Amicus Curiae Brief — County of Orange, California, et al., Petitioners v. Mary Gordon, Individually and as Successor in Interest to Matthew Shawn Gordon, Deceased

No. 18-337

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------COUNTY OF ORANGE, CALIFORNIA, et al.,

Petitioners,

v.

MARY GORDON, Successor in Interest for

Decedent, Matthew Shawn Gordon, Individually,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF THE CALIFORNIA STATE

ASSOCIATION OF COUNTIES, NATIONAL

SHERIFF’S ASSOCIATION, AND CALIFORNIA

STATE SHERIFF’S ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------DALEY & HEFT, LLP

ATTORNEYS AT LAW

LEE H. ROISTACHER, ESQ.

Counsel of Record

462 Stevens Avenue, Suite 201

Solana Beach, CA 92075

Tel.: (858) 755-5666/Fax: (858) 755-7870

lroistacher@daleyheft.com

Attorneys for Amici Curiae

California State Association of Counties,

National Sheriff’s Association, and

California State Sheriff’s Association

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................

i

TABLE OF AUTHORITIES ...................................

iii

INTERESTS OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ...................................

3

ARGUMENT .................................................................

12

A. This Court Has Left Unresolved The Issue

Of Whether Fourteenth Amendment Inadequate Medical Care Claims Brought By

Pretrial Detainees Are Governed By A Culpability Standard Different Than The

Eighth Amendment’s Deliberate Indifference Standard .............................................. 12

B.

The Circuit Conflict That Emerged And Solidified After Kingsley Necessitates This

Court’s Resolution Of The Important Issue

Of What Culpability Standard Applies To

Fourteenth Amendment Inadequate Medical Care Claims Brought By Pretrial Detainees .......................................................... 16

1. Before Kingsley, Circuit Courts Uniformly

Applied The Eighth Amendment’s Deliberate Indifference Standard To Fourteenth Amendment Inadequate Medical

Care Claims Brought By Pretrial Detainees .................................................... 16

ii

TABLE OF CONTENTS – Continued

Page

2. After Kingsley, Circuit Courts Are In

Conflict Over The Culpability Standard

For Fourteenth Amendment Inadequate

Medical Care Claims Brought By Pretrial Detainees ....................................... 17

3. This Court Needs To Settle The Important Issue Of What Culpability Standard Applies To Fourteenth Amendment

Inadequate Medical Care Claims Brought

By Pretrial Detainees ............................ 18

C.

Applying An Objective Unreasonableness

Standard To Fourteenth Amendment Inadequate Medical Care Claims Brought by

Pretrial Detainees Creates A Constitutional

Medical Malpractice Claim.......................... 19

CONCLUSION .......................................................

24

iii

TABLE OF AUTHORITIES

Page

CASES

Alderson v. Concordia Par. Corr. Facility, 848

F.3d 415 (5th Cir. 2017) ....................................... 6, 17

Bell v. Wolfish, 441 U.S. 520 (1979) ............................13

Bruno v. City of Schenectady, 727 F. App’x 717

(2d Cir. 2018) .............................................................8

Castro v. County of Los Angeles, 833 F.3d 1060

(9th Cir. 2016) (en banc), cert. denied sub nom.

Los Angeles County v. Castro, 137 S. Ct. 831

(2017) .........................................................................8

City of Canton, Ohio v. Harris, 489 U.S. 378

(1989) ................................................................... 4, 14

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239

(1983) ......................................................... 4, 5, 13, 14

Clark v. Colbert, 895 F.3d 1258 (10th Cir. 2018) .... 7, 17

Coleman v. Parkman, 349 F.3d 534 (8th Cir.

2003) ........................................................................16

Comstock v. McCrary, 273 F.3d 693 (6th Cir.

2001) ........................................................................23

County of Sacramento v. Lewis, 523 U.S. 833

(1998) ....................................................... 4, 14, 20, 21

Crocker v. Glanz, No. 18-5038, 2018 WL 4566260

(10th Cir. Sept. 24, 2018) (unpublished)...................7

Crowell v. Cowlitz County, 726 F. App’x 593 (9th

Cir. 2018) .................................................................12

Daniels v. Williams, 474 U.S. 327 (1986).......... 4, 13, 23

iv

TABLE OF AUTHORITIES – Continued

Page

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ........ 8, 17

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

489 U.S. 189 (1989) .............................................. 19, 20

Estate of Booker v. Gomez, 745 F.3d 405 (10th

Cir. 2014) .................................................................16

Estelle v. Gamble, 429 U.S. 97 (1976) .......... 12, 13, 15, 23

Farmer v. Brennan, 511 U.S. 825 (1994) .......... 4, 15, 19

Florence v. Board of Chosen Freeholders, 566

U.S. 318 (2012) ..........................................................4

Gordon v. County of Orange, 888 F.3d 1118 (9th

Cir. 2018) ....................................................... 7, 17, 21

Hare v. City of Corinth, Miss., 74 F.3d 633 (5th

Cir. 1996) .................................................................16

Hill v. Nicodemus, 979 F.2d 987 (4th Cir. 1992) ........16

Hudson v. McMillian, 503 U.S. 1 (1992).......................9

Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) .... passim

Lolli v. County of Orange, 351 F.3d 410 (9th Cir.

