                                  In the

     United States Court of Appeals
                    For the Seventh Circuit
                          ____________________
No. 12-3639
MICHAEL B. KINGSLEY,
                                                      Plaintiff-Appellant,

                                     v.

STAN HENDRICKSON, et al.,
                                                   Defendants-Appellees.
                          ____________________

           Appeal from the United States District Court for the
                      Western District of Wisconsin.
            No. 3:10-cv-00832-bbc — Barbara B. Crabb, Judge.
                          ____________________

    SUBMITTED JULY 24, 2015 ∗ — DECIDED SEPTEMBER 8, 2015
                          ____________________

   Before RIPPLE and HAMILTON, Circuit Judges, and
STADTMUELLER, District Judge. ∗∗



∗After examining the briefs and record, we have concluded that oral ar-
gument is unnecessary. The appeal therefore is submitted on the briefs
and record. See Fed. R. App. P. 34(a)(2).
∗∗ Of the United States District Court for the Eastern District of Wisconsin,
sitting by designation.
2                                                     No. 12-3639

    PER CURIAM. This matter is before the court on remand
from the Supreme Court of the United States. On June 22,
2015, the Court vacated our judgment and remanded the case
to us for further proceedings. Pursuant to our Circuit Rule 54,
the parties now have submitted statements of their respective
positions. For the reasons set forth in this opinion, we now
vacate the judgment of the district court and remand this case
to the district court for a new trial.


                                A.
    We assume familiarity with the decision of the Supreme
Court, Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and with
the earlier decision of this court, Kingsley v. Hendrickson, 744
F.3d 443 (7th Cir. 2014), and therefore we only briefly summa-
rize those proceedings here. Bringing his action under 42
U.S.C. § 1983 against various officials at the Monroe County
Jail in Sparta, Wisconsin, Mr. Kingsley claimed that jail offi-
cials had used excessive force in applying a Taser to him while
he was held as a pretrial detainee at the facility. The jury
found for the defendants. Mr. Kingsley appealed to this court,
claiming that he had been prejudiced by the instructions
given to the jury. In particular, Mr. Kingsley maintained that
the district court had erred by instructing the jury that he was
required to establish the subjective intent of the officers. In af-
firming the judgment of the district court, we determined that
the jury “instructions were not an erroneous or confusing
statement of the law of this circuit.” Kingsley, 744 F.3d at 445.
Specifically, we held that relevant Supreme Court precedent
directed us to evaluate an excessive force claim by a pretrial
detainee using the Due Process Clause of the Fourteenth
Amendment. Looking to our own cases, we concluded that
No. 12-3639                                                    3

“some consideration of [the] intent” of the officers was sup-
ported in our cases, but that “it is limited in significant meas-
ure by the fact that it is discernable from objective considera-
tions.” Id. at 452 (emphasis in original). One of our number
dissented.
    Resolving a split among the circuits on that issue, the Su-
preme Court vacated our decision and held “that a pretrial
detainee must show only that the force purposely or know-
ingly used against him was objectively unreasonable” and
that no showing regarding the defendant’s state of mind is
required. Kingsley, 135 S. Ct. at 2473. The court then remanded
the case to this court and directed us to determine whether
the district court’s error could be characterized as harmless
based “in part on the detailed specifics of th[e] case.” Id. at
2477. The Court then remanded the case to this court and di-
rected that we address that issue.
     In his Rule 54 statement, Mr. Kingsley submits that we
ought to remand this case to the district court for a new trial
on his excessive force claim against Sergeant Stan Hendrick-
son and Deputy Fritz Degner. The defendants take a different
position; in their view, the decision of the Supreme Court en-
titles them to qualified immunity. Alternatively, they submit
that any error in the instructions was harmless.


                               B.
    With this background, we now follow the direction of the
Supreme Court and address the question of harmless error.
“[I]n order to obtain a new trial based on an incorrect jury in-
struction, [an appellant] must establish both that the instruc-
4                                                             No. 12-3639

tions failed to properly state the law and that he was preju-
diced by the error because the jury was likely to be misled or
confused.” Davis v. Wessel, 792 F.3d 793, 798 (7th Cir. 2015)
(alterations in original) (internal quotation marks omitted). 1
As the Supreme Court noted, 2 this question is usually a fact-
intensive inquiry that requires assessment of the entire rec-
ord.
    We have undertaken the required scrutiny of the record
and are convinced that the error in this case cannot be charac-
terized as harmless. True, many of the factors to which the
district court invited the jury’s attention were the same factors
that a jury would assess under the objective standard now
mandated by the Supreme Court. Nevertheless, those factors
were suggested to the jury not in the context of applying them
to an objective test but as circumstantial evidence from which
an inference of reckless or malicious intent might be drawn.
Moreover, given the evidence of record, the jurors might well
have decided that, although the officers had acted in an objec-
tively unreasonable manner, they did not have the subjective
intent required by the erroneous instruction. That is, the ju-
rors might well have concluded that the officers acted in an
objectively unreasonable manner in their effort to handle a
manacled prisoner, a conclusion supported by the testimony
of Mr. Kingsley’s expert. Nevertheless, the jury also might
have concluded that the officers, while unreasonable in their
approach, did not have a reckless or malicious intent.



