Amicus Curiae Brief — J. D. Hartman, Individually and in his Official Capacity as Sheriff of Davie County, North Carolina, et al., Petitioners v. Charles Willis Short, Individually and as Administrator of the Estate of Victoria Christine Short

NO. 23-1097

In the

Supreme Court of the United States

J.D. HARTMAN, SHERIFF OF DAVIE COUNTY,

IN HIS INDIVIDUAL AND OFFICIAL

CAPACITY, ET AL.,

Petitioners,

v.

CHARLES WILLIS SHORT, INDIVIDUALLY,

AND AS ADMINISTRATOR OF THE ESTATE OF

VICTORIA CHRISTINE SHORT,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

THE NATIONAL SHERIFFS’ ASSOCIATION

IN SUPPORT OF PETITIONERS

Gregory C. Champagne

Counsel of Record

Maurice E. Bostick

ST. CHARLES PARISH SHERIFF’S OFFICE

260 Judge Edward Dufresne Pkwy.

Luling, LA 70070

(985) 783-2883

SheriffGC@stcharlessheriff.org

May 3, 2024

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

IDENTITY AND INTEREST OF

THE AMICUS CURIAE ........................................ 1

SUMMARY OF ARGUMENT .................................... 2

I.

This Court Established a Clear Distinction

Between a Use of Force Analysis and a

Deliberate Indifference Analysis as Early

as 1986. ............................................................. 3

II. The Kingsley Objective Test for Excessive

Force Claims Cannot Be Applied in

Deliberate Indifference to Medical Needs

Claims. .............................................................. 5

III. Even After Kingsley, Many Circuits Have

Properly Recognized That Kingsley Cannot

Be Applied to Medical “Deliberate

Indifference” Claims to Eliminate the

Subjective Component and Impose Resulting

Liability on the Defendants. .......................... 14

IV. There Is No Constitutional Basis for a

Distinction Between Pretrial and Convicted

Inmates Other Than Use of Force Under

Kingsley. ......................................................... 17

CONCLUSION.......................................................... 20

ii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Agostini v. Felton,

521 U.S. 203, 117 S.Ct. 1997,

138 L.Ed.2d 391 (1997) ..................................... 13

Bell v. Wolfish,

441 U.S. 520, 99 S.Ct. 1861,

60 L.Ed.2d 447 (1979) ........................... 10, 17, 20

Castro v. Cty. of Los Angeles,

833 F.3d 1060 (9th Cir. 2016) ....................... 9, 10

Cutter v. Wilkinson,

544 U.S. 709 (2005) ..................................... 19, 20

Estate of Hocker by Hocker v. Walsh,

22 F.3d 995 (10th Cir. 1994) ............................... 6

Estelle v. Gamble,

429 U.S. 97, 97 S.Ct. 285,

50 L.Ed.2d 251 (1976) .............. 2-6, 17, 18, 20, 21

Farmer v. Brennan,

511 U.S. 825, 114 S.Ct. 1970,

128 L.Ed.2d 811 (1994) ....... 2, 4, 5, 11, 12, 13, 18

Florence v. Board of Chosen

Freeholders of the County of Burlington,

132 S.Ct. 1510 (2012) .................................. 19, 20

Garcia v. Salt Lake Cty.,

768 F.2d 303 (10th Cir. 1985) ......................... 6, 9

Graham v. Connor,

490 U.S. 386, 109 S.Ct. 1865,

104 L.Ed.2d 443 (1989) ................................... 8, 9

Griffith v. Franklin Cty.,

975 F.3d 554 (6th Cir. 2020) ....................... 16, 17

iii

TABLE OF AUTHORITIES – Continued

Page

Holt v. Hobbs,

135 S.Ct. 853 (2015) .................................... 19, 20

Hudson v. McMillian,

503 U.S. 1, 112 S.Ct. 995,

117 L.Ed.2d 156 (1992) ............................... 2, 4, 5

Hudson v. Palmer,

468 U.S. 517 (1984) ............................................. 3

Ireland v. Prummell,

53 F.4th 1274

(11th Cir. November 14, 2022).............. 14, 15, 16

Kingsley v. Hendrickson,

576 U.S. 389, 135 S.Ct. 2466,

192 L.Ed.2d 416 (2015) .... 2, 5, 7, 8, 9, 10, 12, 13,

14, 17, 20

R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377, 112 S.Ct. 2538,

120 L.Ed.2d 305 (1992) ..................................... 13

Sanchez v. Oliver,

995 F.3d 461 (5th Cir. 2021) ............................. 16

Strain v. Regalado,

977 F.3d 984 (10th Cir. 2020) ........................ 5-14

Turner v. Safley,

482 U.S. 78 (1987) ....................................... 17, 20

