Although I believe that the majority's assault on the doctrine of
stare decisis is sufficient alone to render its decision fatally defective, I also disagree with its conclusion that the “shocking to the conscience” language sets an unconstitutionally high threshold for
section 1983 liability. The use of force against a resisting pretrial detainee is subject to privilege and entitled to the judicial deference due the decisions of individuals charged with maintaining control of detention facilities.
Bell v. Wolfish, supra. If federal courts are to avoid improperly turning state tort law into a source of
section 1983 liability,
Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), then juries must be given clear guidance on the higher level of misconduct necessary to raise a constitutional claim. Whether the
Hall formulation at issue here stated the actual constitutional standard or simply described the level of state conduct necessary to violate the standard as suggested in
Kidd, supra, makes little practical difference. Under either analysis, the jury in this instance was properly informed that
section 1983 liability requires behavior more egregious than that normally needed to sustain a state tort claim. I see no error in that instruction.