The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0256p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
LUTHER POYNTER, by and through his guardian, Anita
│
Fernandez,
│
Plaintiff-Appellant, > No. 25-5188
│
│
v. │
│
AARON SHIRLEY, in his official capacity as Barren │
County Jailer; BARREN COUNTY, KENTUCKY, │
Defendants-Appellees. │
┘
On Petition for Rehearing En Banc
On Appeal from the United States District Court for the
Western District of Kentucky at Bowling Green.
No. 1:21-cv-00162—Gregory N. Stivers, District Judge.
Argued En Banc: June 3, 2026
Decided and Filed: September 8, 2026
Before: SUTTON, Chief Judge; MOORE, CLAY, GRIFFIN, KETHLEDGE, WHITE,
THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS, MATHIS,
BLOOMEKATZ, RITZ, and HERMANDORFER, Circuit Judges.
_________________
COUNSEL
ARGUED EN BANC: Elizabeth R. Cruikshank, INSTITUTE FOR CONSTITUTIONAL
ADVOCACY AND PROTECTION, Washington, D.C., for Appellant. Aaron D. Smith,
ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellees. ON
SUPPLEMENTAL BRIEF: Elizabeth R. Cruikshank, Kelsi Brown Corkran, William Powell,
INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION, Washington, D.C.,
William M. Butler, Jr., Louisville, Kentucky, for Appellant. Aaron D. Smith, John A. Sowell,
Josie F. Keusch, ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky,
for Appellees. Matthew F. Kuhn, John H. Heyburn, Jacob M. Abrahamson, OFFICE OF THE
KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amici Curiae.
No. 25-5188 Poynter v. Shirley, et al. Page 2
READLER, J., delivered the opinion of the court in which SUTTON, C.J., and GRIFFIN,
KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, MURPHY, and
HERMANDORFER, JJ., concurred. MOORE, J. (pp. 30–60), delivered a separate dissenting
opinion in which CLAY, WHITE, DAVIS, MATHIS, and BLOOMEKATZ, JJ., concurred in
full, and RITZ, J., concurred in all but Part II.A.
_________________
OPINION
_________________
READLER, Circuit Judge. Two inmates at Barren County’s detention center attacked
Luther Poynter, a civil contemnor detained in the same facility. The incident left Poynter with
permanent injuries. He later sued the County’s Jailer as well as the County itself, alleging that
the jail failed to protect him against the attack in violation of the substantive component of the
Fourteenth Amendment’s Due Process Clause.
Poynter’s failure-to-protect claim is one example of a broader set of due-process theories
that a detained person like Poynter, who has not been convicted of a crime, may assert where the
detainee believes his jailer has been deliberately indifferent to the conditions of his confinement.
See Lawler ex rel. Lawler v. Hardeman County, 93 F.4th 919, 926 (6th Cir. 2024) (collecting
types of deliberate-indifference claims). For nearly 30 years, the standard announced in Farmer
v. Brennan, 511 U.S. 825 (1994), guided our analysis in those cases. Essential to a detainee’s
deliberate-indifference claim under Farmer is that the jailer, at the very least, subjectively knew
that his actions risked serious harm to the detainee.
Five years ago, we changed course. In Brawner v. Scott County, 14 F.4th 585 (6th Cir.
2021), we read Kingsley v. Hendrickson, 576 U.S. 389 (2015), a decision adopting a new legal
standard for a pretrial detainee’s excessive-force claim, as also requiring a different approach in
confinement cases pursued under a deliberate-indifference theory. Over time, Brawner has been
understood to replace Farmer’s subjective inquiry with an objective one.
The change in doctrine announced in Brawner spawned a host of related developments in
our Circuit. One was Westmoreland v. Butler County, 29 F.4th 721 (6th Cir. 2022), which relied
on Brawner to craft a new, four-part framework for evaluating failure-to-protect claims like the
No. 25-5188 Poynter v. Shirley, et al. Page 3
one Poynter raises. Both the district court and a panel of our Court applied the Westmoreland
test to Poynter’s claim. In reaching that conclusion, the panel deemed an earlier interpretation of
Westmoreland no longer binding on the Court, emblematic of a larger debate over our deliberate-
indifference jurisprudence. To clarify the matter, we granted rehearing en banc to consider
whether Farmer or Kingsley should govern Fourteenth Amendment deliberate-indifference
claims. We conclude that Farmer’s subjective standard continues to control claims brought by a
detainee who has not been convicted of a crime. Because the district court employed
Westmoreland to evaluate defendants’ summary-judgment motion, we vacate its order and
remand to allow the district court to consider in the first instance whether Poynter’s claim is
viable under Farmer.
I.
We begin with the somewhat lengthy history underlying our deliberate-indifference
jurisprudence with respect to detained individuals.
A. While today’s case interprets the Fourteenth Amendment, the doctrine it explores
originated in the Eighth Amendment’s prohibition on the infliction of cruel and unusual
punishments. U.S. CONST. amend. VIII. For centuries, that provision was understood to prohibit
“torturous punishments meted out by statutes or sentencing judges.” See Hudson v. McMillian,
503 U.S. 1, 18–19 (1992) (Thomas, J., dissenting) (discussing caselaw and historical sources).
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court extended the Amendment’s reach
to hardships that might befall a prisoner while incarcerated. Among those hardships was the
jailer’s lack of attention to a prisoner’s serious medical needs. Estelle, 429 U.S. at 104. Estelle
reasoned that a jailer’s knowing inaction in the medical setting—what the Supreme Court
described as his “deliberate indifference”—would “constitute[] the ‘unnecessary and wanton
infliction of pain’” that the Eighth Amendment prohibits. Id. at 103–04 (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976) (plurality opinion)). In enshrining “deliberate indifference”
as the benchmark in this area, Estelle emphasized the critical nature a jailer’s mental state plays
in assessing liability: A jailer’s negligence alone “in diagnosing or treating a medical condition,”
the Supreme Court made clear, is insufficient to state a constitutional violation. Id. at 106–07
(describing negligence as the province of state tort law).
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Over the next 25 years, the Supreme Court refined its deliberate-indifference framework.
Two decisions in particular deserve mention. One, Rhodes v. Chapman, 452 U.S. 337 (1981),
extended Estelle’s logic to all conditions of confinement in prison, not just medical care. See
Rhodes, 452 U.S. at 347. In so doing, Rhodes explained that, to run afoul of constitutional
protections, a challenged condition must be objectively serious enough to “result in pain without
any penological purpose.” Id. (citing Estelle, 429 U.S. at 103). The other is Wilson v. Seiter,
501 U.S. 294 (1991). Taking account of its past precedent, the Supreme Court in Wilson
announced that conditions-of-confinement claims employ a two-part standard. The first inquiry
asks whether the conduct at issue involved sufficiently serious harm (or risk thereof). Wilson,
501 U.S. at 298, 303. The second, a state-of-mind inquiry, asks whether the jailer’s conduct
amounted to deliberate indifference. Id.
Having adopted a two-prong standard, the Supreme Court then turned to defining more
precisely what satisfies the second (or deliberate-indifference) prong. In the years following
Estelle, a circuit split developed over whether a jailer may be held constitutionally liable under a
conditions-of-confinement theory for an incarcerated person’s injury where the jailer lacked
subjective awareness of the potential harm, but nonetheless “should have known of a sufficiently
serious danger to an inmate.” Farmer, 511 U.S. at 832 (quoting Young v. Quinlan, 960 F.2d 351,
360–61 (3d Cir. 1992)). In Farmer v. Brennan, the Supreme Court answered “no” to that
question. With the Eighth Amendment’s focus on “punishments” and not “conditions,” the
Supreme Court explained, “an official’s failure to alleviate a significant risk that he should have
perceived but did not . . . cannot . . . be condemned as the infliction of punishment.” Id. at 837–
38. Demonstrating deliberate indifference, it followed, “requir[es] a showing that the [jailer] was
subjectively aware of the risk.” Id. at 829; see also id. at 837 (“[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”).
Farmer was an Eighth Amendment case. And the Eighth Amendment applies only to
prisoners who have been convicted of a crime. See Lovell v. County of Kalamazoo, 172 F.4th
931, 936 (6th Cir. 2026) (citing U.S. CONST. amend. VIII; Whitley v. Albers, 475 U.S. 312, 318
(1986)). Where does that leave “an individual within ‘some gray area’ between free citizen and
No. 25-5188 Poynter v. Shirley, et al. Page 5
convicted criminal,” such as a pretrial detainee? Hopper v. Plummer, 887 F.3d 744, 754 (6th
Cir. 2018) (quoting Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)). Filling that gap is
the substantive component of the Fourteenth Amendment’s Due Process Clause, see U.S. CONST.
amend. XIV, § 1, which the Supreme Court understands to prohibit unlawful conditions of
confinement, Bell v. Wolfish, 441 U.S. 520, 535 (1979) (citing Ingraham v. Wright, 430 U.S.
651, 671–72 n.40, 674 (1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165–67, 186
(1963); Wong Wing v. United States, 163 U.S. 228, 237 (1896)). In adopting substantive due
process as the constitutional foundation for conditions claims, the Supreme Court tied those
claims to the familiar language of the Eighth Amendment, with the crucial inquiry remaining
whether those conditions are “imposed for the purpose of punishment.” Id. at 538 (citing
Flemming v. Nestor, 363 U.S. 603, 613–17 (1960)); see also id. at 535 n.16. So although a
claimant invoking the Due Process Clause by definition has not been convicted of a crime (as has
a prisoner), that difference “has no application to a determination of the [detainee’s] rights . . .
during confinement.” Id. at 533.
Heeding these words, we applied the Farmer deliberate-indifference standard for the next
quarter century to pretrial detainees’ claims challenging the conditions of their confinement. See
Griffith v. Franklin County, 975 F.3d 554, 569 (6th Cir. 2020) (citing Roberts v. City of Troy,
773 F.2d 720, 724–25 (6th Cir. 1985)). We were not alone in that understanding. Every other
circuit, we note, did the same. See Brief of Indiana, Hawaii, and Texas as Amici Curiae in
Support of Petitioners at 9, County of Orange v. Gordon, 586 U.S. 1069 (2019) (mem.) (No. 18-
337) (collecting cases where circuits applied Farmer’s framework to pretrial detainees pre-
Kingsley).
B. In addition to governing the conditions of confinement, the Eighth Amendment has
also been interpreted to prohibit a jailer’s use of excessive force. See Whitley, 475 U.S. at 320
(contrasting conditions-of-confinement and excessive-force claims and explaining that the
elements of the respective claims must reflect “due regard for differences in the kind of conduct
against which an Eighth Amendment objection is lodged”). Broadly speaking, excessive force is
reflected by “physically abusive governmental conduct.” Graham v. Connor, 490 U.S. 386, 394
(1989). For Eighth Amendment claims alleging that a jailer employed excessive force, which
No. 25-5188 Poynter v. Shirley, et al. Page 6
typically involve an affirmative act “made in haste” and “under pressure,” the state of mind
required differs from the deliberate-indifference standard. Whitley, 475 U.S. at 320. To be liable
for excessive force, the jailer must act “maliciously and sadistically for the very purpose of
causing harm.” Id. at 320–21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
In 2015, the Supreme Court addressed the elements for proving excessive force when the
plaintiff is a detainee not subject to the Eighth Amendment and must instead rely on the
Fourteenth Amendment’s due-process guarantee. Kingsley, 576 U.S. at 391–92. “[T]he
appropriate standard” with respect to the amount of force used against that class of detainees, the
Supreme Court explained, “is solely an objective one.” Id. at 397. That said, the detainee must
also demonstrate that the officer used force deliberately, even if the officer did not understand
that the amount of force was excessive. Id. at 395–96. So “if an officer’s Taser goes off by
accident or if an officer unintentionally trips and falls on a detainee,” the officer’s negligence
would not amount to excessive force in violation of the Due Process Clause. Id. at 396 (citing
County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). This view aligned with the broader
constitutional understanding that purely accidental or unconscious conduct cannot “shock[] the
conscience” to amount to a substantive-due-process violation. Lewis, 523 U.S. at 846; see
Daniels v. Williams, 474 U.S. 327, 330–34 (1986).
C. Following Kingsley, detainees who had not been convicted of a crime began asking
federal courts to modify their deliberate-indifference framework for conditions-of-confinement
claims in light of Kingsley’s refinement of what constitutes excessive force. Several circuits
rejected Kingsley’s relevance in the distinct deliberate-indifference setting. See Cope v. Cogdill,
3 F.4th 198, 207 n.7 (5th Cir. 2021); Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir.
2018); Strain v. Regalado, 977 F.3d 984, 989–93 (10th Cir. 2020); Dang ex rel. Dang v. Sheriff,
Seminole Cnty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017). Not all courts, however, took the
same approach. The en banc Ninth Circuit viewed Kingsley as a watershed case that overturned
decades of deliberate-indifference jurisprudence and required replacing Farmer with an
objective-only inquiry for pretrial detainees’ conditions-of-confinement claims. See Castro v.
County of Los Angeles, 833 F.3d 1060, 1069–71 (9th Cir. 2016) (en banc), vacating 797 F.3d
654 (9th Cir. 2015). The Second and Seventh Circuits followed suit, adopting Kingsley in
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differing forms with respect to deliberate-indifference claims by pretrial detainees, see Darnell v.
Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017); Miranda v. County of Lake, 900 F.3d 335, 352 (7th
Cir. 2018), as did the Fourth Circuit several years later, see Short v. Hartman, 87 F.4th 593, 605–
06 (4th Cir. 2023).
As for our Circuit, in 2021, we issued our decision in Brawner v. Scott County.
See 14 F.4th at 596. Brawner understood Kingsley’s excessive-force framework to apply also to
pretrial detainees’ medical-care claims. Id. at 596. “Kingsley’s clear delineation between claims
brought by convicted prisoners under the Eighth Amendment and claims brought by pretrial
detainees under the Fourteenth Amendment,” Brawner concluded, required “modification of”
Farmer’s deliberate-indifference standard to incorporate objective considerations. Id. To
implement that modification, Brawner crafted a new, two-part test governing Fourteenth
Amendment indifference-to-medical-needs claims. First, the detainee must “present evidence
from which a reasonable jury could find” an “objectively serious medical need.” Id. at 597. And
second, the detainee must show that her jailer’s “action (or lack of action) was intentional (not
accidental)” and the jailer either “acted intentionally” or “recklessly failed to act reasonably to
mitigate the risk the serious medical need posed to [the detainee], even though a reasonable
official . . . would have known that the serious medical need posed an excessive risk.” Id.
Our post-Brawner jurisprudence has not followed a straight line. Over five years,
Brawner has produced dueling unanimous decisions reflective of our uncertainty over Brawner’s
meaning. We have debated how to understand Brawner’s “modification” of the subjective
prong. 14 F.4th at 596. Compare Trozzi v. Lake County, 29 F.4th 745, 755–58 (6th Cir. 2022),
with Helphenstine v. Lewis County, 60 F.4th 305, 316 (6th Cir. 2023). We have similarly
debated Brawner’s role in failure-to-protect deliberate-indifference cases. See Westmoreland, 29
F.4th at 729. Compare Buetenmiller v. Macomb Cnty. Jail, 53 F.4th 939, 945–46 (6th Cir.
2022), with Poynter ex rel. Fernandez v. Bennett, 162 F.4th 664, 678 (6th Cir. 2025), vacated,
169 F.4th 716 (6th Cir. 2026) (en banc) (mem.). All this has left our district-court colleagues
with the unenviable job of attempting to reconcile these mixed signals. See, e.g., Campbell v.
Riahi, No. 20-cv-678, 2023 WL 5979211, at *4 (S.D. Ohio Sep. 13, 2023) (“Since Brawner . . .
changed the traditional test for deliberate indifference claims, district courts have faced
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conflicting guidance from the Sixth Circuit about the appropriate analytical framework. . . .
Absent clarification, the safest course is perhaps to analyze such claims under both standards,
with fingers crossed that they agree.” (footnote omitted)); Montiel v. Johnson, No. 25-cv-122,
2025 WL 807756, at *9 (W.D. Mich. Mar. 14, 2025) (similar); Bonham v. Fam. Outreach Ctr.,
Inc., No. 24-cv-1030, 2024 WL 4562685, at *9 (W.D. Mich. Oct. 24, 2024) (similar); Preston v.
County of Macomb, No. 18-12158, 2022 WL 4590573, at *11, *15 (E.D. Mich. Sep. 29, 2022)
(similar).
