Petition for Writ of Certiorari — San Diego County, California, et al., Petitioners v. Ana Sandoval, et al.

Supreme Court briefAug 20, 2021

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------COUNTY OF SAN DIEGO, ET AL.,

Petitioners,

ANA SANDOVAL,

Respondent.

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

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------OFFICE OF COUNTY COUNSEL, COUNTY OF SAN DIEGO

DAVID L. BRODIE, Chief Deputy

FERNANDO KISH, Senior Deputy

JEFFREY P. MICHALOWSKI,* Senior Deputy

Counsel of Record

1600 Pacific Highway, Room 355

San Diego, CA 92101

Tel: (619) 531-4871

jeffrey.michalowski@sdcounty.ca.gov

Counsel for Petitioners County of San Diego,

Romeo De Guzman, Maria Llamado, and Dana Harris

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

1. Lawsuits alleging deliberate indifference to

the medical needs of pretrial detainees are ubiquitous

on the district courts’ dockets, but the circuits are split

on the basic elements of such claims. The Fifth, Eighth,

Tenth and Eleventh Circuits hold that a pretrial detainee suing under the Fourteenth Amendment must

show that the defendant was subjectively aware of the

detainee’s medical needs. The Second, Seventh, and

Ninth Circuits, reading this Court’s Kingsley decision

broadly, hold that the deliberate indifference test is

purely objective.

The first question presented is:

Under the Fourteenth Amendment, must a pretrial

detainee alleging deliberate indifference to medical

needs prove that the defendant was subjectively aware

of his or her medical needs? Or is it sufficient that the

defendant’s actions were objectively unreasonable?

2. The events at issue in this action occurred in

2014. At the time, the Ninth Circuit applied a subjective deliberate indifference test. In 2018, the Ninth

Circuit changed course, and adopted its objective deliberate indifference test.

The second question presented is:

In determining whether a right is “clearly established” for purposes of qualified immunity, must courts

address the elements of the claim that existed at the

time of the events at issue? Or may they ignore elements based on subsequent changes to the law, as the

majority held below?

PARTIES TO THE PROCEEDING

Ana Sandoval, Ronnie Sandoval, Jr., and Josiah

Sandoval were plaintiffs in the district court below,

and are respondents here.

The County of San Diego and Nurses Romeo de

Guzman, Maria Llamado, and Dana Harris were defendants in the district court and are petitioners here.

RELATED PROCEEDINGS

Sandoval et al. v. County of San Diego et al.,

United States Court of Appeals for the Ninth Circuit,

Case No. 18-55289.

Sandoval et al. v. County of San Diego et al.,

United States District Court, Southern District of

California, Case No. 3:16-cv-01004-BEN-AGS.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

PARTIES TO THE PROCEEDING ......................

RELATED PROCEEDINGS ................................

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

iii

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

PETITION FOR A WRIT OF CERTIORARI .......

OPINIONS BELOW.............................................

STATEMENT OF JURISDICTION .....................

CONSTITUTIONAL AND STATUTORY PROVISIONS ...............................................................

STATEMENT OF THE CASE..............................

Factual Background ..................................

Proceedings Below .....................................

REASONS FOR GRANTING THE WRIT............

I. CERTIORARI SHOULD BE GRANTED TO

ADDRESS THE REACH OF KINGSLEY,

AN ISSUE THAT HAS DIVIDED THE

COURTS OF APPEALS ................................

A. Kingsley Is A Narrow Decision Addressing Excessive Force, Not Claims

of Deliberate Indifference to Medical

Needs ...................................................

B. The Circuits Are Split Over the Reach

of Kingsley ........................................... 12

TABLE OF CONTENTS – Continued

Page

C. The Minority Position Constitutionalizes Medical Malpractice Claims that

Should Be Resolved Through State

Tort Law .............................................. 20

D. The Issue Is Exceptionally Important .... 21

E. This Case Is An Ideal Vehicle for Clarifying the Law ...................................... 22

II.

THE DECISION BELOW DEEPENS A

CIRCUIT SPLIT OVER THE EFFECT OF

AUTHORITY THAT POSTDATES THE

CHALLENGED CONDUCT ...................... 23

CONCLUSION..................................................... 28

APPENDIX

United States Court of Appeals for the Ninth

Circuit, Opinion, Filed Jan. 13, 2021............... App. 1

United States District Court for the Southern

District of California, Order, Filed Feb. 6,

2018 ................................................................ App. 82

United States Court of Appeals for the Ninth

Circuit, Order Denying Petition for Rehearing

En Banc, Filed March 25, 2021 ................... App. 124

TABLE OF AUTHORITIES

Page

CASES

Alderson v. Concordia Par. Corr. Facility, 848

F.3d 415 (5th Cir. 2017) ...........................................16

Anderson v. Creighton, 483 U.S. 635 (1987) ......... 23, 24

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ....................24

Baughman v. Hickman, 935 F.3d 302 (5th Cir.

2019) ........................................................................16

Bell v. Wolfish, 441 U.S. 520 (1979) ........................ 8, 10

Bishop v. Szuba, 739 F. App’x 941 (10th Cir.

2018) ........................................................................27

Britt v. Hamilton County, 2021 WL 1184057

(S.D. Ohio Mar. 30, 2021) .................................. 13, 17

Brosseau v. Haugen, 543 U.S. 194 (2004) ...................24

Capp v. County of San Diego, 940 F.3d 1046 (9th

Cir. 2019) .................................................................25

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

(9th Cir. 2016)..........................................................11

Childers v. San Saba County, 714 F. App’x 384

(5th Cir. 2018)..........................................................17

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

(1983) .........................................................................9

Clouthier v. County of Contra Costa, 591 F.3d

1232 (9th Cir. 2010) .................................................10

CNH Industrial N.V. v. Reese, 138 S. Ct. 761

(2018) .......................................................................25

TABLE OF AUTHORITIES—Continued

Page

Coreas v. Bound, 451 F. Supp. 3d 407 (D. Md.

2020) ........................................................................18

D.C. v. Wesby, 138 S. Ct. 577 (2018)............................24

Dang ex rel. Dang v. Sheriff, Seminole Cnty., 871

F.3d 1272 (11th Cir. 2017) .......................................16

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ............19

Davis v. PrimeCare Medical, Inc., No. ELH-202690, 2021 WL 1375565 ..........................................17

Demaree v. Pederson, 887 F.3d 870 (9th Cir.

