Amicus Curiae Brief — Lewis County, Kentucky, et al., Petitioners v. Julie Helphenstine, Administratrix of the Estate of Christopher Dale Helphenstine and Guardian of B. D. H., the Minor Son of Christopher Dale Helphenstine

No. 23-259

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

In The

Supreme Court of the United States

---------------------------------♦--------------------------------LEWIS COUNTY, KENTUCKY, ET AL.,

Petitioners,

v.

JULIE HELPHENSTINE,

Respondent.

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

To The United States Court Of Appeals

For The Sixth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE NATIONAL TROOPERS

COALITION, ARKANSAS ASSOCIATION OF

CHIEFS OF POLICE, CALIFORNIA POLICE

CHIEFS ASSOCIATION, CONNECTICUT POLICE

CHIEFS ASSOCIATION, FLORIDA POLICE CHIEFS

ASSOCIATION, KENTUCKY ASSOCIATION OF

CHIEFS OF POLICE, LOUISIANA ASSOCIATION

OF CHIEFS OF POLICE, MICHIGAN ASSOCIATION

OF CHIEFS OF POLICE, MICHIGAN ASSOCIATION

OF POLICE ORGANIZATIONS, MICHIGAN STATE

POLICE TROOPERS ASSOCIATION, ET AL,

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------GEORGE G. MORRIS*

THOMAS J. MCGRAW

MCGRAW MORRIS P.C.

2075 W. Big Beaver, Suite 750

Troy, MI 48075

Phone: (248) 502-4000

gmorris@mcgrawmorris.com

Attorneys for Amici Curiae

*Counsel of Record

[Additional Counsel For Amici Curiae With Signature Block]

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

i

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICI CURIAE .........................

1

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

4

REASONS TO GRANT THE PETITION .............

6

I.

II.

The Circuits Are Sharply Divided in an

Acknowledged 4-4 Split on the Standard

for Claims of Inadequate Medical Care by

Pretrial Detainees .....................................

6

The Second, Sixth, Seventh and Ninth Circuits Erred in Extending Kingsley To

Claims of Inadequate Medical Care .......... 12

A. The Fourteenth Amendment Addresses

Abuses of Government Authority, Evidenced by Deliberate Decisions to Deprive Individuals of Constitutional

Rights, Not Common Law Negligence .... 13

B. Deliberate Indifference is the Proper

Test to Be Applied to Fourteenth

Amendment Claims of Inadequate

Medical Care........................................ 16

C. Use of Force, at Issue in Kingsley, is

Categorically Different from A Failure

to Provide Adequate Medical Care ...... 19

III.

The Proper Standard to Be Applied to Fourteenth Amendment Medical Care Claims

Presents an Issue of Grave Constitutional

Importance for Amici’s Membership ........... 22

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

ii

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................24

Bd. v. Farnham, 394 F.3d 469 (7th Cir. 2005) ..............7

Bell v. Wolfish, 441 U.S. 520 (1979) .... 13, 14, 18, 20, 23

Block v. Rutherford, 468 U.S. 576 (1984)....................13

Brawner v. Scott Cty., Tennessee, 14 F.4th 585

(6th Cir. 2021)............................... 7, 10, 11, 19, 20-22

Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006) ...........7

Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th

Cir. 2016) ................................................. 8, 12, 21, 22

Charles v. Orange Cty. 925 F.3d 73 (2d Cir.

2019) ....................................................................... 9

Clouthier v. Cty. of Contra Costa, 591 F.3d 1232

(9th Cir. 2010)............................................................7

Cook ex rel. Estate of Tessier v. Sheriff of Monroe

County, 402 F.3d 1092 (11th Cir. 2005) ....................7

Cope v. Cogdill, 3 F.4th 198 (5th Cir. 2021) ........... 7, 10

Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir.

2011) ..........................................................................7

Crawford-El v. Britton, 523 U.S. 574 (1998) ..............26

Daniels v. Williams, 474 U.S. 327 (1986).........14-16, 22

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) .......... 8, 9

Davidson v. Cannon, 474 U.S. 344 (1986) ..................14

Est. of Vallina v. Cty. of Teller Sheriff ’s Off., 757

F. App’x 643 (10th Cir. 2018) ...................................10

iii

TABLE OF AUTHORITIES – Continued

Page

Estelle v. Gamble, 429 U.S. 97 (1976) ........... 5, 7, 12, 16

Farmer v. Brennan, 511 U.S. 825 (1994) ....... 4, 5, 7, 13,

................................................................ 16-18, 21, 22

Gomez v. Cty. of Westchester, 649 F. App’x 93

(2d Cir. 2016) .............................................................7

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

2018) ..........................................................................8

Helphenstine v. Lewis County, 60 F. 4th 305

(6th Cir 2023) ..........................................................11

Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963) .......................................................................14

Kingsley v. Hendrickson, 576 U.S. 389 (2015) ..... 4, 5, 8,

...................................................... 9, 11, 12, 16, 19-21

Lombardo v. City of St. Louis, Missouri, 141

S. Ct. 2239 (2021) ....................................................19

Martinez v. Beggs, 563 F.3d 1082 (10th Cir.