In fairness, we are not the only circuit that, having extended Kingsley beyond the
excessive-force setting, has struggled to apply Kingsley’s reasoning to conditions-of-confinement
claims. As we previously acknowledged, “our sister circuits” too “are all over the map on this
issue.” Helphenstine, 60 F.4th at 316 (collecting different approaches). An illustrative example
is the Seventh Circuit. In Miranda v. County of Lake, the Seventh Circuit held that Kingsley
applied to pretrial detainees’ deliberate-indifference conditions-of-confinement claims. 900 F.3d
at 352. Then came Pittman ex rel. Hamilton v. County of Madison (Pittman III), 970 F.3d 823
(7th Cir. 2020). There, then-Judge Barrett, writing for a unanimous panel, interpreted the post-
Kingsley and Miranda framework for conditions claims as focusing on whether the jailers “‘were
aware’ that their actions would be harmful” to a pretrial detainee or at least “‘strongly suspected’
that their actions would lead to harmful results.” 970 F.3d at 828. A later panel in the Seventh
Circuit, however, found Judge Barrett’s test incompatible with what that panel understood to be
Miranda’s Kingsley-inspired imposition of an objective-only test for conditions claims. See
Pittman ex rel. Hamilton v. Madison County (Pittman IV), 108 F.4th 561, 570–71 (7th Cir.
2024). In resolving this purported tension, the panel recognized that “[t]he circumstance before
us is one of our own making, as we (like many other courts) have struggled to implement
Kingsley’s standards outside the context of a pretrial detainee’s claim of excessive force.” Id. at
569. The Seventh Circuit’s experience, in many ways, mirrors our own.
II.
With this doctrinal background in mind, we turn to the facts in this case. We recount
them only briefly because our primary concern is with the appropriate legal standard, not its
application to the facts of this case.
No. 25-5188 Poynter v. Shirley, et al. Page 9
Luther Poynter entered Barren County’s detention center following his arrest for civil
contempt of court. During his intake process, Poynter completed a risk-assessment form asking
whether there was anyone in the detention center from whom he needed to be kept away. He did
not list any names.
Poynter was eventually placed in a cell with Timothy Guess and Scotty Wix, among
others. Video footage captured what happened next. Almost immediately after entering the cell,
Poynter walked over to Wix while Guess walked around the cell. After a minute of
conversation, Guess and Wix attacked Poynter, striking him multiple times in the head, causing
Poynter to suffer a traumatic brain injury.
Poynter’s guardian sued Barren County, as well as Aaron Bennett, in his official capacity
as Jailer, under 42 U.S.C. § 1983. A few housekeeping points regarding Poynter’s complaint
bear mentioning at the start. One, Bennett is no longer the Jailer, so his successor, Aaron
Shirley, has been automatically substituted as the named defendant. Fed. R. App. P. 43(c)(2).
Two, all agree that the suit against Shirley in his official capacity functions as a suit against
Barren County. And three, Poynter’s claims are premised solely upon municipal liability under
Monell v. Department of Social Services, 436 U.S. 658 (1978). We thus refer to defendants as
Barren County because no one contests that liability turns on the County’s policies and customs.
According to the amended complaint, by allowing Guess and Wix to stay in the general
population, Barren County was deliberately indifferent to Poynter’s safety. To prevail on his
Monell theory, Poynter must establish an underlying constitutional violation as well as a
municipal “custom” that both “is so widespread as to have the force of law” and caused the
violation of his constitutional rights. Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997) (citing Monell, 436 U.S. at 690–91). The custom Poynter highlights is Barren County’s
practice of making housing decisions for its detention facilities without taking into account the
inmates’ histories of violence in those facilities.
By way of background, under Kentucky state law, jails like Barren County’s detention
center that house state prisoners as well as other detainees must develop a classification system
for all individuals they hold. 501 Ky. Admin. Regs. 3:110, § 1(1). Among the considerations
No. 25-5188 Poynter v. Shirley, et al. Page 10
involved in determining the proper classification for one housed at the detention center are his
“tendency to harm others” as well as his “[i]nstitutional behavioral history.” Id. § 1(2)(e), (3)(b).
Barren County’s articulated classification policy met the requirements of state law. Nonetheless,
Poynter alleges that the County had a custom of “ignor[ing] prior institutional violence in
assigning housing” and “bypass[ing] the classification analysis set forth in state regulations and
its own policy manual” for those arriving at the County’s detention center. Plaintiff-Appellant’s
Suppl. En Banc Br. at 2–3. Thus, in practice, if a prisoner with the Kentucky Department of
Corrections was placed in Barren County’s detention center—which, again, also housed local
pretrial detainees—the County allegedly would not perform its own classification, nor would it
update the prisoner’s classification based on the prisoner’s behavior at the detention center.
Guess’s and Wix’s histories illustrate the gist of this claim. At the time they attacked
Poynter, both were state inmates housed at the detention center. According to Poynter, both
Guess and Wix had histories of violence in prison dating back over a decade, which made it
unreasonable for Barren County to house them with the general population.
Poynter frames his constitutional claim as well as his Monell argument as resting on an
objective-reasonableness-only understanding of Brawner and Westmoreland. To his mind, he
was at a serious risk of harm from Guess and Wix, making it objectively unreasonable to house
him with the two inmates. For Monell purposes, Poynter acknowledges that to succeed on his
inaction theory of municipal liability, he must show a “clear and persistent pattern of
unconstitutional conduct” in Barren County. See Franklin v. Franklin County, 115 F.4th 461,
472 (6th Cir. 2024) (citation modified). To do so, he does not attempt to demonstrate a pattern
of Farmer violations tied to Guess and Wix—for example, that Barren County jailers
subjectively ignored instances where the two prisoners committed serious harm to another
inmate. Instead, Poynter’s Monell claim rests exclusively on the premise that there was a pattern
of objectively unreasonable behavior at the detention center with regard to Guess and Wix.
Applying Westmoreland, the district court granted summary judgment to defendants. A
panel of this Court reversed. Poynter, 162 F.4th at 685. The panel applied the objective-
reasonableness-only standard as to the underlying constitutional violation, id. at 680, as well as
to the application of Monell liability, id. at 682.
No. 25-5188 Poynter v. Shirley, et al. Page 11
The en banc Court vacated that opinion. Poynter, 169 F.4th at 716. Because liability
hinged on the proper understanding of deliberate indifference and the Fourteenth Amendment,
we ordered supplemental briefing on what standard we should apply to conditions-of-
confinement cases: Farmer, Kingsley, or something else.
III.
Having considered the parties’ thoughtful arguments, we hold that Farmer’s deliberate-
indifference standard remains the proper measure for evaluating conditions-of-confinement
claims, including the one pursued by Poynter.
A. As Poynter proceeds under the Due Process Clause, we start, as one should, with the
provision’s text. The Due Process Clause prohibits a state from “depriv[ing]” an individual of
“liberty” without “due process.” U.S. CONST. amend. XIV, § 1. (The Fifth Amendment, we
note, creates the same protection against the federal government. Id. amend. V; see also Fraihat
v. U.S. Immigr. & Customs Enf’t, 16 F.4th 613, 647 (9th Cir. 2021) (explaining that the Fifth
Amendment’s Due Process Clause provides analogous protections for those detained by the
federal government).) With respect to its substantive guarantees, the Clause is understood to
protect against “certain government actions regardless of the fairness of the procedures used to
implement them,” leaving the word “deprive” as the key textual hook for our consideration. See
Daniels, 474 U.S. at 331. The word “deprive” signals a “deliberate decision[]” by a government
official. Id. (emphasis omitted); see Parratt v. Taylor, 451 U.S. 527, 548 (1981) (Powell, J.,
concurring in the result) (“A ‘deprivation’ connotes an intentional act denying something to
someone, or, at the very least, a deliberate decision not to act to prevent a loss.”). This
understanding aligns with the Clause’s role in protecting against governmental abuses of power.
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989); Daniels, 474 U.S.
at 331 (noting the Due Process Clause “serves to prevent governmental power from being ‘used
for purposes of oppression’” (quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 59
U.S. (18 How.) 272, 277 (1856))). Respecting the “deliberate” component of the term “deprive,”
a state thus customarily does not run afoul of due process where one’s “injury has been caused
not by a state law, policy, or procedure, but by a random and unauthorized act that can be
remedied by state law.” Albright v. Oliver, 510 U.S. 266, 285 (1994) (Kennedy, J., concurring in
No. 25-5188 Poynter v. Shirley, et al. Page 12
the judgment) (citing Parratt, 451 U.S. at 536); see also Daniels, 474 U.S. at 332 (distinguishing
between an “abuse of power” and a “lack of due care”); Doe v. Jackson Loc. Sch. Dist. Bd. of
Educ., 954 F.3d 925, 931 (6th Cir. 2020) (explaining that a state’s mere failure to protect one
from private violence, with nothing more, is not a deprivation of liberty).
Against this textual backdrop, how do we determine when a state’s treatment of a
detainee rises to the level of a deprivation of his liberty? On this point, we have the benefit of a
host of instructive decisions from the Supreme Court, most notably Bell and Farmer, and we
have nearly three decades’ worth of our own decisions applying those holdings. See, e.g.,
Lawler, 93 F.4th at 927 (collecting cases). From this collection of precedent, we know that the
Due Process Clause prohibits punishment of those who have not been convicted of a crime—
pretrial detainees, civil contemnors, immigration detainees, juvenile detainees, and the like. See
Bell, 441 U.S. at 535 (citing Ingraham, 430 U.S. at 671–72 n.40; Kennedy, 372 U.S. at 165–67,
186; Wong Wing, 163 U.S. at 237). Yet we also know that not every risk or injury experienced
by a detainee amounts to punishment for due-process purposes. “[A]n official’s failure to
alleviate a significant risk that he should have perceived but did not . . . cannot . . . be condemned
as the infliction of punishment.” Farmer, 511 U.S. at 838. Rather, before constitutional liability
may arise, there must be “an intent to punish” by the jailer. Roberts, 773 F.2d at 725 (emphasis
added) (citing Bell, 441 U.S. 520).
Our post-Farmer precedent sensibly employed this subjective inquiry as the benchmark
for measuring when punishment occurs for purposes of a Fourteenth Amendment conditions-of-
confinement claim. See Griffith, 975 F.3d at 569. To assess whether a pretrial detainee had been
punished by the state, we asked the following: Was there a “substantial risk of serious harm” the
state knew about and disregarded? See Farmer, 511 U.S. at 837–38; see also Villegas v. Metro.
Gov’t of Nash. & Davidson Cnty., 709 F.3d 563, 568–69 (6th Cir. 2013). If not, the state has not
been deliberately indifferent to the detainee’s conditions of confinement.
Farmer’s subjective-knowledge requirement plays an important gatekeeping role in this
substantive-due-process setting. The subjective inquiry typically serves to capture the line
between constitutional liability and normal jail administration. See Comstock v. McCrary, 273
F.3d 693, 703 (6th Cir. 2001) (recognizing that Farmer’s subjective standard “is meant to
No. 25-5188 Poynter v. Shirley, et al. Page 13
prevent the constitutionalization of medical malpractice claims”). In practice, it acts as a
backstop against “the natural human tendency to confuse what [the Fourteenth] Amendment
protects with our own ardent views about the liberty that Americans should enjoy” when
interpreting the Amendment’s relatively open-ended language. Dobbs v. Jackson Women’s
Health Org., 142 S. Ct. 2228, 2247 (2022). Absent a subjective element, all that remains is a
nebulous reasonableness test deployed by unelected judges to govern the administratively
complex and inherently dangerous jail setting. See Farmer, 511 U.S. at 837–38 (distinguishing
between that which “might well be something society wishes to discourage” through “tort
liability” and that which can constitutionally “be condemned as the infliction of punishment”);
see also Bell, 441 U.S. at 562 (cautioning courts against becoming “enmeshed in the minutiae of
prison operations”). As we were recently reminded, a constitutional test that descends into a
“vague” “reasonableness” principle is “neither limiting nor much of a principle.” Cf. Trump v.
Slaughter, 146 S. Ct. 2283, 2310 (2026).
The proof of Farmer’s necessity is in the Brawner pudding. As a practical matter, cases
interpreting Brawner have discarded a subjective inquiry in favor of an objective-
reasonableness-only approach that lowers the threshold of constitutional liability perilously close
to negligence—the very thing all of us otherwise seem to agree is insufficient for constitutional
liability. Brawner, 14 F.4th at 596; Kingsley, 576 U.S. at 396. To see why, consider how
the objective-reasonableness-only framework functions in practice. That framing requires an
“objectively serious” risk to the detained individual as well as unreasonable conduct by the state
in response to the risk. See Helphenstine, 60 F.4th at 315–16; Hehrer v. County of Clinton, 161
F.4th 955, 964 (6th Cir. 2025). The first requirement largely tracks Farmer, which itself requires
that the deprivation by a jailer’s act or omission result in or pose a substantial risk of a
“sufficiently serious” harm to the detained individual. Farmer, 511 U.S. at 834 (quoting Wilson,
501 U.S. at 298). But as the dangers intrinsic to the jail setting mean that the objective prong is
somewhat easy to satisfy, the cases interpreting Brawner’s second requirement do the bar-
lowering work. Id. at 858–59 (Thomas, J., concurring in the judgment) (explaining that danger
or at least a risk of danger in jails is an inherent feature). In effect, an objective-reasonableness-
only scheme shifts the inquiry from one that focuses on a jailer’s subjective state of mind as to a
particular risk to what a reasonable official should have done in light of that risk. See Grote v.
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Kenton County, 85 F.4th 397, 405 (6th Cir. 2023); see also Castro, 833 F.3d at 1069–71
(understanding Kingsley as creating liability where the defendant fails to “take reasonable
available measures” to limit a reasonably apparent “substantial risk of serious harm”). In so
doing, it embraces the should-have-known standard Farmer expressly rejected, 511 U.S. at 838–
39, something indistinguishable from ordinary negligence, Doe, 954 F.3d at 932; see also
Farmer, 511 U.S. at 836 n.4 (discussing how gross negligence “mean[s] little different from
[civil] recklessness” (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34
(5th ed. 1984))); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 &
cmt. a (A.L.I. 2010) (defining “negligence” as when a “person does not exercise reasonable care
under all the circumstances” and explaining that “reasonable care” is “conduct that avoids
creating an ‘unreasonable risk of harm’”).
In addition to honoring long-standing due-process doctrine, Farmer’s approach also
furthers the federalism principles underlying our broader constitutional order by respecting the
role of state and local prison officials. See Brief of the Commonwealth of Kentucky, State of
Michigan, State of Ohio, and State of Tennessee as Amici Curiae in Support of Appellees at 2
(supporting a return to Farmer). State tort law, of course, remains a potential avenue to remedy
prison-related injuries, which are no small matter. See Kingsley, 576 U.S. at 408 (Scalia, J.,
dissenting). Yet an objective-reasonableness-only approach would go further: It empowers
federal juries to determine which state and local pretrial detention policies are reasonable. See,
e.g., Poynter, 162 F.4th at 680 (requiring the “trier of fact” to resolve whether Barren County
took “reasonable action to abate” “high risk[s] of harm to Poynter”).
* * *
Were we starting from scratch, some of us might well chart a different course, given the
long-standing criticism that liability in this setting is unmoored from the Constitution. See
Farmer, 511 U.S. at 859–60 (Thomas, J., concurring in the judgment); DiFraia v. Ransom, 171
F.4th 622, 628 (3d Cir. 2026); Edmo v. Corizon, Inc., 949 F.3d 489, 506–07 (9th Cir. 2020)
(Bumatay, J., dissenting from the denial of rehearing en banc). But until the Supreme Court says
otherwise, Farmer’s recognition of a right against a jailer’s subjective decision to punish binds
us. See Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 814 (6th Cir. 2020) (quoting
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Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). We return to
that familiar standard today.
B. The district court in this case applied the Westmoreland framework. And the parties
likewise developed the record under Westmoreland. That approach potentially changed the
course of the litigation, as the “difference” between Farmer’s subjective test and the objective
test is one that “matters.” Lawler, 93 F.4th at 928. And it matters not just in degree, but also in
kind. Case in point, while the panel’s understanding of Kingsley centered on the reasonableness
of the prison’s customs, Farmer hinges significantly on subjective awareness. For these reasons,
we are ill-positioned today to resolve whether Poynter has met his burden at summary judgment
under the proper subjective standard. Cf. Farmer, 511 U.S. at 849 (remanding to the lower court
to apply the proper framework in the first instance); Celotex Corp. v. Catrett, 477 U.S. 317, 327–
28 (1986) (remanding to allow the lower court to determine whether a party adduced sufficient
evidence to survive summary judgment). As we have often said, we are “a court of review, not
of first view.” Cavin v. Mich. Dep’t of Corr., 927 F.3d 455, 459 (6th Cir. 2019) (quoting Cutter
v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).
Accordingly, vacatur is the most appropriate course of action. Both parties agreed at oral
argument that vacating and remanding was a permissible outcome if we discarded Brawner.
Doing so affords Poynter a chance to develop the evidence he needs to attempt to satisfy
Farmer’s subjective recklessness standard. And it allows the district court to take the first crack
at evaluating any new evidence Poynter presents, all of which will aid our review should a
subsequent appeal follow. We therefore decline to apply Farmer in the first instance.
IV.
A. Poynter raises several counterpoints, beginning with the contention that this case is an
improper vehicle for reconsidering Brawner.