United States v. White,

782 F.3d 1118 (10th Cir. 2015) ......................... 13

Whitley v. Albers,

475 U.S. 312, 106 S.Ct. 1078,

89 L.Ed. 251 (1986) .......................................... 2-5

iv

TABLE OF AUTHORITIES – Continued

Page

Williams v. Young,

695 Fed. Appx. 503 (11th Cir. 2017) ................. 15

Wilson v. Seiter,

501 U.S. 294 (1991) ..................................... 18, 20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ................................................. 17

U.S. Const. amend. IV .............................................. 19

U.S. Const. amend. VIII ............. 4, 5, 6, 16, 17, 18, 19

U.S. Const. amend. XIV ........... 2, 6-9, 12-14, 16, 18-20

STATUTES

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

42 U.S.C. § 1983 .................................... 5, 6, 14, 17, 18

42 U.S.C. § 2000cc..................................................... 19

JUDICIAL RULES

Sup. Ct. R. 37.2(a) ....................................................... 1

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (11th ed. 2019) ................ 11

CHICAGO MANUAL OF STYLE § 5.79

(16th ed. 2010) ................................................... 11

1

IDENTITY AND INTEREST OF

THE AMICUS CURIAE

The NATIONAL SHERIFFS’ ASSOCIATION (the “NSA”)

is a non-profit association formed under 26 U.S.C.

§ 501(c)(4).1 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 20,000 members

and is the advocate for 3,083 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.

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 convicted as well as pretrial

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.

1 This brief was not authored in whole or in part by counsel for

any party. No person or entity other than amicus curiae made a

monetary contribution to this brief’s preparation or submission.

Pursuant to Supreme Court Rule 37.2(a), counsel of record for all

parties have received timely notice of the intent to file this brief.

2

SUMMARY OF ARGUMENT

Deliberate indifference to medical needs claims

must contain both an objective test and a subjective

test as well-established since Estelle v. Gamble, 429

U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The

subjective test requires an official both be aware of

facts from which the inference could be drawn that

a substantial risk of serious harm exists, and they

must also reasonably, using a reasonable person standard, draw the inference. This Court’s holding in

Kingsley v. Hendrickson, 576 U.S. 389, 135 S.Ct.

2466, 192 L.Ed.2d 416 (2015) that pretrial detainees

claiming excessive force only have to establish an

objective component did not eliminate the subjective

component required in all other constitutional claims

by pretrial detainees, including deliberate indifference

to medical needs claims.

This Court’s well-established precedent makes

clear that a use of force analysis is necessarily different

than a deliberate indifference analysis in Whitley v.

Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed. 251

(1986), Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995,

117 L.Ed.2d 156 (1992), and Farmer v. Brennan, 511

U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Accordingly, Kingsley’s use of force analysis cannot be

superimposed over a deliberate indifference analysis

to eliminate the subjective component of deliberate

indifference.

This Court should decline to extend Kingsley to

Fourteenth Amendment deliberate indifference claims

for several reasons. First, Kingsley turned on consider-

3

ations unique to excessive force claims: whether the use

of force amounted to punishment, not on the status of

the detainee. Next, the nature of a deliberate indifference

claim infers a subjective “deliberate” component. Finally,

principles of stare decisis weigh against overruling

precedent to extend a Supreme Court holding to a new

context or new category of claims.

I.

This Court Established a Clear Distinction

Between a Use of Force Analysis and a

Deliberate Indifference Analysis as Early as

1986.