2003) ........................................................................16

Minix v. Canareci, 597 F.3d 824 (7th Cir. 2010) ........16

Miranda v. County of Lake, 900 F.3d 335 (7th

Cir. 2018) ......................................................... 5, 7, 17

Miranda-Rivera v. Toledo-Davila, 813 F.3d 64

(1st Cir. 2016) ............................................................4

Nam Dang by & through Vina Dang v. Sheriff,

Seminole Cty., Fla., 871 F.3d 1272 (11th Cir.

2017) .................................................................... 6, 17

v

TABLE OF AUTHORITIES – Continued

Page

Natale v. Camden County Corr. Facility, 318 F.3d

575 (3d Cir. 2003) ....................................................16

Paul v. Davis, 424 U.S. 693 (1976) ..............................21

Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) ..... 5, 17

Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018) .......10

Rosales-Mireles v. United States, 138 S.Ct. 1897

(2018) .......................................................................20

Turner v. Safley, 482 U.S. 78 (1987) ....................... 3, 11

Whitley v. Albers, 475 U.S. 312 (1986) ...................... 8, 9

Whitney v. City of St. Louis, Mo., 887 F.3d 857

(8th Cir. 2018)...................................................... 6, 17

Wolff v. McDonnell, 418 U.S. 539 (1974) ....................20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII ...................................... passim

U.S. Const. amend. XIV ...................................... passim

STATUTE

42 U.S.C. § 1983 .................................................. 2, 8, 12

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Catherine T. Struve, The Conditions Of Pretrial

Detention, 161 U. Pa. L. Rev. 1009 (2013) ........... 5, 16

Kyla Magun, A Changing Landscape For Pretrial Detainees? The Potential Impact Of

Kingsley v. Hendrickson On Jail-Suicide Litigation, 116 Colum. L. Rev. 2059 (2016) ...............18

Magnus Lofstrom & Brandon Morton, Just The

Facts – California County Jails (Public Policy

Inst. Of Cal. Nov. 2017), http://www.ppic.org/

wp-content/uploads/JTF_CountyJailsJTF.pdf .........3

Michael S. DiBattista, A Force To Be Reckoned

With: Confronting The (Still) Unresolved

Questions Of Excessive Force Jurisprudence

After Kingsley, 48 Colum. Hum. Rts. L. Rev.

203 (2017) ............................................................ 5, 16

Natalie R. Ortiz, Ph.D., County Jails At A Crossroads, An Examination Of The Jail Population

And Pretrial Release (National Association Of

Counties, Why Counties Matter Paper Series,

Issue 2, 2015), www.naco.org/sites/default/files/

documents/Final%20paper_County%20Jails%

20at%20a%20Crossroads_8.10.15.pdf ......................3

Sonya Tafoya et al., Pretrial Release In California (Public Policy Inst. of Cal., May 2017),

www.ppic.org/content/pubs/report/R_0517STR.

pdf ..............................................................................3

1

INTERESTS OF AMICI CURIAE1

California State Association of Counties (CSAC) is

a non-profit corporation. The membership consists of

the 58 California counties. CSAC sponsors a Litigation

Coordination Program, which is administered by the

County Counsels’ Association of California and is overseen by the Association’s Litigation Overview Committee, comprised of county counsels throughout the state.

The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties

in California, as well as counties throughout the

United States.

National Sheriffs’ Association (NSA) is a nonprofit association. NSA seeks to promote fair and efficient administration of criminal justice throughout the

United States and in particular to advance and protect

the Office of Sheriff. NSA has over 20,000 members

and is the advocate for 3,080 sheriffs throughout the

United States. NSA also works to promote the public

interest goals and policies of law enforcement throughout the nation. It participates in the judicial process

where the vital interests of law enforcement and its

members are affected. NSA represent the nation’s

sheriffs who operate more than 3,000 local correctional

1

Amici notified all counsel of record of its intent to file this

brief more than 10 days before the due date, and consent to file

was given by all. This brief was not authored in whole or in part

by counsel for any party. No person or entity other than amici

made a monetary contribution to this brief ’s preparation or submission.

2

facilities throughout the United States. The vast majority of these facilities house both pretrial detainees

and convicted inmates. Sheriffs, as the custodians of

the inmates housed within these facilities, are charged

with providing a safe and secure environment for both

the inmates and for their staff.

The California State Sheriff ’s Association (CSSA)

is a non-profit professional organization that represents each of the 58 elected California Sheriffs. CSSA

was formed to allow the sharing of information and resources between sheriffs and departmental personnel,

and for the general improvement of law enforcement

throughout California. CSSA’s membership is made up

of all sheriffs in California, who have authority over

many law enforcement officers and the majority of California’s inmates. These sheriffs are constitutional officers within California counties, who have policy

making authority and oversight over their departments and jail and court facilities within California.