1. To Poynter’s mind, the party-presentation principle precludes our reconsideration of
which standard governs his claim. That essential aspect of appellate procedure reminds us that
“[t]he parties ‘frame the issues for decision,’ while the court serves as ‘neutral arbiter of matters
the parties present.’” Clark v. Sweeney, 146 S. Ct. 410, 412 (2025) (per curiam) (quoting United
No. 25-5188 Poynter v. Shirley, et al. Page 16
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)); see also Sineneng-Smith, 140 S. Ct. at
1579; Margolin v. Nat’l Ass’n of Immigr. Judges, 146 S. Ct. 1285, 1288 (2026) (per curiam).
But there are a host of reasons why the principle does not fit today’s circumstance. First,
the panel opinion raised the issue itself when it said, “[t]o the extent that Buetenmiller can be
read as requiring subjective knowledge to satisfy the intentional-conduct prong, we hold that it is
inconsistent with Brawner, and that Brawner continues to control.” Poynter, 162 F.4th at 678.
When a panel injects an issue into a case that the parties have not, the en banc Court may
consider new arguments in response to the panel’s choices. See Popovich v. Cuyahoga Cnty. Ct.
of Common Pleas, Domestic Rels. Div., 276 F.3d 808, 817 n.8 (6th Cir. 2002) (en banc).
Second, the panel opinion was one in a long line of intra-Circuit conflicts across this area of law.
With this degree of “intractable” conflict in our jurisprudence, we owe it to ourselves, the district
courts, and the litigants in our Circuit alike to resolve the debate with finality. United States v.
McCall, 20 F.4th 1108, 1116 (6th Cir. 2021) (Kethledge, J., dissenting), vacated, 29 F.4th 816
(6th Cir. 2022) (en banc) (mem.). And third, while parties may waive or forfeit claims by their
actions, they cannot bind our legal analysis through stipulations on the law. Young v. United
States, 315 U.S. 257, 259 (1942) (holding that the meaning of the law “cannot be left merely to
the stipulation of parties”); United States v. Cabbage, 91 F.4th 1228, 1231 (6th Cir. 2024)
(“Parties aren’t allowed to stipulate to legal conclusions because courts have an independent
obligation to get the law right.” (citing Neuens v. City of Columbus, 303 F.3d 667, 671 (6th Cir.
2002))); see also Collins v. Yellen, 141 S. Ct. 1761, 1798 n.2 (2021) (Gorsuch, J., concurring in
part) (“[P]arties cannot stipulate to the law.”); United States v. Fields, 53 F.4th 1027, 1057–58
(6th Cir. 2022) (Murphy, J., concurring) (“[L]itigants cannot force us to create bad law through
their agreements in the lawsuit.”). “When an issue or claim is properly before the court, the
court is not limited to the particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of governing law.” Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (citing Arcadia v. Ohio Power Co., 498 U.S.
73, 77 (1990)). The parties put forward a claim centered on the Fourteenth Amendment. That
the parties initially agreed to litigate under the Brawner rubric does not mean we must accept the
parties’ understanding of that case (an understanding that itself was modified by the panel here).
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Our allegiance is to the Constitution, and its proper meaning fairly trumps the litigating choices
of individual parties.
The cases Poynter calls forward are inapposite. Start with the Supreme Court’s most
recent word on party presentation: Margolin. There, the Fourth Circuit rested its decision on a
new argument of its own creation “without giving either side a chance to address its theory.”
Margolin, 146 S. Ct. at 1288. Here, on the other hand, we ordered supplemental briefing
directing the parties to address the proper standard to be applied to Poynter’s claim—a course of
action the Supreme Court has blessed. See Sineneng-Smith, 140 S. Ct. at 1582 (collecting
examples). Much the same is true for Clark. There, the Fourth Circuit “grant[ed] relief on a
claim that Sweeney never asserted and that the State never had the chance to address.” Clark,
146 S. Ct. at 412. But again, we have given both sides a chance to address the legal standard,
duties they and amicus parties ably tackled, and we have not injected any new claims into this
case. Poynter’s final decision—Sineneng-Smith—is likewise far afield from this case. The
Ninth Circuit in that case invited specific groups to participate as amici curiae, file briefs
addressing specific questions, and argue before the court for a longer period than Sineneng-
Smith’s own counsel. Sineneng-Smith, 140 S. Ct. at 1580–81. Suffice it to say, nothing of the
sort occurred here.
The dissenting opinion has an added objection to our en banc review. Bringing clarity to
our conditions-of-confinement jurisprudence is unnecessary, the dissenting opinion says, because
it sees no “genuine and widespread confusion” in that collection of decisions, neither in our
Circuit nor beyond. Dissenting Op. at 37. Yet the dissenting opinion, in practice, only adds to
that confusion. Consider the following: The one point that all seem to agree on is that Brawner
modified only the subjective prong of Farmer. See Brawner, 14 F.4th at 596 (“Kingsley requires
modification of the subjective prong of the deliberate-indifference test for pretrial detainees.”);
see also Dissenting Op. at 34. Our subsequent decision in Westmoreland, on the other hand,
developed the separate “intentional-action requirement” that “match[ed] the objective prong” of
the Farmer test, not the subjective prong. 29 F.4th at 729. Westmoreland described this
“intentional-action” element as capturing an officer’s “intentional decision” despite awareness of
the “danger” to the detainee and the “concerns about [the detainee’s] well-being.” Id. A third
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decision, Buetenmiller, echoed Westmoreland’s understanding of the intentional-act requirement
in a case where the defendant had no warning about the danger to the detainee. Buetenmiller, 53
F.4th at 945–46 (quoting Westmoreland, 29 F.4th at 729).
Although the dissenting opinion would have us leave these decisions untouched, it cannot
reconcile them. The dissenting opinion commends the panel opinion for abrogating
Buetenmiller’s reading of Westmoreland’s intentional-act requirement, which, again, “match[ed]
the objective prong” of the Farmer test. Westmoreland, 29 F.4th at 729; see also Dissenting Op.
at 36–39. According to the dissenting opinion, that reading collided with Brawner’s broader
“work” in modifying Farmer’s distinct subjective prong. Dissenting Op. at 37. How
Buetenmiller’s interpretation of Farmer’s objective prong could be inconsistent with Brawner’s
modification of Farmer’s subjective prong needs no further examination other than to say that
this sort of back and forth simply underscores the longstanding confusion in this area of law, a
matter we resolve today.
2. Next, Poynter argues that this case does not directly implicate Brawner because
Brawner dealt with pretrial detainees and Poynter is a civil contemnor. True, in Brawner (as in
Kingsley), the plaintiff was a pretrial detainee rather than a civil contemnor. See Brawner, 14
F.4th at 589; Kingsley, 576 U.S. at 392. But the Fourteenth Amendment’s Due Process Clause
governs more than just pretrial detainees; it also provides protections for civil contemnors,
juveniles, and others detained by the state without the usual procedures associated with a
criminal conviction. See Hopper, 887 F.3d at 754. We see no reason why the same deliberate-
indifference framework would not apply to all Fourteenth Amendment conditions-of-
confinement claims, regardless of the authority for detainment. As evidence, consider the fact
that we apply Kingsley to pretrial detainees and civil contemnors in the excessive-force context.
Id. at 754–55. In short, Poynter’s case implicates the standard for all due-process conditions-of-
confinement claims, not just those brought by individuals detained for civil contempt.
Poynter responds that a lower standard must apply to civil contemnors because the
government ought not have the same security concerns for civil contemnors as compared to
pretrial detainees. As a result, he says, a jail must employ “the least possible power adequate to
the end proposed.” Anderson v. Dunn, 19 U.S. (6 Wheat) 204, 231 (1821) (emphasis omitted).
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We see several flaws in that logic. First, Poynter undercuts his own argument by conceding that
“[t]he Kingsley test fairly approximates Anderson by identifying confinement conditions that are
objectively unreasonable.” Plaintiff-Appellant’s Suppl. En Banc Reply Br. at 4. If Kingsley is
the proper test for civil contemnors, then Brawner (which extended Kingsley) applies with equal
force to detainees of all sorts.
Second, we have our doubts about Poynter’s assumption that the government has no
security interests with respect to civil contemnors. Contemnors, it bears emphasizing, have
refused to comply with a court order, suggesting a willingness to disregard the law. See Willy v.
Coastal Corp., 503 U.S. 131, 139 (1992) (citing U.S. Cath. Conf. v. Abortion Rts. Mobilization,
Inc., 487 U.S. 72, 79 (1988)). Pretrial detainees, by contrast, merely stand accused of violating
the law. Either way, the government’s assessment of the security risk each class of detainee
poses is not of a constitutional dimension such that it gives unelected judges the ability to create
a different standard of liability for jailers. See Bell, 441 U.S. at 547 (first citing Jones v. N.C.
Prisoners’ Lab. Union, Inc., 433 U.S. 119, 128 (1977); then citing Procunier v. Martinez, 416
U.S. 396, 404–05 (1974); then citing Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam); and
then citing Meachum v. Fano, 427 U.S. 215, 228–29 (1976)).
Nor, as a third response, do we agree with Poynter that Youngberg v. Romeo, 457 U.S.
307 (1982), establishes a distinct objective inquiry for civil contemnors. For one, Youngberg’s
viability post-Farmer is questionable. The Supreme Court has never invoked Youngberg’s
purported objective test as a basis for a decision after Farmer. And others have questioned
Youngberg’s relationship with the deliberate-indifference framework. See, e.g., Lewis, 523 U.S.
at 863 (Scalia, J., concurring in the judgment) (treating Youngberg as a deliberate-indifference
case); Hare v. City of Corinth, 74 F.3d 633, 646–47 (5th Cir. 1996) (en banc) (explaining that
later decisions may have undermined Youngberg’s logic). For another, Youngberg’s actual
standard does not do the work Poynter suggests it does. Youngberg formulated the test this way:
“[L]iability may be imposed only when the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or standards as to demonstrate that the
person responsible actually did not base the decision on such a judgment.” 457 U.S. at 323. To
our minds, that construction is just as consistent with requiring subjective knowledge (because
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the defendant must have known the relevant facts for any departure to be a substantial departure
from usual practice) as it is with an objective-only test. Doubly so when “judges or juries are
[no] better qualified than appropriate professionals in making such decisions.” Id. at 322–23. In
short, this case, as is true of all Fourteenth Amendment conditions-of-confinement cases, fairly
implicates the Farmer-Kingsley debate.
B. Turning to the merits, Poynter contends that Kingsley’s excessive-force holding
reaches conditions-of-confinement cases as well, thereby requiring an objective-only test for all
Fourteenth Amendment deliberate-indifference claims.
Kingsley did nothing of the sort. Compare a Fourteenth Amendment excessive-force
claim, the subject of Kingsley, with a Fourteenth Amendment deliberate-indifference claim based
on conditions of confinement. And start with how we resolve whether a defendant had a
“sufficiently culpable state of mind” under each type of claim. Wilson, 501 U.S. at 297. For
use-of-force cases, the answer is relatively easy. Absent evidence that the defendant’s act was
simply an accident, the act itself—the deliberate use of force—largely establishes his state of
mind. See Kingsley, 576 U.S. at 396. Deliberate-indifference claims, on the other hand,
typically turn on a defendant’s failure to act. See Strain, 977 F.3d at 991 (citing Castro, 833
F.3d at 1069); see also Gibson v. Abate, No. 24-1929, 2025 WL 1913247, at *6 (6th Cir. July 11,
2025) (Batchelder, J., concurring in part and dissenting in part) (citing Castro, 833 F.3d at 1086
(Ikuta, J., dissenting)). That distinction matters for purposes of constitutional liability. Recall
that punishment requires a subjective state of mind. See Roberts, 773 F.2d at 725; see also
Wilson, 501 U.S. at 300 (explaining that “some mental element must be attributed to the
inflicting officer before” any “pain inflicted” constitutes “punishment”). It perhaps makes sense
to infer punitive intent when someone acts (or fails to act) with knowledge of the risks. But
where an individual fails to act without knowledge of any risks (even if a reasonable person
would have recognized the risks), “the mere failure to act does not raise the same inference.”
Castro, 833 F.3d at 1086 (Ikuta, J., dissenting) (citing Farmer, 511 U.S. at 837–38).
Put another way, it is difficult to know why someone did not act. The inaction could be
purposeful. It could be reckless. Or it could be negligent. Without proof of what an individual
knew when he failed to act, we lack evidence demonstrating a sufficiently culpable mens rea
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and, it follows, satisfying punishment’s intent requirement. See Wilson, 501 U.S. at 297–300; cf.
Lewis, 523 U.S. at 849 (“[C]onduct intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely to rise to the conscience-shocking
level.” (citing Daniels, 474 U.S. at 331)). Farmer’s subjective mens rea component captures this
important distinction. Remember that we are talking about deliberate indifference. It would be
strange to say that a defendant chooses deliberately to be indifferent to risks of which he is
unaware.
Indeed, even Brawner did not seem to think that Kingsley’s objective test wholly
controlled in the deliberate-indifference context. In Brawner’s words, Kingsley merely required
“modification” of Farmer’s subjective prong. Brawner, 14 F.4th at 593. But see Poynter, 162
F.4th at 678–79 (understanding the inquiry to be wholly objective); Dissenting Op. at 38
(understanding Brawner to be an “explicit rejection of” Farmer’s subjective prong). Yet this
modification highlights the mismatch between excessive force’s action and deliberate
indifference’s inaction. Even in modifying earlier jurisprudence, Kingsley continued to mandate
that the application of force underlying an excessive-force claim be deliberate. See 576 U.S. at
396. But in the deliberate-indifference setting, it is difficult to see how a failure to act could be
deliberate if a defendant lacked the knowledge to infer the consequences of his failure. In other
words, Kingsley was a case about the amount of force, not the decision to use force. Id. So
taking the purely objective test from Kingsley and making it the whole nine yards in the
deliberate-indifference context distorts Kingsley’s logic, which—like Farmer—relies on both
subjective and objective inquiries.
Kingsley is inapt in the conditions-of-confinement setting for other reasons too.
Returning to excessive force, consider the fact that the parallel protection against excessive force
in the Fourth Amendment is framed as an objective inquiry. See Graham, 490 U.S. at 397.
Kingsley thus deemed it sensible to apply a similar inquiry under the Due Process Clause. See
576 U.S. at 399. By contrast, the parallel provision for conditions-of-confinement deliberate-
indifference claims, the Eighth Amendment, dictates more than an objective inquiry. See
Farmer, 511 U.S. at 837. There is little reason why the standard for basic human needs (like
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medicine) would turn on the detainee’s status, thereby justifying our imposition of different
requirements for parallel constitutional protections. See Bell, 441 U.S. at 533, 535.
Perhaps most telling is that Kingsley did not mention Farmer, let alone conditions-of-
confinement claims or the deliberate-indifference standard. Quite the opposite: Kingsley
emphasized that its holding was cabined to excessive-force claims. See 576 U.S. at 396
(explaining that “[w]hether [recklessness] might suffice for liability in the case of an alleged
mistreatment of a pretrial detainee need not be decided here” because it was only “with respect to
this question [of whether the force was excessive] that we hold that courts must use an objective
standard”). Relatedly, all accepted in Kingsley that the jailers in question “acted purposefully or
knowingly with respect to the force they used against Kingsley,” meaning the Supreme Court
never considered an objective-only rule with respect to excessive-force claims, let alone
deliberate-indifference claims. Id. So it would be unusual to think that Kingsley silently
modified how every circuit at the time had applied Farmer in the Fourteenth Amendment
context. Especially so when the Supreme Court has suggested that conditions-of-confinement
claims should not turn on the status of the prisoner. See Bell, 441 U.S. at 533. Nor are we quick
to infer that the Supreme Court has authorized a new theory of substantive due process. That is
an area of law for which we have “scarce” guideposts, and so the “doctrine of judicial self-
restraint requires us to exercise the utmost care whenever we are asked to break new ground,”
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992), particularly when the
jurisprudential trend has moved well away from recognizing new rights, see Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins, 503 U.S. at 125); see also Guertin v.
Michigan, 924 F.3d 309, 312 (6th Cir. 2019) (Sutton, J., concurring in the denial of rehearing en
banc) (noting that substantive-due-process claims are not “anchored in the U.S. Constitution’s
text”); id. at 315 (Kethledge, J., dissenting from the denial of rehearing en banc) (describing
substantive due process as “the vaguest of constitutional doctrines”).
On this point, we of course agree that the Supreme Court recognizes a substantive-due-
process right against pretrial punishment. See Dissenting Op. at 48; see also supra at 5. And we
likewise agree that a constitutional right is distinct from the test used to vindicate the right. See
Dissenting Op. at 48–50 (arguing that rights are not “coterminous with tests”). But we do not
No. 25-5188 Poynter v. Shirley, et al. Page 23
agree that the relevant test used to “show that the right was violated” has no bearing on the scope
of the right itself. Id. at 48. Rather, the bounds of the right understandably relate to the
applicable test for determining whether the right has been infringed. See, e.g., Lewis, 523 U.S. at
852–54 (applying separate frameworks to substantive-due-process claims arising from different
factual scenarios despite the fact that the underlying right is the same); Richard H. Fallon, Jr.,
The Supreme Court, 1996 Term—Foreword: Implementing the Constitution, 111 Harv. L. Rev.