2018) ........................................................................25

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

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

Estelle v. Gamble, 429 U.S. 97 (1976) ............... 7, 15, 20

Farmer v. Brennan, 511 U.S. 825 (1994) ............ 4, 8, 15

Galvan v. Calhoun County, 719 F. App’x 372 (5th

Cir. 2018) .................................................................16

Garcia v. McCann, 833 F. App’x 69 (9th Cir.

2020) ........................................................................25

Gordon v. County of Orange, 2021 WL 3137954

(9th Cir. 2021)..........................................................18

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

Cir. 2018) ......................................................... passim

Griffith v. Franklin County, Kentucky, 975 F.3d

554 (6th Cir. 2020) ............................................. 13, 17

Hall v. Ramsey County, 801 F.3d 912 (8th Cir.

2015) ........................................................................27

vii

TABLE OF AUTHORITIES—Continued

Page

Herriges v. Cnty. of Macomb, No. 19-12193, 2020

WL 3498095 (E.D. Mich. June 29, 2020) ................13

Hill v. Nicodemus, 979 F.2d 987 (4th Cir. 1992) ........18

Hopper v. Plummer, 887 F.3d 744 (6th Cir. 2018) ....... 28

Horton by Horton v. City of Santa Maria, 915

F.3d 592 (9th Cir. 2019) ...........................................18

Kedra v. Schroeter, 876 F.3d 424 (3d Cir. 2017) .........27

Kingsley v. Hendrickson, 576 U.S. 389 (2015) .... passim

Kingsley v. Hendrickson, 801 F.3d 828 (7th Cir.

2015) ........................................................................28

Kisela v. Hughes, 138 S. Ct. 1148 (2018) ....................24

Lafleur v. St. Elizabeth Hosp. Staff Emergency

Room, 743 F. App’x 545 (5th Cir. 2018) ............ 16, 17

Martin v. Southern Health Partners, Inc., No.

1:17-CV-00020-GNS-HBB, 2019 WL 539064

(W.D. Ky. Feb. 11, 2019) ...........................................17

Mays v. Sprinkle, No. 7:18CV00102, 2019 WL

3848948 (W.D. Va. Aug. 15, 2019) ...........................18

McCain v. St. Clair Cnty., 750 F. App’x 399 (6th

Cir. 2018) .................................................................17

McKee v. Hart, 436 F.3d 165 (3d Cir. 2006) ................27

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

2018) ........................................................................19

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

(1st Cir. 2016) .................................................... 27, 28

viii

TABLE OF AUTHORITIES—Continued

Page

Perry v. Barnes, No. PWG-16-705, 2019 WL

1040545 (D. Md. Mar. 5, 2019) ................................18

Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973

F.3d 1022 (10th Cir. 2020) ................................. 26, 27

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377

(1992) .......................................................................12

Race v. Bradford Cnty., Florida, Case No. 3:18cv-153-J-39PDB, 2019 WL 7482235 (M.D. Fla.

Aug. 20, 2019) ..........................................................16

Reichle v. Howards, 566 U.S. 658 (2012) ....................24

Reyna v. County of Los Angeles, 840, F. App’x 955

(9th Cir. 2021)..........................................................25

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

Sampson v. County of Los Angeles, 974 F.3d 1012

(9th Cir. 2020)..........................................................25

Shorter v. Baca, 895 F.3d 1176 (9th Cir. 2018) ..........18

Simmons v. Navajo County, Arizona, 609 F.3d

1011 (9th Cir. 2010) .................................................10

Strain v. Regalado, 977 F.3d 984 (10th Cir.

2020) .................................................... 13, 14, 15, 22

Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004) .........4

Waddell v. Lloyd, No. 16-14078, 2019 WL

1354253 (E.D. Mich. Mar. 26, 2019)........................17

Wallace v. Moyer, CCB-17-3718, 2020 WL

1506343 ...................................................................18

Westfall v. Luna, 903 F.3d 534 (5th Cir. 2018) ...........17

TABLE OF AUTHORITIES—Continued

Page

Whitney v. City of St. Louis, 887 F.3d 857 (8th

Cir. 2018) .................................................................15

Wilson v. Seiter, 501 U.S. 294 (1991) ..........................10

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .....................24

CONSTITUTION AND STATUTES

U.S. Const. amend. VIII .................................. 5, 8, 9, 12

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

42 U.S.C. § 1983 ...................................................... 2, 11

OTHER AUTHORITIES

A. DOCKUM, KINGSLEY, UNCONDITIONED: PROTECTING PRETRIAL DETAINEES WITH AN OBJECTIVE

DELIBERATE INDIFFERENCE STANDARD IN SECTION 1983 CONDITIONS-OF-CONFINEMENT CLAIMS,

53 ARIZ. ST. L.J. 707 (2021) .....................................19

BLACK’S LAW DICTIONARY 539 (11TH ED. 2019) ...........15

CATHERINE T. STRUVE, THE CONDITIONS OF PRETRIAL DETENTION, 161 U. PA. L. REV. 1009

(2013) .........................................................................9

H. RUTKOWSKI, RETHINKING THE REASONABLE RESPONSE: SAFEGUARDING THE PROMISE OF KINGSLEY FOR CONDITIONS OF CONFINEMENT, 119

MICH. L. REV. 829 (Feb. 2021).................................13

K. LAMBROZA, PRETRIAL DETAINEES AND THE OBJECTIVE STANDARD AFTER KINGSLEY V. HENDRICKSON, 58 AM. CRIM. LAW REV. 429 (2021) .........13

TABLE OF AUTHORITIES—Continued

Page

M. SCHLANGER, INMATE LITIGATION, 116 HARV. L.

REV. 1555 (2003)......................................................21

M. SCHLANGER, THE CONSTITUTIONAL LAW OF INCARCERATION, RECONFIGURED, 103 CORNELL L.

REV. 357 (2018)..........................................................9

PEW CHARITABLE TRUSTS, INADVERTENT HEALTH

CARE PROVIDERS (Jan. 2018) ...................................21

S. SHAPIRO, K. GELLER, T. BISHOP, E. HARTNETT

& D. HIMMELFARB, SUPREME COURT PRACTICE

(11TH ED. 2019) ........................................................25

STEVE COLE, THE JAIL HEALTH-CARE CRISIS, NEW

YORKER (Feb. 25, 2019)............................................21

ZHEN ZENG, BUREAU OF JUST. STAT., U.S. DEP’T OF

JUST., NCJ 253044, Jail Inmates in 2018

(2020) .......................................................................21

PETITION FOR A WRIT OF CERTIORARI

The County of San Diego and Nurses Romeo de

Guzman, Maria Llamado, and Dana Harris respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the

Ninth Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Ninth Circuit’s Opinion of January 13, 2021 is

reported at 985 F.3d 657 (9th Cir. 2021) and is reproduced in the Appendix (“App.”) at 1–81. Petitioners

timely petitioned the Ninth Circuit for rehearing and

rehearing en banc on March 2, 2021. The Ninth Circuit’s order of March 25, 2021 denying the petition is

reproduced at App. 124–125.