In Whitley, this Court explained that a use of force

analysis is necessarily different than a deliberate

indifference analysis. This Court reasoned:

“[D]eliberate indifference to a prisoner’s

serious illness or injury,” Estelle, supra, at

105, can typically be established or disproved

without the necessity of balancing competing

institutional concerns for the safety of prison

staff or other inmates. But, in making and

carrying out decisions involving the use of

force to restore order in the face of a prison

disturbance, prison officials undoubtedly must

take into account the very real threats the

unrest presents to inmates and prison officials

alike, in addition to the possible harms to

inmates against whom force might be used. As

we said in Hudson v. Palmer, 468 U.S. 517,

526-527 (1984), prison administrators are

charged with the responsibility of ensuring

the safety of the prison staff, administrative

personnel, and visitors, as well as the “obligation to take reasonable measures to guarantee

the safety of the inmates themselves.” In this

4

setting, a deliberate indifference standard does

not adequately capture the importance of

such competing obligations, or convey the

appropriate hesitancy to critique in hindsight

decisions necessarily made in haste, under

pressure, and frequently without the luxury

of a second chance.

Whitley, 475 U. S. at 320.

This Court again explained why a use of force

analysis is necessarily different from a deliberate

indifference analysis in Hudson.

In Hudson, the Court stated, “Because society

does not expect that prisoners will have unqualified

access to health care, deliberate indifference to medical

needs amounts to an Eighth Amendment violation

only if those needs are “serious.” Hudson, 503 U.S. at

9, citing, Estelle 429 U.S. at 103-104. “In an excessive

force context, society’s expectations are different.”

Hudson, 503 U.S. at 9.

Again in Farmer v. Brennan, 511 U.S. 825, 114

S.Ct. 1970, 128 L.Ed.2d 811 (1994), this Court provided:

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. 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.

5

Farmer, 511 U.S. at 835.

Based on Whitley, Hudson and Farmer, Kingsley’s

elimination of the subjective component in a use of

force analysis cannot be applied to a deliberate indifference analysis.

II. The Kingsley Objective Test for Excessive

Force Claims Cannot Be Applied in Deliberate Indifference to Medical Needs Claims.

Rather than accepting the reasoning of the Fourth

Circuit, the Court would be far better off accepting the

thinking of another Court of Appeals as reflected in

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

In Strain, the Tenth Circuit considered whether

the district court erred by dismissing Plaintiff’s federal

claims under a standard for deliberate indifference that

included both an objective and a subjective component.

Plaintiff contended the court should analyze her claims

under a purely objective standard given the Supreme

Court’s decision in Kingsley v. Hendrickson, 576 U.S.

389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). The

Tenth Circuit rejected Plaintiff’s arguments and held

that deliberate indifference to a pretrial detainee’s

serious medical needs includes both an objective and

a subjective component, even after Kingsley. Strain,

977 F.3d at 989.

The court in Strain noted that the Supreme Court

first recognized a § 1983 claim for deliberate indifference under the Eighth Amendment, which protects the

rights of convicted prisoners, citing, Estelle v. Gamble,

429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)

(holding that deliberate indifference to a convicted

prisoner’s serious medical needs constitutes cruel and

unusual punishment in violation of Eighth Amendment).

6

Strain, 977 F.3d at 989. The Tenth Circuit later granted

pretrial detainees access to the claim under the

Fourteenth Amendment in Garcia v. Salt Lake Cty., 768

F.2d 303, 307 (10th Cir. 1985) (holding that, although

the Eighth Amendment protects the rights of convicted

prisoners and the Fourteenth Amendment protects the

rights of pretrial detainees, pretrial detainees are

“entitled to the degree of protection against denial of

medical attention which applies to convicted inmates”).

Strain, 977 F.3d at 989. In a later decision, the Tenth

Circuit applied the same deliberate indifference standard

to U.S.C. § 1983 claims no matter which amendment

provided the constitutional basis for the claim. Strain,

977 F.3d at 989, citing Estate of Hocker by Hocker v.

Walsh, 22 F.3d 995, 998 (10th Cir. 1994) (holding that

a pretrial detainee’s Fourteenth Amendment “claim

for inadequate medical attention must be judged

against the deliberate indifference to serious medical

needs test of Estelle”).