54, 62–66 (1997) (discussing how the test used to implement a right shapes the right’s content);
see also Dissenting Op. at 29 (agreeing that the right at issue “drives” the applicable test). So
easing the manner in which one may prove a deliberate-indifference substantive-due-process
claim naturally expands our understanding of the right protected (here, a right to reasonable care
in the jail setting), just as doing the opposite would constrict that understanding. Cf. Dobbs, 142
S. Ct. at 2271, 2283 (replacing the “undue burden test” with “rational-basis review” as “the
appropriate standard” for substantive-due-process challenges to abortion regulations). Said
differently, if “what test detained persons must satisfy” does not go to the substance of the
constitutional right at issue, we do not see why negligence would be off the table for these
claims; civil recklessness, after all, is merely a “test.” Dissenting Op. at 48. Nor, contrary to the
dissenting opinion’s suggestion, does the manner in which the federal courts treat a “federal
common law right to Indian homelands” have any bearing on the issue here. See id. (quoting
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 213 (2005)) (“There is a sharp distinction
between the existence of a federal common law right to Indian homelands and how to vindicate
that right.” (citation modified)).
The dissenting opinion likewise has a very different view of Kingsley. In places, it sees
“broad” “signal[s]” and “general reasoning” advancing the cause of substantive due process, see
Dissenting Op. at 42, cues that it seems to believe displace contrary indicators in other
substantive-due-process cases, see, e.g., Dobbs, 142 S. Ct. at 2247–48. Yet in other places, the
dissenting opinion opts for a more granular approach. In particular, it takes an exceedingly
cramped view of Kingsley’s command that “[i]t is with respect to this question [of whether the
force was excessive] that we hold that courts must use an objective standard.” 576 U.S. at 396.
One could fairly read that proclamation as reserving for another day the distinct category of
deliberate-indifference claims, thereby foreclosing the dissenting opinion’s attempt to impose
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Kingsley’s excessive-force holding in the conditions-of-confinement context. See supra at 22.
So the dissenting opinion instead characterizes this statement as making only the narrow point
that Kingsley was not addressing excessive force’s intentional-use-of-force prong. Dissenting
Op. at 41 n.10. Yet even that reading undermines the dissenting opinion’s overall bottom line.
Here, the dissenting opinion largely agrees that Kingsley, by not discussing excessive force’s
intentional-use-of-force prong, retained a subjective element for those claims related to the
decision to use force. See 576 U.S. at 396. How Kingsley nonetheless commands that we
abandon any meaningful subjective component for distinct deliberate-indifference claims, as the
dissenting opinion would have one believe, is left unsaid. Again, we decline the dissenting
opinion’s invitation to read Kingsley as silently overruling every circuit court’s deliberate-
indifference framework for pretrial detainees by turning it into a wholly objective test.
Against all of this, Poynter and the dissenting opinion largely abandon Brawner’s
reasoning in favor of a point never addressed in that decision. Specifically, they seize upon
language in Kingsley where the Supreme Court approvingly cited Bell v. Wolfish’s rational-basis
test, which seemingly includes no mens rea requirement. Kingsley, 576 U.S. at 398; Dissenting
Op. at 39–54 (referencing Bell over a dozen and a half times). But we doubt that Bell requires an
objective test in this context when for decades we (along with every other circuit court) applied
Farmer—not Bell’s rational-basis review—for deliberate-indifference claims. And that makes
good sense, as Bell itself counseled that conditions-of-confinement claims should not turn on the
status of the prisoner. See Bell, 441 U.S. at 533. Nor did Poynter ever frame his challenge as a
rational-basis claim, favoring instead the framework of deliberate indifference. See Castro, 833
F.3d at 1085 (Ikuta, J., dissenting) (explaining that Bell’s objective forms of liability are distinct
from deliberate-indifference liability). In any event, reliance on Bell’s rational-basis test gets us
to the same place. When a prison affirmatively adopts a policy, such as the “double-bunking”
policy at issue in Bell, we can infer an intent to punish if the policy is unrelated to a legitimate
government interest or excessive in relation to the asserted interest. 441 U.S. at 530 (quoting
Kennedy, 372 U.S. at 168–69); id. at 538–39 (citing Flemming, 363 U.S. at 613–17). What other
reason, after all, would there be for adopting such a policy? But, for reasons discussed, that
inference does not extend forward to a jailer’s failure to act or a jail’s failure to adopt a given
policy. See Hare, 74 F.3d at 644–45 (“A State’s imposition of a rule or restriction during pretrial
No. 25-5188 Poynter v. Shirley, et al. Page 25
confinement manifests an avowed intent to subject a pretrial detainee to that rule or restriction
. . . . [But w]ith episodic acts or omissions, intentionality is no longer a given, and Bell offers an
ill-fitting test.”). Nor would Bell’s rational-basis review be appropriate in the typical deliberate-
indifference setting, where claims tend to center not on jail policy, but instead on inaction by
individual jailers. And substantive-due-process challenges to such actions, of course, necessarily
require a state-of-mind element. See Lewis, 523 U.S. at 846 (observing that the “criteria to
identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a
governmental officer that is at issue”).
For this reason, we likewise do not join the dissenting opinion’s critique of Barren
County’s counsel for failing at oral argument to point to another type of due-process claim that
requires proving a defendant’s subjective intent. See Dissenting Op. at 44–45. That critique, we
note, seems to be aided by the dissenting opinion’s reconstruction of the actual exchange at
argument. Contrast Oral Arg. at 29:24–29:31 (asking for “other areas for Fourteenth
Amendment due-process claims where we use subjective intent”), with Dissenting Op. at 44–45
(framing the inquiry as “County’s counsel was asked if he could identify any due-process claims
that involve a similar inquiry into the defendant’s subjective knowledge of the risk or intent to
punish”). Either way, the fact remains that Kingsley itself did not obviate a plaintiff’s need to
prove that the defendant used force intentionally. See 576 U.S. at 396. And Daniels, which
Kingsley cited approvingly, likewise required a pretrial detainee “to allege sufficient facts to
support a claim of intentional deprivation” such that he could establish a “pillow was left on the
stairs with the intention of harming him.” 474 U.S. at 334; see also Kingsley, 576 U.S. at 396
(citing Daniels, 474 U.S. at 331). Indeed, Daniels went so far as to reject constitutionalizing a
jailer’s “special duty” of reasonable care against unreasonable risks of physical harm to a
detainee, a standard largely indistinguishable from the one advocated for by the dissenting
opinion. Daniels, 474 U.S. at 335–36 (citing Restatement (Second) of Torts § 314A(4) (A.L.I.
1965)).
C. The dissenting opinion next finds fault in our textualist reading of the relevant
constitutional provisions. See Dissenting Op. at 45–47. According to the dissenting opinion, our
long-standing adherence to a subjective requirement for both Eighth and Fourteenth Amendment
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claims either reads the words “cruel and unusual” out of the Eighth Amendment’s text or reads
them into the Fourteenth Amendment’s. Id. at 46. But Farmer, remember, made plain that
failing “to alleviate a significant risk” about which a defendant did not know “cannot . . . be
condemned as the infliction of punishment.” 511 U.S. at 838. In other words, subjective
knowledge in this setting informs whether punishment occurred at all, not whether the
punishment was cruel and unusual.
Reading Farmer in that way, the dissenting opinion responds, ignores the “discrete”
issues addressed there, which, the dissenting opinion adds, set the “context” for that decision.
Dissenting Op. at 51 n.13 (quoting Nat’l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1155
(2023)). But query which approach better appreciates context: one that draws from a case about
when deliberate indifference constitutes punishment (Farmer) and invokes nearly three decades
of decisions applying that understanding, or one that draws from an excessive force case
(Kingsley) that never mentioned deliberate indifference and expressly leaves untouched a
separate subjective element.
Relatedly, the dissenting opinion believes that excessive force’s objective inquiry must
also control in the deliberate-indifference context because both types of claims arise under the
Due Process Clause, and because excessive force and deliberate indifference “can cause the same
injuries.” Dissenting Op. at 43 (quoting Castro, 833 F.3d at 1070). In every other constitutional
setting, however, those claims operate under different standards. See, e.g., Whitley, 475 U.S. at
320–21 (quoting Johnson, 481 F.2d at 1033); Farmer, 511 U.S. at 836 (creating distinct tests for
excessive-force and failure-to-protect claims for convicted prisoners). The dissenting opinion’s
approach thus has the odd feature of ordaining pretrial detainees as the lone set of claimants who
can establish excessive-force and deliberate-indifference failure-to-protect claims with the same
evidence (or lack thereof) of subjective knowledge. Nothing in the Due Process Clause compels
that strange result.
D. Lastly, Poynter and the dissenting opinion characterize Brawner’s deliberate-
indifference framework as requiring recklessness—albeit civil recklessness—not negligence.
But that seems to be little more than a labeling choice when, in practice, Brawner requires only
negligence. Recall that Poynter’s understanding of recklessness requires serious risks plus
No. 25-5188 Poynter v. Shirley, et al. Page 27
unreasonable action. All that formulation does is retack on the word recklessness to the ordinary
negligence standard. Our experience with Poynter’s approach teaches that a negligence standard
is almost always the end result, if not the starting place. Cf. Cummings v. Missouri, 71 U.S. (4
Wall.) 277, 325 (1867) (“The Constitution deals with substance, not shadows.”).
True, as the dissenting opinion emphasizes, its deliberate-indifference framework does
include an intentionality component. In the dissenting opinion’s design, however, that
component is exceedingly easy to satisfy. As evidence, look to our Circuit’s post-Brawner
jurisprudence, which downplayed any intentionality requirement when describing an objective-
reasonableness-only deliberate-indifference test. See, e.g., Howell v. NaphCare, Inc., 67 F.4th
302, 311–12 (6th Cir. 2023); Mercer v. Athens County, 72 F.4th 152, 161 (6th Cir. 2023). Any
conscious act by a jailer seemingly qualifies as an intentional act, even if the act is divorced from
any appreciation of the risks the detainee faces (for example, the act of housing an inmate,
choosing a general monitoring practice of a detainee, and the like). Dissenting Op. at 37–38 &
n.9, 53, 55–58.
We should not transform deliberate indifference’s intentionality requirement into a mere
box-checking exercise. Recall that the Due Process Clause’s use of the word “deprive” requires
a subjective state of mind. See supra at 11–12. The deprivation’s direct object, a “person,” in
turn, must be deprived of the prepositional complements listed in the Clause: life, liberty, or
property. U.S. CONST. amend. XIV, § 1. So the constitutional text requires the jailer to be aware
of the challenged deprivation of liberty (which, in this case, is the beating by Guess and Wix, not
the mere placement in the cell). Only this subjective awareness of the liberty deprivation (not of
some other fact) differentiates conscience-shocking behavior that amounts to an unconstitutional
abuse of power from mere accidental or negligent conduct by the jailer. See Lewis, 523 U.S. at
848–49. Yet the dissenting opinion would separate the state-of-mind element from its textual
foundation, leaving a jailer liable so long as he has engaged in a conscious act, even if he is
unaware that the action creates a risk to the detainee’s liberty. In practice, that purported limit on
deliberate-indifference liability is no limit at all. After all, virtually every plaintiff can point to
some intentional choice by the defendant that preceded the plaintiff’s injury. In Poynter’s case,
for example, the panel derived an intentional act from the fact that there was no evidence Guess
No. 25-5188 Poynter v. Shirley, et al. Page 28
and Wix were accidentally placed in the same cell as Poynter. Poynter, 162 F.4th at 679.
Tellingly, neither the panel nor the dissenting opinions tell us how far down the chain of
causation the requisite intentional act can occur. Poynter’s booking assessment at the jail seems
to be enough. Dissenting Op. at 38 & n.9. What about the decision to place him in Barren
County’s detention center rather than another one? The examples are endless. See, e.g., id. at
57–58 (citing Kemp v. Fulton County, 27 F.4th 491, 497 (7th Cir. 2022); Pittman IV, 108 F.4th at
570–71 (noting that a guard failing to put in his hearing aid satisfies the intentional-act
requirement)). At day’s end, the dissenting opinion’s conception of deliberate indifference all
but eliminates any intentional-act requirement.
The dissenting opinion’s last-ditch attempt to constrain that seemingly limitless approach
by invoking a “proximate cause” element—a phrase never used in Kingsley, Brawner, the
Westmoreland majority opinion, the Poynter panel opinion, or plaintiff’s en banc briefs—only
confirms the dissenting opinion’s fluid methods. See id. at 60 (suggesting that “merely booking
Poynter” is “too far removed” to be a proximate cause of constitutional injury despite tying
liability to Poynter’s security assessment, which occurred at the time of booking); id. at 59
(defending its “advocacy for proximate-causation principles”); id. (embracing the dissenting
opinion in Westmoreland, which itself criticized the majority opinion for “omit[ting] a proximate
cause requirement,” 29 F.4th at 740 (Bush, J., dissenting)). Nor, in any event, would the concept
prove to be the limiting factor the dissenting opinion believes. In general, “the term ‘proximate
cause’ is a poor one to describe limits on the scope of liability” because “it is confusing for a
jury” and “multiple proximate causes are often present.” Restatement, supra, § 29 cmt. b; see
also Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting)
(describing proximate cause as where “the law arbitrarily declines to trace a series of events
beyond a certain point” “because of convenience, of public policy, [or] of a rough sense of
justice”). That is particularly true in the jailhouse setting, as the dissenting opinion itself reflects.
The dissenting opinion explains that placing a detainee in a cell will satisfy the intentionality
prong, Dissenting Op. at 38 & n.9, 56, and it adds that doing so where harm later befalls the
detainee satisfies the proximate-cause prong, id. at 60. But everyone in jail is told where they
must be (whether it is their cell, the canteen, the yard, or somewhere else) by jail officials. So it
No. 25-5188 Poynter v. Shirley, et al. Page 29
is difficult to imagine a situation where the dissenting opinion’s conception of the intentional-act
requirement is satisfied, but where its conception of the proximate-cause element is not.
The dissenting opinion’s malleable approach is all the more evident when one considers
how it framed the intentional act here: the choice not to classify Guess and Wix based on their
institutional histories and instead only consider their charges and behavior during arrest.
Dissenting Op. at 47. But with “the line between action and inaction [often] blurry and a
function of characterization,” id. at 53 (citing Koulta v. Merciez, 477 F.3d 442, 445–46 (6th Cir.
2007)), any inaction can be reframed as an intentional choice not to act. Look no further than the
original panel opinion, which deemed defendants’ “failure to classify” Guess and Wix based on
their institutional history as conduct relevant to the Due Process Clause’s deliberate-act
requirement. Poynter, 162 F.4th at 679 (emphasis added). Again, if the failure to act can satisfy
the intentional-act requirement, that simply returns our focus to an issue already addressed,
namely, whether a failure to act permits an inference of punitive intent for the purpose of a
deliberate-indifference claim. See Castro, 833 F.3d at 1086 (Ikuta, J., dissenting) (citing
Farmer, 511 U.S. at 837–38). If it does, then the deliberate-indifference standard amounts to
little more than negligence, a point all agree is at odds with settled Due Process Clause
jurisprudence.
* * * * *
Farmer v. Brennan’s subjective standard properly governs deliberate-indifference cases
brought under the Fourteenth Amendment. We vacate the district court’s order and remand to
allow the district court to consider in the first instance how Farmer applies in this case.
No. 25-5188 Poynter v. Shirley, et al. Page 30
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. In Brawner v. Scott County,
14 F.4th 585 (6th Cir. 2021), we held that pretrial detainees who bring deliberate-indifference
claims under the Fourteenth Amendment need to prove that they faced an unjustifiably high risk
of harm that was known or so obvious that it should have been known and that the defendant
intentionally acted or failed to act in the face of that risk. Brawner’s test followed from the
Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), and the majority of
our sibling circuits that have addressed the question on the merits agree. Today, the majority
discards that approach even though neither party asked us to do so. I respectfully dissent.
I. BACKGROUND
Barren County Detention Center (“BCDC”) is a jail that housed state and county
detainees together. See R. 95-5 (Boston Dep. at 34) (Page ID #524); R. 100-4 (Sweeney Dep. at
101) (Page ID #785).1 Luther Poynter was arrested and taken to BCDC on December 25, 2020,
for civil contempt because he did not pay child support. R. 95-2 (Facility Admission Rep.) (Page
ID #451); R. 100-2 (Fernandez Dep. at 33) (Page ID #714).2 On December 28, Poynter was
placed in general-population cell 524, where Scotty Wix and Timothy Guess were already
housed. R. 101-2 (12/28/2020 Incident Rep. at 1–2) (Page ID #890–91); Video Footage at 0:00–
1:30; R. 95-3 (Bennett Dep. at 86–95, 111) (Page ID #474–76, 480). In less than one minute and
thirty seconds, Guess and Wix attacked Poynter, punching him repeatedly in the head even
though he was seated and had not moved towards them or made any movements that indicated he
was going to. Video Footage at 01:20–01:25. Poynter suffered a traumatic brain injury and now
1“County” detainees include both pretrial detainees and incarcerated persons convicted of misdemeanors.