2009) ....................................................................... 7

McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316

(1819) .......................................................................15

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

2018) .................................................................... 9, 10

Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658 (1978) .................................................24

Nam Dang by & through Vina Dang v. Sheriff,

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

2017) ..........................................................................9

Parratt v. Taylor, 451 U.S. 527 (1981) ........................14

iv

TABLE OF AUTHORITIES – Continued

Page

Paul v. Davis, 424 U.S. 693 (1976) ..............................16

Scarbro v. New Hanover Cty., 374 F. App’x 366

(4th Cir. 2010)............................................................7

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

2020) ............................................................... 10, 21

Sylvester v. City of Newark, 120 F. App’x 419 (3d

Cir. 2005) ...................................................................7

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

Cir. 2022) .................................................................11

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

857 (8th Cir. 2018) ...................................................10

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. XIV ...... 4-6, 9, 11-16, 18, 19, 22, 26

OTHER AUTHORITIES

“Jail Inmates in 2020 – Statistical Tables,” U.S.

Department of Justice, Bureau of Justice

Statistics, Dec. 2021 ................................................23

“Scienter.” Webster-dictionary.org, Legal Dictionary,

Webster’s 1913 Dictionary, https://www.websterdictionary.org/definition/Scienter, accessed 4

Feb. 2022..................................................................14

American Law Institute, Model Penal Code

§ 2.02(2)(c) ...............................................................22

J. Hall, General Principles of Criminal Law (2d

ed. 1960) ..................................................................22

v

TABLE OF AUTHORITIES – Continued

Page

Jails: Inadvertent Health Care Providers, p. 3;

“Medical Problems of State and Federal

Prisoners and Jail Inmates, 2011-2012, U.S.

Department of Justice, Feb. 2015 ...........................23

R. Perkins & R. Boyce, Criminal Law 850–851

(3d ed. 1982) ............................................................22

STATUTES

42 U.S.C. § 1983 ........................................................ 3, 6

1

INTEREST OF AMICI CURIAE1

Amici Curiae are state and national law enforcement organizations, representing tens of thousands of

members collectively. Their members interact with

pretrial detainees in county jails, municipal detention

facilities and in the course of transport from one custodial location to the next. Diverse in their missions,

Amici have a unified interest in ensuring that individual officers are treated fairly and equitably across the

Circuits with clear legal guidance regarding the scope

of potential constitutional liability when faced with

claims of inadequate medical care by pretrial detainees.

The National Troopers Coalition represents state

troopers and highway patrol nationally. Its mission is

to assist state associations with national representation and cooperation, develop standards and policies,

improve benefits and programs, advocate for training

expansion, and advance the working conditions for its

42,000 members from 43 states.

1

In accordance with United States Supreme Court Rule

37.6, Amici Curiae state that no counsel for any party has authored this brief in whole or in part or has made any monetary

contribution to fund the preparation or submission of this brief.

Tokio Marine HCC—Public Risk Group has contributed monetarily to the preparation and submission of this brief. Under Rule

37.2, Amici Curiae state that all parties received written 10-day

notice of the intent to file this brief and have consented in writing

to its filing.

2

The following state associations of chiefs of police

are comprised of each state’s top law enforcement executives:

Arkansas Association of Chiefs of Police;

California Police Chiefs Association;

Connecticut Police Chiefs Association;

Florida Police Chiefs Association;

Kentucky Association of Chiefs of Police;

Louisiana Association of Chiefs of Police;

Michigan Association of Chiefs of Police;

Mississippi Association of Chiefs of Police;

Missouri Police Chiefs Association;

New Hampshire Association of Chiefs of Police;

New Jersey State Association of Chiefs of Police;

Oregon Association Chiefs of Police;

Pennsylvania Chiefs of Police Association;

Utah Chiefs of Police Association;

Virginia Association of Chiefs of Police and

Foundation; and

Wisconsin Chiefs of Police Association, Inc.

Each state association is organized generally with the

purpose of promoting the highest standards of the law

enforcement profession. The state associations serve

municipal police, state and county law enforcement officers, airport police, college and university police,

tribal police, railroad and port authority police, and

private business and security firms.

The Michigan Association of Police Organizations

is a non-partisan coalition with the purpose of legal advocacy on issues that could impact the Michigan public

safety community. It represents the interests of 10,000

members across fourteen law enforcement agencies.

3

The Michigan State Police Troopers Association,

comprised of over 1,650 members, serves as the exclusive labor representative of troopers and sergeants of

the Michigan State Police.