In Strain the court said that to state a cognizable

constitutional claim, the Plaintiff must allege acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs. Strain, 977 F.3d

at 989. This standard includes both an objective component and a subjective component. Id. The subjective

component requires that Plaintiff to establish that a

medical 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 she must also draw the inference and failed to act

to the point that harm or injury was caused to the

plaintiff. Strain, 977 F.3d at 990.

7

In Strain, the Plaintiff argued that the Supreme

Court’s Kingsley decision altered the standard for

pretrial detainees’ Fourteenth Amendment claims. In

Kingsley, the Court held that a plaintiff may establish an excessive force claim under the Fourteenth

Amendment based exclusively on objective evidence.

Kingsley, 576 U.S. at 397 (explaining that “the appropriate standard for a pretrial detainee’s excessive force

claim is solely an objective one”). But the Tenth Circuit

in Strain noted that Kingsley did not address the standard for deliberate indifference to serious medical needs.

Strain, 977 F.3d at 990. And the court also noted that

the 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. Id.

The court in Strain declined to extend Kingsley to

Fourteenth Amendment deliberate indifference claims

for several reasons. Strain, 977 F.3d at 991. First,

Kingsley turned on considerations unique to excessive

force claims: whether the use of force amounted to

punishment, not on the status of the detainee. Id.

Next, the nature of a deliberate indifference claim

infers a subjective component. Id. Finally, principles

of stare decisis weigh against overruling precedent to

extend a Supreme Court holding to a new context or

new category of claims. Id.

In Strain, the court stated that “[f]irst, we recognize

that Kingsley involved an excessive force claim, not a

deliberate indifference claim.” Id. “By its own words,

the Supreme Court decided that ‘an objective standard

is appropriate in the context of excessive force claims

brought by pretrial detainees pursuant to the Fourteenth

Amendment’—nothing more, nothing less.” Strain, 977

8

F.3d at 991, citing, Kingsley, 576 U.S. at 402. The

Tenth Circuit in Strain reasoned that, although the

Court did not foreclose the possibility of extending the

purely objective standard to new contexts, the Court

said nothing to suggest it intended to extend that

standard to pretrial detainee claims generally or

deliberate indifference claims specifically. Strain, 977

F.3d at 991, citing, Kingsley, 576 U.S. at 395 (explaining

that the question before the Court [in Kingsley] concerns

the defendant’s state of mind with respect to whether

his use of force was ‘excessive’ and concluding with

respect to that question that the relevant standard is

objective not subjective). So whether Kingsley applies

to Fourteenth Amendment claims outside the excessive

force context is not readily apparent from that opinion

according to the court’s reasoning in Strain. Strain, 977

F.3d at 991.

In Strain, the Tenth Circuit explained in a very

cogent way that this Court is urged to adopt why

Kingsley cannot be applied outside the excessive force

context as follows:

Even though both causes of action arise

under the Fourteenth Amendment, a pretrial

detainee’s cause of action for excessive force

serves a different purpose than that for

deliberate indifference. The excessive force

cause of action “protects a pretrial detainee

from the use of excessive force that amounts

to punishment.” Id. at 397 (quoting Graham

v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct.

1865, 104 L.Ed.2d 443 (1989)). The deliberate

indifference cause of action does not relate to

punishment, but rather safeguards a pretrial

detainee’s access to adequate medical care.

9

Garcia, 768 F.2d at 307. Excessive force requires an affirmative act, while deliberate

indifference often stems from inaction. Castro

v. Cty. of Los Angeles, 833 F.3d 1060, 1069

(9th Cir. 2016) (en banc). Although “punitive

intent may be inferred from affirmative acts

that are excessive in relationship to a legitimate government objective, the mere failure

to act does not raise the same inference.” Id.

at 1086 (Ikuta, J., dissenting) (reasoning

that “the Kingsley standard is not applicable

to cases where a government official fails to

act” because “a person who unknowingly

fails to act—even when such a failure is

objectively unreasonable—is negligent at

most” and “the Supreme Court has made

clear that liability for negligently inflicted

harm is categorically beneath the threshold

of constitutional due process”). Because the

two categories of claims protect different rights

for different purposes, the claims require

different state-of-mind inquiries.