Amici have a significant interest in the important

and unresolved issue presented in the petition for

certiorari, which is, as slightly restated: Should the

Eighth Amendment’s deliberate indifference standard

continue to be the culpability standard applicable to 42

U.S.C. section 1983 claims brought by pretrial detainees asserting inadequate medical care in violation of

the Due Process Clause of the Fourteenth Amendment,

or should courts apply the “objective unreasonableness” standard established in Kingsley v. Hendrickson,

135 S. Ct. 2466, 2473-74 (2015), for Fourteenth

3

Amendment excessive force claims brought by pretrial

detainees?

There are 117 county run jails in California2 with

roughly 46,000 pretrial detainees in these jails accounting for 64% of California’s jail population.3 At the

national level, “[t]wo thirds of the confined population

in county jails is pretrial and the proportion reaches

three-quarters in almost half of county jails. This trend

is more pronounced in jails located in small counties

– with less than 50,000 residents – and mediumsized counties – with populations between 50,000 and

250,000 residents.”4 Thus, the important issue presented in the petition for certiorari has local and national implications.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

“The difficulties of operating a detention center

must not be underestimated by the courts. Turner v.

Safley, 482 U.S. 78, 84-85 [ ] (1987). Jails (in the stricter

2

Magnus Lofstrom & Brandon Morton, Just The Facts – California County Jails (Public Policy Inst. of Cal. Nov. 2017), http://

www.ppic.org/wp-content/uploads/JTF_CountyJailsJTF.pdf.

3

Sonya Tafoya et al., Pretrial Release In California (Public

Policy Inst. of Cal., May 2017), p. 5, www.ppic.org/content/pubs/report/

R_0517STR.pdf.

4

Natalie R. Ortiz, Ph.D., County Jails At A Crossroads, An

Examination Of The Jail Population And Pretrial Release (National Association Of Counties, Why Counties Matter Paper Series,

Issue 2, 2015), p. 2, www.naco.org/sites/default/files/documents/Final

%20paper_County%20Jails%20at%20a%20Crossroads_8.10.15.pdf.

4

sense of the term, excluding prison facilities) admit

more than 13 million inmates a year. See e.g. Dept. of

Justice, Bureau of Justice Statistics, T. Minton, Jail Inmates at Midyear 2010 – Statistical Tables 2 (2011).”

Florence v. Board of Chosen Freeholders, 566 U.S. 318,

326 (2012). The duty to protect these inmates includes

the duty to provide medical care. However, not every

claim rises to a constitutional violation. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). When allegations

arise that a substantial risk of serious harm existed for

the inmate, the well-established deliberate indifference standard applied for years. Indeed, this Court has

never adopted an objective test for deliberate indifference, understanding that the common law imposes

tort liability on a purely objective basis. Id. at 838. To

part from this well-grounded standard would constitutionalize negligence thus having a devastating and

sweeping impact on all jails throughout the United

States.

Although this Court has several times noted the

issue, it has never answered the question of whether

some culpability standard other than the Eighth

Amendment’s deliberate indifference standard should

apply to a Fourteenth Amendment inadequate medical

care claim brought by a pretrial detainee. County of

Sacramento v. Lewis, 523 U.S. 833, 850 (1998); City of

Canton, Ohio v. Harris, 489 U.S. 378, 388 n.8 (1989);

Daniels v. Williams, 474 U.S. 327, 334 n.3 (1986); City

of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983);

see Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 74

(1st Cir. 2016) (“Fourteenth Amendment substantive

5

due process requires the government to provide medical care to persons who are injured while being apprehended by the police. City of Revere v. Mass. Gen. Hosp.,

463 U.S. 239, 244, 103 S. Ct. 2979, 77 L.Ed.2d 605

(1983). ‘The boundaries of this duty have not been plotted exactly; however, it is clear that they extend at

least as far as the protection that the Eighth Amendment gives to a convicted prisoner.’ [Citation].”).

Without guidance from this Court, circuit courts

for decades uniformly held that a Fourteenth Amendment inadequate medical care claim brought by a

pretrial detainee was governed by the Eighth Amendment’s deliberate indifference standard and, as such, a

detainee had to prove the government official actually

knew of and disregarded a serious health risk. See

Catherine T. Struve, The Conditions Of Pretrial Detention, 161 U. Pa. L. Rev. 1009, 1027 (2013); see also

Michael S. DiBattista, A Force To Be Reckoned With:

Confronting The (Still) Unresolved Questions Of Excessive Force Jurisprudence After Kingsley, 48 Colum.

Hum. Rts. L. Rev. 203, 225-26 (2017). This uniformity

dramatically changed after Kingsley.