The order of the United States District Court for

the Southern District of California granting in part

and denying in part defendants’ motion for summary

judgment, dated February 6, 2021, is not officially reported. It is reproduced at App. 82–123.

---------------------------------♦---------------------------------

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Ninth

Circuit entered judgment on January 13, 2021 (App. 1),

and denied petitioners’ petition for rehearing en banc

on March 25, 2021 (App. 124). This Court has jurisdiction under 28 U.S.C. § 1254(1), and this Petition is

timely pursuant to this Court’s Miscellaneous Order of

March 19, 2020.

---------------------------------♦---------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourteenth Amendment provides, in relevant

part: “No State shall . . . deprive any person of life, liberty, or property without due process of law. . . .”

42 U.S.C. § 1983 provides, in relevant part: “Every

person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proceeding for

redress. . . .”

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. Factual Background

1. Ronnie Sandoval died in jail due to a massive

methamphetamine overdose. He swallowed the lethal

dose to conceal it from the Sheriff ’s deputies who arrested him, and he never told anyone he needed help.

During fingerprinting, deputies noticed that Sandoval was sweating, lethargic, and confused. Sandoval

told them he didn’t feel well, that he may have diabetes, and that he had not eaten that day. When asked if

he had been drinking or using drugs, Sandoval “lied

and denied his use of drugs. . . .” App. 103.

A jail nurse, Romeo de Guzman, suspected Sandoval’s symptoms were related to his reported diabetes,

so he checked Sandoval’s blood sugar and asked him a

few questions. Sandoval’s blood sugar was normal and

Nurse de Guzman did not observe any signs of medical

distress. When de Guzman’s shift ended eight hours

later, Sandoval was sitting up, awake, and not in distress.

2. Sandoval’s condition later deteriorated, and

witnesses reported seizure-like activity. Two nurses

rushed to his cell, but, based on their distinct interactions with Sandoval, they had differing opinions on

how to respond. Nurse Harris arrived first, personally

assessed Sandoval, confirmed his vital signs were stable, and observed responsiveness inconsistent with a

seizure. Still, she asked deputies to call for Emergency

Medical Technicians (“EMTs”) for immediate transport

to the hospital. Nurse Llamado arrived next, and had

intermittent interactions with Sandoval, as she was

covering other responsibilities—calling the charge

nurse, addressing paperwork, and retrieving equipment. Based on her more limited interactions with

Sandoval, she thought paramedics were necessary.

Less than three minutes after first observing

Sandoval, Nurse Harris asked deputies to call for

EMTs. Twelve minutes after asking for EMTs, Nurse

Harris concluded that Sandoval’s condition had worsened, and requested an upgrade to paramedics. EMTs

arrived first, and the paramedics arrived roughly 20

minutes after the EMTs. Sandoval was pronounced

dead shortly thereafter.

3. Sandoval’s cause of death was acute methamphetamine intoxication. The medical examiner found

“an astronomically high level of methamphetamine” in

Sandoval’s blood, indicating that he had taken “several

hundred times more than a typical recreational dose.”

App. 88.

B. Proceedings Below.

1. In the district court below, plaintiffs claimed

the nurses were deliberately indifferent to Sandoval’s

medical needs, in violation of the Fourteenth Amendment. Plaintiffs also brought state law claims for negligence and intentional infliction of emotional distress.

In its February 2018 decision, the district court

found no constitutional violation and granted summary judgment in defendants’ favor on all federal

claims. It applied a subjective deliberate indifference

standard drawn from this Court’s Farmer decision,

which requires a showing that the defendant actually

knew of and disregarded an excessive risk. App. 94,

citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)

and Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

2004). The district court found that plaintiffs had not

met their burden. There was no evidence that the intake nurse (de Guzman) was subjectively aware of

Sandoval’s medical need. And for the nurses who responded after Sandoval’s condition deteriorated (Harris and Llamado), the evidence suggested, at most,

negligence, not deliberate indifference.

The district court further found that the individual defendants were entitled to qualified immunity, because “Sandoval’s right to receive adequate medical

care for an unknown serious medical need was not

clearly established at the time of the alleged misconduct.” App. 115 (emphasis in original).

The district court further declined to exercise supplemental jurisdiction over the state law claims, and

remanded them to state court.

2. Plaintiffs appealed. While briefing was underway, the Ninth Circuit published its opinion in Gordon

v. County of Orange, 888 F.3d 1118 (9th Cir. 2018).

There, the Ninth Circuit held for the first time that

claims for violation of the right to adequate medical

care brought by pretrial detainees are governed by an

objective deliberate indifference standard, and that a

plaintiff need not make any showing of subjective

awareness. The Ninth Circuit held that this Court’s decision in Farmer (on which the district court below relied) applies only to Eighth Amendment claims by

prisoners, not to Fourteenth Amendment claims by

pretrial detainees. Gordon, 888 F.3d at 1125 fn.4.

3. The Ninth Circuit below applied Gordon and

reversed the district court. It held that under an objective standard, disputes of fact precluded summary

judgment on the merits of the Fourteenth Amendment

claim. App. 20–24.

The majority further held that the district court

erred in granting qualified immunity. Although the

Ninth Circuit’s test for deliberate indifference included

a subjective component at the time of the events in

question, the majority found that the nurses’ conduct

should be measured against the purely objective Gordon standard.

For support, the majority looked to the decisions of

four other circuits (i.e., the First, Fifth, Sixth, and

Seventh). App. 33–35. It acknowledged, however, that

its holding was in conflict with the law of three other

circuits (i.e., the Third, Eighth, and Tenth). App. 39–40

fn.15.

4. Judge Collins dissented in part, explaining

that plaintiffs’ burden was to show that the defendants

violated clearly established law as it existed in 2014.

And in 2014, absent a showing of subjective deliberate

indifference, there was no constitutional violation. The

majority’s analysis thus created an incongruent result:

The majority errs—and expressly creates a

circuit split—in reaching the oxymoronic conclusion that a county employee who did not

even violate the law at the time he or she

acted can nonetheless be said to have violated

clearly established law at that time.