Strain, 977 F.3d at 991.

The Strain court stated, “Indeed, Kingsley relies

on precedent specific to excessive force claims. Id.

The Court reasoned that the Due Process Clause is

particularly concerned with improper punishment of

pretrial detainees through use of force and physical

means. Id. citing, Kingsley, 576 U.S. at 398 (citing

Graham, 490 U.S. at 395 n.10 (concluding that “the Due

Process Clause protects a pretrial detainee from the

use of excessive force that amounts to punishment”)).”

Strain, 977 F.3d at 991. “And pretrial detainees should

receive greater protection against excessive force than

10

convicted criminals because the government lacks the

same legitimate penological interest in punishing those

not yet convicted of a crime.” Strain, 977 F.3d at 991992, citing, Kingsley, 576 U.S. at 398-99.

The Strain court further stated, “So a pretrial

detainee may prevail on an excessive force claim ‘in the

absence of an expressed intent to punish’ if an official’s

actions ‘appear excessive in relation to [a legitimate

government] purpose.’” Strain, 977 F.3d at 992, citing,

Kingsley, 576 U.S. at 398 (quoting Bell v. Wolfish, 441

U.S. 520, 561, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)

(considering only objective evidence to determine

“whether particular restrictions and conditions accompanying pretrial detention amount to punishment in

the constitutional sense of that word” (Id. at 538))).”

Strain, 977 F.3d at 992.

In Strain the court further noted that

[T]hroughout the Kingsley opinion, the Court’s

focus on ‘punishment’ provides the basis for

removing the subjective requirement from a

pretrial detainee’s excessive force claims.

Id. (providing excessive force examples in

which purely objective evidence showed that

the government’s punitive actions were intentional, even if the motivation behind those

actions was not to punish).

Strain, 977 F.3d at 992. The Tenth Circuit further

stated, “But the Court has never suggested that we

should remove the subjective component for claims

addressing inaction.” Strain, 977 F.3d at 992, citing,

Castro, 833 F.3d at 1086 (Ikuta, J., dissenting). “Thus,

the force of Kingsley does not apply to the deliberate

indifference context, where the claim generally involves

11

inaction divorced from punishment.” Strain, 977 F.3d

at 992.

The Tenth Circuit in Strain next observed that a

deliberate indifference claim presupposes a subjective

component. Strain, 977 F.3d at 992. “After all, deliberate means ‘intentional,’ ‘premeditated,’ or ‘fully

considered.’” Strain, 977 F.3d at 992, citing, BLACK’S

LAW DICTIONARY 539 (11th ed. 2019). “And as an

adjective, ‘deliberate’ modifies the noun ‘indifference.’”

Strain, 977 F.3d at 992, citing, CHICAGO MANUAL OF

STYLE § 5.79 (16th ed. 2010) (“An adjective that modifies

a noun element usually precedes it.”). So a plaintiff must

allege that an actor possessed the requisite intent,

together with objectively indifferent conduct, to state

a claim for deliberate indifference according to the

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

The Strain court stated, “To that end, the Supreme

Court previously rejected a request to adopt a ‘purely

objective test for deliberate indifference.’” Strain, 977

F.3d at 992, citing, Farmer v. Brennan, 511 U.S. 825,

839, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “Instead,

deliberate indifference requires an official to subjectively

disregard a known or obvious, serious medical need.

Id. at 837 (explaining that “deliberate indifference [lies]

somewhere between the poles of negligence at one end

and purpose or knowledge at the other” (Id. at 836)).”