After Kingsley, circuit courts are now divided on

the culpability standard for Fourteenth Amendment

inadequate medical care claims brought by pretrial detainees. Miranda v. County of Lake, 900 F.3d 335, 35152 (7th Cir. 2018) (discussing circuit court split); Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018)

(same); Petition, 7-10 (same).

6

Because Kingsley dealt exclusively with a Fourteenth Amendment excessive force claim by a pretrial

detainee, many circuits continue to utilize the wellestablished deliberate indifference standard for a pretrial detainee’s Fourteenth Amendment inadequate

medical care claim. E.g., Whitney v. City of St. Louis,

Mo., 887 F.3d 857, 860 & n.4 (8th Cir. 2018) (utilizing subjective deliberate indifference standard for inadequate

medical care claim, holding “the Supreme Court’s conclusion in Kingsley . . . that ‘the relevant standard is

objective not subjective’ . . . does not control because it

was an excessive force case, not a deliberate indifference case”); Nam Dang by & through Vina Dang v.

Sheriff, Seminole Cty., Fla., 871 F.3d 1272, 1279 (11th

Cir. 2017) (utilizing subjective deliberate indifference

standard for inadequate medical care claim, rejecting

argument that Kingsley controls: “Dang argues that

following Kingsley . . . a pretrial detainee alleging constitutionally deficient medical care need not show deliberate indifference. We cannot and need not reach

this question. First, Kingsley involved an excessiveforce claim, not a claim of inadequate medical treatment due to deliberate indifference. Therefore, it is not

‘squarely on point’ with and does not ‘actually abrogate

or directly conflict with,’ [citation], our prior precedent

identifying the standard we apply in this opinion to

Dang’s claim.”); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419-20 & n.4 (5th Cir. 2017) (“The

concurring opinion suggests that our en banc court

should reconsider [prior precedent] in light of the Supreme Court’s opinion in Kingsley. . . . Because the

Fifth Circuit has continued . . . to apply a subjective

7

standard post-Kingsley, this panel is bound by our rule

of orderliness.”); Clark v. Colbert, 895 F.3d 1258, 1269

(10th Cir. 2018) (applying deliberate indifference

standard post-Kingsley); see Crocker v. Glanz, No. 185038, 2018 WL 4566260, at *4 (10th Cir. Sept. 24, 2018)

(unpublished) (declining to address Kingsley’s application to inadequate medical care claims due to waiver

but noting “the claim in [Kingsley] was an excessiveforce claim where there was no question about the intentional use of force against the prisoner. The analysis

in Kingsley may not apply to a failure to provide adequate medical care or screening, where there is no such

intentional action. Indeed, the Court reiterated the

proposition that ‘liability for negligently inflicted harm

is categorically beneath the threshold of constitutional

due process.’ 135 S. Ct. at 2472 (internal quotation

marks omitted).”).

However, other circuits believe Kingsley’s reasoning

extends beyond excessive force claims and have inappropriately applied Kingsley’s objective unreasonableness standard to Fourteenth Amendment inadequate

medical care claims, as well as other non-excessive

force based Fourteenth Amendment claims brought

by pretrial detainees. E.g., Miranda, 900 F.3d at 351

(applying Kingsley to inadequate medical care claim,

stating “[t]he Supreme Court recently disapproved the

uncritical extension of Eighth Amendment jurisprudence to the pretrial setting in Kingsley. . . .”); Gordon

v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir.

2018) (“While Kingsley did ‘not necessarily answer the

broader question of whether the objective standard

8

applies to all Section § [sic] 1983 claims brought under

the Fourteenth Amendment against individual defendants[,]’ [citation] logic dictates extending the objective

deliberative indifference standard . . . to medical care

claims.”); Bruno v. City of Schenectady, 727 F. App’x

717, 720 (2d Cir. 2018) (holding Kingsley’s objective unreasonableness standard applies to inadequate medical care claim); see Castro v. County of Los Angeles, 833

F.3d 1060, 1070-72 (9th Cir. 2016) (en banc), cert. denied sub nom. Los Angeles County v. Castro, 137 S. Ct.

831 (2017) (extending Kingsley to a pretrial detainee’s

failure-to-protect claim based on the “broad wording of

Kingsley” and that Kingsley “did not limit its holding

to ‘force’ but spoke to ‘the challenged governmental action’ generally”); Darnell v. Pineiro, 849 F.3d 17, 34-35

(2d Cir. 2017) (applying Kingsley to a condition of confinement claim, holding “[c]onsistency with the Supreme Court’s decision in Kingsley now dictates that

deliberate indifference be measured objectively in due

process cases”).

