RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0189p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

No. 09-3183

LOUIS ALDINI, JR.,

 Plaintiff-Appellee,

v.

DUSTIN L. JOHNSON and TROY E. BODINE,

Defendants-Appellants.

No. 09-3258

LOUIS ALDINI, JR.,

 Plaintiff-Appellant,

v.

DUSTIN L. JOHNSON and TROY E. BODINE,

Defendants,

JOSHUA PAUL KACZMAREK and STEVEN R.

LEOPOLD,

 Defendants-Appellees.

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Nos. 09-3183/3258

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 07-00183—Michael R. Merz, Magistrate Judge.

Argued: November 20, 2009

Decided and Filed: June 29, 2010 

Before: MARTIN, BOGGS, and COLE, Circuit Judges.

_________________

COUNSEL

ARGUED: Victoria E. Watson, MONTGOMERY COUNTY PROSECUTOR’S OFFICE,

Dayton, Ohio, for Defendants. Jennifer L. Branch, GERHARDSTEIN & BRANCH CO.

LPA, Cincinnati, Ohio, for Plaintiff. ON BRIEF: Victoria E. Watson, John A. Cumming,

MONTGOMERY COUNTY PROSECUTOR’S OFFICE, Dayton, Ohio, for Defendants.

Jennifer L. Branch, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA,

Cincinnati, Ohio, for Plaintiff. 

1
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 2

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. This is a 42 U.S.C. § 1983 excessive force

case brought against four corrections officers at the Montgomery County, Ohio jail. Louis

Aldini, Jr. was beaten and repeatedly tased by several officers, allegedly including Officers

Steven Leopold, Joshua Kaczmarek, and Dustin Johnson and Sgt. Troy Bodine. The beating

occurred while Aldini was being held in the booking room pending a completion of the

booking process but after he had been surrendered to the jailers by his arresting officer.

After discovery, all four defendant officers moved for summary judgment on the bases of

qualified immunity and on the substance of the claims. The district court determined that

Aldini’s claims, and thus the officers’ claims of qualified immunity, should be analyzed

under the Fourteenth Amendment. The court applied the Fourteenth Amendment’s “shocksthe-conscience” standard rather than the Fourth Amendment’s reasonableness standard

because Aldini was no longer in the custody of the arresting officer at the time of the beating.

Using that standard, the court determined that Officer Johnson was not entitled to qualified

immunity, that Officers Leopold and Kaczmarek were entitled to qualified immunity, and

that it was for a jury to determine whether Sgt. Bodine was entitled to qualified immunity.

The most important question before us is whether the Fourth or the Fourteenth

Amendment applies to pre-trial detainees in the process of booking but after they are no

longer in the custody of the arresting officer. The Supreme Court has deliberately left the

question of what law protects these post-arrest, pre-conviction detainees vague, and we have

never addressed this precise question. We find that the Fourth Amendment protects pre-trial

detainees arrested without a warrant through the completion of their probable-cause hearings

and thus find that the district court erred in applying the Fourteenth Amendment. 

This error was harmless in the case of Officer Johnson because actions that violate

the Fourteenth Amendment necessarily violate the Fourth Amendment. However, we cannot

say that the error was harmless for the remaining defendants because, although the qualified

immunity decisions may remain the same under the Fourth Amendment analysis as they were

under the Fourteenth Amendment analysis, some are likely to vary.
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 3

1

According to Aldini’s deposition testimony, he cannot identify by name any of the corrections

officers with whom he had physical contact. Where possible, the officers have identified the person

involved at each stage of the confrontations.

We therefore AFFIRM the district court’s decision as to Officer Johnson, but we

VACATE the district court’s decision as to the remaining defendants and REMAND their

cases for analysis under the Fourth Amendment. 

I.

