Amicus Curiae Brief — Thomas J. Dart, Sheriff, Cook County, Illinois, Petitioner v. Anthony Mays, et al.

NO. 20-990

In the

Supreme Court of the United States

THOMAS J. DART, SHERIFF OF COOK COUNTY, ILLINOIS,

Petitioner,

v.

ANTHONY MAYS, INDIVIDUALLY AND ON BEHALF OF

A CLASS OF SIMILARLY SITUATED PERSONS, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF AMICI CURIAE THE NATIONAL SHERIFFS’

ASSOCIATION AND CALIFORNIA STATE ASSOCIATION

OF COUNTIES IN SUPPORT OF PETITIONER

GREGORY C. CHAMPAGNE

COUNSEL OF RECORD

MAURICE E. BOSTICK

ST. CHARLES PARISH SHERIFF’S OFFICE

260 JUDGE EDWARD DUFRESNE PARKWAY

LULING, LA 70070

(985) 783-2883

SHERIFFGC@STCHARLESSHERIFF.ORG

COUNSEL FOR AMICI CURIAE

FEBRUARY 24, 2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

AMICI CURIAE BRIEF OF THE NATIONAL

SHERIFFS’ ASSOCIATION AND CALIFORNIA STATE ASSOCIATION OF COUNTIES..... 1

IDENTITY AND INTEREST OF AMICI CURIAE ...... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 4

I.

CIRCUITS ARE SPLIT AS TO THE STANDARD

FOR MEDICAL CONDITIONS OF CONFINEMENT

CLAIMS BY PRETRIAL DETAINEES ....................... 4

II. DELIBERATE INDIFFERENCE TO A SUBSTANTIAL RISK OF SERIOUS HARM IS THE PROPER

STANDARD FOR MEDICAL CONDITIONS OF

CONFINEMENT CLAIMS ...................................... 8

III. SHERIFFS ARE DUE SUBSTANTIAL DEFERENCE

IN JAIL ADMINISTRATION .................................. 12

CONCLUSION.......................................................... 16

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Ayoubi v. Dart,

724 Fed. Appx. 470

(7th Cir. February 2, 2018) ................................... 6

Baker-Schneider v. Napoleon,

769 Fed. Appx. 189

(6th Cir. April 16, 2019) ....................................... 6

Baldwin v. Dorsey,

964 F.3d 320 (5th Cir. July 1, 2020) ................... 6

Bell v Wolfish,

441 U.S. 520 (1979) ....................................... 5, 13

Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016) .............................. 5