Each of these decisions seemingly inappropriately

applies the Kingsley test to replace the well-established deliberate indifference test. This Court in Whitley v. Albers, 475 U.S. 312 (1986), in its landmark

decision overturning the Ninth Circuit, stated that the

deliberate indifference test was no longer the standard

for use of force cases involving a convicted inmate. Rather, a distinct and separate standard would now be

applied in all use of force scenarios. A deliberate indifference standard does not adequately capture the importance of competing obligations of prison officials, or

9

convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second

chance and was, therefore, not intended to mirror the

other elements under the Eighth Amendment. Id. at

320. This Court again upheld this same analysis in

Hudson v. McMillian, 503 U.S. 1 (1992), which is still

prevailing law, that the standard for all other use of

force scenarios is not the deliberate indifference test

but whether the force was applied in a good faith effort

to maintain and restore order, or was it applied maliciously and sadistically for the very purpose of causing

harm. This is exactly the reason why this Court held

in 1986 and again in 1992 that use of force and deliberate indifference are distinct issues with completely

different dynamics, different considerations, and

unique standards. Use of force decisions such as in

Kingsley were never intended to be stretched and distorted to replace the deliberate indifference standard

for medical care in a correctional facility. Use of force

decisions involve chaotic, spur of the moment control

of inmates in emergency situations whereas medical

care involves planned and methodical medical judgment by medical experts. The two issues cannot be constitutionally evaluated together and made to precisely

fit into the same category. This Court has made it clear

that the deliberate indifference test applies to the

Eighth Amendment’s prohibition against Cruel and

Unusual Punishment which has both subjective and

objective components, recognizing there are different

standards for use of force. To change the standard to

an objective standard for Fourteenth Amendment

10

claims, where state medical negligence redress avenues remain available to the inmate, lowers the constitutional threshold which this Court has protected

fiercely for decades.

A definitive answer from this Court on whether

the culpability standard for Fourteenth Amendment inadequate medical care claims brought by pretrial detainees was something other than the Eighth

Amendment’s deliberate indifference standard was

unnecessary when the circuits were uniform in their

treatment of such claims. But now, an answer from this

Court is necessary. It is imperative that this Court affirm that the deliberate indifference standard is the

applicable standard for all claims brought by an inmate, regardless of their status.

Given the circuit split, the culpability standard for

Fourteenth Amendment inadequate medical care

claims brought by pretrial detainees differs from state

to state, depending on what circuit the particular state

lies in. This is an unacceptable result. Cf.

Rodriguez v. Swartz, 899 F.3d 719, 758 (9th Cir. 2018)

(Smith, C.J., dissenting) (“Three circuit courts touch

the border between the United States and Mexico – our

court, the Fifth Circuit, and the Tenth Circuit. Today,

two of the three are split. The implications are troubling. Whereas an alien injured on Mexican soil by a

Border Patrol agent shooting from Texas lacks recourse under Bivens, an alien injured on Mexican soil

by an agent shooting from California or Arizona may

sue for damages. This is an untenable result, and will

lead to an uneven administration of the rule of law.”).

11

This Court should now resolve this uncertain and

unacceptable state of constitutional jurisprudence.

“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources.” Turner, 482 U.S. at 84-85.

Although CSAC believes adopting an objective unreasonableness standard for Fourteenth Amendment

medical care claims by pretrial detainees creates a

“constitutional medical malpractice claim,” state and

local governments across the country need a definitive

answer from this Court, whatever the answer may be,

to properly allocate limited resources and to develop

appropriate and consistent policies, practices, and procedures that conform to a final determination from this

Court of what is constitutionally required.

------------------------------------------------------------------

12

ARGUMENT5

A. This Court Has Left Unresolved The Issue Of

Whether Fourteenth Amendment Inadequate

Medical Care Claims Brought By Pretrial

Detainees Are Governed By A Culpability

Standard Different Than The Eighth Amendment’s Deliberate Indifference Standard

In 1976, this Court held that the Eighth Amendment provides convicted prisoners with a right to medical care and a “deliberate indifference to serious

medical needs” violates the Eighth Amendment because it “constitutes the ‘unnecessary and wanton infliction of pain.’ ” Estelle v. Gamble, 429 U.S. 97, 104

(1976) (citation omitted). As this Court explained:

[I]n the medical context, an inadvertent failure to provide adequate medical care cannot

be said to constitute “an unnecessary and

wanton infliction of pain” or to be “repugnant

to the conscience of mankind.” Thus, a complaint that a physician has been negligent in

diagnosing or treating a medical condition

does not state a valid claim of medical mistreatment under the Eighth Amendment.

Medical malpractice does not become a constitutional violation merely because the victim is

5

As framed in the petition for certiorari, the question presented is “[w]hether a pretrial detainee’s ‘inadequate medical care’

claim pursuant to 42 U.S.C. § 1983 requires a showing of jail professional’s subjective intent in delivering care or whether an objective ‘unreasonableness’ standard is sufficient.” Petition, i. Amici

also understand that a petition for certiorari raising the same issue will be filed in Crowell v. Cowlitz County, 726 F. App’x 593,

594 (9th Cir. 2018).

13

a prisoner. In order to state a cognizable

claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is

only such indifference that can offend “evolving standards of decency” in violation of the

Eighth Amendment.

Id. at 105-06.

