Amicus Curiae Brief — Daniel Kinsinger, Petitioner v. Sherelle Thomas, Administrator of the Estate of Terelle Thomas, et al.

No. 23-1204

In the Supreme Court of the United States

DANIEL KINSINGER,

v.

Petitioner,

SHERELLE THOMAS, Administrator of the

Estate of Terelle Thomas, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Third Circuit

BRIEF FOR THE PENNSYLVANIA LODGE OF

THE FRATERNAL ORDER OF POLICE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

RYAN P. GOODWIN, ESQ.

Counsel of Record

STEPHEN J. MARIETTA, ESQ.

GIBBONS P.C.

One Gateway Center

Newark, New Jersey 07102

(973) 596-4500

rgoodwin@gibbonslaw.com

Counsel for Pennsylvania Lodge

of the Fraternal Order of Police

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ....................... 1

INTRODUCTION AND

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

ARGUMENT .......................................................... 8

I. The Third Circuit’s Concerning Contravention of

Deliberate-Indifference Precedent ................... 8

II. The Third Circuit’s Incorrect Application of

Qualified-Immunity Principles ...................... 16

A. Existing Law Does Not Put Officer

Kinsinger’s Conduct Beyond Constitutional

Debate. ....................................................... 16

B. The Third Circuit Incorrectly Applied the

“Obvious Cruelty” Exception. ................... 19

C. The Third Circuit’s Reading of the “Obvious

Cruelty” Exception Is Unworkable. .......... 24

CONCLUSION ..................................................... 26

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ......................................... 17

Bell v. City of Southfield,

37 F.4th 362 (6th Cir. 2022) ........................... 22

Brown v. Middleton,

362 F. App’x 340 (4th Cir. 2010) .................... 10

Burnette v. Taylor,

533 F.3d 1325 (11th Cir. 2008) ........ 7, 10, 18, 21

City & County of San Francisco v. Sheehan,

575 U.S. 600 (2015) ........................................... 3

City of Revere v. Mass. Gen. Hosp.,

463 U.S. 239 (1983) ........................................... 9

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

489 U.S. 189 (1989) ................................ 4, 12, 15

District of Columbia v. Wesby,

583 U.S. 48 (2018) ........................................ 3, 17

Est. of Simpson v. Gorbett,

863 F.3d 740 (7th Cir. 2017) .......................... 13

Estelle v. Gamble,

429 U.S. 97 (1976) ................................ 3, 6, 8, 12

iii

Farmer v. Brennan,

511 U.S. 825 (1994) .............. 3, 5, 8, 9, 12, 14, 15

Greene v. Crawford County,

22 F.4th 593 (6th Cir. 2022) ........................... 11

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................... 4

Harper v. Lawrence County,

592 F.3d 1227 (11th Cir. 2010) ....................... 13

Hope v. Pelzer,

536 U.S. 730 (2002) ........................ 19, 20, 21, 22

Hutto v. Davis,

972 F. Supp. 1372 (W.D. Okla. 1997) ........ 10, 18

J.K.J. v. City of San Diego,

42 F.4th 990 (9th Cir. 2021) ........................... 23

Kisela v. Hughes,

584 U.S. 100 (2018) .................................... 22, 24

Kisor v. Wilkie,

588 U.S. 558 (2019) ......................................... 25

Mammaro v. N.J. Div. of Child Prot. &

Permanency,

814 F.3d 164 (3d Cir. 2016) ............................ 22

Meier v. County of Presque Isle,

376 F. App’x 524 (6th Cir. 2010) ............... 13, 15

iv

Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575 (3d Cir. 2003) .............................. 9

Reed v. Palmer,

906 F.3d 540 (7th Cir. 2018) .......................... 20

Rouse v. Plantier,

182 F.3d 192 (3d Cir. 1999) .............................. 8

Sanders ex rel. Est. of Sanders v. City of Dothan,

671 F. Supp. 2d 1263

(M.D. Ala. 2009) .....................................11, 13, 18

Sandoval v. County of San Diego,

985 F.3d 657 (9th Cir. 2021) ..................... 22, 23

Spears v. Ruth,

589 F.3d 249 (6th Cir. 2009) ................. 6, 18, 21

Taylor v. Riojas,

592 U.S. 7 (2020) ............................ 19, 20, 21, 22

Trozzi v. Lake County,

29 F.4th 745 (6th Cir. 2022) ............................ 11

Whitley v. Albers,

475 U.S. 312 (1986) .................................... 12, 20

Wilson v. Layne,

526 U.S. 603 (1999) ......................................... 17

Wilson v. Seiter,

501 U.S. 294 (1991) ...................................... 6, 12

v

STATUTES

42 U.S.C. § 1983 .................. 1, 5, 6, 8, 11, 13, 15, 24

SECONDARY SOURCES

1 ERIC CAMERON STRAIN, WILKINS KAPLAN &

SADOCK’S COMPREHENSIVE TEXTBOOK ON

PSYCHIATRY (Benjamin J. Sadock, Virginia

A. Sadock & Pedro Ruiz eds., 10th ed.

2017) .............................................................. 9, 14

1

INTEREST OF AMICUS CURIAE 1

The Pennsylvania Lodge of the Fraternal Order

of Police (“PAFOP”) was founded in 1934 and

currently represents approximately 40,000 law

enforcement officers throughout the Commonwealth

of

Pennsylvania.

