Once an unconvicted person becomes a pretrial detainee, the use of force is measured by a substantive due process standard of the Fifth and Fourteenth Amendments. See generally , Model Instruction 4.20 for use of excessive force claims of pretrial detainees. Most circuits that have addressed the issue found that the person becomes a pretrial detainee after the time of the first appearance before a judicial officer. The prevailing view appears to be that the use of force by the arresting officer, after the individual is taken into custody, but prior to the first appearance before a neutral judicial officer, is to be decided under Fourth Amendment standards. The individual's status as a pretrial detainee continues until the individual has been sentenced.
Any injury can be sufficient to warrant an award of damages.
The jury should be instructed on nominal damages when appropriate. See Model Instruction 4.52, infra . Notes on Use 1 Use this phrase if there are multiple defendants. 2 Describe the claim if plaintiff has more than one claim against this defendant. The conduct indicated by plaintiff's evidence should be described generally.