A. Factual Background

Aldini was a twenty-four year-old Air Force First Lieutenant based at Wright

Patterson Air Force Base in Montgomery County, Ohio in 2006. After midnight on May 13,

2006, Aldini was asked to leave Hammerjax, a Dayton, Ohio bar, where he was celebrating

his birthday with friends. He kicked the door on his way out, breaking the glass. He claims

that he apologized and offered to pay for the damage, but that the bouncers nevertheless took

him to the ground. He was arrested for “criminal damaging” and disorderly conduct by

Dayton police officers who were nearby. Officer Chad Jones, an arresting officer, testified

that Aldini was screaming and fighting during the arrest.

Aldini arrived at the Montgomery County Jail at 2:11 a.m. for booking and detention.

The booking process could not be completed until Aldini’s photograph was taken. Officer

Johnson, a civilian detention officer, was tasked with taking Aldini’s photograph. Aldini

was told to wait in the booking area, a large room with telephones where detainees waiting

to be booked are on one side and detainees who have been booked are on the other side.

While Aldini was in the booking area waiting to be photographed, he repeatedly asked for

a phone call so he could ask his friends to post bond. Aldini testified that he must have

“pushed their buttons” and “got on their nerves” because he had asked too many times for

his phone call; however, it does not appear that he yelled, swore, or became abusive. He was

told to go into cell 134, one of the cells lining the back wall of the booking room, and Aldini

complied. The cell door was not closed on Aldini, and no other detainee was in the cell.

As Officer Johnson1

 started to walk away from the cell, Aldini raised his voice

and said, “hey,” and demanded to make a call. Officers Johnson and Kaczmarek

testified that Aldini was standing in the door at this time. Officer Johnson became
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 4

2

We assume that the officers were referring to Aldini as an “officer” because Aldini was a First

Lieutenant in the Air Force.

irritated with Aldini’s persistent demands to use the phone. Officer Johnson turned

around, said “that’s it” and moved towards Aldini. Johnson entered the cell and started

running toward Aldini. Aldini, thinking he was about to be cuffed, backed up, placed

his hands behind his head, and said “I’m not resisting.” Officer Johnson pushed Aldini

up against the back wall of the cell and brought Aldini’s hands down. Aldini testified

that he did not think that this behavior was excessively forceful and thought that he

probably deserved this treatment. Officer Kaczmarek stated that he heard yelling and

that Aldini was preventing Officer Johnson from closing the door to cell 134. However,

Officer Johnson stated at his deposition that, when he decided to close the door on

Aldini’s cell, Officer Johnson was in the doorway and Aldini was five to six feet away

and the doorway could easily have been closed.

At this point, other officers, including Sgt. Bodine, Officer Kaczmarek, and

Officer Steven Leopold, arrived in the cell. Aldini testified that he was then spun

around, taken to the ground, and “viciously beat[en]” and kicked. Aldini stated that he

never resisted, constantly said he was not resisting, was in a submissive position, and

repeatedly said “cuff me.” The officers held his body—face down and elevated above

the floor—with a person holding each leg and arm in a crucifix or Vitruvian Man

position. The officers punched and kicked him and said “how do you like taking these

orders officer.”2

 Aldini screamed for help but no one came to stop the beating, which

continued for several minutes. Then, the officers brought in the taser. 

Aldini testifies that Sgt. Bodine said nothing before he tased Aldini at least twice

over a span of 10 minutes. Sgt. Bodine states that he only tased Aldini twice, at 2:51

a.m. for nine seconds and at 2:55 a.m. for five seconds. Aldini screamed for them to

stop. Aldini testified that someone said that Aldini was going to die in the jail that night

and that the officers asked him why he did not just pass out and what kind of drugs he

was on. Aldini said “just kill me” because he felt like he was being tortured, but the

officers, who may have numbered between five and seven, laughed. When the officers
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 5

3

Sgt. Bodine testified that the time on the taser report was wrong and should have said it was 4:05

a.m. when he first tased Aldini. However, there is a video of Aldini in a restraint chair that starts at 4:05

and lasts to 6:00 that shows no tasings in those two hours. Thus, the tasing had to have taken place before

4 a.m.

were finished, around 3 a.m.,3 Aldini was bleeding profusely, with blood coating his

face, and asked for help. 