City of Canton v. Harris,

489 U.S. 378, 103 L.Ed.2d 412,

109 S.Ct. 1197 (1989) ........................................... 5

Darnell v. Pineiro,

849 F.3d 17 (2nd Cir. February 21, 2017) .......... 5

DeShaney v. Winnebago County Dept. of

Social Servs., 489 U.S. 189,

103 L.Ed.2d 249, 109 S.Ct. 998 (1989) ............. 10

Estelle v. Gamble,

429 U.S. 97, 50 L.Ed.2d 251,

97 S.Ct. 285 (1976) .................................... 3, 8, 10

Farmer v. Brennan,

511 U.S. 825 (1994) .................................... passim

Florence v. Board of Chosen Freeholders of the

County of Burlington, 566 U.S. 318 (2012) ...... 14

iii

TABLE OF AUTHORITIES – Continued

Page

Helling v. McKinney,

509 U.S. 25, 125 L.Ed.2d 22,

113 S.Ct. 2475 (1993) ...................................... 8, 10

Hill v. Nicodemus,

979 F.2d 987

(4th Cir. November 16, 1992) ......................... 5, 6

Hope v. Warden York Cty. Prison,

972 F.3d 310 (3rd Cir. August 25, 2020) ............ 5

Hudson v. McMillian,

503 U.S. 1 (1992) ...................................... 8, 10, 11

Hudson v. Palmer,

468 U.S. 517, 82 L.Ed.2d 393,

104 S.Ct. 3194 (1984) .......................................... 10

Johnson v. Leonard,

929 F.3d 569 (8th Cir. July 3, 2019) ................... 7

Kingsley v. Hendrickson,

135 S.Ct. 2466 (2015) ................................. passim

Miranda-Rivera v. Toledo-Dávila,

813 F.3d 64 (1st Cir. February 12, 2016) ........ 4

Norwood v. Vance,

591 F.3d 1062 (9th Cir. 2010) ........................... 14

Paulk v. Ford,

826 Fed. Appx. 797

(11th Cir. September 4, 2020) ............................. 7

Pell v. Procunier,

417 U.S. 817 (1974) ........................................... 14

Rhodes v. Chapman,

452 U.S. 337, 69 L.Ed.2d 59,

101 S.Ct. 2392 (1981) .................................. 10, 11

iv

TABLE OF AUTHORITIES – Continued

Page

S. Bay United Pentecostal Church v. Newsom,

140 S.Ct. 1613 (2020) .................................. 13, 14

Stella v. Anderson,

2021 U.S. App. LEXIS 2957

(10th Cir. February 3, 2021) ............................... 7

Turner v. Safley,

482 U.S. 78 (1987) ............................................. 12

United States v. Muniz,

374 U.S. 150, 10 L.Ed.2d 805,

83 S.Ct. 1850 (1963) .......................................... 12

Washington v. Harper,

494 U.S. 210, 108 L.Ed.2d 178,

110 S.Ct. 1028 (1990) .......................................... 10

Whitley v. Albers,

475 U.S. 312 (1986) ......................................... 8, 9

Wilson v. Seiter,

501 U.S. 294, 115 L.Ed.2d 271,

111 S.Ct. 2321 (1991) ................................. 8, 9, 11

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII............................. 8, 10, 14, 16

U.S. Const. amend. XIV...................................... 4, 6, 16

STATUTES

26 U.S.C. § 501(c)(4) ................................................... 1

28 U.S.C. §§ 2671-2680 ............................................. 12

v

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

American Law Institute,

Model Penal Code § 2.02(2)(c), and

Comment 3 (1985) ............................................. 11

J. Hall,

GENERAL PRINCIPLES OF CRIMINAL LAW

(2d ed. 1960) ...................................................... 11

Prosser and Keeton,

PROSSER AND KEETON ON TORTS

(5th Edition 1984) ............................................. 12

R. Perkins & R. Boyce,

CRIMINAL LAW (3d ed. 1982).............................. 11

1

AMICI CURIAE BRIEF OF THE NATIONAL

SHERIFFS’ ASSOCIATION AND CALIFORNIA

STATE ASSOCIATION OF COUNTIES

The National Sheriffs’ Association and California

State Association of Counties respectfully submit

this amici curiae brief.1

IDENTITY AND INTEREST OF AMICI CURIAE

The National Sheriffs’ Association (the “NSA”) is a

non-profit association formed under 26 U.S.C. 501(c)(4).

Formed in 1940 the NSA seeks to promote the fair and

efficient administration of criminal justice throughout

the United States and in particular to advance and

protect the Office of Sheriff throughout the United

States. The NSA has over 13,000 members and is the

advocate for 3,080 sheriffs throughout the United

States.

The 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.

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

Amicus represents the nation’s sheriffs who

operate more than 3,000 local correctional facilities

throughout the country. The vast majority of these

facilities house both pretrial detainees and convicted

inmates.2 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 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

California counties.

2 For the purposes of this brief unless noted otherwise, pretrial

detainees include any inmate, including arrestees, who have

not been convicted.

3

SUMMARY OF ARGUMENT

In this case under review, the Seventh Circuit

inappropriately applied an “objective reasonableness”

standard to the medical conditions of confinement case,

citing Kingsley v. Hendrickson which was an excessive

force case. Amici respectfully request that this Court

uphold its long established deliberate indifference

standard for medical conditions of confinement cases

as established by this Court in Estelle v. Gamble and

later expanded in Farmer v. Brennan, specifically, that

medical conditions of confinement are constitutional

unless the official knew of and disregarded an excessive

risk to inmate health or safety.

The court below is ignoring this Court’s holding

in Farmer by eliminating the subjective component of

a medical conditions of confinement case. In essence,

the Seventh Circuit has constitutionalized tort negligence medical malpractice by requiring only objective

reasonableness in deliberate indifference cases. Such

an approach flies in the face of this Court’s long

recognized holding that substantial deference is owed

to jail administrators.

Amici pray that this Court will uphold the well-

established subjective component of the deliberate

indifference test for medical conditions of confinement

liability.

4

ARGUMENT

I.

CIRCUITS ARE SPLIT AS TO THE STANDARD FOR

MEDICAL CONDITIONS OF CONFINEMENT CLAIMS BY

PRETRIAL DETAINEES.