1See also Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist
Church, 733 F.3d 722, 733 (7th Cir. 2013), cert. denied, 135 S. Ct. 92 (2014).
2   Kingsley v. Hendrickson, 135 S. Ct. 2466, 2477 (2015).
No. 12-3639                                                     5

    Under the Supreme Court’s holding, Mr. Kingsley should
prevail if he is able to establish that the officers acted in an
unreasonable manner—without regard to their subjective in-
tent. The evidence of record would have supported a finding
for him under that theory, but the jury was told that it also
had to find the officers had a proscribed intent. This last re-
quirement increased, significantly, his burden of proof. The
error was not harmless.


                               C.
    The defendants next suggest that they should be able to
avoid retrial because they are entitled to qualified immunity.
Their argument is a nuanced one. In their view, the decision
of the Supreme Court, resolving a circuit split in its decision
in this case, altered the substantive law of liability. Because
there was a division among the circuits on the state of the law
at the time that they acted, they contend that they cannot be
held liable for their actions.
    Although the matter of qualified immunity was brought
to the attention of the Court, its instructions to us make no
mention of our returning to this issue. In any event, we do not
believe that this defense is a viable one here. In § 1983 actions,
“[q]ualified immunity shields government officials from civil
damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042, 2044
(2015) (internal quotation marks omitted). Under this stand-
ard, “[a]n officer cannot be said to have violated a clearly es-
tablished right unless the right’s contours were sufficiently
definite that any reasonable official in [his] shoes would have
6                                                                No. 12-3639

understood that he was violating it, meaning that existing
precedent ... placed the statutory or constitutional question
beyond debate.” City & Cty. of San Francisco, Cal. v. Sheehan,
135 S. Ct. 1765, 1774 (2015) (second and third alteration in
original) (citation omitted) (internal quotation marks omit-
ted). To address this question, the Supreme Court has in-
structed us that we must define the right in question with a
sufficient degree of particularity. 3 Thus, in this case, the scope
of the right in issue must be drawn more narrowly than the
right of a pretrial detainee to be free from excessive force dur-
ing his detention; instead, we must examine whether the law
clearly established that the use of a Taser on a non-resisting
detainee, lying prone and handcuffed behind his back, was
constitutionally excessive.
    Here, the facts surrounding the underlying incident are in
sharp dispute. When those facts are construed in the light
most favorable to Mr. Kingsley, see Saucier v. Katz, 533 U.S.
194, 201 (2001), a reasonable officer was certainly on notice at
the time of the occurrence that Mr. Kingsley’s conduct did not
justify the sort of force described in his account. According to
Mr. Kingsley, he was not resisting the officers in a manner
that justified slamming his head into the wall, using a Taser
while he was manacled, and leaving him alone after use of
that instrument. Our precedent makes clear that when the of-
ficers applied the Taser to Mr. Kingsley in May 2010, use of
the Taser violated Mr. Kingsley’s right to be free from exces-
sive force if he was not resisting. See Lewis v. Downey, 581 F.3d


3See, e.g., City & Cty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1775–
76 (2015); Brousseau v. Haugen, 543 U.S. 194, 198–99 (2004); Anderson v.
Creighton, 483 U.S. 635, 639–40 (1987).
No. 12-3639                                                      7

467, 478–79 (7th Cir. 2009) (denying qualified immunity to of-
ficers who applied a Taser to a pretrial detainee lying “prone
on [a] bed, weakened, and docile,” in response to his refusal
of an order to get out of bed); Brooks v. City of Aurora, Ill., 653
F.3d 478, 487 (7th Cir. 2011) (noting that prior cases had estab-
lished the illegality of the use of pepper spray on an arrestee
who was “already … handcuffed and … offering no physical
resistance” or was “lying face down … with both arms hand-
cuffed behind his back” (internal quotation marks omitted));
see also Sallenger v. Oakes, 473 F.3d 731, 741–42 (7th Cir. 2007)
(noting, in its evaluation of the officers’ conduct for immunity
purposes, that the fact that the force was applied after the ar-
restee was handcuffed was a significant factor in denying im-
munity); cf. Forrest v. Prine, 620 F.3d 739, 745 (7th Cir. 2010)
(finding force was not unconstitutionally excessive when
Taser was applied “where the officers were faced with aggres-
sion, disruption, [and] physical threat” and where plaintiff
“posed an immediate threat to safety and order within the
jail” (alteration in original) (internal quotation marks omit-
ted)).
    If we were to accept the defendants’ argument here, we
would untether the qualified immunity defense from its
moorings of protecting those acting in reliance on a standard
that is later determined to be infirm. Here, before and after the
Supreme Court’s decision in this case, the standards for the
amount of force that can be permissibly employed remain the
same. To accept the defense of qualified immunity here, we
would have to accept the dubious proposition that, at the time
the officers acted, they were on notice only that they could not
have a reckless or malicious intent and that, as long as they
acted without such an intent, they could apply any degree of
force they chose. As we have noted, however, the law clearly
8                                                 No. 12-3639

established that the amount of force had to be reasonable in
light of the legitimate objectives of the institution.
   Accordingly, the judgment of the district court is reversed,
and the case is remanded for further proceedings in accord-
ance with this opinion.
                               REVERSED and REMANDED