Strain, 977 F.3d at 992. The Strain court provided,

“So an official’s intent matters not only as to what the

official did (or failed to do), but also why the official

did it. Farmer, 511 U.S. at 839 (explaining that a

deliberate indifference claim focuses “on what a

defendant’s mental attitude actually was”).” Strain,

977 F.3d at 992.

12

The Tenth Circuit in Strain reasoned further as

follows:

An excessive force claim, on the other hand,

does not consider an official’s “state of mind

with respect to the proper interpretation of the

force.” Kingsley, 576 U.S. at 396 (emphasis

in original). So the Supreme Court distinguished deliberate indifference cases—where

an official’s subjective intent behind objectively indifferent conduct matters—from the

distinct class of cases involving excessive

force, which does not require that an official

subjectively intended for force to be excessive. Farmer, 511 U.S. at 835 (explaining

that the “application of the deliberate indifference standard is inappropriate in one

class of prison cases: when officials stand

accused of using excessive physical force”

(internal quotation marks and citation omitted)). Removing the subjective component

from deliberate indifference claims would thus

erode the intent requirement inherent in the

claim. Id.; see also Kingsley, 576 U.S. at 408

(Scalia, J., dissenting) (warning that the

Fourteenth Amendment’s “Due Process Clause

is not a font of tort law to be superimposed

upon that state system” (internal quotation

marks and citation omitted)).

Strain, 977 F.3d at 992-993.

The Tenth Circuit in Strain correctly recognized

that the Supreme Court has cautioned against reaching

the resolution that Plaintiff sought. Id. at 993. The court

stated, “Extending Kingsley to eliminate the subjective component of the deliberate indifference stan-

13

dard in the Tenth Circuit would contradict the Supreme

Court’s rejection of a purely objective test in Farmer

and our longstanding precedent. Id. at 993, citing,

Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997,

138 L.Ed.2d 391 (1997) (“We reaffirm that if a precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.”). The

Strain court said, “Although other circuits have relied

on the ‘broad language’ of Kingsley to apply a purely

objective standard to Fourteenth Amendment deliberate indifference claims, we choose forbearance. Strain,

977 F.3d at 993, citing, R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377, 386 n.5, 112 S.Ct. 2538, 120 L.Ed.2d 305

(1992) (“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.”).

The Strain court concluded:

At no point did Kingsley pronounce its application to Fourteenth Amendment deliberate

indifference claims or otherwise state that

we should adopt a purely objective standard

for such claims, so we cannot overrule our

precedent on this issue. United States v.

White, 782 F.3d 1118, 1126-27 (10th Cir. 2015)

(holding that one “panel of this court cannot

overrule the judgment of another panel absent

en banc consideration or an intervening

Supreme Court decision that is contrary to

or invalidates our previous analysis” (citation

omitted)). We therefore join our sister circuits

14

that have declined to extend Kingsley to

deliberate indifference claims and will apply

our two-prong test to Plaintiff’s claims.

Strain, 977 F.3d at 933.

This Court should adopt the sound reasoning of

the Tenth Circuit in Strain as superior to Petitioners’

reasoning in the instant case for the very reasons so

well-articulated by that court.

III. Even After Kingsley, Many Circuits Have

Properly Recognized That Kingsley Cannot

Be Applied to Medical “Deliberate Indifference” Claims to Eliminate the Subjective

Component and Impose Resulting Liability

on the Defendants.

The Fourteenth Amendment requires government

officials to provide basic necessities, including medical

care, to pretrial detainees. Ireland v. Prummell, 53

F.4th 1274, 1287 (11th Cir. November 14, 2022). A

failure to provide such care violates that amendment,

which is actionable under § 1983. Id. To prevail on such

a claim, a litigant must satisfy both an objective and

a subjective inquiry. Id. The objective inquiry requires

a plaintiff to establish the existence of an “objectively

serious medical need.” Id. The subjective inquiry

requires a plaintiff to prove that a government official

was “deliberatively indifferent” to that need. Id.

15

The Eleventh Circuit in Ireland provided:

We have synthesized this “deliberate indifference” inquiry into four elements: (1) the

official was aware of facts from which the

inference could be drawn that a substantial

risk of serious harm exists, (2) the official

actually drew that inference, (3) the official

disregarded the risk of serious harm, and (4)

the official’s conduct amounted to more than

gross negligence.

Id.