In 2015, this Court decided Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015) which held that the

appropriate standard for a pretrial detainee’s Fourteenth Amendment excessive force claim is objective

reasonableness. Following Kingsley, circuits have

become deeply divided on whether this Court meant

for Kingsley’s adoption of the “objectively reasonable”

standard to apply to Fourteenth Amendment Due

Process medical and conditions of confinement cases

brought by pretrial detainees. Several circuits have

abandoned (ignored) this Court’s subjective deliberate

indifference standard for medical conditions of confinement claims creating confusion and uncertainty

for the criminal justice community. This divide

occurred despite the facts of Kingsley applying only

to excessive force claims, not medical or conditions of

confinement claims. The following cases illustrate

the divide among the circuits.

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

(1st Cir. February 12, 2016), the court applied the

deliberate indifference standard’s subjective component

in finding that officers may be liable if they recognized

a serious risk to an arrestee’s health and choose to

prioritize others’ safety over seeking immediate medical

attention for the arrestee.

5

In Darnell v. Pineiro, 849 F.3d 17 (2nd Cir. February 21, 2017) the court concluded that this Court’s

decision in Kingsley altered the standard for deliberate

indifference claims under the Due Process clause. As

a result, the court held that the Due Process clause

can be violated even though the official does not have

subjective awareness that his or her acts (or omissions)

have exposed the pretrial detainee to a substantial

risk of harm. Id. at 34-35.

In concluding that deliberate indifference should

be defined objectively for a claim of a due process

violation, the Second Circuit joined the Ninth Circuit,

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

1060, 1070 (9th Cir. 2016) likewise interpreted Kingsley as standing for the proposition that deliberate

indifference for due process purposes should be measured by an objective standard. Darnell, 849 F.3d at 35.

In Hope v. Warden York Cty. Prison, 972 F.3d

310 (3rd Cir. August 25, 2020), the court held that

immigrant detainees claims of insufficient COVID-19

precautions required analysis under the Bell v Wolfish

prohibition of punishment and that in order to establish

deliberate indifference, the Plaintiffs must show that

the Government knew of and disregarded an excessive

risk to their health and safety. Id. at 329.

In Hill v. Nicodemus , 979 F.2d 987 (4th Cir.

November 16, 1992), the court in a jail suicide case

explained that in City of Canton v. Harris, 489 U.S.

378, 103 L.Ed.2d 412, 109 S.Ct. 1197 (1989), this

Court concluded that it did not need to formulate the

precise standard of medical care owed to a pretrial

detainee. Hill, 979 F.2d at 991. Accordingly, the Hill

court applied the deliberate indifference standard using

6

the subjective component as applied in Farmer. Hill,

979 F.2d at 991-992.

In Baldwin v. Dorsey, 964 F.3d 320 (5th Cir. July

1, 2020), the court held that the Fourteenth Amendment protects pretrial detainees’ rights to medical

care and to protection from known suicidal tendencies.

The court stated that a government official violates

that Fourteenth Amendment right when the official

acts with deliberate indifference to a detainee’s serious

medical needs. Id. at 326. In order to prove deliberate

indifference, however, an arrestee must show that a

police officer was aware of facts from which the

inference could be drawn that a substantial risk of

serious harm exists, that the officer actually drew

the inference, and that the officer disregarded that

risk by failing to take reasonable measures to abate

it. Id.

In Baker-Schneider v. Napoleon, 769 Fed. Appx.

189 (6th Cir. April 16, 2019), the court held in a medical conditions of confinement case involving a suicidal

pretrial detainee, that the Fourteenth Amendment’s

Due Process Clause extends the same protections to

pretrial detainees as the Eighth Amendment does to

prisoners. Id. at 192. In so holding, the court held that

in order to prevail on a deliberate indifference claim, a

Plaintiff must show that the prison official recklessly

disregarded a known risk. Id.

In Ayoubi v. Dart, 724 Fed. Appx. 470 (7th Cir.

February 2, 2018), the court held that a pretrial detainee’s claim for failure to properly quarantine him from

influenza was governed by the deliberate indifference

test with a subjective component as applied in Farmer.

Ayoubi, 724 Fed. Appx.at 474.

7

In Johnson v. Leonard, 929 F.3d 569 (8th Cir. July

3, 2019), the court applied the deliberate indifference

standard to a claim of inadequate dental care to a

pretrial detainee holding that to prove his deliberate

indifference claim, the detainee must show that the

defendants knew of the need yet deliberately disregarded it. Id. at 575.

