porro, 624 F.3d at 1325)).
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`The Supreme Court has made clear that “[b]ecause the Fourth Amendment
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`provides an explicit textual source of constitutional protection against this sort of
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`physically intrusive governmental conduct, that Amendment, not the more
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`generalized notion of ‘substantive due process,’ must be the guide for analyzing these
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`claims.” Graham, 490 U.S. at 395. The Fourth Amendment continues to apply up to
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`the moment of a judicial determination as to “whether there was probable cause to
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`charge [an arrestee] with a crime.” McCowan, 945 F.3d at 1283; see also Est. of
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`Booker, 745 F.3d at 419 (explaining that the Fourth Amendment governs excessive-
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`force claims related to incidents that occurred “prior to any probable cause hearing”
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`(emphasis omitted) (quoting Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir.
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`1991), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304 (1995))).
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`At the next phase of the criminal justice process, “we turn to the due process
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`clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary
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`governmental action by federal or state authorities.” Colbruno v. Kessler, 928 F.3d
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`1155, 1162 (10th Cir. 2019) (quoting Porro, 624 F.3d at 1326); see id. at 1161
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`(“When we speak of a Fourteenth Amendment claim in this opinion, we will be
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`referring to a claim that is not based on incorporating the Bill of Rights into that
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`amendment, but rather is based on the Due Process Clause in itself.”). Because “[a]
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`person lawfully committed to pretrial detention has not been adjudged guilty of any
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`crime” and “[h]e has had only a ‘judicial determination of probable cause as a
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`prerequisite to [the] extended restraint of [his] liberty following arrest,’” the
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`government “may detain him to ensure his presence at trial and may subject him to
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`the restrictions and conditions of the detention facility so long as those conditions
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`and restrictions do not amount to punishment, or otherwise violate the Constitution.”
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`Bell v. Wolfish, 441 U.S. 520, 536–37 (1979) (third and fourth alterations in original)
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`(quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). Put another way, the Supreme
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`Court has made clear that under the Fourteenth Amendment a “detainee may not be
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`punished prior to an adjudication of guilt in accordance with due process of
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`law.” Colbruno, 928 F.3d at 1162 (quoting Bell, 441 U.S. at 535). So, “a pretrial
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`detainee can establish a due-process violation by ‘providing only objective evidence
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`that the challenged governmental action is not rationally related to a legitimate
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`governmental objective or that it is excessive in relation to that purpose.’” Id.
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`at 1163 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)).3
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`It is undoubtedly “well-established that the Fourteenth Amendment governs
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`any claim of excessive force brought by a ‘pretrial detainee’—one who has had a
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`‘judicial determination of probable cause as a prerequisite to [the] extended restraint
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`of [his] liberty following arrest.’” Est. of Booker, 745 F.3d at 419 (alterations in
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`original) (quoting Bell, 441 U.S. at 536); McCowan, 945 F.3d at 1283 n.6 (“The
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`Fourteenth, instead of the Fourth, Amendment, applies to an excessive-force claim
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`brought by a pretrial detainee . . . .”).
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`At the post-conviction phase of the criminal justice process, the Eighth
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`Amendment applies. See Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)
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`As we allude to infra, in Kingsley, the Supreme Court clarified
`3
`approximately two years before the events at issue here that the standard that a
`pretrial detainee must use to establish an excessive-force claim under the Due
`Process Clause is an objective one: the detainee must establish that “the officers’ use
`of that force was objectively unreasonable”—not that “the officers were subjectively
`aware that their use of force was unreasonable.” Kingsley, 576 U.S. at 391–92;
`accord McCowan, 945 F.3d at 1283 n.6 (“[T]he Supreme Court has now clarified that
`only the objective (and not a subjective) standard applies to a pretrial detainee’s
`Fourteenth Amendment excessive-force claim.”). In Mr. Geddes’s view, see infra
`Part II.C.1, this holding lends credence to the proposition that there is no material
`difference between the liability standard that governs excessive-force claims brought
`under the Due Process Clause and like claims pursued under the Fourth
`Amendment—claims that have long been held to be governed by an objective
`standard, see, e.g., Graham, 490 U.S. at 388. As we demonstrate, Mr. Geddes’s view
`is misguided.