In response, they took him to another cell, put a hood or mask on him, and

restrained him in a chair. Aldini testified that he was scared and was afraid they would

beat him again once he was tied down. Officer Jones, the arresting officer, testified that,

while he was waiting to get his handcuffs back after surrendering Aldini to the custody

of the jail, he heard Aldini yelling and screaming in the booking room and saw many

corrections officers there with him.

Sometime later, the officers brought Aldini to the desk to sign papers and then

returned him to the restraint chair, which they had moved to a different room. This

second session in the restraint chair was preserved on videotape, which started recording

Aldini in the restraint chair at 4:05 a.m. According to the video, Aldini appears calm

and submissive while he was restrained. The jail took photographs of Aldini’s injuries

while the hood or mask was on his face. These photographs clearly show Aldini’s

injuries from the beating.

Aldini’s friend and girlfriend paid his bond. After he was released from the

restraints at 6:00 a.m., he was ordered to clean his face to remove the blood for his

booking photo. Soon after he cleaned his face, he was photographed and released.

Aldini’s friends then took him to Miami Valley Hospital where he was treated. Medical

records indicate that he had a 3 cm laceration over his left eye and a 1 cm laceration on

his face, requiring a total of six sutures. He had at least six twin taser marks on his back.

His head showed signs of trauma including multiple areas of swelling and bruising. He

also had bruising on his back and skin irritation on his wrists. Aldini’s whole body was

in pain, including the side of his head, his nose, neck, and back. Aldini admitted that he

had been drinking that night but denied the use of any drugs. A negative drug test

confirmed this statement. The Dayton Police arrived and photographed Aldini and took
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 6

4

Aldini dismissed his claims against the other officers on August 28, 2008.

his statement. However, although Dayton Police have searched for them, the statement

and photographs have disappeared.

B. Procedural Background

Aldini brought suit under 42 U.S.C. § 1983 against Officers Johnson,

Kaczmarek, and Leopold, Sgt. Bodine, and two other officers4 on May 11, 2007,

claiming that he was “viciously beaten” at the Montgomery County Jail. He claimed that

the officers deprived him of his civil rights as secured by the Fourth and Fourteenth

Amendments and that their actions otherwise constituted an assault and battery and

intentional infliction of emotional distress under Ohio law.

Following discovery, the officers moved for summary judgment on all claims

based on qualified immunity and on the substance of the claims. On January 27, 2009

the district court granted Officers Leopold and Kaczmarek’s motion for qualified

immunity based on the Fourteenth Amendment standard and entered summary judgment

for Officers Leopold and Kaczmarek on all claims. The district court denied qualified

immunity to Officer Johnson and Sgt. Bodine on Aldini’s section 1983 and state law

claims. Officer Johnson and Sgt. Bodine timely appealed their denial of qualified

immunity (09-3183), and Aldini timely appealed the grant of qualified immunity to

Officers Leopold and Kaczmarek (09-3258).

II.

Government officials, including police officers, are immune from civil liability

unless, in the course of performing their discretionary functions, they violate the

plaintiff’s clearly established constitutional rights. Hills v. Kentucky, 457 F.3d 583, 587

(6th Cir. 2006). Stated differently, a “defendant enjoys qualified immunity on summary

judgment unless the facts alleged and the evidence produced, when viewed in the light

most favorable to the plaintiff, would permit a reasonable juror to find that (1) the

defendant violated a constitutional right; and (2) the right was clearly established.”
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 7

Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (citing Jones

v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)).

Until recently, courts used the two-step sequential inquiry set forth in Saucier v.

Katz, 533 U.S. 194 (2001), to address an assertion of the qualified immunity defense.