In Williams v. Young, 695 Fed. Appx. 503 (11th

Cir. 2017), the court explained deliberate indifference

as to a pre-trial detainee as follows:

For medical treatment to rise to the level of

a constitutional violation, the care must be so

grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable

to fundamental fairness. Mere incidents of

negligence or malpractice do not rise to

the level of constitutional violations. Nor does

a simple difference in medical opinion between

the prison’s medical staff and the inmate as

to the latter’s diagnosis or course of treatment

support a claim of cruel and unusual punishment. To show deliberate indifference to a

serious medical need, therefore, a plaintiff

must demonstrate that defendants’ response

to a serious medical need was poor enough

to constitute an unnecessary and wanton

infliction of pain, and not merely accidental

inadequacy, negligence in diagnosis or treat-

16

ment, or even medical malpractice actionable

under state law.

Id. at 505-506.

It has been clearly established in the Fifth

Circuit since at least 1989 that pretrial detainees

have a Fourteenth Amendment right to be protected

from a known risk of suicide, and it is well-settled law

that jail officials violate this right if they have actual

knowledge of the substantial risk of suicide and respond

with deliberate indifference. Sanchez v. Oliver, 995

F.3d 461, 466 (5th Cir. 2021). A state jail official’s constitutional liability to pretrial detainees for episodic

acts or omissions should be measured by a standard

of subjective deliberate indifference. Id. at 473. To

satisfy this standard a prison 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. Id. Deliberate

indifference is a high standard to meet. Id. Unsuccessful

medical treatment, acts of negligence or medical malpractice do not constitute deliberate indifference. Id.

However, if an official has subjective knowledge that

a pretrial detainee is a substantial suicide risk, the

official shows a deliberate indifference to that risk by

failing to take reasonable measures to abate it. Id.

The Sixth Circuit has consistently applied the

same “deliberate indifference” framework to Eighth

Amendment claims brought by convicted prisoners as

Fourteenth Amendment claims brought by pretrial

detainees. Griffith v. Franklin Cty., 975 F.3d 554, 567

(6th Cir. 2020). This two-part framework contains

both an objective component—a sufficiently serious

medical need—and a subjective component—a sufficiently culpable state of mind. Id. The court further

17

stated that whatever Kingsley requires, it is more than

negligence because liability for negligently inflicted

harm is categorically beneath the threshold of a constitutional due process violation so as to impose

liability under 42 U.S.C. § 1983. Griffith, 975 F.3d at

570.

IV. There Is No Constitutional Basis for a

Distinction Between Pretrial and Convicted

Inmates Other Than Use of Force Under

Kingsley.

Decisions of this Court regarding convicted inmates’

Constitutional rights have long been applied to pretrial

detainees. This appropriate application is also true as

countless lower court cases evidence. In the seminal

case of Bell v. Wolfish, 441 U.S. 520 (1979), this Court

recognized that “simply because prison inmates retain

certain Constitutional rights does not mean that these

rights are not subject to restrictions and limitations.”

This Court went on to hold that this principle applies

equally to pretrial detainees and convicted prisoners.

Id. at 546.

In Turner v. Safley, 482 U.S. 78 (1987) this Court

examined the constitutionality of regulations affecting

inmate correspondence and inmate marriages under

the First Amendment. In so doing this Court made no

distinction between pretrial detainees and convicted

inmates. Turner is heralded as a leading Supreme

Court decision in the area of correctional law and is

universally applied as precedent to both pretrial and

convicted inmates.

In Estelle v. Gamble, 429 U.S. 97, 104 (1976) this

Court examined whether an inmate’s Eighth Amendment rights were violated for failure of the correctional

18

facility to provide adequate medical care. Estelle is the

foundation for the legal analysis regarding medical

care and is universally applied to both pretrial and

convicted inmates. Further, “Medical malpractice does

not become a constitutional violation merely because

the victim is a prisoner.” Estelle, 429 U.S. at 106.

Matters of medical judgment are, “[a]t most . . . medical malpractice, and as such the proper forum is the

state court . . . Estelle, 429 U.S. at 107.