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`(“Eighth Amendment scrutiny is appropriate only after the State has complied with
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`the constitutional guarantees traditionally associated with criminal prosecutions.”).
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`Thus, “prisoners already convicted of a crime who claim that their punishments
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`involve excessive force must proceed under the more restrictive terms of the Eighth
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`Amendment’s ‘cruel and unusual punishments’ clause.” Porro, 624 F.3d at 1325–26;
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`see also Est. of Booker, 745 F.3d at 419 (“[C]laims of excessive force involving
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`convicted prisoners arise under the Eighth Amendment.”). In contrast to excessive-
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`force cases involving pretrial detainees where the Fourteenth Amendment protects
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`against the state imposing punishment prior to an adjudication of guilt, the Eighth
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`Amendment protects against the infliction of certain types of punishment—that is,
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`“cruel and unusual punishments.” Therefore, in the Eighth Amendment context, “we
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`ask only whether the ‘force was applied in a good-faith effort to maintain or restore
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`discipline, or maliciously and sadistically to cause harm.’” Porro, 624 F.3d at 1326
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`(quoting Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)).
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`As will be discussed further below, not only do the different amendments
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`provide protection at different parts of the criminal justice process, but more
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`importantly for present purposes, the different amendments protect against unique
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`forms of potential governmental intrusion on the protected right. This underscores
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`the need for litigants to identify the correct amendment under which they seek relief.
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`B
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`Mr. Geddes was a mere arrestee when Weber County officers allegedly used
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`excessive force against him. No judicial determination of probable cause had yet
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`been made. Instead, he simply had been arrested by a Utah Highway Patrol Trooper
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`and transported to the Weber County Correctional Facility. There, he was searched
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`and placed in a holding cell. An incident report filed later confirms that the alleged
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`excessive force occurred soon after 4:00 p.m. Yet a magistrate only made a probable
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`cause determination shortly after 5:30 p.m. The alleged excessive force, then, clearly
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`occurred “after [Mr. Geddes] had been arrested without a warrant and before any
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`determination as to whether there was probable cause to charge him with a crime.”
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`McCowan, 945 F.3d at 1283. In fact, Mr. Geddes does not deny this. Thus, because
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`Mr. Geddes was an arrestee, only the Fourth Amendment can supply the basis for his
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`§ 1983 excessive-force claim.
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`However, Mr. Geddes only ever pleaded his claim as a Fourteenth Amendment
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`violation. See, e.g., Aplt.’s App. at 42–43 (claiming that Defendants violated
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`“clearly established . . . constitutional rights” that were “secured by the Fourteenth
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`Amendment of the United States Constitution”). And in his opposition to
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`Defendants’ motion for summary judgment, he did not concede this error. He instead
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`argued that he could indeed seek relief under the Fourteenth Amendment. Id. at 114
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`n.2 (asserting that it “borders on the frivolous” for Defendants to suggest that Mr.
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`Geddes cannot base his § 1983 claim under the Fourteenth Amendment); id. (“Mr.
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`Geddes’[s] claims can be brought only pursuant to the Fourteenth Amendment[]
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`because that Amendment incorporates the Fourth Amendment’s protections against
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`the states and their political subdivisions. Accordingly, as written, the claims set out
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`in Mr. Geddes’[s] Amended Complaint cite to the appropriate Amendment.”