“State” detainees are incarcerated persons who have been convicted of felonies but have been “assigned to serve
their sentences in local jails.” D. 14 (Appellant Br. at 9 n.6); R. 95-3 (Bennett Dep. at 69) (Page ID #469) (testifying
that once an inmate is sentenced, he becomes a state inmate).
2I recount the facts in the light most favorable to Poynter because we must view the facts in the light most
favorable to the nonmoving party at summary judgment. See Greene v. Crawford County, 22 F.4th 593, 605 (6th
Cir. 2022).
No. 25-5188 Poynter v. Shirley, et al. Page 31
is partially paralyzed on his right side, struggles with his short-term memory, uses a wheelchair,
and lives in an assisted-living facility. R. 100-2 (Fernandez Dep. at 7–8, 64–68) (Page ID #707,
721–22).
Guess and Wix were both state detainees and “frequent fl[iers]” in BCDC. R. 95-3
(Bennett Dep. at 32–33) (Page ID #460); R. 100-5 (Hawkins Dep. at 27) (Page ID #819). Both
had extensive histories of violence in BCDC, which are reflected in incident reports in BCDC’s
information system, JailTracker. All said, their JailTracker files together contained twenty-eight
incident reports, prior to Poynter’s attack, that detail their erratic and often violent behavior in
BCDC. R. 101-2 (Incident Reps.) (Page ID #856–94). Before the attack on Poynter, Guess had
attacked his cellmates six times, fought with other detained persons twice, threatened others
several times, and was involved in several verbal altercations.3 Guess was also aggressive with
jail staff four times, leading BCDC staff to place him in restraints three times and to pepper spray
him.4 Wix had a lengthy history of violence too. Before attacking Poynter, he had charged at
and attempted to attack jail staff, attacked his cellmates five times, and fought with his cellmate.5
In the approximately eleven months leading up to Poynter’s assault, Guess and Wix were
involved in the following incidents: Guess and Wix both assaulted other detained persons, id.
(1/24/2020 Incident Rep.) (Page ID #874); id. (2/15/2020 Incident Rep.) (Page ID #888); Wix
fought with and punched another detained person in his cell, id. (10/14/2020 Incident Rep.)
(Page ID #889); Guess threatened another detained person and had to be removed from kitchen-
work duty, id. (7/7/2020 Incident Rep.) (Page ID #875); Guess got into a verbal altercation with
his cellmate, id. (12/19/2020 Incident Rep.) (Page ID #877); and Guess behaved violently and
erratically towards jail staff, leading them to place him in restraints, id. (12/10/2020 Incident
3R. 101-2 (5/19/2008 Incident Rep.) (Page ID #857); id. (12/26/2012 Incident Rep.) (Page ID #860); id.
(5/4/2019 Incident Rep.) (Page ID #863); id. (5/11/2019 Incident Rep.) (Page ID #864); id. (9/3/2019 Incident Rep.)
(Page ID #866); id. (1/24/2020 Incident Rep.) (Page ID #874); id. (8/26/2018 Incident Rep.) (Page ID #861); id.
(10/7/2019 Incident Rep.) (Page ID #870); id. (7/6/2019 Incident Rep.) (Page ID #865); id. (7/7/2020 Incident Rep.)
(Page ID #875); id. (9/11/2019 Incident Rep.) (Page ID #868); id. (12/19/2020 Incident Rep.) (Page ID #877).
4R. 101-2 (2/7/2007 Incident Rep.) (Page ID #856); id. (1/23/2010 Incident Rep.) (Page ID #858); id.
(11/4/2019 Incident Rep.) (Page ID #872–73); id. (12/10/2020 Incident Rep.) (Page ID #876).
5R. 101-2 (9/28/2010 Incident Rep.) (Page ID #881); id. (12/27/2013 Incident Rep.) (Page ID #884); id.
(2/15/2014 Incident Rep.) (Page ID #885); id. (7/19/2017 Incident Rep.) (Page ID #886); id. (5/11/2019 Incident
Rep.) (Page ID #887); id. (2/15/2020 Incident Rep.) (Page ID #888); id. (10/14/2020 Incident Rep.) (Page ID #889).
No. 25-5188 Poynter v. Shirley, et al. Page 32
Rep.) (Page ID #876). Guess also had nearly thirty “keep aparts” in his file before the attack on
Poynter, and Wix had nearly twenty.6 R. 101-3 (Offender Alerts at 1–4) (Page ID #895–98). In
contrast, Poynter had one. Id. at 5 (Page ID #899).
Additionally, Guess and Wix were not detained in BCDC for the full eleven months
before the December 28, 2020, attack. Guess had been most recently booked into BCDC on
December 10, 2020, and Wix was booked the day before, on December 9, 2020. R. 95-3
(Bennett Dep. at 32–33, 68) (Page ID #460, 469). That makes sense because Bennett also
testified that all the people housed in cell 525 on December 28, 2020, had been booked into
BCDC in December. Id. at 96–97 (Page ID #476). That Guess and Wix were involved in fewer
attacks in the months immediately preceding December 28, 2020, may therefore have been a
product of their not being in BCDC, rather than an indication of improving behavior.
Despite their histories of violence, Guess and Wix were housed in a minimum-security
general-population cell. BCDC produced no evidence that it ever classified or reclassified Guess
and Wix. According to Poynter’s expert, Wix’s and Guess’s histories of violence demonstrated
that they posed a threat to others and should not have been in a general-population cell. R. 95-7
(Eiser Dep. at 37–39, 51) (Page ID #550–51, 554).
Classification is a form of risk assessment that keeps detained persons and jail staff safe,
and implementing it correctly is essential to minimize the risk of violence in jails. Id. at 29 (Page
ID #548); R. 95-3 (Bennett Dep. at 136–37) (Page ID #486); R. 100-4 (Sweeney Dep. at 23–25)
(Page ID #766). According to official BCDC policy and Kentucky law, each detained person
must be classified based on their behavioral history at BCDC, among other factors, when they
are initially booked into the jail. R. 101-1 (BCDC Classification Policy at 1–2) (Page ID #854–
55). Classifications also must be updated based on “[d]ay-to-day behavior as observed by jail
staff,” disciplinary actions, and changes in mental or emotional status. Id. at 2 (Page ID #855).
Institutional behavior is the “biggest” component of the classification analysis, R. 95-7 (Eiser
6A “keep-apart” or “keep-away” order reflects that the detained persons listed in the order had a history
that required them to be separated from each other. R. 95-3 (Bennett Tr. at 74–76) (Page ID #471); R. 95-5 (Boston
Dep. at 31) (Page ID #523).
No. 25-5188 Poynter v. Shirley, et al. Page 33
Dep. at 30) (Page ID #549), and it must be considered to determine whether a detained person
could harm others, R. 100-4 (Sweeney Dep. at 30) (Page ID #768).
BCDC’s custom, however, was to ignore its written policy. It classified detained persons
without considering their institutional behavioral history.7 See R. 95-5 (Boston Dep. at 25–33)
(Page ID #522–524). County detainees were classified based on only their charges and behavior
during arrest and booking. Id. at 25 (Page ID #522). BCDC did not classify state detainees at
all, let alone consider their institutional history. Instead, BCDC relied on the state Department of
Correction’s classifications. Id. at 27–28 (Page ID #522); R. 100-5 (Hawkins Dep. at 19–20)
(Page ID #817); R. 100-6 (Smith Dep. at 40) (Page ID #837). The state’s classifications,
however, designated where a detained person could be assigned work duty, not where they
should be housed. See R. 100-5 (Hawkins Dep. at 11) (Page ID #815); R. 95-3 (Bennett Dep. at
62) (Page ID #468).
Poynter, by and through his guardian and sister, Anita Fernandez, sued the Barren County
Jailer and Barren County (“the County”) under 42 U.S.C. § 1983, alleging that their deliberate
indifference to his safety violated the Fourteenth Amendment. See R. 32 (Am. Compl.) (Page ID
#149–57). The district court granted summary judgment to the County, and Poynter appealed. A
panel of this court reversed, holding that Poynter had presented sufficient evidence for a
reasonable jury to conclude that he had established a deliberate-indifference claim. A majority
of this court subsequently voted to grant en banc review and ordered the parties to submit
supplemental briefing to address the appropriate legal standard for Fourteenth Amendment
deliberate-indifference claims.
II. ANALYSIS
The Eighth Amendment protects convicted persons from “cruel and unusual
punishments.” U.S. Const. amend. VIII. Based on the prohibition of “cruel and unusual
punishments,” id., prisons “have a duty . . . to protect [convicted persons] from violence at the
7The sole way that BCDC considered institutional behavior was if the detained person had an active “keep
apart” from another individual in BCDC, which would result only in the two people subject to the order being
separated. R. 95-5 (Boston Dep. at 25–33) (Page ID #522–24). Keep aparts would not result in changes to their
classifications. Id.
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hands of other [incarcerated persons],” Westmoreland v. Butler County, 29 F.4th 721, 726 (6th
Cir. 2022) (first alteration in original) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)).
An incarcerated person’s constitutional rights are violated if the prison is “deliberate[ly]
indifferen[t] to [their] health or safety.” Id. (first two alterations in original) (quoting Farmer,
511 U.S. at 834). Pretrial and civil detainees’ claims for deliberate indifference, however,
“derive . . . from the Fourteenth Amendment,” and “not from the Eighth Amendment, with its
focus on punishment.” Grote v. Kenton County, 85 F.4th 397, 405 (6th Cir. 2023); see also
Hopper v. Plummer, 887 F.3d 744, 755 (6th Cir. 2018). This protection is derived from the Due
Process Clause’s prohibition on deprivations of “liberty” without due process. Youngberg v.
Romeo, 457 U.S. 307, 315, 320–22 (1982).
Despite the different sources of the rights, we “historically analyzed” deliberate-
indifference claims brought under the Eighth and Fourteenth Amendments “under the same
rubric.” Brawner, 14 F.4th at 591 (quoting Richmond v. Huq, 885 F.3d 928, 937 (6th Cir.
2018)). We required plaintiffs to prove an “objective” component—that the plaintiff faced a
substantial risk of serious harm—and a “subjective” component—that the defendant actually
knew of this substantial risk and disregarded it. Id. This standard was crafted by the Supreme
Court in Farmer, a case addressing deliberate-indifference claims under the Eighth Amendment,
not the Fourteenth. 511 U.S. at 828. I refer to this as the criminal-recklessness or Farmer
standard.
We changed our approach in the wake of Kingsley, which counseled that there are
important differences between the Eighth and Fourteenth Amendments. 576 U.S. at 400–02. In
recognition of those differences, we held that a plaintiff who brings a Fourteenth Amendment
deliberate-indifference claim must show that the defendant “acted deliberately (not accidentally),
but also recklessly ‘in the face of an unjustifiably high risk of harm that is either known or so
obvious that it should be known.’” Brawner, 14 F.4th at 596 (quoting Farmer, 511 U.S. at 836).
Brawner therefore modified the subjective-knowledge-of-the-risk requirement—plaintiffs did
not have to prove that the defendant knew of the unjustifiably high risk, but only that a
reasonable person in their position would have known. Put another way, Brawner requires
intentional action but not subjective knowledge of the consequences of those actions. Pulling
No. 25-5188 Poynter v. Shirley, et al. Page 35
this all together, Brawner required plaintiffs to prove that the defendant intentionally acted in the
face of an unjustifiably high risk of harm that is either known or so obvious that it should be
known. I refer to this as the civil-recklessness or Brawner standard.
The majority now overrules Brawner and reverts to the Farmer criminal-recklessness
standard for Fourteenth Amendment cases. I begin by discussing why this case is not a proper
vehicle to do so in Part II.A and then turn to the merits and explain why Brawner’s test
accurately captured and reflected the differences between the Eighth and Fourteenth
Amendments in Part II.B.
A. Party-Presentation Principle
Until the en banc majority intervened, the County had never argued that Brawner should
be overruled, that it was incorrectly decided, or even that the district court or the original panel
applied it incorrectly. See R. 95-1 (County Mot. for Summ. J.) (Page ID #435–50); D. 15
(Appellee Br.); D. 27 (County Pet. Reh’g En Banc). Instead, the County cited Brawner
approvingly. The district court and the panel followed the County’s lead and applied Brawner.
Poynter ex rel. Fernandez v. Bennett, No. 1:21-CV-00162, 2025 WL 606183, at *4 (W.D. Ky.
Feb. 25, 2025); Poynter ex rel. Fernandez v. Bennett, 162 F.4th 664, 677–78 (6th Cir. 2025). In
its petition for rehearing en banc, the County again did not argue that we should overrule
Brawner. See D. 27 (County Pet. Reh’g En Banc). In fact, the County’s en banc petition did not
even argue that the panel erred in the portion of the deliberate-indifference test that Brawner
modified. Id. Instead, it made only two arguments. First, that Poynter was not placed at a
substantial risk of serious harm because the risk was not personal to Poynter. Id. at 10–13.
Second, that the County could not be held liable under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978), because there was not a pattern of similar
constitutional violations. D. 27 (County Pet. Reh’g En Banc at 13–17). Therefore, the County
forfeited any argument that Brawner should be overruled. See Citizens Coal Council v. EPA,
447 F.3d 879, 905 (6th Cir. 2006) (en banc). Nevertheless, the majority ordered the parties to
brief the question and now overrules Brawner.
No. 25-5188 Poynter v. Shirley, et al. Page 36
“In our adversarial system of adjudication, [courts] follow the principle of party
presentation.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). Under that principle,
“in the first instance and on appeal, [courts] rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters the parties present.” Id. (alterations
omitted) (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)). “To put it plainly,
courts ‘call balls and strikes’; they don’t get a turn at bat.” Clark v. Sweeney, 607 U.S. 7, 9
(2025) (per curiam) (quoting Lomax v. Ortiz-Marquez, 590 U.S. 595, 599 (2020)). Displeased
with the parties’ framing of the issue and seemingly wanting a “turn at bat,” the majority
overlooks the County’s forfeiture. Id. In fact, the County forfeited the issue three times over: in
the district court, before the original panel, and in its petition for rehearing. See Scott v. First S.
Nat’l Bank, 936 F.3d 509, 522–23 (6th Cir. 2019); Guyan Int’l, Inc. v. Pro. Benefits Adm’rs, Inc.,
689 F.3d 793, 799 (6th Cir. 2012). The County addressed this question only after the court
ordered it to. I would not endorse inviting the County to change its position via supplemental
briefing as an acceptable way to raise the issue here. Cf. Valent v. Comm’r of Soc. Sec., 918 F.3d
516, 524 (6th Cir. 2019).
Additionally, we excuse forfeiture only “in exceptional cases or to avoid a miscarriage of
justice.” Citizens Coal Council, 447 F.3d at 905 (quoting Mayhew v. Allsup, 166 F.3d 821, 823
(6th Cir. 1999)). This is not an exceptional case, and no miscarriage of justice would result from
applying Brawner. The County is sophisticated and well-versed in the evolution of our caselaw
on this issue. Id.; see R. 95-1 (County Mot. for Summ. J. at 8–10) (Page ID #442–44); D. 15
(Appellee Br. at 16–17, 19–20). The County “had a full and fair opportunity” to raise this issue
before the district court, the original panel, and in its petition for rehearing. Citizens Coal
Council, 447 F.3d at 905. It chose not to. I would hold the County to that choice.
Contrary to the majority’s assertion, the panel’s treatment of Buetenmiller v. Macomb
County Jail, 53 F.4th 939, 945–46 (6th Cir. 2022), does not solve the party-presentation issue.
Majority Op. at 16. The panel stated merely that “[t]o the extent that Buetenmiller can be read as
requiring subjective knowledge [of the risk] to satisfy the intentional-conduct prong, we hold that
it is inconsistent with Brawner, and that Brawner continues to control.” Poynter, 162 F.4th at
678. The panel was not breaking new ground or altering Brawner as the majority asserts,
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Majority Op. at 16, by holding that requiring the plaintiff to prove that the defendant knew of the
risk was inconsistent with Brawner—another panel had already done just that in Helphenstine v.
Lewis County, 60 F.4th 305, 317 (6th Cir. 2023). Helphenstine held that Trozzi v. Lake County,
29 F.4th 745, 757–58 (6th Cir. 2022), was “irreconcilable with Brawner” because it required the
plaintiff to prove that “the prison official knew that his failure to respond would pose a serious
risk to the pretrial detainee,” and Brawner did away with the “actual knowledge” requirement.
Helphenstine, 60 F.4th at 316 (quoting Trozzi, 29 F.4th at 757–58). Nor was the panel reaching
out to decide an issue that the parties did not present, as the majority contends. Majority Op. at
16. The panel discussed Buetenmiller to distill and apply the very standard that the parties
agreed controlled.8
Finally, no widespread confusion in our caselaw warrants such intervention. I am
skeptical that Brawner created genuine and widespread confusion in this court. See Grote, 85
F.4th at 406 (discussing how Trozzi, which the majority cites to demonstrate confusion,
“attempted to resurrect the pre-Brawner (and pre-Kingsley) treatment of pretrial detainees’
deliberate-indifference claims”). What work would Brawner’s rejection of the Farmer criminal-
recklessness standard have done if it allowed later panels to resurrect the knowledge-of-the-risk
requirement? The only logical answer is none, so such an interpretation clearly cannot be
reconciled with Brawner.