Under Katz, a court first asked whether, viewed in the light most favorable to plaintiff,

the facts show that the officer’s conduct violated a constitutional right. Id. at 201. If the

answer to this first question was “no,” the analysis proceeded no further and the officer

need not even seek the protection of qualified immunity. Id.; Parsons v. City of Pontiac,

533 F.3d 492, 500 (6th Cir. 2008).

If, however, the pleadings establish that there is a genuine issue of material fact

as to a violation, Katz mandated that the next step was to determine whether the

constitutional right was “clearly established” at the time of the violation. If not, the

officer would be entitled to qualified immunity. Katz, 533 U.S. at 201. Under the

“clearly established” inquiry, the question is whether the right was “so ‘clearly

established’ that a reasonable official would understand that what he is doing violates

that right.” Parsons, 533 F.3d at 500 (quoting Charvat v. E. Ohio Reg’l Wastewater

Auth., 246 F.3d 607, 616 (6th Cir. 2001)). “This inquiry . . . must be undertaken in light

of the specific context of the case, not as a broad general proposition . . . .” Katz, 533

U.S. at 201. Previously, this Court has included a third inquiry to “increase the clarity”

of the Katz analysis: “whether the plaintiff offered sufficient evidence to indicate that

what the official allegedly did was objectively unreasonable in light of the clearly

established constitutional rights.” Floyd, 518 F.3d at 405 (quoting Estate of Carter v.

City of Detroit, 408 F.3d 305, 311 n.2 (6th Cir. 2005)). 

However, in Pearson v. Callahan, __ U.S __, 129 S. Ct. 808 (2009), the Supreme

Court recently abandoned Katz’s requirement that courts must address the qualified

immunity inquiries sequentially. Id. at 813. However, because Pearson left in place

Katz’s core analysis, all pre-Pearson case law remains good law. Jones v. Byrnes, 585

F.3d 971, 975 (6th Cir. 2009). 
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 8

5

Though the officers argued for its application here, as the district court correctly noted, the

Eighth Amendment does not apply to this incident because Aldini was not at that point a convicted

prisoner. Phelps v. Coy, 286 F.3d 295, 299-300 (6th Cir. 2002) (citing Graham, 490 U.S. at 395).

6

The majority of circuits hold that the Fourth Amendment applies until an individual arrested

without a warrant appears before a neutral magistrate for arraignment or for a probable cause hearing or

until the arrestee leaves the joint or sole custody of the arresting officer or officers. See Wilson v. Spain, 209 F.3d 713, 715-16 (8th Cir. 2000); Barrie v. Grand County, 119 F.3d 862, 866 (10th Cir. 1997); Pierce

v. Multnomah County, 76 F.3d 1032, 1042-43 (9th Cir.), cert. denied, 519 U.S. 1006 (1996); Powell v.

Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989); McDowell v. Rogers, 863 F.2d 1302, 1306-07 (6th Cir.

1988). The Fifth Circuit, while generally taking the position that substantive due process applies after the

act of arrest, see Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir.), cert. denied, 509 U.S. 905

(1993), has concluded that the relevant constitutional provisions overlap and blur in certain factual

A. Under What Amendment Should Aldini’s Claim be Analyzed?

Section 1983 does not confer substantive rights but merely provides a means to

vindicate rights conferred by the Constitution or laws of the United States. “In

addressing an excessive force claim brought under § 1983, analysis begins by identifying

the specific constitutional right allegedly infringed by the challenged application of

force.” Graham v. Connor, 490 U.S. 386, 394 (1989). “[T]he two primary sources of

constitutional protection against physically abusive governmental conduct” are the

Fourth and Eighth Amendments. Id. The Fourth Amendment’s prohibition against

unreasonable seizures of the person applies to excessive-force claims that “arise[ ] in the

context of an arrest or investigatory stop of a free citizen,” id., while the Eighth

Amendment’s ban on cruel and unusual punishment applies to excessive-force claims

brought by convicted criminals serving their sentences. See Whitley v. Albers, 475 U.S.