The Police Officers Labor Council is a Michigan organization created to improve the working conditions

of its members in the law enforcement field. It represents over 327 law enforcement collective bargaining

units throughout the state of Michigan, for a total of

over 3,300 officers.

*

*

*

While this Court’s decisions as to the scope of liability under 42 U.S.C. § 1983 have consistently recognized that an individual may be liable only for the

individual’s own actions, the Second, Sixth, Seventh

and Ninth Circuits have adopted a purely objective

standard for Fourteenth Amendment claims of inadequate medical care that seeks to hold an individual officer liable without any intentional act, including

under circumstances where the officer was indisputably unaware of any need to act. This presents officers

with no reasonable way to guard against individual liability or mitigate personal risk.

Amici are gravely concerned that this expansion

of personal liability by the Second, Sixth, Seventh

and Ninth Circuits, untethered to any traditional

Fourteenth Amendment standard, poses dangerous

consequences to the law enforcement profession. Accordingly, Amici urge this Court to address the proper

standard to be applied to claims of inadequate medical

4

care by pretrial detainees and ensure that officers are

held to a uniform standard of liability, adequately addressed through the traditional deliberate indifference

standard.

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

SUMMARY OF THE ARGUMENT

Until 2016, the Circuits uniformly applied the familiar deliberate indifference test set forth by this

Court in Farmer v. Brennan to claims of inadequate

medical care by all individuals in custody, whether convicted or awaiting trial. Under the Farmer standard,

individual officers could be held constitutionally liable

for deliberately disregarding a known serious risk to

inmate health or safety. This subjective-objective

standard appropriately aligns with this Court’s interpretation of the Fourteenth Amendment as prohibiting

“punishment” of pretrial detainees.

However, in a flawed attempt to expand this

Court’s excessive force decision in Kingsley v. Hendrickson to claims of inadequate medical care, the

Sixth Circuit has joined the Second, Seventh and

Ninth Circuits in holding that evidence of deliberateness is no longer required. Adopting a purely objective

test, these circuits have tossed aside all subjective considerations to hold an officer liable for what they did

not, but purportedly should have known.

In so doing, the Second, Sixth Seventh and Ninth

Circuits fail to recognize that use-of-force claims addressed by Kingsley are categorically different.

5

Inherent in the use of force is an intentional act with

anticipated consequences. That same intent and

knowledge is not inherent in a medical care claim

where an officer took no affirmative action and was

never aware that action was needed. An expansion of

the Kingsley into this context defies this Court’s historical interpretation of the Fourteenth Amendment and

its reasoning surrounding medical care claims, generally.

While Estelle v. Gamble began by addressing

Eighth Amendment considerations of cruel and unusual punishment, this Court’s jurisprudence surrounding claims of inadequate medical care is not

necessarily so limited. Expounding upon Estelle, this

Court in Farmer addressed, more broadly, concerns of

“punishment,” explaining that “an 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.”

“Punishment” is not an exclusively Eighth Amendment consideration. This Court has long held that, if

an officer’s failure to act cannot be condemned as punishment, it cannot amount to a violation of a pretrial

detainee’s Fourteenth Amendment rights. Anything

less would amount to a constitutionalization of medical

malpractice.

Ultimately, local jails were never intended to be

healthcare facilities, and officers are not, by default,

doctors educated in providing nuanced medical care.

6

Yet, providing medical care to the millions of people

booked into local jails each year, while maintaining order and security, has become a monumental task. The

way in which each local facility balances concerns of

medical care, security, staffing, and training is a matter

of institutional policy, outside of the control of the individual officer. In holding individual officers constitutionally liable for what they “should have known” but

undisputedly did not, the objective standard faults individuals for the training and staffing decisions of

their entity, carving out a new area of vicarious liability, traditionally prohibited under 42 U.S.C. § 1983.

As it currently stands, custodial employees are

subjected to disparate levels of civil liability based

upon the state in which they are employed. Amici urge

this Court to restore uniformity in the application of

the Fourteenth Amendment and ensure that all defendants are held to the appropriate constitutional

standard, regardless of the court in which they happen

to find themselves.

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

REASONS TO GRANT THE PETITION

I.

The Circuits Are Sharply Divided in an

Acknowledged 4-4 Split on the Standard

for Claims of Inadequate Medical Care by

Pretrial Detainees.

The past six years have brought about a tremendous shift in potential liability for officers in the

7

context of claims for inadequate medical care. This was

not always so.

Beginning with Estelle v. Gamble, 429 U.S. 97

(1976), and solidified by Farmer v. Brennan, 511 U.S.

825, 834 (1994), this Court has long applied an objective-subjective test of deliberate indifference to Eighth

Amendment claims of inadequate medical care. This

familiar test asks whether an officer knew of an excessive risk to inmate health or safety and deliberately

disregarded that risk. Id. at 836.