PAFOP

represents

law

enforcement officers from agencies of all shapes and

sizes. PAFOP strives to advocate for its members to

advance policies that enhance the safety of law

enforcement officers and the general public. PAFOP

also works tirelessly in its efforts to provide member

support, educational programs, and public service

throughout the Commonwealth of Pennsylvania.

Consistent with its mission, PAFOP has an

interest in cases, like this one, that present issues of

systematic importance for the individual livelihoods

of law enforcement officers. This appeal involves

important questions about the scope of 42 U.S.C. §

1983 and qualified immunity that will continue to

harm law enforcement officers until corrected by

this Court.

amicus, its members, or its

counsel authored this brief, in whole or in part, or made a

monetary contribution to this brief’s preparation or

submission. Under Supreme Court Rule 37.2, amicus provided

timely notice to the parties of its intent to file its brief, and no

party has objected.

1 No persons or entities other than

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Establishing

a

state

actor’s

deliberate

indifference under the Fourteenth Amendment is a

high bar. Higher still is finding that a state actor

acted with obvious cruelty. Yet, the Third Circuit

found both for a probation officer that did not adhere

to a police department’s “best practice” of

transporting a drug-consuming arrestee to a

hospital. More generally, the Third Circuit ruled

that any law enforcement officer in the circuit acts

deliberately indifferent and obviously cruel if the

officer does not “take reasonable steps to render

medical care” to arrestees after becoming “aware”

they had consumed a “sufficiently large” amount of

drugs. Pet.App.16a. In so ruling, the Third Circuit

neither heeded this Court’s high bars for deliberate

indifference and obvious cruelty nor examined the

established body of drug-ingestion case law.

Among many, the problem with these conclusions

is that they ignore the absence of allegations in the

complaint showing that Petitioner Dan Kinsinger

observed any signs that the decedent, Terelle

Thomas, was experiencing a significant risk of harm

or death. Indeed, the complaint nowhere alleges that

Thomas alerted Officer Kinsinger and others that he

was experiencing any symptoms of a drug overdose.

Nor did Thomas request medical help, even though

several officers repeatedly asked if he had consumed

cocaine and if he needed medical attention. Nor did

Thomas ever acknowledge that he had, in fact,

ingested a drug. Nor did the Third Circuit seriously

3

examine the import of the officers’ decision to

transport Thomas to a booking center with medical

facilities.

The Third Circuit’s conclusions also skirt clear

mandates from this Court on how to interpret

deliberate indifference and qualified immunity for

inadequate-medical-care claims. This Court has

stressed that negligence alone cannot serve as the

floor for deliberate indifference. E.g., Estelle v.

Gamble, 429 U.S. 97, 105–06 (1976) (“[I]n the

medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute

‘an unnecessary and wanton infliction of pain’ or to

be ‘repugnant to the conscience of mankind.’”);

Farmer v. Brennan, 511 U.S. 825, 838 (1994) (“[A]n

official’s failure to alleviate a significant risk that he

should have perceived but did not, while no cause for

commendation, cannot under our cases be

condemned as the infliction of punishment.”). And,

even though the Third Circuit recognized that no

law had previously established its newfound rule, it

ignored that “existing law must have placed the

constitutionality of the officer’s conduct beyond

debate” and that qualified immunity “protects all

but the plainly incompetent or those who knowingly

violate the law.” District of Columbia v. Wesby, 583

U.S. 48, 63 (2018) (emphases added) (cleaned up);

see also City & County of San Francisco v. Sheehan,

575 U.S. 600, 611 n.3 (2015) (“Because of the

importance of qualified immunity ‘to society as a

whole,’ the Court often corrects lower courts when

they wrongly subject individual officers to liability.”

4

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982))). In failing to heed these principles—and

despite this Court’s holding otherwise—the Third

Circuit’s new rule “transform[s] every” inadequatemedical-care tort under the Fourteenth Amendment

“into a constitutional violation.” DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

202 (1989) (collecting cases).

Indeed, Judge Phipps dissented, echoing these

points and more. In particular, he noted that “the

Majority Opinion offers no precedent for the

proposition that as of [the date of alleged

constitutional violation], the Due Process Clause

required that officers transport to a hospital a

detained suspect who appears to have ingested

drugs.” Pet.App.19a–20a. That was particularly

troubling because, as Judge Phipps rightfully

observed, “Thomas exhibited no plain symptoms of

distress” and “responded coherently to inquiries by

other later-arriving officers.” Id. at 21a. “And after

Thomas arrived at the detention center,” urged the

dissent, “not even the examining nurse realized the

urgency of the situation.” Id. In fact, the only way

the Third Circuit found unconstitutional conduct

was by relying on the “best practice” in a Harrisburg

Police Department policy—which, as Judge Phipps

noted, “does not set a constitutional standard of

conduct for the Harrisburg Police Department,

much less for every law enforcement agency

operating within this Circuit’s geographical

bounds.” Id. at 22a.