In Stella v. Anderson, 2021 U.S. App. LEXIS 2957

(10th Cir. February 3, 2021), the court applied the

subjective deliberate indifference standard to a claim

of inadequate medical care to a pretrial detainee

holding that in order to satisfy the component, an

official must have known that the inmate faced a

substantial risk of serious harm, and disregarded that

risk by failing to take reasonable measures to abate

it. Id. at 5.

In Paulk v. Ford, 826 Fed. Appx. 797 (11th Cir.

September 4, 2020), the court applied the deliberate

indifference standard to a claim of inadequate medical

care for Crohn’s disease to a pretrial detainee holding

that the Plaintiff must show a jail official’s subjective

knowledge of a risk of serious harm, and that the

official disregarded that risk by conduct that is more

than mere negligence. Id. at 803.

Based on the split among the circuits on the

standard necessary in order to prevail on a claim of

deliberate indifference in medical conditions of confinement cases, amici seek clarification of the standard

and re-affirmance that deliberate indifference requires

subjective knowledge of a risk of harm as enunciated

in Farmer.

8

II.

DELIBERATE INDIFFERENCE TO A SUBSTANTIAL RISK

OF SERIOUS HARM IS THE PROPER STANDARD FOR

MEDICAL CONDITIONS OF CONFINEMENT CLAIMS.

This Court in Farmer v. Brennan, 511 U.S. 825

(1994) held that a prison official’s “deliberate indifference” to a substantial risk of serious harm to an inmate

violates the Eighth Amendment, citing Helling v.

McKinney, 509 U.S. 25, 125 L.Ed.2d 22, 113 S.Ct. 2475

(1993); Wilson v. Seiter, 501 U.S. 294, 115 L.Ed.2d

271, 111 S.Ct. 2321 (1991); Estelle v. Gamble, 429

U.S. 97, 50 L.Ed.2d 251, 97 S.Ct. 285 (1976). Farmer,

511 U.S. at 828. While Estelle establishes that deliberate indifference entails something more than mere

negligence, the cases are also clear that it is satisfied

by something less than acts or omissions for the very

purpose of causing harm or with knowledge that

harm will result. Farmer, 511 U.S. at 835.

That point underlies the ruling that “application of the deliberate indifference standard

is inappropriate” in one class of prison cases:

when “officials stand accused of using excessive physical force.” Hudson v. McMillian,

503 U.S. at 6-7; see also Whitley, supra, at

320. In such situations, where the decisions

of prison officials are typically made “‘in

haste, under pressure, and frequently without the luxury of a second chance,’” Hudson v.

McMillian, supra, at 6 (quoting Whitley,

supra, at 320), an Eighth Amendment claimant must show more than “indifference,”

deliberate or otherwise. The claimant must

show that officials applied force “maliciously

and sadistically for the very purpose of

causing harm,” 503 U.S. at 6 (internal quo-

9

tation marks and citations omitted), or, as the

Court also put it, that officials used force

with “a knowing willingness that [harm]

occur,” id., at 7 (internal quotation marks and

citation omitted). This standard of purposeful

or knowing conduct is not, however, necessary

to satisfy the mens rea requirement of deliberate indifference for claims challenging conditions of confinement; “the very high state of

mind prescribed by Whitley does not apply

to prison conditions cases.” Wilson, supra, 501

U.S. at 302-303.

Farmer, 511 U.S. at 835-836.

In the present case, the Seventh Circuit applied

an “objective reasonableness” standard as opposed to

a “subjective knowledge” requirement in determining

deliberate indifference relating to a medical conditions

of confinement claim. In so doing, it cited Kingsley v.

Hendrickson which was an excessive use of force claim

by a pretrial detainee. Applying Kingsley’s holding to

this medical conditions of confinement case is in direct

contravention of Whitley v. Albers which explained

that use of force claims and conditions of confinement

claims must be evaluated differently. In its landmark

decision in Whitley, this Court set a new standard

for use of force cases, separate and distinct from the

deliberate indifference standard applied in medical

care and conditions cases. The Kingsley standard was

never intended by this Court to apply to medical care

and conditions of confinement claims. Farmer provides

the proper, universal and well established analysis to

be used in medical care and conditions claims.