App. 56. Judge Collins further explained that “the majority’s ruling creates a clear split with the decisions of

at least three other circuits” (i.e., the Third, Eighth,

and Tenth). App. 65. He expressed doubt in the majority’s claim that its approach was consistent with decisions of other circuits. But even if the majority’s cases

could be interpreted to support the majority’s view, he

concluded, those cases were likewise erroneous:

[The majority’s] cases . . . thus supply little

support for the majority’s sweeping rule that

the qualified immunity inquiry is exclusively

objective and requires courts to affirmatively

and always disregard any subjective elements

of the previously clearly established law. In all

events, to the extent that these cases could be

read to endorse the majority’s flawed analysis,

then they are wrong as well.

App. 69–70.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO

ADDRESS THE REACH OF KINGSLEY, AN

ISSUE THAT HAS DIVIDED THE COURTS

OF APPEALS

A. Kingsley Is A Narrow Decision Addressing Excessive Force, Not Claims of Deliberate Indifference to Medical Needs.

1. It has been settled law for over 40 years that

negligent diagnosis or treatment is not enough to support a prisoner’s constitutional claim for inadequate

medical care. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Rather, a plaintiff suing for inadequate medical care

under the Constitution must plead and prove deliberate indifference to serious medical needs.

Both convicted prisoners and pretrial detainees

have constitutional rights to adequate medical care,

but the source of those rights differs. Convicted prisoners are protected by the Eighth Amendment’s bar

against cruel and unusual punishment, and under this

Court’s Farmer decision, a “subjective deliberate indifference” standard applies. Farmer v. Brennan, 511 U.S.

825, 837 (1994). Prison officials are liable for disregarding serious medical needs only if they are both “aware

of facts from which the inference could be drawn that

a substantial risk of serious harm exists” and actually

“dr[e]w the inference.” Id.

This is for good reason. “Deliberate indifference”

requires more than mere negligence. It requires more

than mistakes, oversights, or poor decision-making.

Rather, deliberate indifference requires a reckless and

culpable state of mind. Id. at 838. For those who undertake the “unenviable task of keeping dangerous men in

safe custody under humane conditions” (id. at 845), liability is warranted only where an official is subjectively deliberately indifferent.

The Eighth Amendment does not apply prior to

conviction, and pretrial detainees are instead protected by the Fourteenth Amendment’s guarantee of

due process. Bell v. Wolfish, 441 U.S. 520, 537 fn.16

(1979). Historically, this was a distinction without

much of a difference. Although this Court indicated,

decades ago, that Fourteenth Amendment protections

for pretrial detainees are “at least as great as the

Eighth Amendment protections available to a convicted prisoner” (City of Revere v. Mass. Gen. Hosp., 463

U.S. 239, 244 (1983)), it did not identify any contexts in

which they would be decoupled. Lower courts, in the

main, treated Eighth Amendment and Fourteenth

Amendment protections as interchangeable. See M.

SCHLANGER, THE CONSTITUTIONAL LAW OF INCARCERATION, RECONFIGURED, 103 CORNELL L. REV. 357, 365

(2018) (“[T]he Supreme Court offered little guidance on

the difference between pretrial and post-conviction

standards . . . ” and “[i]n response, the lower courts

blurred the standards.”); see also CATHERINE T. STRUVE,

THE CONDITIONS OF PRETRIAL DETENTION, 161 U. PA. L.

REV. 1009, 1009 (2013) (“The Supreme Court has set

forth in detail the standards that govern convicted

prisoners’ . . . claims . . . but has left undefined the

standards for comparable claims by pretrial detainees. . . .”).

The Ninth Circuit’s approach was typical:

Although the Fourteenth Amendment’s Due

Process Clause, rather than the Eighth

Amendment’s protection against cruel and

unusual punishment, applies to pretrial detainees, we apply the same standards in both

cases. . . . [A] plaintiff must show that the official was “(a) subjectively aware of the serious

medical need and (b) failed adequately to respond.

Simmons v. Navajo County, Arizona, 609 F.3d 1011,

1017–18 (9th Cir. 2010). See also Clouthier v. County of

Contra Costa, 591 F.3d 1232, 1242–43 (9th Cir. 2010).

2. In Kingsley v. Hendrickson, 576 U.S. 389

(2015), this Court, 5–4, identified a single area where

the Eighth and Fourteenth Amendments parted ways.

In the context of excessive force claims brought by pretrial detainees, the majority (Justices Ginsburg, Kennedy, Breyer, Kagan and Sotomayor) held that under

the Fourteenth Amendment, a purely objective standard applies. Id. at 395. Under Kingsley, the officer’s

subjective belief as to whether the force was “excessive” is not relevant to the Fourteenth Amendment inquiry.

Justice Scalia, in a dissent joined by Chief Justice

Roberts and Justice Thomas, opined that objective unreasonableness is not enough. Id. at 404. Rather, the

Fourteenth Amendment requires a plaintiff to show

that the officer acted with a subjective intent to punish. Id., citing Bell, 441 U.S. at 535; Wilson v. Seiter, 501

U.S. 294, 300 (1991).1 Otherwise, the law of substantive

due process would collapse into an ordinary negligence

inquiry, effectively constitutionalizing medical malpractice law for detainees. Kingsley, 576 U.S. at 406.

3. The Ninth Circuit has since converted the narrow and fragile Kingsley rule—decided in the context

of an excessive force claim—into a broad entitlement

Justice Alito dissented separately, stating, “I would not decide the due process issue presented in this case until the availability of a Fourth Amendment claim is settled.” Id. at 408.

to heightened protections in other contexts. It proceeded in two steps. First, in Castro v. County of Los

Angeles, 833 F.3d 1060 (9th Cir. 2016), the Ninth Circuit, en banc, held that under Kingsley, there is not “a

single ‘deliberate indifference’ standard applicable to

all § 1983 claims, whether brought by pretrial detainees or by convicted prisoners.” Id. at 1069 (emphasis in

original). Although conceding that Kingsley “did not

squarely address whether the objective standard applies to all kinds of claims by pretrial detainees” (id.),

the Ninth Circuit concluded that claims of failure to

protect, like claims of excessive force, were governed by

an objective standard.2

Then, in Gordon v. County of Orange, 888 F.3d

1118 (9th Cir. 2018), a panel of the Ninth Circuit went

further still. It held that claims for inadequate medical

care by pretrial detainees are governed by the objective

deliberate indifference standard, and suggested that

Kingsley may require an objective standard in all section 1983 claims by pretrial detainees under the Fourteenth Amendment. Id. at 1124.