5

It is for these many reasons that the Third

Circuit’s decision is wrong. Accordingly, this Court

should grant certiorari to resolve the Third Circuit’s

grave errors on deliberate indifference and qualified

immunity.

1. In finding that Thomas’s complaint sufficiently

alleged a constitutional violation against Officer

Kinsinger, the Third Circuit adopted a concerning

view of deliberate indifference for Fourteenth

Amendment inadequate-medical-care claims. Under

the Third Circuit’s rule, so long as law enforcement

officers are aware that an arrestee likely ingested

drugs, they must render medical care—and

particularly by transporting the arrestee to the

nearest hospital. That approach is deeply flawed for

a few reasons.

First, the Third Circuit’s rule ignores the

longstanding deliberate-indifference rules that an

arrestee must exhibit a serious medical need and

that an officer must “know[] of and disregard[] an

excessive risk to [arrestee] health or safety” by being

“aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists”

and by “draw[ing] the inference.” Farmer, 511 U.S.

at 837. Officer Kinsinger could never have drawn

this inference because not all drug ingestions are

life-threatening—and thus cannot rise to the level of

reckless disregard for a serious medical need.

Rather, only when law enforcement officers observe

and ignore physical and psychological symptoms of

distress can courts hold them liable under § 1983. To

be sure, drug overdoses often present with visible

6

life-threatening symptoms. But officers cannot be

responsible for transporting myriad suspects to

hospitals on suspicion of drug ingestion alone.

Second, the Third Circuit’s prophylactic rule

amounts to no more than a negligence standard for

deliberate indifference, a standard which this Court

has repeatedly warned against. See Estelle, 429 U.S.

at 105–06; Wilson v. Seiter, 501 U.S. 294, 305 (1991)

(“Mere negligence would [not] satisfy . . . [the]

deliberate indifference standard . . . .” (cleaned up)).

At bottom, the Third Circuit charges law

enforcement officers with § 1983 liability if they do

no more than misdiagnose the amount of drugs a

suspect has taken or breach a municipal policy.

Deliberate indifference requires more: at a

minimum, a conscious disregard of known facts, not

judgments rendered erroneous with the benefit of

hindsight.

2. Compounding this error, the Third Circuit

further denied Officer Kinsinger qualified immunity

because it found his conduct to be obviously cruel.

This was error for at least three reasons.

First, the Third Circuit circumvented any

analysis of precedent that would have shown that

law enforcement officers do not have a duty to render

medical care in drug-ingestion cases. Indeed, the

Third Circuit conceded that no law clearly

established this duty. But it also ignored entirely an

overwhelming body of law that suggests Officer

Kinsinger’s conduct is neither deliberately

indifferent nor obviously cruel. See, e.g., Spears v.

7

Ruth, 589 F.3d 249, 254–55 (6th Cir. 2009); Burnette

v. Taylor, 533 F.3d 1325, 1331–32 (11th Cir. 2008).

Second, the Third Circuit misapplied this Court’s

“obvious cruelty” exception to clearly established

law, which applies to extraordinary and egregious

facts patterns. The facts here are not extraordinary

because, as stated, numerous cases have dealt with

strikingly similar fact patterns and granted

qualified immunity. Nor are the facts here

egregious. Thomas never exhibited symptoms of

duress and he refused medical care. Those facts

diverge from the ones on which this Court found

obvious cruelty: one involving prison guards’

intentionally tying an inmate to a hitching post

under the hot sun; another involving guards’

purposefully placing an inmate in feces-infested

cells for six days.

Finally, the Third Circuit’s qualified-immunity

analysis is unworkable. For one, it based its

rationale on a Harrisburg Police Department

policy—which Officer Kinsinger is not even bound

by—thereby elevating municipal policy to a

constitutional dimension. As Judge Phipps

dissented, “Such an approach inverts the role of the

Constitution as the highest law of the land[.]”

Pet.App.22a. For another, the Third Circuit’s rule

now requires law enforcement officers to exercise

unqualified on-the-spot medical judgments as to

how much drugs a suspect may have taken. In other

words, instead of investigating drug crimes, officers

may now have to focus on taking suspects who have

possibly ingested any drug (or combination of drugs)

8

of any quantity to nearby hospitals to stave off §

1983 liability.

ARGUMENT

I. The Third Circuit’s Concerning Contravention of

Deliberate-Indifference Precedent

The Third Circuit erred in holding that the

officers’ decision to take Thomas to a booking center

with medical facilities was deliberately indifferent.

It incorrectly reasoned that the complaint

sufficiently alleged that Officer Kinsinger and

others “actually drew the inference of a substantial

risk to Thomas’s health.” Pet.App.12a. That’s

because, according to the Third Circuit, the

complaint alleged that Officer Kinsinger and others

knew of the “ill effect” of cocaine ingestion but

decided to take Thomas to a booking center that was

“ill-equipped to handle emergencies.” Id. Put simply,

the Third Circuit reasoned that, because the officers

knew that Thomas had ingested cocaine, they

recklessly ignored that Thomas was likely

experiencing a medical emergency.

