E.D. Mich. Notes Split in Ruling on Level of Constitutional Protection Afforded Arrestees

Per Berishaj v. City of Warren, Not Reported in F. Supp. 2d, 2006 WL 2069440 (E.D. Mich. Jul 26, 2006):

...[T]he initial inquiry is whether Plaintiffs' [§ 1983] claims [relating to their arrest at a party that grew into a "near riot"] are properly assessed under the Fourth or Fourteenth Amendment. Plaintiffs argue their claim under the Fourth Amendment. The Officers do not address the claims at all, focusing only on the alleged use of force at the Royalty House [the site of the party]. But, the City of Warren defends its policy regarding the use of the restraint chair under the Fourteenth Amendment. There is a colorable question as to whether Preka, Timothy and Djeto Berishaj's claims arise under the Fourteenth, rather than the Fourth, Amendment. One could argue that they became pretrial detainees once they arrived at the station.
There is a split of authority among the circuits regarding whether and when the Fourth or Fourteenth Amendment applies during the period of custody after arrest but before trial. The distinction is important when claims of excessive force are leveled, because the Fourteenth Amendment imposes a different (and perhaps higher) burden of proof on the claimant. Under the Fourth Amendment, a claimant need only show that the officers' alleged actions were not objectively reasonable. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002).

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The question is ... when an arrestee becomes a pretrial detainee protected by the Fourteenth, rather than the Fourth, Amendment. The standard for making this decision in the Sixth Circuit is ambiguous in situations such as those presented here. The Sixth Circuit holds that the Fourth Amendment applies when, at the time of the alleged use of force, the claimant "was a free person ... and the use of force occurred in the course of an arrest or other seizure." Phelps, 286 F.3d at 299. The Fourth Amendment, therefore, clearly applies during the period that the claimant is in the custody of the arresting officers. Id at 300. See also McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1998) ("[T]he seizure that occurs when a person is arrested continues throughout the time the person remains in the custody of the arresting officers."). It is not clear whether the Fourth Amendment continues to apply after arresting officers turn an arrestee over to colleagues for processing at the jail and excessive force is allegedly used during the latter period of custody. That is the situation presented in this case, and the Court did not find any cases in this or other circuits which further define "arresting officer" or which have the same or a similar factual scenario.