Judge Ikuta, joined by Judges Callahan and Bea, dissented,

expressing “dismay that the majority has misinterpreted Kingsley” and “made a mess of the Supreme Court’s framework. . . .” Id.

at 1084. In particular, the dissent criticized the majority for

equating two very different fact patterns—excessive force (which

addresses affirmative actions) and failure to protect (which addresses omissions). “[T]he Kingsley standard is not applicable to

cases where a government official fails to act. . . . [A] person who

unknowingly fails to act—even when such a failure is objectively

unreasonable—is negligent at most.” Id. at 1086.

The decision below applied and amplified the

Gordon rule. As the majority would have it, the protections of the Eighth Amendment are merely a “starting

point” for evaluating the rights of pretrial detainees,

and Kingsley calls into question, across-the-board, the

circuit’s prior practice “of applying Eighth Amendment

standards to other varieties of Fourteenth Amendment

claims brought by pretrial detainees.” App. 17.

The Ninth Circuit’s decisions run afoul of this

Court’s admonition that the circuits are not to overextend its precedents. “It is of course contrary to all traditions of our jurisprudence to consider the law on this

point conclusively resolved by broad language in cases

where the issue was not presented or even envisioned.”

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 386 fn.5

(1992). The Ninth Circuit’s rule directly conflicts with

R.A.V. It expressly relied on the “broad language of

Kingsley” to extend this Court’s excessive force rule to

deliberate indifference claims (see Gordon, 888 F.3d at

1124). That is far beyond the actual holding of Kingsley, and the Ninth Circuit extended the decision into a

factual context that was not envisioned by this Court.

B. The Circuits Are Split Over the Reach

of Kingsley.

1. There is a widely acknowledged circuit split

over whether Kingsley should be extended to deliberate indifference claims under the Fourteenth Amendment:

[T]he circuits are split on whether Kingsley

eliminated the subjective component of the

deliberate indifference standard by extending

to Fourteenth Amendment claims outside the

excessive force context.

Strain v. Regalado, 977 F.3d 984, 990 (10th Cir. 2020).

Circuit courts and district courts have both recognized

the split. See Griffith v. Franklin County, Kentucky, 975

F.3d 554, 570 (6th Cir. 2020) (“the circuits have divided

on whether an objective test similarly governs conditions-of-confinement claims brought under the Fourteenth Amendment”); Britt v. Hamilton County, ___

F. Supp.3d ___, 2021 WL 1184057, at *8 (S.D. Ohio

Mar. 30, 2021) (“[C]ircuits are now split on whether an

objective test similarly governs inadequate medical

treatment claims brought by pretrial detainees under the Fourteenth Amendment.”); Herriges v. Cnty.

of Macomb, No. 19-12193, 2020 WL 3498095, at *6

(E.D. Mich. June 29, 2020) (“circuits are split”).

The split is well recognized in the scholarly community, too. As one commenter put it, “Kingsley splintered the circuit courts as to the proper standard to

apply to pretrial detainees’ claims of inadequate medical care, with some applying the objective standard

and others applying the subjective standard.” K. LAMBROZA, PRETRIAL DETAINEES AND THE OBJECTIVE STANDARD AFTER KINGSLEY V. HENDRICKSON, 58 AM. CRIM. LAW

REV. 429 (2021). See also H. RUTKOWSKI, RETHINKING

THE REASONABLE RESPONSE: SAFEGUARDING THE PROMISE OF KINGSLEY FOR CONDITIONS OF CONFINEMENT, 119

MICH. L. REV. 829, 846 (Feb. 2021) (“[C]ourts of appeal

have not been uniform in whether and how to extend

Kingsley to conditions claims by pretrial detainees. . . .”).

The split is mature and entrenched. Although

there was some intracircuit disagreement as the circuits first grappled with Kingsley—resulting in occasional divided opinions and some reluctance among the

district courts—seven circuits have now firmly staked

their positions. Four circuits hold that Kingsley’s objective test applies to claims of deliberate indifference to

medical needs of pretrial detainees. Three circuits hold

that a subjective test survives Kingsley.

As the issue has now been percolating in the lower

courts for over six years, the arguments are fully developed, and multiple published circuit decisions have

analyzed both sides of the rift.

2. The Tenth Circuit’s opinion in Strain provides

the leading explanation of the majority’s position.

There, the Court presented several reasons why Kingsley should not be extended to Fourteenth Amendment

deliberate indifference claims.

First, Kingsley involved an excessive force claim,

not a claim of deliberate indifference, and the opinion

said nothing to suggest it intended to reach any further.

Second, a pretrial detainee’s cause of action for excessive force serves a different purpose than a cause of

action for deliberate indifference. The former is based

on allegations of an affirmative act (use of excessive

force) that may raise an inference of punitive intent.

The latter is based on allegations of inaction. Unknowing inaction raises no inference of punitive intent, and

instead suggests, at most, negligence. And negligence,

of course, does not violate the Fourteenth Amendment.

Estelle, 429 U.S. at 106. Accordingly, to state a viable

claim for deliberate indifference, unknowing inaction

is not enough. A plaintiff must allege and prove subjective knowledge of the risk of harm.

Third, the concept of deliberate indifference implies a subjective component. “After all, deliberate

means ‘intentional,’ ‘premeditated,’ or ‘fully considered.’ ” Strain, 977 F.3d at 992, quoting BLACK’S LAW

DICTIONARY 539 (11TH ED. 2019).

Fourth, the Supreme Court held in Farmer that

deliberate indifference is not a “purely objective test,”

but instead focuses “on what a defendant’s mental attitude actually was.” Strain, 977 F.3d at 992, quoting

Farmer, 511 U.S. at 839. Moreover, Farmer expressly

opined that excessive force cases should not be governed by the same standard as deliberate indifference

cases. Strain, 977 F.3d at 992.

The Tenth Circuit acknowledged that other circuits saw the issue differently, and identified the contrary holdings. Id. at 990 fn.4. But it elected not to join

them, and held that deliberate indifference claims include a subjective component. Id. at 990.

The Eighth Circuit has reached the same conclusion. See Whitney v. City of St. Louis, 887 F.3d 857, 860

fn.4 (8th Cir. 2018) (“Kingsley does not control because

it was an excessive force case, not a deliberate indifference case.”).

The Eleventh Circuit, too, applies a subjective test.

See Dang ex rel. Dang v. Sheriff, Seminole Cnty., 871

F.3d 1272, 1279 fn.2 (11th Cir. 2017) (declining to apply

Kingsley because it “involved an excessive force claim,

not a claim of inadequate medical treatment due to deliberate indifference”). A district court in the Eleventh

Circuit expressed reservations about the rule—noting

that the subjective test “may well eventually disappear

under the rationale in Kingsley—but concluded that

“for now, binding precedent holds the subjective component stays.” Race v. Bradford Cnty., Florida, Case

No. 3:18-cv-153-J-39PDB, 2019 WL 7482235, at *7 fn.4

(M.D. Fla. Aug. 20, 2019).