The Third Circuit misapplied the standard for

deliberate indifference. That two-prong standard

first requires that the officer’s conduct result in a

denial of humane conditions of confinement—here, a

serious medical need. See Farmer, 511 U.S. at 834;

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)

(Alito, J.) (quoting Estelle, 429 U.S. at 106). Second,

an officer must “know[] of and disregard[] an

excessive risk to [arrestee] health or safety” by being

9

“aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists”

and by “draw[ing] the inference.” Farmer, 511 U.S.

at 837. Though the Court crafted this standard in

the Eighth Amendment context, the Third Circuit

and others have applied it to inadequate-medicalcare claims brought by arrestees under the

Fourteenth Amendment. E.g., Natale v. Camden

Cnty. Corr. Facility, 318 F.3d 575, 581–82 (3d Cir.

2003); see also City of Revere v. Mass. Gen. Hosp.,

463 U.S. 239, 244 (1983) (“The Due Process Clause,

however, does require the responsible government

or governmental agency to provide medical care to

persons . . . who have been injured while being

apprehended by the police.”).

The core error with the Third Circuit’s reasoning

is that the complaint does not allege sufficient facts

showing that Thomas was suffering a “serious

medical need” or that Officer Kinsinger was “aware

of facts” arising to a “substantial risk of serious

harm” or actually drew that inference. For instance,

the complaint never alleges that Officer Kinsinger

observed symptoms of a cocaine overdose. Start with

the obvious: cocaine overdoses often present with

highly visible symptoms. See 1 ERIC CAMERON

STRAIN,

WILKINS

KAPLAN

&

SADOCK’S

COMPREHENSIVE TEXTBOOK ON PSYCHIATRY 1285

(Benjamin J. Sadock, Virginia A. Sadock & Pedro

Ruiz eds., 10th ed. 2017) (noting that severe cocaine

intoxication “is marked by evidence of toxicity,

which may include grand mal seizures, cardiac

arrhythmia,

hyperpyrexia

[abnormally

high

10

temperatures], and death”). That’s a critical fact

because deliberate indifference often arises from law

enforcement officers’ ignoring obvious physical

symptoms of distress. But here, the complaint does

not allege any physical or psychological symptoms of

cocaine overdose. To the contrary, it alleges that

Thomas responded cogently to several law

enforcement officers’ questions and repeatedly

denied medical attention. See Brown v. Middleton,

362 F. App’x 340, 345 (4th Cir. 2010) (finding no

deliberate indifference because the arrestee “acted

normally throughout his interactions with officers

without showing any of the behavioral symptoms

associated with cocaine ingestion”). In other words,

the complaint alleges zero facts from which Officer

Kinsinger could have known or consciously

disregarded the serious medical need, a cocaine

overdose.

This requirement for pleading outward

symptoms of a serious medical need is nothing new.

Many drug-ingestion cases have demanded, at a

minimum, allegations or evidence that law

enforcement officers ignored an arrestee’s outward

physical symptoms. E.g., Burnette, 533 F.3d at

1331–32 (finding no deliberate indifference for

officers who were told that an arrestee ingested

drugs but were never made aware of the quantity of

drugs or that the arrestee needed medical attention);

Hutto v. Davis, 972 F. Supp. 1372, 1376 (W.D. Okla.

1997) (finding no deliberate indifference, even

though “Hutto said he had ingested a controlled

substance (how much and what kind was unclear)

11

and he exhibited some symptoms of drug influence

while being booked into the jail”); Sanders ex rel.

Est. of Sanders v. City of Dothan, 671 F. Supp. 2d

1263, 1271 (M.D. Ala. 2009) (“[T]he Constitution

does not require an officer to provide medical

assistance to every arrestee who appears to be

affected by drugs.”). The rationale of these cases is

straightforward—law enforcement officers cannot

be deliberately indifferent to overdoses they cannot

readily identify. How could they? They would have

no known facts of serious harm to consciously ignore.

See Trozzi v. Lake County, 29 F.4th 745, 756 (6th

Cir. 2022) (reasoning that the touchstone of the

deliberate-indifference inquiry in the inadequatemedical-care context is “whether a reasonable officer

at the scene would have known the detainee’s

medical needs posed an excessive risk” based on

“what the [officer] knew about the detainee’s

condition” (citing Greene v. Crawford County, 22

F.4th 593, 609 (6th Cir. 2022))).