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`(citations omitted)). Alternatively, Mr. Geddes argued that his choice of amendment
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`did not matter. Id. at 138–39 n.5 (“In reality, . . . in light of the facts presented here,
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`there is no practical difference in the outcome in [the] application of the two
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`standards.”); id. at 143 n.6 (“[I]n light of the facts presented here, there is really no
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`practical difference between [the] application of the standards applicable under the
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`Fourth and Fourteenth Amendment to a claim of use of excessive force.”).
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`On appeal, Mr. Geddes doubles down on this error and continues to suggest
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`that the Fourteenth Amendment supplies a valid basis for his claim. See, e.g., Aplt.’s
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`Opening Br. at 31–33; see also id. at 32–33 (arguing this court “should apply the
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`factors set out by the Supreme [C]ourt in Kingsley [i.e., a case under the Due Process
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`Clause] to the circumstances presented here”); id. at 35 (“[C]ontrary to the district
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`court’s conclusion, Mr. Geddes has stated a cognizable claim for relief—regardless
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`of whether we cite to the Fourth or Fourteenth Amendment.”); id. at 41 n.8 (“[A] line
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`of demarcation that is more apropos would be to apply the Fourteenth Amendment,
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`and the Kingsley factors, when, as here, the factual scenario actually calls for
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`application of those factors rather than the factors set out in Graham to a seizure.”).
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`This is simply incorrect. Mr. Geddes continues to cling to a constitutional
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`amendment that provides him—as an arrestee—with no cognizable basis for a § 1983
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`excessive-force claim. “The choice of amendment matters,” Porro, 624 F.3d at 1325,
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`and the amendment Mr. Geddes has chosen and has persisted in choosing dooms his
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`§ 1983 action.
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`C
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`Mr. Geddes makes three additional arguments for why the district court erred
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`in granting summary judgment to Defendants. None are persuasive.
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`1
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`First, Mr. Geddes suggests that the legal standards for a Fourth Amendment
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`excessive-force claim and a Fourteenth Amendment excessive-force claim are
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`identical, and the district court erred in distinguishing between the two. See, e.g.,
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`Aplt.’s Opening Br. at 8 (“[T]here is no difference between [the] application of the
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`standards applicable under the Fourth and Fourteenth Amendment to a claim of use
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`of excessive force.”); id. at 27 (“The linchpin of the . . . district court’s decision, is
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`the distinction made by this Court in Estate of Booker between the differing
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`standards applicable to the evaluation of a use of force against an arrestee under the
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`Fourth Amendment and against a pretrial detainee under the Fourteenth Amendment.
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`Reliance on that distinction, however, is misplaced.”); id. at 34–35 (“The standard
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`applicable to evaluating [excessive-force] claims—objective reasonableness—is the
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`same whether we analyze the facts under the Fourth Amendment or the Fourteenth
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`Amendment.”). As a result, Mr. Geddes says it does not matter whether he pleaded
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`his excessive-force claim as a Fourth Amendment or Fourteenth Amendment
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`violation. Either way, he insists, the outcome of his suit would be the same because
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`the applicable standard would be the same. 4
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`In addition to arguing that the Fourth and Fourteenth Amendment
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`excessive-force legal frameworks and standards are interchangeable, Mr. Geddes
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`Appellate Case: 20-4083 Document: 010110725103 Date Filed: 08/16/2022 Page: 16
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`doubles down on his argument, rejected by the district court, that this court should
`not wed itself to the “inflexible demarcation of when the Fourth Amendment ends
`and the Fourteenth Amendment begins” and should instead apply the Fourteenth
`Amendment standard to his situation. Aplt.’s Opening Br. at 38. To support this, he
`suggests that the excessive-force factors identified in Graham “do not really fit when,
`as here, the seizure has ended, custody has been transferred to a new entity, and force
`is used against a person being held by a detention facility,” and instead “the factors
`set out by the Supreme Court in Kingsley as applicable to a pretrial detainee under
`the Fourteenth Amendment are a perfect fit to the situation presented here.” Id.