For decades, the circuits unanimously applied the

same test to Fourteenth Amendment claims by pretrial

detainees as well, isolating for liability those who “inflict punishment.” Brawner v. Scott Cty., Tennessee, 14

F.4th 585, 605 (6th Cir. 2021) (Readler, J., dissenting);

see also, e.g., Cope v. Cogdill, 3 F.4th 198, 207 (5th Cir.

2021); Gomez v. Cty. of Westchester, 649 F. App’x 93, 95

(2d Cir. 2016); Coscia v. Town of Pembroke, 659 F.3d 37,

39 (1st Cir. 2011); Clouthier v. Cty. of Contra Costa,

591 F.3d 1232, 1241 (9th Cir. 2010); Scarbro v. New

Hanover Cty., 374 F. App’x 366, 371 (4th Cir. 2010);

Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006);

Sylvester v. City of Newark, 120 F. App’x 419, 423 (3d

Cir. 2005); Martinez v. Beggs, 563 F.3d 1082, 1088 (10th

Cir. 2009); Bd. v. Farnham, 394 F.3d 469, 477 (7th Cir.

2005); Cook ex rel. Estate of Tessier v. Sheriff of Monroe

County, 402 F.3d 1092, 1115 (11th Cir. 2005).

However, in Brawner, the Sixth Circuit joined the

Second, Seventh and Ninth Circuits in departing from

the deliberate indifference standard. 14 F.4th at 597.

8

These circuits, driven by a misreading of this Court’s

excessive force decision in Kingsley v. Hendrickson,

576 U.S. 389 (2015), now require that all Fourteenth

Amendment claims by pretrial detainees be judged according to some version of objective reasonableness.

The Ninth Circuit was the first to apply Kingsley

outside of the excessive force context. In Castro v. Cty.

of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016), the

Ninth Circuit disregarded the subjective test of

Farmer in favor of a purely objective test in a Fourteenth Amendment failure-to-act claim. Ironically and

without much explanation, Castro recognized the critical infirmity in applying Kingsley in the failure-to-act

context: “An excessive force claim, like the one at issue

in Kingsley, differs in some ways from a failure-to-protect claim, like the one at issue here. An excessive force

claim requires an affirmative act; a failure-to-protect

claim does not require an affirmative act.” Id. at 1069.

For this reason, the dissent expressed “dismay” at the

court’s expansion of Kingsley into the context of an

alleged failure to act: “the mere failure to act does not

raise the same inference” of intent as a claim of excessive force. Castro, 833 F.3d at 1084. 1086 (Ikuta, J., dissenting). Nonetheless, the Ninth Circuit went on to

apply the objective standard to claims of inadequate

medical care in Gordon v. Cty. of Orange, 888 F.3d 1118

(9th Cir. 2018).

In 2017, the Second Circuit followed suit in Darnell

v. Pineiro, 849 F.3d 17 (2d Cir. 2017), imposing liability

where the defendant “recklessly failed to act with

reasonable care to mitigate the risk that the

9

condition posed to the pretrial detainee even though

the defendant-official knew, or should have known,

that the condition posed an excessive risk to health or

safety.” Id. at 35; see also Charles v. Orange Cty. 925

F.3d 73 (2d Cir. 2019) (applying the test to an inadequate medical care claim). And, a year later, the Seventh Circuit rejected the subjective prong of deliberate

indifference in the context of the Fourteenth Amendment in Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir.

2018), which held that claims by pretrial detainees for

inadequate care “under the Fourteenth Amendment

are subject only to the objective reasonableness inquiry identified in Kingsley.” Id. at 352 (7th Cir. 2018).

Yet, while the Second, Sixth, Seventh and Ninth

Circuits were upending the long-standing meaning of

deliberate indifference under the Fourteenth Amendment, the Fifth, Eighth, Tenth, and Eleventh Circuits

have recognized that Kingsley presents an inherently

different context which cannot logically translate to

claims of inadequate medical care.

In Nam Dang by & through Vina Dang v. Sheriff,

Seminole Cty. Fla., 871 F.3d 1272 (11th Cir. 2017), the

Eleventh Circuit recognized that claims of excessive

force are not akin to claims of inadequate medical care

and that “Kingsley itself notes that even when it comes

to pretrial detainees, ‘liability for negligently inflicted

harm is categorically beneath the threshold of constitutional due process.’ ” Id. at 1279 n. 2, quoting Kingsley, 135 S. Ct. at 2472 (emphasis in Kingsley).