In 1979, this Court concluded that holding pretrial

detainees in conditions that “amount to punishment”

violates the Fourteenth Amendment when the conditions are “imposed for the purpose of punishment.” Bell

v. Wolfish, 441 U.S. 520, 535, 538 (1979).

In 1983, this Court held in City of Revere that the

Fourteenth Amendment requires government officials

to provide pretrial detainees with adequate medical

care finding the Fourteenth Amendment provides protections “at least as great as the Eighth Amendment

protections available to a convicted prisoner.” 463 U.S.

at 244. But this Court declined to decide whether

something less than the Eighth Amendment’s deliberate indifference standard governed. Id. This Court

again declined to answer the question in 1986. Daniels

v. Williams, 474 U.S. 327, 334 n. 3 (1986) (“Despite his

claim about what he might have pleaded, petitioner

concedes that respondent 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.”).

14

In 1989, this Court in City of Canton again passed

on deciding whether the standard for Fourteenth

Amendment inadequate medical care claims brought

by pretrial detainees was anything less than the

Eighth Amendment’s deliberate indifference standard.

489 U.S. at 388 n.8 (“[T]his Court has never determined what degree of culpability must be shown before

the particular constitutional deprivation asserted in

this case – a denial of the due process right to medical

care while in detention – is established. Indeed, in Revere . . . , we reserved decision on the question whether

something less than the Eighth Amendment’s ‘deliberate indifference’ test may be applicable in claims by detainees asserting violations of their due process right

to medical care while in custody. We need not resolve

here the question left open in Revere. . . .”).

It was no different in 1998. In County of Sacramento, this Court once again declined to decide

whether the level of culpability required for Fourteenth Amendment inadequate medical care claims

brought by pretrial detainees was something different

than the Eighth Amendment’s deliberate indifference

standard. 523 U.S. at 849-50 (“We held in City of Revere

. . . that ‘the due process rights of a [pretrial detainee]

are at least as great as the Eighth Amendment protections available to a convicted prisoner.’ [Citation].

Since it may suffice for Eighth Amendment liability

that prison officials were deliberately indifferent to the

medical needs of their prisoners, [citation], it follows

that such deliberately indifferent conduct must also be

enough to satisfy the fault requirement for due process

15

claims based on the medical needs of someone jailed

while awaiting trial, [citations].”).

In 1994, this Court clarified Estelle’s Eighth Amendment deliberate indifference standard in Farmer, holding that deliberate indifference is a subjective

standard and exists only when a prison official knows

of and disregards a substantial risk of serious harm to

an inmate. 511 U.S. at 829, 847 (1994); see also id. at

837-38 (“We reject petitioner’s invitation to adopt an objective test for deliberate indifference. . . . The common

law . . . imposes tort liability on a purely objective basis.”) (emphasis added).

In Kingsley, this Court addressed the specific issue

of “whether the requirements of a § 1983 excessive

force claim brought by a pretrial detainee [under the

Fourteenth Amendment] must satisfy the subjective

standard or only the objective standard”; that is, did

the pretrial detainee only have to show that a “deliberate – i.e., purposeful and knowing” “use of force was

objectively unreasonable.” 135 S. Ct. at 2471-72. This

Court found the objective unreasonableness standard

appropriate for excessive force claims, id. at 2473, but

did not touch on any other type of Fourteenth Amendment claim brought by a pretrial detainee.

16

B. The Circuit Conflict That Emerged And Solidified After Kingsley Necessitates This Court’s

Resolution Of The Important Issue Of What

Culpability Standard Applies To Fourteenth

Amendment Inadequate Medical Care Claims

Brought By Pretrial Detainees

1. Before Kingsley, Circuit Courts Uniformly Applied The Eighth Amendment’s Deliberate Indifference Standard

To Fourteenth Amendment Inadequate

Medical Care Claims Brought By Pretrial Detainees

For decades, absent guidance from this Court

otherwise, circuit courts applied the Eighth Amendment’s deliberate indifference standard to pretrial detainees’ Fourteenth Amendment inadequate medical

care claims, requiring satisfaction of both an objective

prong (i.e., a serious need for medical care) and a subjective prong (i.e., knowing of and disregarding an excessive health risk). E.g., Estate of Booker v. Gomez,

745 F.3d 405, 429-30 (10th Cir. 2014); Minix v. Canareci, 597 F.3d 824, 830-31 (7th Cir. 2010); Natale v.

Camden County Corr. Facility, 318 F.3d 575, 582 (3d

Cir. 2003); Coleman v. Parkman, 349 F.3d 534, 538 (8th

Cir. 2003); Lolli v. County of Orange, 351 F.3d 410, 41819 (9th Cir. 2003); Hare v. City of Corinth, Miss., 74 F.3d

633, 643 (5th Cir. 1996); Hill v. Nicodemus, 979 F.2d

987, 990-93 (4th Cir. 1992); see Struve, supra, 161

U. Pa. L. Rev. at 1027; DiBattista, supra, 48 Colum.

Hum. Rts. L. Rev. at 225-26.