312, 318-322 (1986). When neither the Fourth nor the Eighth Amendment serves to

protect citizens, courts have applied the Fourteenth Amendment. Lanman v. Hinson, 529

F.3d 673, 680-81 (6th Cir. 2008).

The Supreme Court has deliberately left undecided the question of “whether the

Fourth Amendment continues to provide protection against deliberate use of excessive

force beyond the point at which arrest ends and pretrial detention begins.” Graham, 490

U.S. at 395 n.10. A circuit split has emerged from this legal “twilight zone,” Wilson v.

Spain, 209 F.3d 713, 715 (8th Cir. 2000), with courts choosing between the Fourth

Amendment and the Fourteenth Amendment5

 to protect those arrested without a warrant

between the time of arrest and arraignment.6 The standards of liability for these causes
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 9

contexts. See Petta v. Rivera, 143 F.3d 895, 910-14 (5th Cir. 1998) (noting that Fourth Amendment

standards are sometimes used in analyzing claims technically governed by substantive due process). Other

circuits hold that after the act of arrest, substantive due process is the proper constitutional provision

because the Fourth Amendment is no longer relevant. See Riley v. Dorton, 115 F.3d 1159, 1161-64 (4th

Cir.) (en banc), cert. denied, 522 U.S. 1030 (1997); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.

1996); Wilkins v. May, 872 F.2d 190, 192-95 (7th Cir. 1989), cert. denied, 493 U.S. 1026 (1990). 

of action vary widely, see Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001)

(“A substantially higher hurdle must be surpassed to make a showing of excessive force

under the Fourteenth Amendment than under the ‘objective reasonableness’ test of [the

Fourth Amendment]. . . .”), and which amendment applies depends on the status of the

plaintiff at the time of the incident, whether free citizen, convicted prisoner, or

something in between. See Gravely v. Madden, 142 F.3d 345, 348-49 (6th Cir. 1998).

As we noted in Phelps, if the plaintiff was a free person at the time of the

incident and the use of force occurred in the course of an arrest or other seizure of the

plaintiff, the plaintiff’s claim is governed by the Fourth Amendment’s reasonableness

standard. 286 F.3d at 299-300 (citing Graham, 490 U.S. at 395). That standard requires

that an officer’s use of force be objectively reasonable, balancing the cost to the

individual against the government’s interests in effecting the seizure, and entails

“deference to the officer’s on-the-spot judgment about the level of force necessary in

light of the circumstances of the particular case.” Id. (citing Katz, 533 U.S. at 204-05).

The officer’s subjective intentions are irrelevant to the Fourth Amendment inquiry. Id.

(citing Graham, 490 U.S. at 397).

On the other hand, if a plaintiff is in a situation where his rights are not governed

by either the Fourth or the Eighth Amendment, the Due Process Clause of the Fourteenth

Amendment protects the individual against physical abuse by officials. Darrah, 255

F.3d at 305-06. Specifically, “[i]t is clear . . . that the Due Process Clause protects a

pretrial detainee from the use of excessive force that amounts to punishment.” Graham,

490 U.S. at 395 n.10. According to the Supreme Court, a pre-trial detainee is one who

“has had only a ‘judicial determination of probable cause as a prerequisite to [the]

extended restraint of [his] liberty following arrest.’” Bell v. Wolfish, 441 U.S. 520, 536

(1979) (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). 
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 10

In Phelps, we acknowledged that Fourth Amendment protections do not vanish

at the moment of arrest. “Our cases refute the idea that the protection of the Fourth

Amendment disappears so suddenly.” 286 F.3d at 300. There, we specifically applied

the Fourth Amendment to an excessive force claim where the allegedly excessive force

was used during the booking process by the arresting officers, to wit:

We have explicitly held that the Fourth Amendment reasonableness

standard governs throughout the seizure of a person: “[T]he seizure that

occurs when a person is arrested continues throughout the time the

person remains in the custody of the arresting officers.” McDowell v.