10

The same was true of the Eighth Circuit in Whitney v. City of St. Louis, Missouri, 887 F.3d 857, 860 (8th

Cir. 2018), and the Tenth Circuit in Strain v. Regalado,

977 F.3d 984, 991 (10th Cir. 2020), cert. denied, 142

S. Ct. 312 (2021), both of which recognized the inherent difference between excessive force claims, in which

punitive intent may be inferred by the action itself, and

those involving the provision of medical care, for which

punitive intent may not be obviously and objectively

inferred.

In Cope, the Fifth Circuit rejected the extension of

Kingsley into the medical care context. It explained,

“[d]eliberate indifference specifically requires that an

officer have subjective awareness not only of the risk

of harm but also that his response to that risk is inadequate . . . Deliberate indifference cannot be inferred

from a prison official’s mere failure to act reasonably

. . . ” Cope, 3 F.4th at 218, n. 6, cert. denied, 142 S. Ct.

2573 (2022). This is a recurring issue that can only be

settled with guidance from this Court.

This growing divide within the circuits has been

well-acknowledged as each new court addresses the

question at hand. See, e.g., Brawner, 14 F.4th at 593;

Miranda, 900 F.3d at 352; Est. of Vallina v. Cty. of Teller

Sheriff ’s Off., 757 F. App’x 643, 646 (10th Cir. 2018).

However, since 2018, this Court has declined to weigh

in, resulting in an increasing and unpredictable patchwork of legal tests.

This unpredictability is highlighted even more so

by the recent decision of a different panel of the Sixth

11

Circuit in Trozzi v. Lake County, Ohio, 29 F.4th 745 (6th

Cir. 2022). In that case the court held that the Sixth

Circuit’s extension of Kingsley did not abrogate the

subjective intent element necessary for deliberate indifference claims. Instead, in ostensible conflict with

Brawner, the panel held that a defendant faced with a

detainee manifesting an objectively serious medical

need, “must possess a purposeful, a knowing, or possibly a [criminally] reckless state of mind to be deliberately indifferent.” Trozzi at 755 (quoting Kingsley at

396, internal quotations omitted).

The panel below contends that Trozzi’s interpretation was “irreconcilable with Brawner.” Helphenstine

v. Lewis County, 60 F. 4th 305, 316 (6th Cir 2023). This

result leaves us with more confusion and as J. Readler

points out, “[w]ith signs pointing in all directions, even

the most careful reader would likely find herself at a

crossroads.” Helphenstine, 60 F. 4th at ___ (dissenting).

How possibly could corrections officers or prison officials navigate this confusion to govern their everyday

conduct? If ever there was a need for this Court’s intervention, this is it.

What was once a uniform interpretation of the

Fourteenth Amendment now leaves individual officers

at the mercy of vastly different standards governing

personal liability based upon the location of their employer. It is time for this Court to unite the circuits in

the application of a consistent legal standard. The officers represented by Amici anxiously await this

Court’s answer, which defines the scope of potential

12

civil liability with which officers are faced each day as

they clock in to work.

II.

The Second, Sixth, Seventh and Ninth Circuits Erred in Extending Kingsley to Claims

of Inadequate Medical Care.

The decisions of the Second, Sixth, Seventh and

Ninth Circuits are wrong and fail to recognize the

inherent distinction between claims of excessive force

which involve an overt act and claims of inadequate

medical care involving an alleged failure to act. Unlike

an affirmative use of force in Kingsley, “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.’ ” Castro, 833

F.3d at 1086 (Ikuta, J., dissenting).

Amici fully recognize the distinction between the

Fourteenth and Eighth Amendments, one prohibiting

all punishment, the other prohibiting only those punishments deemed “cruel and unusual.” That distinction may be relevant in assessing the constitutionality

of a use of force, which may serve a legitimate purpose

in the custodial context. However, it defies “contemporary standards of decency,” Estelle, 429 U.S. at 102, to

suggest that even prisoners may be intentionally deprived of medical care as a punitive measure. Punishment alone is the appropriate consideration under

both the Eighth and Fourteenth Amendments in

13

considerations of medical care. There is no reason to

draw a distinction. It is perhaps for this reason that

the Court in Farmer did not do so, addressing concerns

of punishment unhindered by the “cruel and unusual”

consideration peculiar to the Eighth Amendment. Accordingly, the traditional deliberate indifference

framework remains the appropriate test for assessing

Fourteenth Amendment claims of inadequate medical

care.

A. The Fourteenth Amendment Addresses

Abuses of Government Authority, Evidenced by Deliberate Decisions to Deprive Individuals of Constitutional

Rights, Not Common Law Negligence.

The Fourteenth Amendment prohibits an individual from being deprived of liberty without due process

of law. U.S. Const. Amend. XIV. In the case of a pretrial

detainee, this Court has interpreted the Fourteenth

Amendment to include a prohibition on punishment:

In evaluating the constitutionality of conditions or restrictions of pretrial detention that

implicate only the protection against deprivation of liberty without due process of law, we

think that the proper inquiry is whether those

conditions amount to punishment of the detainee.