Brawner’s intentional-act requirement never invited courts to inquire into the defendant’s
knowledge of the risk. The intentional-action requirement asked only whether the defendant’s
conduct itself was intentional. See Westmoreland, 29 F.4th at 729 (explaining that Brawner’s
intentional-action requirement asked whether “[t]he defendant made an intentional decision with
respect to the conditions under which the plaintiff was confined” (quoting Castro v. County of
Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc))); Brawner, 14 F.4th at 597
(“Brawner needed to [show] . . . (1) that she had an objectively serious medical need; and
(2) that [the defendant’s] action (or lack of action) was intentional (not accidental) and she
either (a) acted intentionally to ignore Brawner’s serious medical need, or (b) recklessly failed to
8And, again, the County had the opportunity to respond to the panel’s analysis in its en banc petition but
chose not to.
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act . . . . (emphasis added)); Davis v. Chorak, No. 22-1839, 2023 WL 2487339, at *3 (6th Cir.
Mar. 14, 2023) (holding that the plaintiff satisfied “the [intentional-conduct] element . . . [by]
plausibly alleg[ing] that [the defendants] made intentional security-classification decisions”
when they classified the plaintiff and his attacker as medium security, leading them to be housed
together).9 Reading the intentional-act requirement to ask whether the defendant took action
with knowledge of the risk to the plaintiff would clearly render the Brawner civil-recklessness
standard identical to the Farmer criminal-recklessness standard. But that cannot be right,
because then Brawner’s explicit rejection of Farmer’s knowledge-of-the-risk requirement would
have done no work at all.
The majority objects, asserting that my discussion here “adds to th[e] confusion.”
Majority Op. at 17. “Brawner modified only the subjective prong of Farmer,” the argument
goes, and Westmoreland, on the other hand, recognized a separate intentional-action requirement
that was part of Farmer’s objective, rather than subjective, prong. Id. But, as already explained,
Brawner itself also contained the intentional-act requirement. Brawner, 14 F.4th at 596 (holding
that plaintiffs must show that the defendant “acted deliberately (not accidentally), but also
recklessly ‘in the face of an unjustifiably high risk of harm that is either known or so obvious
that it should be known’” (quoting Farmer, 511 U.S. at 836)). Consistent with that test,
Westmoreland explained that the intentional-act requirement asked whether the defendant “made
an intentional decision as to [the plaintiff’s] conditions of confinement.” Westmoreland, 29
F.4th at 729. In applying that requirement, Westmoreland evaluated what information the
defendant had been exposed to, which perhaps more comfortably fits into the analysis of whether
a reasonable person in the defendant’s position would have recognized the obvious risk. Id. But
Westmoreland never required the plaintiff to present evidence to allow “a reasonable juror [to]
conclude that officials knew about those dangers” or considered whether the individual
defendant’s subjective “concerns” about the potential risk had been “allayed,” which
Buetenmiller did. Buetenmiller, 53 F.4th at 945–46. Asking whether an “official[] knew about
9A few examples provided by the Ninth Circuit further illustrate this. If a plaintiff brought a claim that
they were housed with a dangerous cellmate, “the inquiry at this step would be whether the placement decision was
intentional.” Castro, 833 F.3d at 1070. Alternatively, “if the claim relates to inadequate monitoring of the cell, the
inquiry would be whether the officer chose the monitoring practices rather than, for example, having just suffered an
accident or sudden illness that rendered him unconscious and thus unable to monitor the cell.” Id.
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th[e] danger[]” is precisely what Brawner held was no longer required under the Fourteenth
Amendment. See Helphenstine, 60 F.4th at 316–17 (holding that requiring the defendant to have
known of the risk was “irreconcilable with Brawner”). So, indeed, Buetenmiller is the outlier.
The majority also makes much of the fact that Westmoreland described the intentional-act
requirement as part of the “objective” component of the test. Westmoreland, 29 F.4th at 729.
According to the majority, because the intentional-act requirement is labeled as “objective,” it is
immune from criticism because Brawner did not modify the “objective” portion of the test. That
is wrong. A panel cannot revive the precise knowledge-of-the-risk requirement that Brawner
rejected by simply adding it to the “objective” prong of the analysis. Regardless of where the
knowledge-of-the-risk requirement is placed, it is the precise element that Brawner rejected.
This “objective” versus “subjective” argument portends a recurring problem with the
majority’s argument. The majority places great weight on these terms, to which the majority
ascribes different definitions as necessary to advance its arguments, without considering the
content of the purportedly “objective” or “subjective” requirements.
In the end, there is nothing about this case that makes it exceptional enough to excuse the
County’s multiple forfeitures. Therefore, the en banc majority should have adhered to the party
presentation-principle here and not reached out to decide an issue neither party raised or
addressed until the en banc majority intervened.
B. Fourteenth Amendment Deliberate-Indifference Standard
On the merits, the Supreme Court has not directly addressed what standard governs
Fourteenth Amendment deliberate-indifference claims. See, e.g., City of Canton v. Harris, 489
U.S. 378, 388 n.8 (1989). It has, however, provided relevant guidance. First, in Bell v. Wolfish,
the Court evaluated various conditions of confinement that were challenged by pretrial detainees
under the Fourteenth Amendment. 441 U.S. 520, 523 (1979). The Court held that because “a
detainee may not be punished prior to an adjudication of guilt in accordance with due process of
law,” if a condition of confinement does not advance a legitimate government interest, it violates
the Due Process Clause. Id. at 535–39. Bell, therefore, created a test to analyze whether a
condition of confinement violated the Fourteenth Amendment’s Due Process Clause that did not
No. 25-5188 Poynter v. Shirley, et al. Page 40
require proof of a subjective intent to punish, so the Court analyzed the conditions of
confinement challenged by the plaintiffs, such as a policy of double bunking detainees, using
purely objective evidence. Id. at 541–43.
In reaching this holding, the Supreme Court rejected the Second Circuit’s test that
required the government to justify conditions of confinement by a compelling necessity, which it
had derived primarily from the presumption of innocence. Id. at 532–34. The Supreme Court
rejected the Second Circuit’s reliance on the presumption of innocence as the “source of the
detainee’s substantive right to be free from conditions of confinement that are not justified by
compelling necessity,” and held that the presumption of innocence “has no application to a
determination of the rights of a pretrial detainee during confinement before his trial has even
begun.” Id. at 532–33. But that did not mean that the status of pretrial detainees had no
relevance in determining what conditions they could be subjected to. The Court instead held that
the pretrial detainees’ rights derived from their right to be free from any punishment under the
Fourteenth Amendment’s Due Process Clause and then contrasted it with the right to be free
from cruel and unusual punishment under the Eighth Amendment. Id. at 534; see also id. at 535
n.16 (explaining that the Second Circuit “properly relied on the Due Process Clause rather than
the Eighth Amendment in considering the claims of pretrial detainees” because “[d]ue process
requires that a pretrial detainee not be punished” but “[a] sentenced inmate . . . may be punished,
although that punishment may not be ‘cruel and unusual’ under the Eighth Amendment”).
Next, in Farmer, the Court held that to establish a deliberate-indifference claim under the
Eighth Amendment, a plaintiff must show that the prison “official knows of and disregards an
excessive risk to inmate health or safety.” 511 U.S. at 837. The Court explicitly tied that test to
the text of the Eighth Amendment. Id. It explained that the criminal-recklessness standard
“comports best with the text of the [Eighth] Amendment” since “an official’s failure to alleviate
a significant risk that he should have perceived but did not . . . cannot . . . be condemned as the
infliction of punishment” in violation of the Eighth Amendment’s prohibition on “cruel and
unusual punishments.” Id. at 837–38.
The Court provided further guidance on the difference between claims brought under the
Eighth and Fourteenth Amendments in Kingsley. There, the Court held that to establish an
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excessive-force claim under the Fourteenth Amendment, a pretrial detainee “must show only that
the force purposely or knowingly used against him was objectively unreasonable.” Kingsley,
576 U.S. at 396–97. The Court explained that “there are, in a sense, two separate state-of-mind
questions” in such cases. Id. at 395. “The first concerns the defendant’s state of mind with
respect to his physical acts—i.e., . . . with respect to the bringing about of certain physical
consequences in the world. The second . . . concerns the defendant’s state of mind with respect
to whether his use of force was ‘excessive.’” Id.10 As to the first, the Court explained that “the
defendant must possess a purposeful, a knowing, or possibly a reckless state of mind” because
“liability for negligently inflicted harm is categorically beneath the threshold of constitutional
due process.” Id. at 396 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).
“Thus, if an officer’s Taser goes off by accident or if an officer unintentionally trips and falls on
a detainee, . . . the pretrial detainee cannot prevail on an excessive force claim” because they will
not satisfy the first prong. Id.
But, as to the second state-of-mind requirement, the Court held that defendants can
violate the Fourteenth Amendment without any showing of intent, even though intent to cause
harm is required for excessive-force claims under the Eighth Amendment. Id. at 397–98. This
conclusion was “consistent with [the Court’s] precedent,” such as Bell. Id. at 397. The Court
explained that “Bell’s focus on ‘punishment’ does not mean that proof of intent (or motive) to
punish is required for a pretrial detainee to prevail on a claim that his due process rights were
violated.” Id. at 398. Instead, “as Bell itself shows . . . , a pretrial detainee can prevail by
providing only objective evidence that the challenged governmental action is not rationally
related to a legitimate governmental objective or that it is excessive in relation to that purpose.”
Id.
10In an effort to show that the Court explicitly limited Kingsley to the excessive-force context, the majority
quotes the Court’s statement that it is “with respect to this question . . . that we hold that courts must use an
objective standard.” Majority Op. at 23 (quoting Kingsley, 576 U.S. at 396). But, when read in context of the
opinion, this statement was meant to make clear that the Court addressed only the second prong of the two-prong
test. Kingsley, 576 U.S. at 395–96. The opinion’s context supports this reading because the statement immediately
followed the Court’s discussion of the first prong of the analysis. Id. The majority nevertheless asserts that this
reading is “exceedingly cramped.” Majority Op. at 23. If the majority believes that reading the Court’s statements
in context is erroneous, then I am willing to commit such an “error.”
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The Court rejected the argument that it should rely on the standard from cases “brought
by convicted prisoners under the Eighth Amendment’s Cruel and Unusual Punishment Clause”
to craft the test for the Fourteenth Amendment’s Due Process Clause. Id. at 400. The Court
viewed those cases as inapposite because “[t]he language of the two Clauses differs . . . [a]nd,
most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much
less ‘maliciously and sadistically.’” Id. (quoting Ingraham v. Wright, 430 U.S. 651, 671–72, 671
n.40 (1977)). Therefore, in Fourteenth Amendment cases, “there is no need . . . , as there might
be in an Eighth Amendment case, to determine when punishment is unconstitutional.” Id. at 401.
Kingsley’s rejection of Eighth Amendment precedent made clear that the Court
“disapprove[s] [of] the uncritical extension of Eighth Amendment jurisprudence to” the
Fourteenth Amendment’s Due Process Clause. Miranda v. County of Lake, 900 F.3d 335, 351
(7th Cir. 2018). Kingsley “signal[ed] that courts must pay careful attention to the different status
of pretrial detainees” when crafting a standard for liability because it “cautioned that the Eighth
Amendment and Due Process analyses are not coextensive.” Id. at 352. Kingsley also made
“plain that punishment has no place in defining the mens rea element of a pretrial detainee’s
claim under the Due Process Clause.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).
Instead, courts may consider whether the government action is rationally related to a legitimate
government objective, among other inquiries, to determine if the Due Process Clause was
violated. Kingsley, 576 U.S. at 398.
Kingsley also used “broad wording” and general reasoning that was not confined to
excessive force. Castro, 833 F.3d at 1070; accord Short v. Hartman, 87 F.4th 593, 609 (4th Cir.
2023). The Court spoke “broad[ly]” of “challenged governmental action,” rather than merely
excessive force, in explaining its holding. Castro, 833 F.3d at 1070 (quoting Kingsley, 576 U.S.
at 398); accord Short, 87 F.4th at 609. For example, the Court stated that “a pretrial detainee can
prevail by providing only objective evidence that the challenged governmental action is not
rationally related to a legitimate governmental objective or that it is excessive in relation to that
purpose.” Kingsley, 576 U.S. at 398. And rather than exclusively drawing upon excessive-force
cases, the Court cited Bell and other cases that evaluated various conditions imposed on pretrial
detainees: Block v. Rutherford, 468 U.S. 576 (1984) (denial of contact visitation and shakedown
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searches); Schall v. Martin, 467 U.S. 253 (1984) (juvenile-pretrial-detention scheme); and
United States v. Salerno, 481 U.S. 739 (1987) (Bail Reform Act of 1984). Kingsley, 576 U.S. at
398.
Thus, “Kingsley did not decree on a whim that we must use an objective [reasonableness]
test for excessive force claims.” Short, 87 F.4th at 610. Instead, Kingsley reached that
conclusion “because ‘[the Court’s] precedent’ (above all, Bell) already recognizes that a pretrial
detainee may state a due process claim against ‘a variety of prison conditions’ by an ‘objective
standard’” that does not inquire into the defendant’s subjective knowledge or intent to punish.
Id. (quoting Kingsley, 576 U.S. at 397–98). The majority believes that Kingsley’s failure to
discuss Farmer is “telling” that Kingsley was confined to excessive-force claims. Majority Op.
at 22. But I see no reason why the Court would have cited Farmer in Kingsley. Farmer is an
Eighth Amendment case, and the Kingsley Court—addressing a Fourteenth Amendment claim—
explicitly declined to rely on Eighth Amendment cases because “[t]he language of the two
Clauses differs . . . [a]nd, most importantly, pretrial detainees (unlike convicted prisoners) cannot
be punished at all, much less ‘maliciously and sadistically.’” Kingsley, 576 U.S. at 400 (quoting
Ingraham, 430 U.S. at 671–72, 671 n.40).
Kingsley’s reasoning is therefore directly applicable to Fourteenth Amendment
deliberate-indifference claims. In Fourteenth Amendment excessive-force cases and
deliberate-indifference cases, “[t]he underlying federal right, as well as the nature of the harm
suffered, is the same . . . . Both categories of claims arise under the Fourteenth Amendment’s
Due Process Clause, rather than under the Eighth Amendment’s Cruel and Unusual Punishment
Clause.” Castro, 833 F.3d at 1069–70. Both claims derive from the Due Process Clause’s
prohibition on deprivations of liberty without due process. Bell, 441 U.S. at 535; Graham v.
Connor, 490 U.S. 386, 395 n.10 (1989); Youngberg, 457 U.S. at 315, 320–22. Additionally,
“[e]xcessive force applied directly by an individual jailer and force applied by a fellow inmate
can cause the same injuries, both physical and constitutional,” and “[j]ailers have a duty to
protect pretrial detainees from violence at the hands of other [incarcerated persons], just as they
have a duty to use only appropriate force themselves.” Castro, 833 F.3d at 1070. Indeed, we
have recognized that it can be difficult to distinguish between an excessive-force claim and a
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conditions-of-confinement claim because a single set of facts could serve as the basis of both
claims, further suggesting that the source of the right, rather than the type of harm claimed,
should govern the analysis. Moderwell v. Cuyahoga County, 997 F.3d 653, 662–63 (6th Cir.
2021) (noting that “claims of excessive force do not necessarily require allegations of assault, but
rather can consist of the physical structure and conditions of the place of detention” and
approvingly noting that the “[p]laintiff’s deliberate indifference claims . . . rely on the same
factual predicate as the excessive force claims” (citation modified)). There is simply “nothing in
the logic the Supreme Court used in Kingsley that would support . . . dissection of the different
types of claims that arise under the Fourteenth Amendment’s Due Process Clause.” Miranda,
900 F.3d at 352.11
Additionally, like in Kingsley, the civil-recklessness standard is consistent with related
bodies of jurisprudence. Kingsley, 576 U.S. at 399 (noting that the objective-reasonableness
“standard is also consistent with” excessive-force claims brought under the Fourth Amendment
by plaintiffs not convicted of a crime). For example, the Court analyzes conditions-of-
confinement claims, of which deliberate-indifference claims are a sub-species, Wilson v. Seiter,
501 U.S. 294, 302–04 (1991), under a test that does not consider the defendant’s intent, Bell, 441
U.S. at 535–43. The Court has also applied a standard that does not consider the defendant’s
intent to determine whether the Bail Reform Act and a juvenile-detention scheme violated due
process. Salerno, 481 U.S. at 747–48; Schall, 467 U.S. at 269–71. The Court did the same when
it evaluated the lack of safety to which a civilly committed plaintiff was subjected. Youngberg,
457 U.S. at 320–23. In fact, at oral argument when the County’s counsel was asked if he could
11The majority objects to this because under the Eighth Amendment, excessive-force claims and
deliberate-indifference claims are evaluated under different tests. Majority Op. at 23, 26. The difference between
the Eighth Amendment tests for those claims, however, is that excessive-force claims require a higher mens rea
(malicious and sadistic use of force) than deliberate-indifference claims (knowledge of the risk). Whitley v. Albers,
475 U.S. 312, 320–21 (1986); Farmer, 511 U.S. at 837. And from that premise, the majority suggests that
excessive-force and deliberate-indifference claims under the Fourteenth Amendment should likewise apply different
tests, Majority Op. at 23, 26, to mirror the approach under the Eighth Amendment, presumably with a higher mens-
rea requirement for excessive-force claims than deliberate-indifference claims. That is not possible in the
Fourteenth Amendment setting, however, because the test for excessive-force claims under Kingsley hovers above
the standard for negligence by requiring an intentional act. Kingsley, 576 U.S. at 395–96. Lowering the Kingsley
standard for deliberate-indifference claims by eliminating the intentional-act requirement would therefore create
liability for mere negligence, which is prohibited under the Due Process Clause. Id. Therefore, it is not possible to
lower the Kinglsey standard by removing the intentional-act requirement for deliberate-indifference claims.