Rogers, 863 F.2d 1302, 1306 (6th Cir. 1988). In Cox v.Treadway, 75

F.3d 230, 241 (6th Cir. 1996), Judge Ryan, writing for the court, stated

that the constitutional analysis does not instantly change the moment a

suspect is subdued by the police and that “creating a different Fourth

Amendment standard applicable to the use of force in a post-arrest

situation than is applicable to pre-arrest conduct [would introduce] a

distinction in meaning of the Fourth Amendment that is found nowhere

in its language.” While the continuing seizure rule is not universally

accepted in other circuits, see Fontana v. Haskin, 262 F.3d 871, 879-80

& n.5 (9th Cir. 2001) (detailing circuit split on this issue), it is the law in

this circuit and has been since McDowell.

Id. at 300-01. 

In this case, the district court correctly noted that our most recent decision in this

area held that Fourth Amendment protections continue during booking. Id. The district

court stated that it was still an open question as to how far the Fourth Amendment’s

protection extended beyond the transfer of custody from the arresting offices —although

we had already found that such protection applies at least through the completion of the

booking procedure, which is typically handled by jailers. We have not held that Fourth

Amendment protections extended no farther than the situation in Phelps, and we now

turn to the question of how far that protection does extend.

There is no principled basis in the text of the Constitution, the precedents of the

Supreme Court, or our prior cases for placing a dividing line between protection by the

Fourth and the Fourteenth Amendment at the end of custody of the arresting officer, at

the completion of booking, or at the initial placement of the arrestee in a jail cell. As the
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 11

Supreme Court has “made it clear that the legal status of the victim of the excessive

force determines [which a]mendment governs his excessive force claims,” Gravely, 142

F.3d at 348-49 (emphasis added), it would be anomalous for the commencement of the

Fourteenth Amendment’s protections, by contrast, to hinge upon logistical criteria alone.

Placing the dividing line at the probable-cause hearing for those arrested without

a warrant does, however, have a basis in Supreme Court precedent. The Court noted in

dicta in Wolfish that individuals who have not had a probable-cause hearing are not yet

pretrial detainees for constitutional purposes. 440 U.S. at 536. Thus, unlike the

arrestee’s transfer out of the arresting officer’s custody or the completion of booking

procedures, the probable-cause hearing is a judicial proceeding that affects the “legal

status” of the arrestee, constitutionally authorizing his detention throughout the

proceedings against him, just as a guilty verdict affects his “legal status” by authorizing

his detention for the duration of his sentence. Consistency with our pronouncement that

“the legal status of the [plaintiff] determines [which a]mendment governs his excessive

force claims”, Gravely, 142 F.3d at 349, requires extending the Fourth Amendment’s

protection until this change in legal status occurs. 

Moreover, in Gerstein, the Supreme Court observed that “[b]oth the standards

and procedures for arrest and detention have been derived from the Fourth Amendment

and its common-law antecedents.” 420 U.S. at 111 (emphasis added). It continued:

The consequences of prolonged detention [without a judicial

determination of probable cause] may be more serious than the

interference occasioned by arrest. . . . When the stakes are this high, the

detached judgment of a neutral magistrate is essential if the Fourth

Amendment is to furnish meaningful protection from unfounded

interference with liberty. Accordingly, we hold that the Fourth

Amendment requires a judicial determination of probable cause as a

prerequisite to extended restraint of liberty following arrest.

Id. at 114. Gerstein held that this hearing must come “promptly after arrest.” Id. at 125.

Citing Gerstein, both the Ninth and Tenth Circuits have reasoned that, because the

Fourth Amendment controls the permissible duration of “warrantless, post-arrest,

pre-arraignment custody,” it must also “apply to evaluate the condition of such custody.”
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 12

7

The Ninth and Tenth Circuits hold that, at least in the case of a warrantless arrest, the Fourth

Amendment applies until the arrestee “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

County, 119 F.3d 862, 866 (10th Cir. 1997); see also Pierce, 76 F.3d at 1042-43. More recent Seventh

Circuit dictum echoes this principle. See Brokaw v. Mercer County, 235 F.3d 1000, 1018 n.14 (7th Cir.