Bell v. Wolfish, 441 U.S. 520, 535 (1979); see also Block

v. Rutherford, 468 U.S. 576, 583 (1984) (“the dispositive

inquiry is whether the challenged condition, practice,

or policy constitutes punishment, ‘[f ]or under the Due

14

Process Clause, a detainee must not be punished prior

to an adjudication of guilt in accordance with due process of law.’ ”).

As determined in Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963), relied upon in Bell, punishment

requires “scienter,” the intent or knowledge that the

act, or in this case, inaction, was wrong. Kennedy, 372

U.S. at 168-169; “Scienter.” Webster-dictionary.org,

Legal Dictionary, Webster’s 1913 Dictionary,

https://www.webster-dictionary.org/definition/Scienter,

accessed 4 Feb. 2022. There is no basis to make the leap

from a prohibition on punishment to the common law

tort standard of objective reasonableness.

Indeed, in Daniels v. Williams, 474 U.S. 327 (1986),

this Court flatly rejected the notion that the Fourteenth Amendment should embrace the tort law concept adopted by the Second, Sixth, Seventh and Ninth

Circuits, implicated each time a custodial official objectively fails to exercise due care. Id. at 335-336. In overruling Parratt v. Taylor, 451 U.S. 527 (1981), this Court

held that a “mere lack of due care by a state official”

cannot be understood to “‘deprive’ an individual of

life, liberty, or property under the Fourteenth Amendment.” Daniels, 474 U.S. at 330–31; see also Davidson

v. Cannon, 474 U.S. 344, 348 (1986) (confirming that

“[t]he guarantee of due process has never been understood to mean that the State must guarantee due care

on the part of its officials.”).

In a historical analysis of the Due Process Clause,

Daniels recognized that the right to due process has

15

“been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.”

474 U.S. at 331 (emphasis in original). Requiring a deliberate deprivation comports with the notion that the

Due Process Clause, like its predecessor, the Magna

Carta, was designed to prevent abuses of government

power, not simply a lack of due care. Id. at 331-332.

Far from an abuse of power, lack of due care

suggests no more than a failure to measure up

to the conduct of a reasonable person. To hold

that injury caused by such conduct is a deprivation within the meaning of the Fourteenth

Amendment would trivialize the centuries-old

principle of due process of law.

Id. at 332.

The Daniels Court was concerned that, in applying

an objective standard to Fourteenth Amendment

claims by pretrial detainees, courts would divert from

the purposes of the Constitution in dealing “with the

large concerns of the governors and the governed” and

would supplant traditional tort law in any situation in

which a government actor is involved in a system administered by the states. Id. at 332. This is precisely

what the Second, Sixth, Seventh and Ninth Circuits

have done.

As Chief Justice Marshall admonished, “we must

never forget, that it is a constitution we are expounding,” Id., quoting McCulloch v. Maryland, 4 Wheat. (17

U.S.) 316, 407 (1819). Those alleging medical malpractice are not without redress. Emphasizing that the

16

“Constitution is not the only source of American law,”

Justice Scalia reminded that “[t]here is an immense

body of state statutory and common law under which

individuals abused by state officials can seek relief.”

Kingsley, 576 U.S. at 408 (Scalia, J., dissenting). However, the Fourteenth Amendment is not a “font of tort

law to be superimposed on whatever systems may already be administered by the States.” Paul v. Davis,

424 U.S. 693, 701 (1976).

B. Deliberate Indifference is the Proper

Test to Be Applied to Fourteenth Amendment Claims of Inadequate Medical Care.

Recognizing that claims of medical malpractice

are categorically beyond the constitutional reach,

Estelle first held that a prison official violates an inmate’s Eighth Amendment rights in connection with a

need for medical care only where the official is deliberately indifferent to the inmate’s serious medical needs.

429 U.S. at 104, 106. Not “every claim by a prisoner

that he has not received adequate medical treatment

states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on

that basis alone to be characterized as wanton infliction of unnecessary pain.” Id. at 105. Thus, a complaint

that a physician was negligent in diagnosing or treating a medical condition is insufficient to state a claim.

Id. at 106.

To ensure that courts did not constitutionalize

claims of medical malpractice—“an inadvertent failure

17

to provide adequate medical care”—Farmer clarified

that the deliberate indifference standard is akin to the

“subjective recklessness” standard of criminal law. 511

U.S. at 834. Setting forth what is now the familiar deliberate indifference framework, Farmer held that an

inmate may demonstrate deliberate indifference only

where the inmate proves that the officer knew of an

excessive risk to inmate health or safety and deliberately disregarded that risk. Id. at 836.