Nor is it sufficient, as the Third Circuit now says,

for a complaint to simply allege that officers were

deliberately indifferent because they knew that an

arrestee ingested drugs. To say so would morph

Fourteenth Amendment § 1983 claims into mere

claims for negligence. By relying on allegations or

evidence of drug ingestion only, a court could find

deliberate indifference—at the pleadings stage, no

less—solely based on a law enforcement officer’s onthe-spot misdiagnosing the amount of drugs an

arrestee ingested. In other words, courts will base

deliberate indifference on whether law enforcement

12

officers should have known that an arrestee had

taken too much of a drug, not whether officers

disregarded serious medical needs. As this Court

has repeatedly explained, state actors cannot be held

liable for mistakes in judgment or falling below a

medical standard of care absent life-threatening

symptoms. E.g., Estelle, 429 U.S. at 106 (“[A]

complaint that a physician has been negligent in

diagnosing or treating a medical condition does not

state a valid claim of medical mistreatment under

the Eighth Amendment. Medical malpractice does

not become a constitutional violation merely because

the victim is a prisoner.”); Seiter, 501 U.S. at 305

(“[M]ere negligence would [not] satisfy . . . [the]

‘deliberate indifference’ standard . . . .”); Farmer, 511

U.S. at 835 (reasoning that the Cruel and Unusual

Punishment Clause “requires ‘more than ordinary

lack of due care for the prisoner’s interests or safety’”

(quoting Whitley v. Albers, 475 U.S. 312, 319

(1986))). Saying so would, under the Fourteenth

Amendment, “transform every tort committed by a

state actor into a constitutional violation.”

DeShaney, 489 U.S. at 202 (collecting cases).

Indeed, the scope of the Third Circuit’s newly

minted broad drug-ingestion standard knows few

bounds. Without doubt, law enforcement officers

routinely encounter suspects that have ingested

something. Take DUIs: officers may encounter

drivers with BACs just below, just over, or well over

the legal limit—each exhibiting different symptoms

of impairment, or none at all. Add to the mix that

each driver will likely have different rates of alcohol

13

absorption and different alcohol tolerance levels.

And consider that officers at the scene will likely not

know if a driver has taken drugs other than alcohol.

Normally, officers would be deliberately indifferent

only if they ignored drivers’ known preexisting

conditions or outward signs of severe physical or

psychological distress. Compare Est. of Simpson v.

Gorbett, 863 F.3d 740, 747 (7th Cir. 2017) (finding

no deliberate indifference because, while officers

knew that an inmate was intoxicated, they did not

know that he “was addicted to alcohol and thus was

likely to suffer from serious withdrawal symptoms”),

and Meier v. County of Presque Isle, 376 F. App’x

524, 529 (6th Cir. 2010) (finding no deliberate

indifference for corrections officer that knew of an

inmate’s 0.31 BAC but decided to “monitor [him]

rather than transfer him to a medical facility”; “[i]n

hindsight, it would have been preferable for [the

officer] to take different action, but the law does not

require the best, or even the better, course”), with

Harper v. Lawrence County, 592 F.3d 1227, 1234

(11th Cir. 2010) (finding deliberate indifference

because the complaint alleged that two officers saw

that an inmate “was hallucinating, slurring his

words, physically weak, and incoherent” and yet did

nothing). But the practical reality of the Third

Circuit’s prophylactic negligence rule is that officers

now have a duty to render medical care to any driver

they suspect ingested drugs or alcohol to ward off

§ 1983 liability. This rule, as one court put it, “is

ridiculous” because “officers pull over and arrest

countless suspects every day who either appear or

are confirmed to be intoxicated.” Sanders, 671 F.

14

Supp. 2d at 1271.

Even the Third Circuit realized that the

complaint needed to allege some fact that Officer

Kinsinger could observe. But that singular

allegation comes nowhere close to distinguishing

between routine cocaine ingestion and potentially

lethal cocaine intoxication. The complaint’s only

allegation about Thomas’s physical condition is a

circumstantial one: while in the patrol car, he told

officers he was “hot” and asked to “lower the

window.” Pet.App.82a. But that allegation is hardly

dispositive that Officer Kinsinger ignored a

substantial risk to Thomas’s health. Even taking

that allegation as true, Thomas’s feeling “hot” is

consistent with ingesting cocaine, not overdosing on

it. See STRAIN, supra, at 1285 (noting that “changes

in . . . thermoregulation” are symptoms of ingesting

cocaine). To be sure, the complaint makes no

allegation, for example, that the officers ignored a

high fever, delirium, or tremors. And, in all events,

a court could readily infer that Thomas was feeling

“hot” because the temperature in the patrol car was,

in fact, too warm.

The Third Circuit compounded its deliberateindifference error by skirting the allegations in the

complaint that Officer Kinsinger and others

reasonably rendered medical care to Thomas. See

Farmer, 511 U.S. at 844 (“[P]rison officials who

actually knew of a substantial risk to inmate health

or safety may be found free from liability if they

responded reasonably to the risk, even if the harm

15

ultimately was not averted.”). The complaint alleges

that the officers took Thomas to a booking center,

where he was seen by medical staff. The Third

Circuit ignored that allegation, holding police

officers to the standard of recognizing a medical

emergency without any outward physical symptoms

and ensuring hospital-based emergency treatment.

But see, e.g., Meier, 376 F. App’x at 529.