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

inmate filed an action against prison officials under

42 U.S.C.S. § 1983. The inmate alleged that a number

of the conditions of his confinement constituted cruel

and unusual punishment in violation of the Eighth

and Fourteenth Amendments. In examining the issue,

this Court stated that “[W]hether one characterizes

the treatment received by [the prisoner] as inhumane

conditions of confinement, failure to attend to his

medical needs, or a combination of both, it is appropriate to apply the ‘deliberate indifference’ standard

articulated in Estelle.” Id. at 303. The Wilson precedent is universally applied to both pretrial and convicted inmates as it relates to conditions of confinement

cases and alleged violations of 42 U.S.C. § 1983.

In Farmer v. Brennan, 511 U.S. 825 (1994), this

Court held that a prison official may be held liable

under the Eighth Amendment for acting with “deliberate indifference” to inmate health or safety only if

the official knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to

take reasonable measures to abate it. Farmer is the

foundational precedent that is applied by the courts

without distinction as to the inmate’s convicted status

regarding the duty to protect as well as other claims

19

alleging constitutional violations of the Eighth Amendment. In that case this court made no distinction

between pretrial detainees and convicted inmates.

In Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)

this Court examined the religious rights of “current

and former inmates” of institutions operated by the

Ohio Department of Rehabilitation and Correction

under the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc

(2000), et seq., without making a distinction between

pretrial detainees and convicted inmates. Cutter, 544

U.S. at 723. RLUIPA’s arms extend to all institutionalized persons, focusing on those incarcerated in jails

and prisons. This Court unanimously held that

RLUIPA was constitutionally enacted and applied to all

correctional facilities.

In Florence v. Board of Chosen Freeholders of the

County of Burlington, 132 S.Ct. 1510 (2012), this

Court echoed Bell and affirmed Turner by holding that

correctional officials have a legitimate governmental

interest to maintain safety and security for all who live

and work in these institutions. This Court has recognized that under the Fourth and Fourteenth Amendments even arrestees are treated the same as pretrial

detainees and convicted inmates for the purpose of strip

searches when entering general population. Florence,

132 S.Ct. at 1523.

In Holt v. Hobbs, 135 S.Ct. 853 (2015) this Court

held a Department’s policy violated RLUIPA, which

prohibits a state or local government from taking any

action that substantially burdens the religious exercise

of an “institutionalized person,” unless the government

demonstrates that the action constitutes the least

restrictive means of furthering a compelling govern-

20

mental interest. This Court did so without making a

distinction between pretrial and convicted inmates.

In sum, this Court does not distinguish between

pretrial and convicted inmates in examining claims

of Constitutional violations relating to conditions of

confinement (Bell), involving rights of freedom of speech

and marriage of inmates (Turner), inadequate medical

care of inmates (Estelle), conditions of confinement

(Wilson), duty to protect inmates (Farmer), freedom of

religion of inmates (Cutter and Holt), or strip searches

of inmates (Florence). Use of force claims stand alone

in such distinctions and because of their unique

nature, that distinction should remain.

CONCLUSION

Based on this Court’s well-established precedent,

deliberate indifference to medical needs claims under

the Fourteenth Amendment for pre-trial detainees

must contain both an objective test and a subjective

test. The subjective test requires an official both be

aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and they must also draw the inference. This Court’s

holding in Kingsley that excessive force claimants only

have to establish an objective component did not

eliminate the subjective component required in all

other constitutional claims by pre-trial detainees.

Accordingly, Petitioners’ Petition for Certiorari should

granted. Further, this Court should reaffirm that

deliberate indifference to medical needs claims under

the Fourteenth Amendment for pre-trial detainees

21

must contain both an objective element and a subjective

element as well-established by this Court’s precedent

in Estelle and its progeny.

Respectfully submitted,

Gregory C. Champagne

Counsel of Record

Maurice E. Bostick

ST. CHARLES PARISH SHERIFF’S OFFICE

260 Judge Edward Dufresne Pkwy.

Luling, LA 70070

(985) 783-2883

SheriffGC@stcharlessheriff.org

Counsel for Amicus Curiae

May 3, 2024