10

In Farmer, this Court provided as follows:

The Constitution “does not mandate comfortable prisons,” Rhodes v. Chapman, 452

U.S. 337, 349, 69 L.Ed.2d 59, 101 S.Ct. 2392

(1981), but neither does it permit inhumane

ones, and it is now settled that “the

treatment a prisoner receives in prison and

the conditions under which he is confined

are subject to scrutiny under the Eighth

Amendment,” Helling, 509 U.S. at 31. In its

prohibition of “cruel and unusual punishments,” the Eighth Amendment places

restraints on prison officials, who may not,

for example, use excessive physical force

against prisoners. See Hudson v. McMillian,

503 U.S. 1, 117 L.Ed.2d 156, 112 S.Ct. 995

(1992). The Amendment also imposes duties

on these officials, who must provide humane

conditions of confinement; prison officials

must ensure that inmates receive adequate

food, clothing, shelter, and medical care, and

must “take reasonable measures to guarantee

the safety of the inmates,” Hudson v. Palmer,

468 U.S. 517, 526-527, 82 L.Ed.2d 393, 104

S.Ct. 3194 (1984). See Helling, supra, at 3132; Washington v. Harper, 494 U.S. 210,

225, 108 L.Ed.2d 178, 110 S.Ct. 1028 (1990);

Estelle, 429 U.S. at 103. Cf. DeShaney v.

Winnebago County Dept. of Social Servs.,

489 U.S. 189, 198-199, 103 L.Ed.2d 249, 109

S.Ct. 998 (1989).

Farmer, 511 U.S. at 832-833.

This Court in Farmer stated that a prison official

violates the Eighth Amendment only when two require-

11

ments are met. First, which is not an issue here,

that the deprivation alleged must be, objectively,

“sufficiently serious,” Wilson, supra, at 298; see also

Hudson v. McMillian, supra, at 5; Rhodes, supra, at

347 (a prison official’s act or omission must result in

the denial of “the minimal civilized measure of life’s

necessities”). Farmer, 511 U.S. at 834.

The second requirement, which is the basis for

this amici brief, is the requirement that the alleged

violator have subjective knowledge of a risk of serious

harm, and disregard that risk. Id. at 837.

This Court has previously provided that it is fair

to say that acting or failing to act with deliberate

indifference to a substantial risk of serious harm to a

prisoner is the equivalent of recklessly disregarding

that risk. Id. at 836. Further the Court explained that

criminal law generally permits a finding of recklessness

only when a person disregards a risk of harm of which

he is aware. Farmer, 511 U.S. at 836-837, citing R.

Perkins & R. Boyce, CRIMINAL LAW 850-851 (3d ed.

1982); J. Hall, GENERAL PRINCIPLES OF CRIMINAL

LAW 115-116, 120, 128 (2d ed. 1960); American Law

Institute, Model Penal Code § 2.02(2)(c), and Comment

3 (1985). A subjective state of mind is required. To

abandon the well-established deliberate indifference

standard would in essence create a federal negligence

claim for constitutional violations. This was never

the intent of this Court’s long standing history of the

development of the deliberate indifference standard.

In Farmer, this Court rejected an invitation to

adopt an objective test for deliberate indifference.

Farmer, 511 U.S. at 837. It held instead that a prison

official cannot be found liable for a constitutional

violation for denying an inmate humane conditions of

12

confinement unless the official knows of and disregards an excessive risk to inmate health or safety.

The 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, 511 U.S. at 837. This Court held

that only common law imposes tort liability on a purely

objective basis. Farmer, 511 U.S. at 838, citing Prosser

and Keeton, PROSSER AND KEETON ON TORTS §§ 2, 34,

pp. 6, 213-214; see also Federal Tort Claims Act, 28

U.S.C. §§ 2671-2680; United States v. Muniz, 374

U.S. 150, 10 L.Ed.2d 805, 83 S.Ct. 1850 (1963).

In the present case, the Seventh Circuit seeks to

change the subjective knowledge component of Farmer

to a standard of whether an objectively reasonable

person would have known. Such an approach abandons

this Court’s holding in Farmer and turns a medical

conditions of confinement into a tort negligence claim.

In the case below, the Seventh Circuit is constitutionalizing state medical malpractice liability in direct

contravention of Farmer.

III. SHERIFFS ARE DUE SUBSTANTIAL DEFERENCE IN

JAIL ADMINISTRATION.

Sheriffs operating jails across the Country desperately need this Court to 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 v. Safley, 482 U.S.

78, 84-85 (1987). Sheriffs need a definitive answer

from this Court to properly allocate limited resources

and to develop appropriate and consistent policies,

practices, and procedures that conform to a final

13

determination from this Court of what constitutes

deliberate indifference in medical and conditions of

confinement cases.

In addition, Sheriffs need the flexibility to use

limited resources to the best of their abilities as experts

in jail administration. This Court has recognized the

importance of this concept.