Further, the Third Circuit never seriously

answered the question of why transporting an

arrestee to a booking center with medical services is

unreasonable. Rather, the Third Circuit relied on a

Harrisburg Police Department policy—which is

neither quoted nor attached to the complaint—that

says it is “best practice” to bring an arrestee

suspected of ingesting drugs to a hospital.

Pet.App.82a. The Third Circuit thus found a

plausible § 1983 claim because officers failed to

follow best practices. But see Farmer, 511 U.S. at

838 (“[A]n official’s failure to alleviate a significant

risk that he should have perceived but did not, while

no cause for commendation, cannot under our cases

be condemned as the infliction of punishment.”);

DeShaney, 489 U.S. at 202 (“[T]he claim here is

based on the Due Process Clause of the Fourteenth

Amendment, which, as we have said many times,

does not transform every tort committed by a state

actor into a constitutional violation.” (collecting

cases)).2

2 As noted in the Petitioner’s Brief, Pet.Br.17, this case is a good

vehicle to clarify the deliberate-indifference standard for the

first time since Farmer.

16

At a minimum, this Court should grant certiorari

to clarify that mere allegations of drug ingestion are

insufficient to plead deliberate indifference. Any

other rule would open the floodgates of litigation for

every officer who stops a suspect that may have

ingested a drug.

II. The Third Circuit’s Incorrect Application of

Qualified-Immunity Principles

Another even more alarming error infests the

Third Circuit’s opinion. Not only did the Third

Circuit find that Officer Kinsinger acted with

deliberate indifference, but it also found that he

acted with obvious cruelty. It reached that

conclusion by dodging this Court’s command to

examine “clearly established” law to evaluate

qualified immunity. Rather, it found that Officer

Kinsinger’s conduct bore resemblance to two cases

from this Court—both of which dealt with egregious

fact patterns tantamount to torture—to deny him

qualified immunity. That error warrants summary

reversal by this Court.

A. Existing Law Does Not Put Officer

Kinsinger’s Conduct Beyond Constitutional

Debate.

To start, this Court has repeatedly stressed that

“at the time of the officer’s conduct, the law [must

be] sufficiently clear that every reasonable official

would understand that what he is doing is

17

unlawful.” Wesby, 583 U.S. at 63 (emphasis added)

(cleaned up). A sufficiently clear rule “must be so

well defined that it is clear to a reasonable officer

that his conduct was unlawful in the situation he

confronted”; “[i]t is not enough that the rule is

suggested by then-existing precedent.” Id. A rule is

not sufficiently clear “if the unlawfulness of the

officer’s conduct does not follow immediately from

the conclusion that the rule was firmly established.”

Id. at 64 (cleaned up).

Thus, to satisfy this demanding standard, the

Third Circuit had to look for controlling law that

predated December 14, 2019, that, at a minimum,

clearly established a police officer’s duty to render

medical care to a suspect he thought had ingested

drugs. But it readily conceded that no controlling

precedent existed. Pet.App.14a (“There has not yet,

however, been a recognition by this Court of the

right to medical care after the ingestion of drugs.”);

id. at 16a (relying on “general standards” to clearly

establish a constitutional standard).

Moreover, the constitutional violation must be

“beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011). But the Third Circuit could not satisfy

such an exacting standard even within its own

panel. As evidenced by Judge Phipps’s dissent and

the myriad cases cited above, the issue of whether a

constitutional violation occurred is squarely a

matter of debate. See Wilson v. Layne, 526 U.S. 603,

618 (1999) (“If judges thus disagree on a

18

constitutional question, it is unfair to subject police

to money damages for picking the losing side of the

controversy.”). The inquiry should have ended there.

To be sure, had the Third Circuit looked to

whether such a right was clearly established, it

would have found, at best, a split in authorities on

the question. See Spears, 589 F.3d at 254–55

(finding qualified immunity for police officer where

EMTs and a jail nurse determined that an inmate

who ingested drugs did not need to be transported to

a hospital); Burnette, 533 F.3d at 1331–32 (finding

no deliberate indifference for officers who were told

that an arrestee ingested drugs but were never made

aware of the quantity of drugs or that the arrestee

needed medical attention); Hutto, 972 F. Supp. at

1376 (finding no deliberate indifference, even

though “Hutto said he had ingested a controlled

substance (how much and what kind was unclear)

and he exhibited some symptoms of drug influence

while being booked into the jail”); Sanders, 671 F.

Supp. 2d at 1271 (“[T]he Constitution does not

require an officer to provide medical assistance to

every arrestee who appears to be affected by

drugs.”).

All to say, Officer Kinsinger was never on notice

that his conduct would be deemed by a court to be

unconstitutional. To the contrary, the balance of

authorities suggests otherwise.

19

B. The Third Circuit Incorrectly Applied the

“Obvious Cruelty” Exception.

Without clearly established law, the Third

Circuit ruled that transporting Thomas to a booking

center with medical facilities instead of a hospital

was an obvious violation of the right to medical care.