The Fifth Circuit agrees. Its seminal decision interpreting Kingsley was divided, but the majority

found that a subjective test applies. See Alderson v.

Concordia Par. Corr. Facility, 848 F.3d 415, 419 fn.4

(5th Cir. 2017) (“[T]he Fifth Circuit has continued to

. . . apply a subjective standard post-Kingsley.”); but see

id. at 425 (Graves, J., concurring) (“Because I read

Kingsley as the Ninth Circuit did and would revisit the

deliberate indifference standard, I write separately.”).

After Alderson, however, the Fifth Circuit issued five

decisions, all unanimous, applying the subjective deliberate indifference standard. Baughman v. Hickman,

935 F.3d 302, 307 (5th Cir. 2019) (applying subjective

deliberate indifference standard); Galvan v. Calhoun

County, 719 F. App’x 372 (5th Cir. 2018) (same); Lafleur

v. St. Elizabeth Hosp. Staff Emergency Room, 743 F.

App’x 545, 555 (5th Cir. 2018) (same); Westfall v. Luna,

903 F.3d 534, 551 (5th Cir. 2018) (same); Childers v.

San Saba County, 714 F. App’x 384, 386 (5th Cir. 2018)

(same).

3. The Sixth Circuit has “generally stayed out of

the fray” and has not yet squarely decided the issue.

Griffith v. Franklin County, Kentucky, 975 F.3d 554,

570 (6th Cir. 2020). While one panel applied the

subjective prong without discussion of Kingsley (see

McCain v. St. Clair Cnty., 750 F. App’x 399, 403), another panel expressed “serious doubt” that a subjective

standard still applies (see Richmond v. Huq, 885 F.3d

928, 938 fn.3 (6th Cir. 2018). District courts in the

Sixth Circuit have nonetheless sided with the majority

of circuits, opting to retain the subjective inquiry. See

Britt, 2021 WL 1184057, at *8 (“the Court finds the

Tenth Circuit’s decision in Strain most compelling”);

Waddell v. Lloyd, No. 16-14078, 2019 WL 1354253, at

*4 (E.D. Mich. Mar. 26, 2019) (applying subjective test);

Martin v. Southern Health Partners, Inc., No. 1:17-CV00020-GNS-HBB, 2019 WL 539064, at *3 (W.D. Ky. Feb.

11, 2019) (rejecting plaintiff ’s argument that Kingsley

“abrogates the deliberate indifference standard when

applied to pretrial detainees”).

District courts in the Fourth Circuit, too, find that

a subjective test applies. See Davis v. PrimeCare Medical, Inc., No. ELH-20-2690, 2021 WL 1375565, at *10

(disagreeing with Gordon—“neither this Court nor the

Fourth Circuit has applied Kingsley to a pretrial detainee’s claim of failure to protect or deliberate indifference to a serious medical need, where there are no

allegations of force applied by the defendants”), quoting Perry v. Barnes, No. PWG-16-705, 2019 WL

1040545, at *3 fn.3 (D. Md. Mar. 5, 2019); see also Mays

v. Sprinkle, No. 7:18CV00102, 2019 WL 3848948, at *1

(W.D. Va. Aug. 15, 2019) (same); Wallace v. Moyer, CCB17-3718, 2020 WL 1506343, at *6 fn.9 (“The court will

. . . treat Kingsley as limited to its terms and assume

that Farmer still provides the appropriate framework. . . .”). One district court of the Fourth Circuit described an objective test as “sensible,” but still applied

a subjective test because the Fourth Circuit had not

modified its pre-Kingsley precedent. See Coreas v.

Bound, 451 F. Supp. 3d 407, 422 (D. Md. 2020), applying Hill v. Nicodemus, 979 F.2d 987, 991–92 (4th Cir.

1992).

4. Three circuits are in direct conflict with the

approach of the Fifth, Eighth, Tenth, and Eleventh Circuits, and hold that Kingsley’s objective test applies to

claims of deliberate indifference to medical needs. The

Ninth Circuit did so below, as it did in Gordon, several

other published cases, and over a dozen unpublished

cases. See, e.g., Horton by Horton v. City of Santa Maria,

915 F.3d 592, 600 (9th Cir. 2019) (“partially subjective

standard has since been revised to an entirely objective standard for pretrial detainees”); Shorter v. Baca,

895 F.3d 1176, 1190–91 (9th Cir. 2018). The decision

below is now the leading case in the Ninth Circuit for

the proposition that the defendant’s mental state “has

no bearing on the analysis.” Gordon v. County of Orange (Gordon II), ___ F.4th ___, 2021 WL 3137954, at

*4 (9th Cir. 2021), citing Sandoval, 985 F.3d at 678.

The Second Circuit, after extensively analyzing

Kingsley, followed the Ninth Circuit. See Darnell v.

Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017) (“[D]eliberate indifference should be defined objectively for a

claim of a due process violation”). The Seventh Circuit

likewise joined the minority, holding that the test is

purely objective. Miranda v. Cty. of Lake, 900 F.3d 335,

352 (7th Cir. 2018) (“medical-care claims brought by

pretrial detainees under the Fourteenth Amendment

are subject only to the objective unreasonableness inquiry identified in Kingsley”).

All told, it is now the settled law of four circuits

that claims of deliberate indifference to the medical

needs of pretrial detainees require a showing of subjective deliberate indifference. And it is the settled law

of three circuits that such claims do not require any

subjective showing at all. The split is stark, it is intractable, and it has persisted and widened over the years.

This Court’s attention is warranted to harmonize the

discord. See A. DOCKUM, KINGSLEY, UNCONDITIONED:

PROTECTING PRETRIAL DETAINEES WITH AN OBJECTIVE

DELIBERATE INDIFFERENCE STANDARD IN SECTION 1983

CONDITIONS-OF-CONFINEMENT CLAIMS, 53 ARIZ. ST. L.J.

707, 738–39 (2021) (for the sake of “constitutional consistency, the Supreme Court should settle the state-ofmind requirement. . . .”).

C. The Minority Position Constitutionalizes

Medical Malpractice Claims that Should

Be Resolved Through State Tort Law.

The majority of circuits have it right, and the decision below was in error. Excising the subjective components of the deliberate indifference analysis expands

the Fourteenth Amendment into the realm of simple

negligence, converting the Constitution into a replica

of state malpractice law. That is not what constitutional claims are for, and that is precisely what Justice

Scalia cautioned against. DeShaney v. Winnebago Cty.