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identify any due-process claims that involve a similar inquiry into the defendant’s subjective
knowledge of the risk or intent to punish, he could not. See Oral Arg. at 29:20–30:47.
The majority responds that, in fact, Kingsley contains a subjective test—but that inquiry
(which the Brawner framework retained) asks only whether the physical action taken was
intentional rather than accidental, not whether the defendant had subjective knowledge of the risk
or intent to punish. Kingsley, 576 U.S. at 395–96. Obviously, that someone acts intentionally
does not mean that they subjectively know of the risk or intend to punish—so Kingsley does not
solve this problem. And the majority’s use of subjective to describe the intentional-act
requirement is part of majority’s clouding of the meaning of those terms. It is directly at odds
with the majority’s contention that the civil-recklessness standard (which also includes an
intentional-act requirement) is purely objective and the majority’s description of the intentional-
act requirement elsewhere as objective. The majority cannot have it both ways and treat
objective and subjective as linguistic chameleons that change meaning as needed to support its
arguments—either the intentional-act requirement is subjective or it is objective.
The majority also contends that unlike excessive force, where “parallel protection” from
the Fourth Amendment mandates an objective-reasonableness inquiry, “the parallel provision for
conditions-of-confinement deliberate-indifference claims, the Eighth Amendment, dictates more
than an objective inquiry.” Majority Op. at 21. But Kingsley rejected that exact reasoning. The
Court acknowledged and explicitly refused to rely on the standard for “excessive force claims
brought by convicted prisoners under the Eighth Amendment’s Cruel and Unusual Punishment
Clause” because of the inherent differences between that Clause and the Fourteenth Amendment.
Kingsley, 576 U.S. at 400.
My conclusion that the civil-recklessness standard applies to Fourteenth Amendment
claims is consistent with the Second, Fourth, Seventh, and Ninth Circuits. Short, 87 F.4th at 611;
Miranda, 900 F.3d at 353–54; Darnell, 849 F.3d at 34–35; Castro, 833 F.3d at 1068–73. On the
other side of the scale, only the Tenth Circuit has reached the opposite conclusion on the merits.
Strain v. Regalado, 977 F.3d 984, 991 (10th Cir. 2020). The majority cites cases from the Fifth,
Eighth, and Eleventh Circuits to make the split appear more even. Majority Op. at 6. But those
cases have, at most, a few sentences of reasoning and held (in footnotes) only that Kingsley “did
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not abrogate” their published precedent because it addressed “a different type of constitutional
claim.” Cope v. Cogdill, 3 F.4th 198, 207 n.7 (5th Cir. 2021); see Whitney v. City of St. Louis,
887 F.3d 857, 860 n.4 (8th Cir. 2018); Dang ex rel. Dang v. Sheriff, Seminole Cnty., 871 F.3d
1272, 1279 n.2 (11th Cir. 2017). Given our en banc posture, those cases are of little help.
In the end, “Kingsley is clear”: there are important differences between the Eighth and
Fourteenth Amendments. Short, 87 F.4th at 608–09. Critically, the texts of the Amendments
differ, and as a result “there is no need [under the Fourteenth Amendment], as there might be in
an Eighth Amendment case, to determine when punishment is unconstitutional.” Kingsley, 576
U.S. at 401. To reflect that, the standards for liability under the Eighth and Fourteenth
Amendments must be different. Short, 87 F.4th at 609. Therefore, applying the civil-
recklessness standard is “[t]he only way to respect the distinction Kingsley drew between the
Eighth and Fourteenth Amendments.” Id. at 610.
C. Counter Arguments
The majority presents several arguments as to why the Farmer criminal-recklessness
standard should control, but none of them persuade. First, the majority contends that the text of
the Fourteenth Amendment’s Due Process Clause supports its conclusion that Farmer’s standard
governs. Majority Op. at 11–12. Specifically, the majority reasons that the Clause’s use of
“[t]he word ‘deprive’ signals a ‘deliberate decision[]’ by a government official.” Id. at 11
(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). But that does not get the majority
where it needs to go. Brawner required the defendant to act or fail to act intentionally, so it too
complies with the deliberate-decision requirement. 14 F.4th at 596–97. After all, in common
usage, one can deliberately “deprive” another of something without knowing the risk of that
decision to deprive. The majority overlooks this distinction and instead makes an unexplained,
and unsupported, logical leap from the fact that the defendant must deprive a person of their
liberty to requiring the defendant to be subjectively aware that they are depriving a person of
their liberty. Majority Op. at 27.
Poynter challenges the County’s deliberate decisions here: its decision (based on its
custom) to classify detained persons based only on their charges and behavior during arrest,
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omitting consideration of institutional histories of violence, and its decision (based on its custom)
to place detained persons with histories of violence in general-population cells where they could
attack other detained persons. True, the County itself did not attack Poynter or even want Guess
and Wix to attack him. But the majority’s criminal-recklessness test does not require that
either—so that must not matter. What work does the deliberate-decision requirement do then? It
means that mere negligence does not violate the Due Process Clause. Daniels, 474 U.S. at 330–
31 (holding that because “the word ‘deprive’ in the Due Process Clause connote[s] more than a
negligent act,” the Due Process Clause is not violated by a “mere lack of due care by a state
official”). All agree on this point, so the majority’s reliance on “deliberate” runs aground.
The majority next asserts that “Bell . . . counseled that conditions-of-confinement claims
should not turn on the status of the prisoner.” Majority Op. at 24. But, as already explained, that
is wrong. True, Bell rejected the Second Circuit’s reliance on the presumption of innocence as
the “source of the detainee’s substantive right,” but that did not mean that the status of pretrial
detainees had no relevance in determining what conditions they could be subjected to. 441 U.S.
at 532–33. The Court explained that pretrial detainees’ rights derived from their right to be free
from any punishment under the Fourteenth Amendment’s Due Process Clause and then
contrasted that with the right to be free from cruel and unusual punishment under the Eighth
Amendment. Id. at 534; 535 n.16. There would have been no reason for the Court to contrast
the rights in this way if a detained person’s status was irrelevant.
Additionally, that view cannot be reconciled with subsequent caselaw that treats
conditions-of-confinement claims differently depending on the plaintiff’s status as a pretrial
detainee or convicted prisoner. In Wilson the Supreme Court considered the appropriate mens-
rea requirement for Eighth Amendment conditions-of-confinement claims. 501 U.S. at 296.
Instead of relying on Bell, the Court concluded that the deliberate-indifference test from Estelle
v. Gamble, 429 U.S. 97 (1976), an Eighth Amendment case, was the appropriate standard. Id. at
303. If conditions-of-confinement claims do not turn on the status of the detained person,
Majority Op. at 24, then surely the Court in Wilson would have applied the Bell standard to the
Eighth Amendment. We have also evaluated conditions-of-confinement claims differently
depending on whether they arise under the Eighth or Fourteenth Amendments, which of course
No. 25-5188 Poynter v. Shirley, et al. Page 48
turns on the status of the detained person. Under the Eighth Amendment, we require plaintiffs to
prove that the defendants knew that the condition created a sufficiently serious risk of harm.
Pearson v. Michigan Dep’t of Corr., 170 F.4th 1027, 1041 (6th Cir. 2026); Rafferty v. Trumbull
County, 915 F.3d 1087, 1095 (6th Cir. 2019); Flanory v. Bonn, 604 F.3d 249, 254–55 (6th Cir.
2010). In contrast, when we evaluate a conditions-of-confinement claim under the Fourteenth
Amendment, we apply Bell’s test and do not require the defendant to subjectively intend to
punish or know of the risk. J.H. v. Williamson County, 951 F.3d 709, 717–19 (6th Cir. 2020).
How this could be true if “Bell itself counseled that conditions-of-confinement claims should not
turn on the status of the prisoner,” Majority Op. at 24, is anyone’s guess.
The majority also asserts that my reading of Kingsley and the civil-recklessness test is in
tension with “the jurisprudential trend” moving away from “recognizing new” substantive-due-
process rights. Majority Op. at 22. That is a bit of a head scratcher. The civil-recklessness test
does not create a new substantive-due-process right. In fact, all agree that the Supreme Court has
already recognized that pretrial detainees have a right to be free from punishment. Id. at 14. The
question here is only what test detained persons must satisfy to show that the right was violated.
“[T]here is a sharp distinction between the existence of a . . . right . . . and how to vindicate that
right.” City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 213 (2005) (first alteration
in original) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 199 F.R.D. 61, 90
(N.D.N.Y. 2000)).
In response, the majority asserts that the “bounds” of a right turn on “the applicable test
for determining whether the right has been infringed.” Majority Op. at 22–23. For starters, the
majority has it backwards. Rights help inform tests, not the other way around. As the Court has
clearly explained, when defining the elements of a § 1983 claim, courts begin by “‘identify[ing]
the specific constitutional right’ at issue.” Manuel v. City of Joliet, 580 U.S. 357, 370 (2017)
(quoting Albright v. Oliver, 510 U.S. 266, 271 (1994)). The right, in turn, informs the relevant
test. Id. (explaining that “courts must closely attend to the values and purposes of the
constitutional right at issue” when defining the elements of a § 1983 claim). The Court,
moreover, has consistently distinguished the right undergirding a § 1983 claim from the claim’s
elements in this fashion. See, e.g., id.; Chiaverini v. City of Napoleon, 602 U.S. 556, 561–62
No. 25-5188 Poynter v. Shirley, et al. Page 49
(2024) (recognizing that § 1983 claims are “of course premised on a constitutional violation,”
but distinguishing the right at issue from the claim’s “elements and rules,” which “may also be
shaped by common-law tort principles” “to the extent” that they accord with the right’s “values
and purposes” (citation modified)); Thompson v. Clark, 596 U.S. 36, 43 (2022) (same). We have
drawn this very distinction, too. See, e.g., King v. Harwood, 852 F.3d 568, 580 n.4 (6th Cir.
2017). Consequently, recognizing that the civil-recklessness standard applies to deliberate-
indifference claims vivified by the Due Process Clause does not entail the creation of a new
right.
The sources cited by the majority do not demonstrate that rights are coterminous with
tests, such that altering a test necessarily alters the associated right. Straining to support its
position, the majority cites County of Sacramento v. Lewis, a law review article, and Dobbs v.
Jackson Women’s Health Organization, 597 U.S. 215 (2022). To begin, it is altogether unclear
how Lewis supports the majority. Majority Op. at 23 (citing Lewis, 523 U.S. at 852–54). The
majority claims that Lewis applies different “frameworks to substantive-due-process claims
arising from different factual scenarios despite the fact that the underlying right is the same.” Id.
(emphasis added). It cannot both be true that the Court can alter tests while keeping “the
underlying right . . . the same” and that “easing the manner in which one may prove a deliberate-
indifference substantive-due process claim naturally expands our understanding of the right
protected.” Majority Op. at 23. How the majority reconciles these Janus-faced propositions is
anyone’s guess.
The law review article that the majority cites, moreover, does not suggest that tests shape
the contents of rights. In fact, it explicitly recognizes not only that rights and tests are distinct,
but also that courts can create tests that over- or under-enforce rights. Richard H. Fallon, Jr.,
Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 57, 60 (1997) (articulating “the
thesis that a gap frequently, often necessarily exists between the meaning of constitutional norms
and the tests by which those norms are implemented); id. at 61 (explaining that the relationship
between rights and tests “frequently is not and sometimes could not be one of identity”); id. at 63
(describing how the Court has crafted prophylactic tests to “ensure ‘breathing space’ for First
Amendment freedoms” (citation modified)).
No. 25-5188 Poynter v. Shirley, et al. Page 50
And finally, the majority’s account of Dobbs is, again, backwards. The Court did not
alter the status of the right to elect an abortion by subjecting abortion restrictions to rational-basis
review: it applied rational-basis review to an abortion restriction because it held that the right to
elect an abortion is not fundamental. Dobbs, 597 U.S. at 240, 300–02. To the extent that the
majority intends to claim that the right at issue drives the applicable test (here, the elements of a
Fourteenth Amendment deliberate-indifference claim brought pursuant to § 1983), I agree. But
the majority simply does not respect the profound differences between the Eighth and Fourteenth
Amendments. Indeed, the majority next contends that because the right at issue in Fourteenth
Amendment deliberate-indifference cases is the right to be free from punishment, we must apply
the Farmer test to determine whether jail officials punished the detained person. Majority Op. at
12–14, 20–21. According to the majority, for a jail official to punish a detained person, they
must intend to punish them. And because deliberate-indifference claims involve inaction, the
argument goes, unless courts require the plaintiff to prove that the defendant knew about the
substantial risk the plaintiff faced, courts cannot determine whether the defendant had an intent
to punish. There are several issues with this argument.
The first is that it is hard to square with the majority’s admonition that we must start with
the text of the Constitution. Majority Op. at 11. Farmer adopted the criminal-recklessness
standard for Eighth Amendment claims because it “comports best with the text of the [Eighth]
Amendment,” which prohibits “cruel and unusual ‘punishments.’” 511 U.S. at 837. But the text
of the Fourteenth Amendment’s Due Process Clause, unlike the Eighth Amendment, does not
prohibit “cruel and unusual” punishment. Instead, as the majority agrees, the Fourteenth
Amendment’s prohibition on deprivations of “liberty” without due process prevents jail officials
from punishing detained persons at all, not only cruelly and unusually.12 See Kingsley, 576 U.S.
at 400 (“The language of the [Eighth and Fourteenth Amendment] Clauses differs . . . [a]nd,
most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all. . . .”).
Despite this, the majority believes that Farmer’s Eighth Amendment test applies to Fourteenth
Amendment claims because it is necessary to show that a detained person was punished. But
12I acknowledge that “punishment” is not in the text of the Fourteenth Amendment, but, as the majority
agrees, the Supreme Court has read the Clause’s prohibition on deprivations of liberty without due process to
encompass the right to be free from punishment. See Majority Op. at 12.
No. 25-5188 Poynter v. Shirley, et al. Page 51
that cannot be right. Applying the Farmer test to both the Fourteenth and Eighth Amendments
either reads “cruel and unusual” out of the Eighth Amendment or reads “cruel and unusual” into
the Fourteenth Amendment.
The majority responds that under Farmer, “subjective knowledge . . . informs whether
punishment occurred at all, not whether the punishment was cruel and unusual.” Majority Op. at
26. As I explain, that is erroneous. But even accepting that as true for the sake of argument, the
majority still fails to clarify what aspect of the Farmer test isolates liability for only cruel and
unusual punishment, rather than merely punishment. It cannot be the unjustifiably high risk of
harm the plaintiff faces because the majority retains that aspect of the Farmer test for claims
under the Fourteenth Amendment, which prohibits any punishment. I am therefore still left to
wonder how the majority accounts for the total absence of the phrase “cruel and unusual” in the
Due Process Clause.13
The second issue with the majority’s argument is that the Court has held that a plaintiff
can establish that they were punished in violation of the Due Process Clause without showing an
intent to punish. Kingsley, 576 U.S. at 398–99. In evaluating conditions-of-confinement claims,
the Court has applied an “objective standard” and looked to “objective evidence,” not “the prison
officials’ subjective beliefs about the policy” or intent to punish, to determine if a condition
violated the Due Process Clause. Id. at 398; see Bell, 441 U.S. at 541–43. Indeed, the Court has
told us that “Bell’s focus on ‘punishment’ does not mean that proof of intent (or motive) to
punish is required for a pretrial detainee to prevail on a claim that his due process rights were
violated.” Kingsley, 576 U.S. at 398.
13In response, the majority retreats to language from Farmer, which it claims defines what can and
“cannot . . . be condemned as the infliction of punishment.” Majority Op. at 26. In other words, the majority reads
this language into the Fourteenth Amendment context because the Court used the word “punishment,” not the phrase
“cruel and unusual punishment.” But this reading commits the cardinal sin of “pars[ing]” “[t]he language of an
opinion . . . as though we were dealing with language of a statute.” Nat’l Pork Producers Council v. Ross, 598 U.S.