Pet.App.16a. It did so by relying on the “obvious

cruelty” exception announced in Hope v. Pelzer, 536

U.S. 730 (2002), and applied again in Taylor v.

Riojas, 592 U.S. 7 (2020) (per curiam). That

conclusion is deeply flawed.

To start, as the facts of Hope and Taylor show,

the “obvious cruelty” exception applies only in

extraordinary and egregious factual circumstances.

In Hope, the Court ruled that it was an obvious

violation of the Eighth Amendment’s Cruel and

Unusual Punishment Clause to tie a shirtless

prisoner to a hitching post for seven hours while the

sun scorched his back. 536 U.S. at 738. In Taylor, the

Court again ruled that it was obvious cruelty to

house an inmate (Taylor) in two “shockingly

unsanitary” cells for six days. 592 U.S. at 7. The first

cell “was covered, nearly floor to ceiling, in massive

amounts of feces,” causing Taylor to neither eat nor

drink for nearly four days. Id. (cleaned up). The

second was “frigidly cold” and “equipped with only a

clogged drain in the floor to dispose of bodily

wastes,” eventually causing Taylor to “sleep naked

in sewage.” Id.

20

As Hope and Taylor make clear, the “obvious

cruelty” exception applies only when no reasonable

government official “could have concluded that,

under the extreme circumstances of th[e] case” that

the conduct was constitutionally permissible. Id. at

8 (citing Hope, 536 U.S. at 741); see also Reed v.

Palmer, 906 F.3d 540, 547 (7th Cir. 2018)

(“[P]laintiffs can demonstrate clearly established

law by proving the defendant’s conduct was so

egregious and unreasonable that no reasonable

official could have thought he was acting lawfully.”

(cleaned up)).

Indeed, that makes sense. The Hope Court did

not need a factually similar case to know that that

the Cruel and Unusual Punishment Clause

prohibited tying an inmate to a hitching post for

seven hours. Application of the plain text of the

Eighth Amendment, as well as this Court’s Eighth

Amendment decisional law—see, e.g., Whitley, 475

U.S. at 319 (“The unnecessary and wanton infliction

of pain constitutes cruel and unusual punishment

forbidden by the Eighth Amendment.” (cleaned

up))—warned any correctional officer of the

constitutional violation. Similarly, the Taylor Court

did not need a case plainly forbidding a six-day stay

in feces-filled cells: the violation was self-evidently

cruel and unusual.

The facts here are neither extraordinary nor

egregious. For one, as the dozens of cases cited above

show, drug-ingestion medical care cases are no

21

strangers to the federal courts, and many courts

have found no liability for officers in the same

situation as Officer Kinsinger. See, e.g., Spears, 589

F.3d at 254–55; Burnette, 533 F.3d at 1331–32. This

fact alone calls into question the Third Circuit’s use

of the “obvious cruelty” exception.

For another, nothing in this record compares to

the egregious cruelty displayed by the correctional

guards in Hope and Taylor. The record here shows

the officers were concerned with Thomas’s wellbeing by continuously monitoring him and

repeatedly asking him if he required medical

attention. Nor did Thomas ever claim duress. These

facts stand in stark contrast to the behavior of the

correctional officers in Hope and Taylor. See Hope,

536 U.S. at 738 (noting that the correctional officers

“knowingly subjected [Hope] to a substantial risk of

physical harm, to unnecessary pain caused by the

handcuffs and the restricted position of confinement

for a 7-hour period, to unnecessary exposure to the

heat of the sun, to prolonged thirst and taunting,

and to a deprivation of bathroom breaks that created

a risk of particular discomfort and humiliation”);

Taylor, 592 U.S. at 9 (noting that one officer

“remarked to another that Taylor was, ‘going to have

a long weekend’” and that another officer “told

Taylor he hoped Taylor would ‘f***ing freeze’”).

Simply put, nothing in the record shows Officer

Kinsinger acted cruelly—much less obviously so.

22

In attempting to justify its sweeping

interpretation of Hope and Taylor, the Third Circuit

identified several cases purporting to show that

Officer Kinsinger obviously should have known to

transport Thomas to a hospital. Pet.App.16a n.51.

Three of those authorities are non-precedential

unpublished decisions—two are unpublished

district-court decisions—and cannot constitute a

body of clearly established law, much less obviously

established constitutional principles. See, e.g.,

Mammaro v. N.J. Div. of Child Prot. & Permanency,

814 F.3d 164, 170 n.2 (3d Cir. 2016) (reasoning that

an unpublished decision “is not by itself an

indication of a clearly established constitutional

right”); Bell v. City of Southfield, 37 F.4th 362, 367

(6th Cir. 2022) (reasoning that “[b]asic logic” dictates

that “a plaintiff cannot point to unpublished

decisions” to determine whether a right has been

clearly established).

Nor does the one published decision relied on by

the Third Circuit, Sandoval v. County of San Diego,

985 F.3d 657 (9th Cir. 2021), carry this lofty burden.

Preliminarily, that case was decided more than a

year after the events of this case and could not serve

to put Officer Kinsinger on any notice of

constitutional law. See Kisela v. Hughes, 584 U.S.