2000). The Eighth Circuit has similarly applied the Fourth Amendment post-booking but before release

on bail, without setting a bright line. See Wilson, 209 F.3d at 714-16. 

8

The situation in this case differs from those in which an individual is arrested pursuant to a

warrant, as probable cause has already been found in those cases. 

Pierce, 76 F.3d at 1043 (internal citations omitted) (emphasis in original); accord Austin

v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991) (same). Additionally, establishing

the line between Fourth and Fourteenth Amendment protection at the probable-cause

hearing creates an incentive to hold the hearing as soon as possible, which is certainly

beneficial to the judicial process. See County of Riverside v. McLaughlin, 500 U.S. 44,

58 (1991) (“Everyone agrees that the police should make every attempt to minimize the

time a presumptively innocent individual spends in jail.”). We therefore join the Ninth

and Tenth Circuits in setting the dividing line between the Fourth and Fourteenth

Amendment zones of protection at the probable-cause hearing.7

In this case, it is undisputed that the beating and tasing took place in the middle

of the booking procedure, because Aldini’s photograph had not yet been taken, and prior

to a probable-cause hearing. Thus, the district court erred in applying the Fourteenth

Amendment standard to an arrestee detained following a warrantless arrest prior to a

probable-cause hearing.8

B. Was the Error Harmless?

As noted above, actions that do not violate the Fourteenth Amendment’s shockthe-conscience standard may nevertheless violate the Fourth Amendment’s

reasonableness standard for excessive force. See Darrah, 255 F.3d at 306 (“A

substantially higher hurdle must be surpassed to make a showing of excessive force

under the Fourteenth Amendment than under the ‘objective reasonableness’ test of [the

Fourth Amendment]. . . .”). Thus, while force found to shock the conscience under the

Fourteenth Amendment will necessarily violate the Fourth Amendment’s reasonableness
Nos. 09-3183/3258 Aldini v. Johnson, et al. Page 13

test, force that does not shock the conscience may nevertheless be unreasonable under

the Fourth Amendment. 

The Fourth Amendment’s standard only permits an officer to use reasonable

force to protect himself from a reasonable threat. As we noted in Lawler v. City of

Taylor:

Fourth Amendment excessive-force inquiries require a “careful

balancing” of the force used “against the countervailing governmental

interests at stake,” and we have held that there is “simply no

governmental interest in continuing to beat [an arrestee] after he ha[s]

been neutralized, nor could a reasonable officer [think] there [is.]”

Accepting Lawler’s testimony as true and giving his evidence the benefit

of all reasonable inferences, we conclude that he has raised a cognizable

excessive-force claim because a jury fairly could find that Lawler never

posed a threat to [the officer’s] safety (making [the officer’s] takedown

excessive) and could find that he was not a threat once he hit the floor

(making [the officer’s] knee strikes and elbow jab gratuitous).

268 F. App’x 384, 387 (6th Cir. 2008). 

Thus, as the district court found that the actions of Officer Johnson violated the

Fourteenth Amendment, the court’s error in not applying the Fourth Amendment was

harmless with respect to Officer Johnson. However, the district court denied summary

judgment for Sgt. Bodine and granted qualified immunity to Officers Leopold and

Kaczmarek. Although we make no finding as to how the district court should rule on

remand, a review of the record leads us to believe that a different result could be possible

under the Fourth Amendment for these officers. Therefore, the error does not appear to

be harmless for Sgt. Bodine and Officers Leopold and Kaczmarek.

III.

For the foregoing reasons, we AFFIRM the district court’s decision as to Officer

Johnson, but we VACATE the district court’s decision as to the remaining defendants

and REMAND their cases for analysis under the Fourth Amendment.