Dep’t of Soc. Servs., 489 U.S. 189, 196 & 202 (1989)

(“[T]he Due Process Clause of the Fourteenth Amendment was intended to prevent the government ‘from

abusing [its] power’ ” but not to “transform every tort

committed by a state actor into a constitutional violation.”); Estelle, 429 U.S. at 106 (“Medical malpractice

does not become a constitutional violation merely because the victim is a prisoner.”); Kingsley, 576 U.S. at

408 (Scalia, J., dissenting) (“The Due Process clause is

not a ‘font of tort law to be superimposed upon’ [a] state

system. Today’s majority overlooks this in its tenderhearted desire to tortify the Fourteenth Amendment.”)

A subjective standard is consistent with this

Court’s precedents, and it prevents district court dockets from being overwhelmed with claims sounding in

negligence. Moreover, aggrieved plaintiffs will not be

deprived of a remedy, as they are free to pursue their

state law claims in state court. Indeed, that is precisely

what happened below. The district court declined to

find a constitutional violation, but remanded plaintiffs’

state law claims—for negligence and intentional infliction of emotional distress—to the California Superior

Court. App. 90 fn.4.

D. The Issue Is Exceptionally Important.

There are over 10 million admissions to America’s

jails each year, and two-thirds of those admitted are

pretrial detainees. ZHEN ZENG, BUREAU OF JUST. STAT.,

U.S. DEP’T OF JUST., NCJ 253044, Jail Inmates in 2018,

at 2 tbl. 1 (2020).3 Not all detainees have medical or

psychiatric conditions, but many of them do—detainees are far more likely to require ongoing treatment

and care than members of the general population. See

STEVE COLE, THE JAIL HEALTH-CARE CRISIS, NEW

YORKER (Feb. 25, 2019).4 Accordingly, claims of deliberate indifference to medical and psychiatric needs are

ubiquitous in the federal courts. A recent survey found

that over 90% of large jails had been sued for denial of

medical care. See PEW CHARITABLE TRUSTS, INADVERTENT HEALTH CARE PROVIDERS (Jan. 2018) p. 9. Such

claims make up a significant portion of the federal

docket, with 10–25% of all inmate litigation addressing

inmate medical care. See M. SCHLANGER, INMATE LITIGATION, 116 HARV. L. REV. 1555, 1570–71 fn.47 & 48

(2003).

Available at https://bjs.ojp.gov/content/pub/pdf/ji18.pdf

[https://perma.cc/C84L-F4Q3].

Available at https://www.newyorker.com/magazine/2019/03/

04/the-jail-health-care-crisis [https://perma.cc/52FD-8XJ2].

It is not surprising, then, that plaintiffs, defendants, and a cross-ideological chorus of amici have all

asked this Court to resolve the issue. Compare Strain

v. Regalado, No. 20-1562 (Petition for Certiorari filed

by plaintiffs on May 7, 2021) with Gordon v. County of

Orange, No. 18-337 (Petition for Certiorari, filed by defendants, denied Jan. 7, 2019). Although the various

stakeholders propose different ways of resolving the

circuit conflict, all agree that the question needs to be

answered, and that the time to answer it is now.

E. This Case Is An Ideal Vehicle for Clarifying the Law.

The relevant facts in this case are simple and undisputed, and they present the opportunity to consider

the full range of possible interpretations of Kingsley.

Specifically, this case does not involve a subjective intent to punish. It thus provides an opportunity to revisit the Kingsley dissent, in which Justice Scalia

opined that the Fourteenth Amendment requires a

showing of subjective intent to punish. See Kingsley,

576 U.S. at 404 (Scalia, J., dissenting).

Alternatively, this case would support a broad

clarification that Kingsley addresses only affirmative

acts of malfeasance, and that the Ninth Circuit thus

went astray not just below and not just in Gordon (both

addressing deliberate indifference to medical needs),

but also in Castro (addressing failure to protect). The

facts here could also support a narrow clarification

addressing only claims of deliberate indifference to

medical needs (rather than addressing omissions and

nonfeasance more generally), thus leaving the question of failure to protect for another day.

Finally, this case involves a fact pattern that recurs regularly in jail and prison litigation—deception

and dishonesty by the detainee or prisoner. Here,

Sandoval never asked for help, never indicated a need,

and “lied and denied his use of drugs. . . .” App. 103.

Even if an objective-only test were to apply, dishonesty

and concealment by the plaintiff or decedent is a factor

that should be analyzed and given considerable

weight. The majority below, however, ignored this fact

entirely.

This case is an ideal vehicle for clarifying the law.

The simple, undisputed facts provide an occasion to interpret Kingsley narrowly or broadly, or to revisit it entirely.

II.

THE DECISION BELOW DEEPENS A CIRCUIT

SPLIT OVER THE EFFECT OF AUTHORITY

THAT POSTDATES THE CHALLENGED

CONDUCT

1. The concept of fair notice is the central principle animating the doctrine of qualified immunity. The

doctrine “is intended to provide government officials

with the ability reasonably to anticipate when their

conduct may give rise to liability.” Anderson v.

Creighton, 483 U.S. 635, 646 (1987) (citation omitted).

Accordingly, qualified immunity attaches unless the official violates a constitutional right that is so clearly

established that it is “beyond debate.” Ashcroft v. alKidd, 563 U.S. 731, 741 (2011).

A decision that does not yet exist cannot give a

government official “fair notice,” and is “of no use in

the clearly established inquiry.” Kisela v. Hughes, 138

S. Ct. 1148, 1154 (2018). Accordingly, for more than

three decades this Court has consistently held that the

“clearly established” law analysis must be based on authority that was in effect at the time of the challenged

action. See Anderson, 483 U.S. at 646 (qualified immunity measured “in light of current American law”); D.C.

v. Wesby, 138 S. Ct. 577, 589 (2018) (jail employees entitled to qualified immunity unless the unlawfulness

of their conduct was “clearly established at the time”)

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012);

Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (action

“must be assessed in light of the legal rules that were

clearly established at the time [the action] was taken.”)

(quoting Anderson, 483 U.S. at 638); Kisela, 138 S. Ct.

at 1154 (“[A] reasonable officer is not required to foresee judicial decisions that do not yet exist.”).

2. Here, the events in question all happened in

2014. The majority, however, relied on the 2018 Gordon

decision to support its finding that the rights at issue

were “clearly established” in 2014. Under this Court’s

authority, the majority’s decision was wrong. See

Brosseau v. Haugen, 543 U.S. 194, 200 fn.4 (2004)

(cases that “postdate the conduct in question . . . could

not have given fair notice . . . and are of no use in the

clearly established inquiry.”).