100, 107 (2018) (reversing circuit court that relied on

circuit precedent as clearly established law because

“a reasonable officer is not required to foresee

judicial decisions that do not yet exist in instances

23

where the [constitutional] requirements . . . are far

from obvious”).

And, in all events, the case is factually dissimilar.

There, the Ninth Circuit decided that a trio of

jailhouse nurses were not entitled to qualified

immunity because they delayed life-saving medical

treatment to “an inmate in obvious need.” Sandoval,

985 F.3d at 678–79. One nurse was told that the

inmate was “sweating, tired, and disoriented” and

“needed to be looked at more thoroughly” and yet

“merely perform[ed] a 10-second blood sugar test.”

Id. at 679 (cleaned up). Two other nurses observed

the inmate seize and become unconscious and yet

never called paramedics. Id. By contrast, Thomas

displayed no similar obvious need. The complaint

contains no allegations that he was sweating,

fatigued, disoriented, or exhibiting any signs of drug

overdose. To the contrary, the complaint’s

allegations show that Thomas was cogent and

responsive to the officers’ questions. Pet.App.80a

(alleging that Thomas told officers that he possessed

marijuana, that he denied ingesting cocaine, and

that he ate candy cigarettes).

Moreover, as Judge Phipps noted in his dissent,

Id. at 20a n.56, the logic of Sandoval stands on

uneasy footing. See J.K.J. v. City of San Diego, 42

F.4th 990, 1000–01 (9th Cir. 2021) (granting

qualified immunity to officers in denial-of-medicalcare case because “general rules . . . do not by

themselves create clearly established law outside an

24

obvious case” and the suspect “said nothing to

indicate she might require medical aid” (first

quoting Kisela, 584 U.S. at 105)), reh’g en banc

granted and vacated by 59 F.4th 1327 (2023).

By equating the decision to take Thomas to a

booking center for medical care with intentional

infliction of suffering, the Third Circuit permits the

rare “obvious cruelty” exception to swallow qualified

immunity. Summary reversal is therefore

warranted.

C. The Third Circuit’s Reading of the “Obvious

Cruelty” Exception Is Unworkable.

In addition, the Third Circuit’s decision is

unworkable for at least two reasons.

First, as Judge Phipps noted in his dissent,

Pet.App.21a–22a, crafting new federal rights out of

a Harrisburg Police Department policy risks

elevating state laws and local ordinances to a

constitutional dimension. This creates several

problems. For one, § 1983 claims are premised on

violations of federal constitutional law and nothing

less. A critical point because § 1983 reflects

Congress’s measured judgment that a private right

of action lies for state officers who have violated

federal rights only. To engraft violations of state and

municipal codes—many of which likely carry no

attendant private right of action—into the § 1983

framework risks turning the federal statute into a

general federal tort regime.

25

Relatedly, relying on state and municipal policies

for clearly established or obvious constitutional

violations upsets basic notions of federalism and

state sovereignty. By crafting a new federal right to

hospital-based medical care from a local Harrisburg

policy in a published decision, the Third Circuit’s

decision requires officers across the circuit to heed

Harrisburg policy. Again, as Judge Phipps notes,

“Such an approach inverts the role of the

Constitution as the highest law of the land[.]” Id. at

22a.

Indeed, under the Third Circuit’s approach, there

is virtually no limit to what can qualify to put a

police officer on notice or what a plaintiff can allege

to defeat qualified immunity at the pleading stage.

An internal employment policy could suffice to

clearly establish circuit-wide unconstitutional

conduct, even though those policies have no

independent force of law. Internal guidance from

municipal agencies or departments might also

suffice—even though neither likely underwent the

rigors of the legislative process, much less have the

force of law. Cf. Kisor v. Wilkie, 588 U.S. 558, 584

(2019) (“[I]nterpretive rules . . . do not have the force

of law.” (citation omitted)).

Second, the Third Circuit’s decision forces police

officers to make on-the-spot medical judgments

about a suspect’s present health condition, even

though police officers have no formal medical

training. Moreover, as here, officers may not know

whether a suspect did, in fact ingest a narcotic, how

much was ingested, and whether the amount

26

consumed “was sufficiently large that it posed a

substantial risk to health or a risk of death.”

Pet.App.16a. Nor does the Third Circuit explain

what steps are reasonable to render medical care. Id.

at 16a.

For all these reasons, the Third Circuit’s decision

creates an unworkable standard, loses sight of

practical and operational realities, and leaves police

officers without clear guidance.

CONCLUSION

For the foregoing reasons and the reasons in

Petitioner’s brief, this Court should grant the writ of

certiorari.

Respectfully submitted,

June 10, 2024

RYAN P. GOODWIN, ESQ.

Counsel of Record

STEPHEN J. MARIETTA, ESQ.

GIBBONS P.C.

One Gateway Center

Newark, New Jersey 07102

(973) 596-4500

rgoodwin@gibbonslaw.com

Counsel for Pennsylvania

Lodge of the Fraternal

Order of Police