17

2. After Kingsley, Circuit Courts Are In

Conflict Over The Culpability Standard For Fourteenth Amendment Inadequate Medical Care Claims Brought

By Pretrial Detainees

The uniform application of the Eighth Amendment’s deliberate indifference standard to Fourteenth

Amendment inadequate medical care claims brought

by pretrial detainees existing before Kingsley is gone.

Circuit courts are now irreconcilably divided on the

issue of whether such claims are governed by the

Eighth Amendment’s deliberate indifference standard

or Kingsley’s objective unreasonableness standard. Miranda, 900 F.3d at 351-52 (discussing circuit split);

Richmond, 885 F.3d at 938 n.3 (same); Petition, 8-11

(same); compare Clark, 895 F.3d at 1269 (deliberate indifference), Whitney, 887 F.3d at 860 n.4 (same), Nam

Dang, 871 F.3d at 1279 (same), and Alderson, 848 F.3d

at 419-20 n.4 (same), with Miranda, 900 F.3d at 351

(objective unreasonableness), Gordon, 888 F.3d at

1124-25 (same), and Darnell, 849 F.3d at 34-35 (same).

Amici observe the circuit split could be the result

of some issues left unanswered in Kingsley, or issues

otherwise not clearly stated. As noted by one commentator:

The inquiry into Kingsley’s impact raises two

key questions. The first is whether the Court

actually intended to set a precedent that Fourteenth Amendment and Eighth Amendment

claims require different standards. In the

opinion, the Court acknowledged that the

18

decision “may raise questions about the use of

a subjective standard in the context of excessive force claims brought by convicted prisoners” but deliberately chose not to address the

issue. Instead, it limited the decision to the

Fourteenth Amendment claim at hand. [fn]

The second question is whether, if the Court

did mean to apply two different standards,

this lesser standard for pretrial detainees was

meant to extend to other types of Fourteenth

Amendment claims. In the post-Kingsley period, lower courts have begun to grapple with

whether the Kingsley holding that intent is

not required for an act to be considered punishment serves as precedent for applying an

objective deliberate indifference standard to

pretrial detainees’ failure-to-protect or serious-medical-needs claims. [fn].

Kyla Magun, A Changing Landscape For Pretrial Detainees? The Potential Impact Of Kingsley v. Hendrickson On Jail-Suicide Litigation, 116 Colum. L. Rev.

2059, 2083-84 (2016).

3. This Court Needs To Settle The Important Issue Of What Culpability

Standard Applies To Fourteenth

Amendment Inadequate Medical Care

Claims Brought By Pretrial Detainees

In the three years since Kingsley, the issue presented in the petition for certiorari has sufficiently

percolated in circuit courts and the circuit split is

19

solidified. The undeniable result of the circuit split is

the untenable reality that the applicable culpability

standard – deliberate indifference or objective unreasonableness – is geographically dependent. And the

circuit split will remain absent this Court resolving the

issue, an issue this Court has previously left unanswered. See Kingsley, 135 S. Ct. at 2472 (granting certiorari “[i]n light of the disagreement among the

Circuits” on the issue of whether a “[section] 1983 excessive force claim brought by a pretrial detainee must

satisfy the subjective standard or only the objective

standard”); Farmer, 511 U.S. at 832 (granting certiorari “because Courts of Appeals had adopted inconsistent tests for ‘deliberate indifference. ’ ”); DeShaney

v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 194

(1989) (granting certiorari “[b]ecause of the inconsistent

approaches taken by the lower courts in determining

when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with

adequate protective services constitutes a violation of

the individual’s due process rights, [citations], and the

importance of the issue to the administration of state

and local governments”).

C. Applying An Objective Unreasonableness

Standard To Fourteenth Amendment Inadequate Medical Care Claims Brought

by Pretrial Detainees Creates A Constitutional Medical Malpractice Claim

“The Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from

20

abusing [its] power, or employing it as an instrument

of oppression,’ [citations].” DeShaney, 489 U.S. at 196.

This Court has “emphasized time and again that ‘[t]he

touchstone of due process is protection of the individual against arbitrary action of government.’ ” County of

Sacramento, 523 U.S. at 845 (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). “[O]nly the most egregious official conduct can be said to be ‘arbitrary in the

constitutional sense,’ [citation].” Id. at 846. “To this

end, for half a century now [this Court has] spoken of

the cognizable level of executive abuse of power as that

which shocks the conscience.” Id. “[T]he ‘shock the conscience’ standard is satisfied where the conduct was

‘intended to injure in some way unjustifiable by any

government interest,’ or in some circumstances if it resulted from deliberate indifference.” Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1906 (2018) (quoting

County of Sacramento, 523 U.S. at 849-50). As such,

“ ‘liability for negligently inflicted harm is categorically

beneath the threshold of constitutional due process.’ ”

Kingsley, 135 S. Ct. at 2472 (quoting County of Sacramento, 523 U.S. at 849). So “[i]t should not be surprising that the constitutional concept of conscience

shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort

law’s spectrum of culpability. Thus, we have made it

clear that the due process guarantee does not entail a

body of constitutional law imposing liability whenever

someone cloaked with state authority causes harm.”

