The Supreme Court has set forth in detail the standards that govern convicted prisoners' Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law articulated by the lower courts is unclear and inconsistent, but on the whole shows a trend toward assimilating pretrial detainees' claims to those of convicted prisoners. Based on a review of Supreme Court case law concerning related questions, this Article argues that, for claims arising after a judicial determination of probable cause, the tests now prevailing in the lower courts should be replaced by a substantive due process framework that requires a plaintiff to show, at most, either punitive intent or objective deliberate indifference by the defendant. For claims arising after a warrantless arrest and before a judicial determination of probable cause, the Fourth Amendment's objective reasonableness standard should govern. The Article further notes a strong argument that this objective reasonableness standard should govern prior to arraignment, even when the arrest took place upon a warrant.

While we agree with Vázquez and Vladeck on many points and have great admiration for their work, we disagree with them about the post–Westfall Act viability of state common law claims brought in state court against federal officials to vindicate constitutional rights. Vázquez and Vladeck regard such claims as having been saved by the language in the Westfall Act that preserves the right of individuals to bring suits against federal officials “for a violation of the Constitution of the United States.” In contrast, we think the text, structure, and history of the Westfall Act all point in a single direction: the foreclosure of all state common law claims against federal officials for actions within the scope of their official duties. We think the only claims against federal officials saved by the Westfall Act were those based on federal rights of action, including constitutional tort claims under Bivens and federal statutory claims otherwise authorized. Such a reading not only comports with text and history, but also gives effect to the evident purpose of the Westfall Act. The point of the Act, after all, was to secure federal employees’ absolute immunity from suits based on state common law (an immunity the Westfall Court had previously rejected). The exceptions in 28 U.S.C. § 2679(b)(2) were fashioned to preserve existing federal law remedies.