The majority’s approach is not isolated. Panel majorities in the Ninth Circuit continue to rely on cases

that postdate the events at issue, and have drawn repeated rebukes from dissenters. In Garcia v. McCann,

833 F. App’x 69, 73 (9th Cir. 2020), petition for cert. filed

May 17, 2021 (No. 20-1592), the majority held that a

2018 case, Demaree v. Pederson, 887 F.3d 870, 883 (9th

Cir. 2018), clearly established the right at issue, even

though the events in the case occurred in 2013. Judge

Collins explained in dissent: “the majority’s reliance on

Demaree . . . is plainly improper, because that decision

postdates the events in this case.” Garcia, 833 F. App’x

at 75.5

In Sampson v. County of Los Angeles, 974 F.3d

1012, 1021–22 (9th Cir. 2020), the majority relied on a

2019 decision (Capp v. County of San Diego, 940 F.3d

1046 (9th Cir. 2019)) in its determination that the law

was “clearly established” as of 2015. Judge Hurwitz

dissented: “Decided years after the relevant conduct

here, Capp is of no use.” Sampson, 974 F.3d at 1028.

3. Although the Ninth Circuit is squarely in the

minority, there is a circuit split regarding the effect of

Another Ninth Circuit panel held, unanimously, that

Demaree “cannot be considered” because it “was decided after the

removal.” See Reyna v. County of Los Angeles, 840, F. App’x 955,

959 (9th Cir. 2021). This intracircuit disarray further supports

certiorari or, alternatively, a summary reversal to bring the Ninth

Circuit back into alignment. See CNH Industrial N.V. v. Reese,

138 S. Ct. 761 (2018) (certiorari granted to resolve intracircuit

split; decision below summarily reversed). See also S. SHAPIRO, K.

GELLER, T. BISHOP, E. HARTNETT & D. HIMMELFARB, SUPREME

COURT PRACTICE § 4.6, pp. 4-24–4-25 (11TH ED. 2019).

subsequent authority on the clearly established analysis. The majority acknowledged the split below (App.

39–40 fn.15), as did Judge Collins in dissent (App. 56,

65).

At least three other circuits disagree with the

Ninth Circuit and hold that even if controlling law

changes after the incident in question, qualified immunity turns on the law in effect at the time of the incident, and all elements of the then-governing standard must be considered.

A Tenth Circuit decision, Quintana v. Santa Fe

Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1027–28 (10th Cir.

2020), is most instructive. The case involved a jail

nurse’s failure to provide medical care to a pretrial detainee who was experiencing opioid withdrawals. Just

like the plaintiffs here, the Quintana plaintiffs argued

that Kingsley excised the subjective prong of the deliberate indifference test, and that the qualified immunity analysis should excise it too. The Court rejected

that approach, and instead held that the qualified immunity analysis “requires both an objective and a subjective inquiry.” Quintana, 973 F.3d at 1028.

In a concurring opinion, Judge Bacharach noted

that, per Kingsley, “[t]he subjective prong has been altered for at least some claims involving detainees.”

Still, “we apply the subjective prong as it was clearly

established at the time of [plaintiff ’s] detention.” Id. at

1038 fn.2. The majority agreed, and “endorse[d] Judge

Bacharach’s rejection of the argument that Kingsley

requires us to conduct only an objective inquiry.” Id. at

1028 fn.1 (citation omitted).

The Third Circuit and Eighth Circuit likewise

agree that a subjective analysis is required for purposes of qualified immunity, even if the subjective analysis is later excised from the substantive law. See

Kedra v. Schroeter, 876 F.3d 424, 440 (3d Cir. 2017) (applying subjective test—“[W]e assess qualified immunity based on the law that was ‘clearly established at the

time an action occurred, and at the time of the [incident] . . . it was not yet clearly established whether deliberate indifference in the substantive due process

was governed by an objective or subjective standard.”);

Hall v. Ramsey County, 801 F.3d 912, 917 fn.3 (8th Cir.

2015) (applying subjective test—because qualified immunity depends on whether the law was “clearly established at the time of the alleged violation . . . Kingsley

does not [a]ffect the standard against which we evaluate the [defendants’] conduct in the qualified immunity

analysis.”).

The same is true if the law is uncertain at the time

of the incident, and is later clarified or made more specific. The later authority does not convert a law that

was uncertain at the time into one that was clearly established. See Bishop v. Szuba, 739 F. App’x 941, 945

(10th Cir. 2018); McKee v. Hart, 436 F.3d 165, 173 (3d

Cir. 2006).

4. The First Circuit, however, is arguably aligned

with the majority’s decision below. In Miranda-Rivera

v. Toledo-Davila, 813 F.3d 64 (1st Cir. 2016), the First

Circuit found that the law of excessive force was

clearly established for purposes of qualified immunity

in 2007, even though Kingsley was not decided until

2015. Specifically, it held that inquiry into the officer’s

subjective mindset was unnecessary, and instead focused on what a “reasonable officer” should have done.

Id. at 73.

The majority contends that two other circuits

agree that the mental state required to establish liability has no bearing on the qualified immunity analysis. App. 33–34. Specifically, on remand from this Court

in Kingsley, the Seventh Circuit applied an objective

standard in its qualified immunity analysis. Kingsley

v. Hendrickson, 801 F.3d 828 (7th Cir. 2015) (per curiam) (“Kingsley II”). The Sixth Circuit has done the

same. See Hopper v. Plummer, 887 F.3d 744, 755–56

(6th Cir. 2018).

Certiorari is warranted to address this dissonance

in the case law. The question recurs regularly, and the

circuits have taken conflicting approaches. This Court

should clarify and harmonize the law.

---------------------------------♦---------------------------------

CONCLUSION

The majority’s decision deepens an intractable circuit conflict over the reach of Kingsley. So too does it

deepen a conflict over how to analyze whether a constitutional right is “clearly established.” These are exceptionally important questions that recur regularly,

and both the lower courts and the scholarly community

recognize the need for clear answers.

Certiorari should be granted.

Respectfully submitted,

JEFFREY P. MICHALOWSKI,

Senior Deputy (SBN 248073)

Counsel of Record

OFFICE OF COUNTY COUNSEL,

COUNTY OF SAN DIEGO

1600 Pacific Highway, Room 355

San Diego, CA 92101

Tel: (619) 531-4871

jeffrey.michalowski@sdcounty.ca.gov

Counsel for Petitioners

County of San Diego, Romeo De Guzman,

Maria Llamado, and Dana Harris

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.