Part I of this Article briefly summarizes the origin and judicial development of substantive due process, focusing on the lead cases that have led appellate courts to narrowly construe the substantive due process guarantee. Part II discusses the Kingsley opinion, both the majority’s analysis and the dissent’s objection to the use of an objective reasonableness test. Part III suggests how Kingsley can be used by litigators seeking to protect pretrial detainees, not only from excessive force, but also from an official’s failure to protect or failure to care for the medical and other needs of pretrial detainees. Part IV explains how this case can be used to overturn restrictive holdings involving corporal punishment in schools as well as the mistreatment of the civilly committed.

For many years I have argued that federal substantive due process should be given its intended meaning as a limitation on arbitrary abuses of executive power and that victims of such abuse should not be relegated to the vagaries of the shocks-the-conscience test. Kingsley’s rejection of criminal recklessness in favor of an objectively unreasonable standard of culpability is a promising step forward.



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