`at 40; see Aplt.’s Reply Br. at 13 (“[T]he circumstances presented here actually call
`for application of the factors set out in Kingsley.”). Further, he explains the dividing
`line recognized in Booker between arrestee and pretrial detainee—“one who has had
`a ‘judicial determination of probable cause as a prerequisite to [the] extended
`restraint of [his] liberty following arrest’”—is debatable in light of the Supreme
`Court’s decision in Kingsley that concluded the objective reasonableness standard
`applies to both. Aplt.’s Opening Br. at 41 n.8 (alterations in original) (quoting Est. of
`Booker, 745 F.3d at 419).
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`Although Mr. Geddes suggests that we should not “reach the issue of where a
`precise dividing line lies” between the amendments and notes the Supreme Court has
`not actually resolved this question, id., he does not acknowledge that we have already
`drawn this line. We have explained that “the Fourth Amendment not only bars the
`use of excessive force during the making of an arrest, but such also bars the use of
`excessive force during a period of detention immediately following arrest and before
`the person is taken before a magistrate judge, or other judicial official, to determine
`whether the arrest and continued detention were based on probable cause.” Barrie v.
`Grand Cnty., 119 F.3d 862, 866 (10th Cir. 1997); see also id. (“[J]ust as the fourth
`amendment’s strictures continue in effect to set the applicable constitutional
`limitations regarding both duration (reasonable period under the circumstances of
`arrest) and legal justification (judicial determination of probable cause), its
`protections also persist to impose restrictions on the treatment of the arrestee
`detained without a warrant.” (emphasis omitted) (quoting Austin, 945 F.2d at 1160)).
`The Supreme Court’s decision in Kingsley did not alter or disturb our precedent on
`this point. The Court in Kingsley spoke to the standard under which excessive-force
`claims should be analyzed—it did not consider where the Fourth Amendment begins
`and ends. Although Mr. Geddes is correct that the Supreme Court has not directly
`opined on “whether the Fourth Amendment continues to provide individuals with
`protection against the deliberate use of excessive physical force beyond the point at
`which arrest ends and pretrial detention begins,” Graham, 490 U.S. at 395 n.10, most
`circuits have joined us in answering in the affirmative that Fourth Amendment
`protections continue up until a probable cause determination, see Crocker v. Beatty,
`995 F.3d 1232, 1255 (11th Cir. 2021) (Newsom, J., concurring) (“If we’re counting
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`Appellate Case: 20-4083 Document: 010110725103 Date Filed: 08/16/2022 Page: 17
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`Not so. The Fourth Amendment and Fourteenth Amendment excessive-force
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`standards are not identical. As Mr. Geddes rightly notes, both standards assess the
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`objective reasonableness of the use of force. See, e.g., Aplt.’s Opening Br. at 28
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`(“[T]he Supreme Court has now clarified that only the objective (and not a
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`subjective) standard applies to a pretrial detainee’s Fourteenth Amendment
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`excessive-force claim. Thus, the same objective standard now applies to excessive-
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`force claims brought under either the Fourth or the Fourteenth Amendment.”
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`(emphasis and bold-face font omitted) (citation omitted) (quoting McCowan, 945
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`F.3d at 1283 n.6)). But beyond that, the two standards differ.5
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`noses, it seems fair to say that most circuits to have answered this question have lined
`up behind the Fourth Amendment.”), cert. denied, --- U.S. ----, 142 S. Ct. 845
`(2022); see also, e.g., Aldini v. Johnson, 609 F.3d 858, 866 (6th Cir. 2010)
`(establishing “the line between Fourth and Fourteenth Amendment protection at the
`probable-cause hearing” for those arrested without a warrant); Pierce v. Multnomah
`Cnty., 76 F.3d 1032, 1043 (9th Cir. 1996) (holding “that the Fourth Amendment sets
`the applicable constitutional limitations on the treatment of an arrestee detained
`without a warrant up until the time such arrestee is released or found to be legally i