356, 373 (2023) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). The Court has “emphasize[d],”
however, that its “opinions dispose of discrete cases and controversies and they must be read with a careful eye to
context.” Id. at 373–74. “The language [the majority] highlight[s] appeared in a particular context and did
particular work.” Id. at 374. Farmer was an Eighth Amendment case, and defined the term punishment in light of
the fact that the Amendment “outlaws cruel and unusual ‘punishments.’” 511 U.S. at 837.
No. 25-5188 Poynter v. Shirley, et al. Page 52
Even so, the majority asserts that Kingsley’s citation of Daniels proves that even Kingsley
retained a subjective-intent requirement. Majority Op. at 25. According to the majority, Daniels
held that a pretrial detainee was required to plead that jail officials left a pillow “on the stairs
with the intention of harming him.” Id. (quoting Daniels, 474 U.S. at 334). This is a somewhat
baffling misreading of Daniels. There, the plaintiff argued in favor of a negligence standard and
claimed that a higher mens rea requirement would prove unworkable, as he could have simply
“alleged that the pillow was left on the stairs with the intention of harming him.” Daniels, 474
U.S. at 334. The Court rejected that argument and, in doing so, never held that the plaintiff had
to plead that jail officials intended to harm him. To the contrary, the Court explicitly noted that:
“[d]espite his claim about what he might have pleaded, [the plaintiff] concedes that [the
defendant] was at most negligent. Accordingly, this case affords us no occasion to consider
whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is
enough to trigger the protections of the Due Process Clause.” Id. at 334 n.3.
Returning to Poynter, Kingsley’s discussion of Bell matters because “the protection [an
incarcerated person] is afforded against other inmates” and “the medical care a prisoner
receives” are “‘condition[s]’ of his confinement,” and thus the same standard that governs
conditions-of-confinement claims applies to Poynter’s claim that the County’s classification
customs placed him at a substantial risk of harm from Guess and Wix. Wilson, 501 U.S. at 303.
Consequently, Bell’s holding that plaintiffs asserting conditions-of-confinement claims can
establish that the government violated due process without proving the defendant had a
subjective intent to punish should apply equally to plaintiffs asserting deliberate-indifference
claims. That makes especially good sense here because Poynter challenges the County’s
classification custom itself—its custom of classifying and housing detained persons by
considering only their charges and behavior during booking, not their institutional histories.
There is no reason to think that, if the policy of double bunking in Bell can be evaluated without
looking to the defendant’s subjective intent to punish, Poynter’s challenge to the County’s
classification custom cannot be. It is hard to see why one could not infer an intent to punish
from a classification custom but could infer such an intent from a policy of double bunking in
Bell.
No. 25-5188 Poynter v. Shirley, et al. Page 53
The majority’s response is that deliberate-indifference claims involve inaction whereas
conditions-of-confinement claims involve affirmative action. Majority Op. at 21. But, again,
Poynter challenges the County’s classification custom itself, even though he challenges it as
insufficient because it failed to consider institutional history. The decision to consider certain
factors in the classification analysis but not others is undoubtedly an intentional one.
Additionally, the line between action and inaction can be blurry and a function of
characterization. Koulta v. Merciez, 477 F.3d 442, 445–46 (6th Cir. 2007) (discussing how,
because “it is sometimes difficult to distinguish action from inaction,” we ask “whether [the
victim] was safer before the state action than he was after it,” “[r]ather than focusing on the often
metaphysical question of whether officer behavior amounts to affirmative conduct or not,” to
determine if there was a violation of due process (first alteration in original) (quoting Cartwright
v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003))).
Even if one construes Poynter’s claim as exclusively about inaction, Kingsley gave no
indication that its reasoning would not apply equally to inaction when the defendant has a duty to
act. And contrary to the majority’s assertion, Majority Op. at 20, Kingsley’s reasoning was not
premised on the idea that punitive intent could be inferred from the affirmative act of applying
force that is excessive. The Court’s opinion never once mentioned that the application of force
allows for such an inference. See Kingsley, 576 U.S. at 391–404. And if an intent to punish can
be inferred from the application of force alone in excessive-force cases, then why would the
Eighth Amendment inquiry also require a showing “that officials applied force ‘maliciously and
sadistically for the very purpose of causing harm?’” Farmer, 511 U.S. at 835 (quoting Hudson v.
McMillian, 503 U.S. 1, 6 (1992)).
Even assuming that Kingsley was premised on the idea that punitive intent could be
inferred from the application of force, Bell makes clear that such an inference can be drawn from
conditions of confinement. 441 U.S. at 535–39. I see no reason why punitive intent cannot be
inferred from Brawner’s civil-recklessness standard if it can be inferred from conditions of
confinement. Civil recklessness exists when a person “acts or (if the person has a duty to act)
fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that
it should be known.” Farmer, 511 U.S. at 836. Our caselaw applying this standard required that
No. 25-5188 Poynter v. Shirley, et al. Page 54
the defendants be exposed to the facts which create an unjustifiably high risk of harm, because
we asked whether a reasonable person in the defendant’s position would have known of the risk.
See Greene v. Crawford County, 22 F.4th 593, 609–14 (6th Cir. 2022); Poynter, 162 F.4th at 680
(discussing how the County “had all the relevant information about Guess’s and Wix’s violent
pasts”). Therefore, if an official was exposed to the facts which create an unjustifiably high risk
of harm, it is equally fair to infer an intent to punish as it is to infer that intent from imposing a
condition of confinement that is not “rationally related to a legitimate nonpunitive governmental
purpose.” Kingsley, 576 U.S. at 398 (quoting Bell, 441 U.S. at 561). There is, after all, “no
legitimate nonpunitive goal . . . served by” placing a detained person at an unjustifiably high risk
of harm. Swink v. S. Health Partners Inc., 160 F.4th 438, 451 (4th Cir. 2025) (quoting Short, 87
F.4th at 606), petition for cert. filed, (U.S. Mar. 13, 2026) (No. 25-1091).
The majority contends that under Bell we can infer punitive intent from the
implementation of a condition of confinement that does not advance a legitimate government
interest because there is no other reason to impose the condition. Majority Op. at 24. But a
prison official may implement a condition for various reasons even if a court eventually
determines that it does not advance a legitimate government interest. For one, the official could
themself subjectively believe that the condition did in fact advance a legitimate interest even
though a court disagrees. Or the official could implement the condition because it makes their
job easier with their limited resources even though a court eventually determines that the
negative tradeoffs of the choice mean that it does not actually advance a legitimate government
interest. Under Bell, we can infer punitive intent from conditions of confinement without ruling
out other potential explanations such as those. Therefore, the inference from a condition of
confinement sheds no more light on punitive intent than the civil-recklessness standard. Punitive
intent might not be the only inference one can draw from an official subjecting a detained person
to an unjustifiably high risk of harm even though the official was exposed to the information that
would inform a reasonable person of the risk, Farmer, 511 U.S. at 836; Greene, 22 F.4th at 609–
14, but it is certainly one of the compelling inferences that can be drawn. Bell teaches that is all
that is required.
No. 25-5188 Poynter v. Shirley, et al. Page 55
The third issue with the majority’s argument that punitive intent is necessary to establish
that Poynter was punished in violation of the Fourteenth Amendment is that it overlooks that
Poynter had a right to personal security as a civil detainee, which the Court established in
Youngberg. In Youngberg, the plaintiff was civilly detained in a state institution. 457 U.S. at
309. He “was injured on numerous occasions” by himself and others and brought suit alleging
that, among other things, the defendants’ failure to prevent such injuries violated the Fourteenth
Amendment’s Due Process Clause. Id. at 310. The Court held that the plaintiff had “a
constitutionally protected liberty interest in safety” and that “the right to personal security
constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause,” which
“is not extinguished by lawful confinement, even for penal purposes” or by “involuntary
commitment proceedings.” Id. at 315–16 (quoting Ingraham, 430 U.S. at 673).
Poynter, too, was detained under civil authority. Just like the plaintiff in Youngberg,
Poynter had his liberty restrained in a state facility following civil proceedings that were not a
part of the criminal-justice process. Therefore, Poynter’s Due Process rights derive not only
from his right to be free from punishment, but also from his right to physical safety while
detained by the state pursuant to civil proceedings, as recognized by the Supreme Court in
Youngberg. See Benjamin v. Fraser, 343 F.3d 35, 50 (2d Cir. 2003), overruled on other grounds
by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009). The majority contends that Youngberg’s
viability is “questionable” because it has been undermined by subsequent cases, including
Farmer.14 Majority Op. at 19. Even assuming that is true, the Supreme Court has reminded us
time and time again that “lower courts [are] bound by even [the Court’s] crumbling precedents.”
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 406 (2024); see also Bosse v. Oklahoma, 580
U.S. 1, 3 (2016) (per curiam) (“Our decisions remain binding precedent until we see fit to
reconsider them, regardless of whether subsequent cases have raised doubts about their
continuing vitality.” (quoting Hohn v. United States, 524 U.S. 236, 252–53 (1998))).
The majority next asserts that the civil-recklessness test is purely objective and therefore
inconsistent with Kingsley, which contained both a subjective and an objective component
14Farmer is, of course, an Eighth Amendment case, so it is unclear how it undermined Youngberg, which is
about the Fourteenth Amendment’s Due Process Clause.
No. 25-5188 Poynter v. Shirley, et al. Page 56
because it required the defendant to have intentionally applied physical force. Majority Op. at
21. But Brawner, and the original panel (contra the Majority’s assertion, Majority Op. at 21),
retained the intentional-act requirement. Brawner, 14 F.4th at 596 (“A defendant must have not
only acted deliberately (not accidentally), but also recklessly ‘in the face of an unjustifiably high
risk of harm that is either known or so obvious that it should be known.’” (quoting Farmer, 511
U.S. at 836)); Poynter, 162 F.4th at 678–79 (discussing and applying the intentional-action
element). Here, there is no contention that the County unintentionally failed to classify and
separate Guess and Wix based on their institutional histories of violence. Evidence supports that
the County did so pursuant to its ubiquitous custom of classifying detained persons as violent or
nonviolent based on only their charges and behavior during booking, without considering their
institutional histories. Additionally, the County does not argue, and there is no evidence to
support, that Poynter, Guess, and Wix were accidentally, rather than intentionally, placed in the
same general-population cell. Yet again, this “objective” versus “subjective” argument is part of
the majority’s larger obfuscation of the meaning of those terms—which shift depending on what
definition would best serve the majority’s argument. Either the intentional-act requirement is
“subjective” or it is “objective.”
The majority also purports to find support for its position from the word “deliberate” in
the phrase “deliberate indifference,” asserting that “[i]t would be strange to say that a defendant
chooses deliberately to be indifferent to risks of which he is unaware.” Majority Op. at 21. But
Farmer explicitly rejected that reasoning. 511 U.S. at 840 (“Our decision that Eighth
Amendment liability requires consciousness of a risk is thus based on the Constitution and our
cases, not merely on a parsing of the phrase ‘deliberate indifference’ . . . [because] on the crucial
point (whether a prison official must know of a risk, or whether it suffices that he should know)
the term does not speak with certainty. Use of ‘deliberate’ . . . arguably requires nothing more
than an act (or omission) of indifference to a serious risk that is voluntary, not accidental. . . .
And even if ‘deliberate’ is better read as implying knowledge of a risk, the concept of
constructive knowledge is familiar enough that the term ‘deliberate indifference’ would not, of
its own force, preclude a scheme that conclusively presumed awareness from a risk’s
obviousness.”).
No. 25-5188 Poynter v. Shirley, et al. Page 57
The majority next contends that the civil-recklessness standard creates liability for mere
negligence, which is below the threshold of constitutional protection. Majority Op. at 13–14,
26–27. It is certainly true that negligent conduct does not violate the Due Process Clause.
Kingsley, 576 U.S. at 396. The majority’s argument, therefore, is based on its belief that there is
no difference between recklessness and negligence. That would be news to the Supreme Court
and to the common law. In Farmer, the Supreme Court recognized that civil recklessness
required more culpable conduct than mere negligence. The Court explained that “deliberate
indifference l[ay] somewhere between the poles of negligence at one end and purpose or
knowledge at the other” and the middle ground could be “fair[ly]” described as “recklessly
disregarding that risk.” Farmer, 511 U.S. at 836. That conclusion, however, “d[id] not . . . fully
answer the pending question about the level of culpability deliberate indifference entails”
because there were two potential definitions of recklessness that fell within the continuum from
negligence to purposefulness.15 Id. One of those definitions was the civil-recklessness
standard—which “calls a person reckless who acts or (if the person has a duty to act) fails to act
in the face of an unjustifiably high risk of harm that is either known or so obvious that it should
be known.” Id. (first citing W. Keeton et al., Prosser and Keeton on Law of Torts § 34, 213–14
(5th ed. 1984); and then citing Restatement (Second) of Torts § 500 (A.L.I 1965)).16 That is the
precise standard that the majority now opines is equivalent to negligence, but the majority is
incorrect. Put another way, civil recklessness requires intentional action but not subjective
knowledge of the consequences of those actions, whereas negligence does not require intentional
action at all. See Kemp v. Fulton County, 27 F.4th 491, 497 (7th Cir. 2022) (explaining that civil
recklessness requires “the defendant officer [to] intend to carry out a certain course of actions;
negligence is not enough”); Pittman ex rel. Hamilton v. Madison County, 108 F.4th 561, 570–71
(7th Cir. 2024) (discussing how in Kingsley, “the Court distinguished between intentional acts
15The Court explained that “gross negligence” was distinct from, and a higher standard of liability than,
mere negligence because it fell “[b]etween the poles” of negligence and purposefulness. Farmer, 511 U.S. at 836
n.4. The Court also equated gross negligence to civil recklessness. Id. The majority seizes on that equation to
argue that civil recklessness is akin to mere negligence. Majority Op. at 14. But that holds no water because, as the
Court acknowledged, gross negligence is a higher standard of liability than mere negligence.
16As discussed, the Court rejected that standard not because it was below the constitutional threshold for
liability, but because of the text of the Eighth Amendment.
No. 25-5188 Poynter v. Shirley, et al. Page 58
. . . that can lead to liability, and negligent [or accidental] acts . . . that cannot” and that, in light
of that, “in Kemp, it was enough to show that the defendant intentionally chose not to wear his
hearing aid on the day of the fight, even if he did not appreciate the risk of harm from that
choice” (citation modified)), reh’g denied, No. 23-2301, 2024 WL 3889635 (7th Cir. Aug. 21,
2024), cert. denied, 145 S. Ct. 1154 (2025).
The common law has likewise long recognized the distinction between negligence and
recklessness. See Hart v. Hillsdale County, 973 F.3d 627, 637 (6th Cir. 2020). Under the
common law, “[f]or recklessness, the risk must be ‘substantially greater than that which is
necessary to make [a defendant’s] conduct negligent.’” Hehrer v. County of Clinton, 161 F.4th
955, 964 (6th Cir. 2025) (second alteration in original) (quoting Restatement (Second) of Torts
§ 500 (A.L.I. 1965)). “That is, the ‘difference’ in the risk must be ‘so marked as to amount
substantially to a difference in kind’ rather than degree.” Id. (quoting Restatement (Second) of
Torts § 500 cmt. g (A.L.I. 1965); see also Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69 (2007)
(recognizing that “[i]t is this high risk of harm, objectively assessed, that is the essence of
recklessness at common law,” which must be “substantially greater than that which is necessary
to make his conduct negligent” (quoting Restatement (Second) of Torts § 500 (A.L.I. 1963–
1964))). Clearly “[r]ecklessness is a lower bar than intent, but a higher bar than negligence,” so
the civil-recklessness standard does not impose liability for mere negligence. Short, 87 F.4th at
611.
Finally, the majority argues that the intentional-act requirement does not impose any
meaningful limitation on liability because “virtually every plaintiff can point to some intentional
choice by the defendant that preceded the plaintiff’s injury.” Majority Op. at 27. According to
the majority, the civil-recklessness test would impose liability for intentional actions such as
booking Poynter into BCDC or the decision to detain him in BCDC instead of another jail. Id. at
27–28. The majority’s parade of “endless” examples of intentional decisions that could
purportedly give rise to lability is easily addressed by the traditional proximate-causation
principles that we apply in this context. Jones v. Kent County, 115 F.4th 504, 513–15 (6th Cir.
2024); Rhinehart v. Scutt, 894 F.3d 721, 747 (6th Cir. 2018); Parsons v. Caruso, 491 F. App’x
597, 604 (6th Cir. 2012).
No. 25-5188 Poynter v. Shirley, et al. Page 59
The majority claims that my advocacy for proximate-causation principles is evidence of
my “fluid methods.” Majority Op. at 28. Yet the Court has instructed that “[c]ommon-law
principles . . . guide . . . the definition of § 1983 claims”—specifically, “the common law of
torts.” Manuel, 580 U.S. at 370. “For centuries, it has been ‘a well established principle of [the
common] law, that
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