The key factor in Farmer was whether the respondent “knew of the risk of harm [Farmer] confronted as a transsexual” placed in the general prison

population. In rejecting the petitioner’s request that

this Court adopt an objective standard, the Court recognized that any assessment of “punishment” demands that the officer have subjective knowledge of

the inmate’s medical condition and the excessive risk

posed by inaction. Farmer, 511 U.S. at 834.

Thus, while addressing claims in an Eighth

Amendment context, Farmer was not confined to an

Eighth Amendment analysis. Deliberate indifference

was designed to ensure that the defendant possessed a

sufficiently culpable state of mind. Farmer, 511 U.S. at

834. The Court analyzed whether a purely objective

recklessness standard of the type advanced by the

Second, Sixth, Seventh and Ninth Circuits here could

determine whether an act amounted to “punishment.”

It could not.

An act or omission unaccompanied by

knowledge of a significant risk of harm

18

might well be something society wishes to discourage, and if harm does result society might

well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis.

See Prosser and Keeton §§ 2, 34, pp. 6, 213–

214; see also Federal Tort Claims Act, 28

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

374 U.S. 150 [ ] (1963). But an 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.

Farmer, 511 U.S. at 837–38 (emphasis added). Under

the Fourteenth Amendment, if an action cannot be condemned as punishment, it cannot amount to a violation of a pretrial detainee’s constitutional rights. Bell,

441 U.S. at 535.

Given this Court’s reasoning in Farmer and the

Fourteenth Amendment jurisprudence addressing a

failure-to-act, there is no reason to distinguish between the standard to be applied to claims of inadequate medical care by prisoners and those of pretrial

detainees. This is not to say that pretrial detainees do

not deserve the utmost constitutional protection, but

only that this Court in Farmer did not afford Eighth

Amendment prisoners with anything less in the context of medical care. No court has advanced the position that intentionally withholding medical care is an

appropriate “punishment” subject only to the “cruel

and unusual” prohibition of the Eighth Amendment.

Punishment alone, is the appropriate measure under

19

both the Eighth and Fourteenth Amendments. Kingsley did not alter this analysis.

C. Use of Force, at Issue in Kingsley, is

Categorically Different from a Failure

to Provide Adequate Medical Care.

Kingsley is not a medical care case; it is “excessive

force” precedent. Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239, 2241 (2021). As explained by the

Brawner dissent, the circuits “should not be enlisting

a case about excessive force to disturb [their] deliberate indifference to medical needs jurisprudence.”

Brawner, 18 F.4th 551 (Readler, J., dissenting). Kingsley has no application to an alleged failure to act concerning detainee medical needs where officers may be

assessing the need for medical referral or relying upon

trained professionals to evaluate detainee medical

needs.

Kingsley concerned a case by a pretrial detainee

for excessive force under the Fourteenth Amendment’s

Due Process Clause. 576 U.S. at 389. It was undisputed

that the officers intended to apply force, but the parties

disagreed as to whether the force was excessive. Id. at

392.

The Kingsley Court was thus tasked with considering the necessary “state of mind with respect to the

proper interpretation of the force (a series of events in

the world) that the defendant deliberately (not accidentally or negligently) used.” Id. at 395-396. In so doing, this Court held that, in an excessive force claim, “a

20

pretrial detainee must show only that the force purposely or knowingly used against him was objectively

unreasonable.” Id. at 396-397. Always keeping in mind

that negligence is not sufficient to establish a constitutional violation, this Court explained that “the defendant must possess a purposeful, a knowing, or possibly

a reckless state of mind.” Id. The majority drew from

the excessive force precedent of Graham v. Connor, and

balanced force—which is inherently harmful—with

the need to maintain order and discipline to preserve

institutional security. Id.

Kingsley is not “at odds with our settled traditional deliberate indifference jurisprudence.” Brawner,

14 F.4th at 608–09 (Readler, J., dissenting). Kingsley

differentiated between the intentional act—purposefully hitting a detainee in the face—and the negligent

act—where “an officer’s Taser goes off by accident.” Id.,

citing Kingsley, 576 U.S. at 395-396. In keeping with

Bell, Kingsley observed:

when a detainee shows deliberate acts to be

“excessive in relation” to any “legitimate governmental objective,” a court may infer that

those acts are punitive in nature “without

proof of intent (or motive) to punish,” [Kingsley, 576 U.S. at] 398, 135 S. Ct. 2466. For it is

the unique case in which an officer harms a

prisoner with objectively excessive force but

nonpunitive intent.

Brawner, 14 F.4th at 608. Force, by its very nature, is

inherently punitive if not done for some legitimate reason.