County of Sacramento, 523 U.S. at 848. Put simply, “the

Fourteenth Amendment is not a ‘font of tort law to be

21

superimposed upon whatever systems may already be

administered by the States.’ ” Id. (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).

Using an objective unreasonableness standard to

evaluate liability for Fourteenth Amendment inadequate medical care claims brought by pretrial detainees is fundamentally inconsistent with this Court’s

precedents establishing the subjective culpability level

required to violate the Due Process Clause. Consider

the Ninth Circuit’s test. In the Ninth Circuit, an official can be liable under the Fourteenth Amendment if:

(1) the official made an intentional decision not to provide medical care to a pretrial detainee; (2) that decision put the pretrial detainee at substantial risk of

suffering serious harm; and (3) the failure to provide

medical care was objectively unreasonable.6 Gordon,

6

Amici have refined the actual elements set forth in Gordon,

which were articulated as: “(i) the defendant made an intentional

decision with respect to the conditions under which the plaintiff

was confined; (ii) those conditions put the plaintiff at substantial

risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the

high degree of risk involved – making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures,

the defendant caused the plaintiff ’s injuries. ‘With respect to the

third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily “turn[ ] on the facts and circumstances of each particular case.’ ” [Citations]. The “mere lack

of due care by a state official” does not deprive an individual of

life, liberty, or property under the Fourteenth Amendment. [Citations]. Thus, the plaintiff must ‘prove more than negligence but

less than subjective intent – something akin to reckless disregard.’ [Citation].” 888 F.3d at 1125. Amici observe that the “Gordon test” does not really fit with inadequate medical care claims

22

888 F.3d at 1125. A medical professional always acts

intentionally when making decisions about medical

care.7 Accordingly, an objective unreasonableness test

like the one created by the Ninth Circuit establishes a

framework where an official can violate the Fourteenth

Amendment by making medical decisions that others

believe, in hindsight, were objectively unreasonable.

Consider this example. A doctor might conclude that a

pretrial detainee may need a surgical procedure to

remedy a problem, but ultimately concludes in his or

her judgment that surgery is unnecessary. That is an

intentional decision regarding medical care. At trial,

the pretrial detainee has an expert opine that no reasonable medical professional would have, or even could

have, concluded surgery was unnecessary, and the decision falls far below the standard of care. A jury could

rely on the expert’s opinion to find the decision not

to perform surgery was deliberately made and was objectively unreasonable, and thus find for the pretrial

detainee on a Fourteenth Amendment inadequate

medical care claim simply because an expert harshly

criticizes the medical professional’s judgment. This is

no different than a medical malpractice case where

medical experts square off about what medical decisions were or were not below the standard of care. This

is a problem. “[M]edical malpractice does not become a

because medical professionals working with pretrial detainees

are making medical decisions and not “confinement” decisions,

which were previously made by others.

7

Theoretically, a medical professional could accidently forget

to provide medical care he or she intended to provide or accidently

provide medical care he or she did not intend to provide.

23

constitutional violation merely because the victim is a

prisoner,” Estelle v. Gamble, 429 U.S. 97 (1976). Likewise, medical malpractice does not become a constitutional violation merely because the victim is a pretrial

detainee. See Comstock v. McCrary, 273 F.3d 693, 703

(6th Cir. 2001) (“The requirement that the official have

subjectively perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization

of medical malpractice claims”).

Standards like the one created by the Ninth Circuit

do nothing more than “tortify the Fourteenth Amendment,” substituting the Fourteenth Amendment for

the “immense body of state statutory and common

law under which individuals abused [or injured] by

[government] officials can seek relief ” despite that the

“Due Process Clause is not ‘a font of tort law to be

superimposed upon’ that state system.” Kingsley, 135

S. Ct. at 2479 (Scalia, J., dissenting); see Daniels, 474

U.S. at 333 (“That injuries inflicted by governmental

negligence are not addressed by the United States

Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectable legal interests. The enactment of tort claim

statutes, for example, reflects the view that injuries

caused by such negligence should generally be redressed. [Fn]. It is no reflection on either the breadth

of the United States Constitution or the importance of

traditional tort law to say that they do not address the

same concerns.”).

------------------------------------------------------------------

24

CONCLUSION

Amici respectfully request that this Court grant

the petition for certiorari. Some circuit courts are extending Kingsley to claims other than excessive force

claims, which is something this Court never intended

because excessive force claims are significantly distinct from other Fourteenth Amendment claims.

Respectfully submitted,

Dated: October 12, 2018 DALEY & HEFT, LLP

ATTORNEYS AT LAW

LEE H. ROISTACHER, ESQ.

Counsel of Record

Attorneys for Amici Curiae,

California State

Association of Counties,

National Sheriff’s

Association, and

California State Sheriff’s

Association