The “wide range of ‘judgment calls’ that meet

constitutional and statutory requirements are confided to officials outside of the Judicial Branch

of Government.” Bell, 411 U.S. at 562; S. Bay United

Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020)

at 1613-14. This Court has long recognized and

respected that jail administrators should be “accorded

wide-ranging deference in the adoption and execution

of policies and practices that in their judgment are

needed to preserve internal order and discipline and

to maintain institutional security.” Id. at 548 n.30.

That applies to matters affecting jail security, but also

to the myriad other complex issues affecting jail

operations. Resolving those matters may justify

imposing certain conditions without an inference

of punishment arising. Id.

“Judicial deference is accorded not merely because

the [jail] administrator ordinarily will . . . have a better

grasp of his domain than the reviewing judge, but also

because the operation of our correctional facilities is

peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.”

Id. at 548. For those reasons, “courts are ill equipped

to deal with the increasingly urgent problems of prison

administration and reform.” Id. At 548 n.30. “In the

absence of substantial evidence in the record to indicate

that the officials have exaggerated their response to

14

these considerations, courts should ordinarily defer

to their expert judgment in such matters.” Id. at 547-48,

quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)

(emphasis added).

In 2012, this Court expanded the deference that

must be given to correctional officials by adding the

word “substantial”: “Maintaining safety and order at

detention centers requires the expertise of correctional

officials, who must have substantial discretion to devise

reasonable solutions to problems.” Florence v. Board

of Chosen Freeholders of the County of Burlington,

566 U.S. 318 (2012). So important is the significance

of substantial deference being owed, that failure by

lower courts to recognize the deference can be reversible and prejudicial error. “We have held that the

failure to instruct the jury on deference afforded prison

officials for a prisoner’s Eighth Amendment conditions

of confinement claim can constitute reversible, prejudicial error.” Norwood v. Vance, 591 F.3d 1062, 1067

(9th Cir. 2010).

In 2015, this Court again recognized the substantial deference owed to jail administrators. In Kingsley,

this Court explained, “We recognize that running a

prison is an inordinately difficult undertaking, and

that safety and order at these institutions requires the

expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to

the problems they face.” Id. at 2474. This “substantial

discretion” is incompatible with courts second-guessing

decisions made by jail administrators on medical conditions of confinement unless courts want to take on

the task of running jails.

The implications of allowing pretrial detainees

to challenge every medical or condition of confinement

15

under an “objective reasonableness” standard would

open the flood gates of litigation. Jail administrators

make hundreds of different “conditions of confinement”

decisions from how much toilet paper is distributed

to inmates to what time meals are served and the

manner of serving meals, amount of time in the yard

for recreation, how administrative segregation is

handled, who gets a top bunk, and hundreds of other

decisions. Setting a low bar for any challenge to any

medical or conditions of confinement claim will certainly

drastically increase the load of courts handling conditions of confinement claims.

In sum, correctional administrators must be

afforded judicial deference to their expertise within

constitutional constraints. The constraints already

established by this Court in Farmer provides deference

to correctional administrators in the day to day

operations so long as the administrators are not

deliberately indifferent to a substantial risk of serious

harm to inmates. The split among circuits on the

proper standard to be used in determining whether an

official was deliberately indifferent must be resolved.

More specifically, the subjective knowledge requirement set forth by this Court must be the standard

applied in all medical and conditions of confinement

cases.

16

CONCLUSION

For these reasons, amici urge this Court to end

any ambiguity, grant the petition for certiorari, and

clearly state that there is but one Constitutional

standard to be applied to medical conditions of confinement claims. That standard is the deliberate

indifference standard articulated in Farmer which

requires an official to have subjective knowledge of a

risk of serious harm, and disregard that risk, in

order for a Plaintiff to prevail on a claim of deliberate

indifference regardless of whether the claim is

brought under the Eighth or Fourteenth Amendment.

Respectfully submitted,

GREGORY C. CHAMPAGNE

COUNSEL OF RECORD

ST. CHARLES PARISH SHERIFF’S OFFICE

260 JUDGE EDWARD DUFRESNE PARKWAY

LULING, LA 70070

(985) 783-2883

SHERIFFGC@STCHARLESSHERIFF.ORG

MAURICE E. BOSTICK

ST. CHARLES PARISH SHERIFF’S OFFICE

260 JUDGE EDWARD DUFRESNE PARKWAY

LULING, LA 70070

(985) 783-0213

MBOSTICK@STCHARLESSHERIFF.ORG

COUNSEL FOR AMICI CURIAE

FEBRUARY 24, 2021