21

The same is not true for a failure to provide adequate medical care, which requires a different state-ofmind inquiry. Id., citing Strain, 977 F.3d at 989. While

the dissent in Kingsley did not carry the day as to a

claim involving the intentional use of force, its reasoning applies with greater force here. It remains critical

that an “intent to punish means taking a ‘deliberate

act intended to chastise or deter.’ ” Kingsley, 576 U.S.

at 405 (Scalia, J., dissenting). Perhaps deliberateness

may be inferred by the very act of physical force; no

more than common sense may be required to understand the consequences of “the swing of a fist that hits

a face, a push that leads to a fall, or the shot of a Taser

that leads to the stunning of its recipient.” Id. at 395.

Inaction does not raise the same inference.

The failure to provide medical care “often rests on

an unwitting failure to act, making one’s subjective intent critical in understanding the chain of events.”

Brawner, 14 F.4th at 608. Unlike the intent to impose

force by striking a person in the face, the intent to deliberately fail to act can be understood only where

there is evidence that a custodial official subjectively

knew of a need to act. See Castro, 833 F.3d at 1086

(Ikuta, J., dissenting) (“While 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.”)

(citing Farmer, 511 U.S. at 837-838). “[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

22

negligently inflicted harm is categorically beneath the

threshold of constitutional due process.’ ” Castro, 833

F.3d at 1086 (Ikuta, J., dissenting).

The Sixth, Seventh and Ninth Circuits attempt to

escape this Court’s prohibition on constitutionalizing

negligent conduct by framing the test as one of “recklessness.” Brawner, 14 F.4th at 596; Castro, 833 F.3d at

1071. However, Farmer recognized that even criminal

law “generally permits a finding of recklessness only

when a person disregards a risk of harm of which he is

aware.” Farmer, 511 U.S. at 837, citing R. Perkins & R.

Boyce, Criminal Law 850–851 (3d ed. 1982); J. Hall,

General Principles of Criminal Law 115–116, 120, 128

(2d ed. 1960); American Law Institute, Model Penal

Code § 2.02(2)(c), and Comment 3 (1985). There is no

reason that a lesser standard would apply here.

The deliberate indifference test properly isolates

those with punitive intent engaged in an abuse of government power as prohibited by the Fourteenth

Amendment from those who unknowingly fail to live

up to the objective standard of care. See Daniels, 474

U.S. at 331. Therefore, Amici urge this Court to grant

certiorari to ensure that this same standard applies to

claims against officers nationwide.

III. The Proper Standard to Be Applied to Fourteenth Amendment Medical Care Claims

Presents an Issue of Grave Constitutional

Importance for Amici’s Membership.

Jail officers, responsible for managing detainee

behaviors to “preserve internal order and discipline

23

and to maintain institutional security,” Bell, 441 U.S.

at 547, are not medical professionals. Yet, of the millions of individuals admitted to local jails over the

course of the year2, approximately half report suffering

or having suffered from a chronic medical condition,

with those in jail much more likely than the general

population to report infectious disease or mental

health concerns3.

Detainee medical care has become an increasing

focus, while short lengths of stay, constraints on resources, lack of access to accurate medical histories,

and the reality of criminal behavior make providing

health care extraordinarily difficult. With those concerns in mind, Amici understand that local entities are

forced to make policy decisions regarding staffing and

training that balance the need for security with constitutionally-required medical care and limited available

resources.

However, the question presented to this Court is

not about the propriety of institutional practices or policy decisions. At its core, the question presented concerns the constitutional liability for an individual

officer who may have never engaged in a single intentional act and who, under a purely objective standard,

is left without any avenue to effectively mitigate risk.

2

“Jail Inmates in 2020—Statistical Tables,” U.S. Department of Justice, Bureau of Justice Statistics, Dec. 2021.

3

Jails: Inadvertent Health Care Providers, p. 3; “Medical

Problems of State and Federal Prisoners and Jail Inmates, 20112012, U.S. Department of Justice, Feb. 2015.

24

It is well-understood that an individual defendant

can be held constitutionally liable only for the defendant’s own unconstitutional acts. Ashcroft v. Iqbal, 556

U.S. 662 (2009). The traditional deliberate indifference

standard upholds this bedrock principle by imposing

liability only where a defendant officer was subjectively aware of a serious risk of harm.

Applying an objective “should have known” standard exposes individual officers to liability which cannot

be anticipated. If a jail officer without a medical education “should have known” of a serious risk of harm

caused by a course of inaction, but undeniably did not,

the question remains: is the individual officer personally responsible for that shortcoming or able to guard

against the same? Just as a municipality cannot be

held constitutionally liable for the actions of its employees, Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658, 691 (1978), an employee should not

be held liable for the decisions of the municipality.

When disregarding an officer’s subjective knowledge

and intent in favor of a “should have known” standard,

a court seeks to penalize individual officers for training

and staffing decisions over which the individual has no

control.

This concern is not an academic exercise but has

real consequences for individual jail staff who may face

career-ending personal liability through no real fault

of their own.

An awareness by officers that every action will be

judged against a mysterious reasonable jail officer

25

significantly raises the bar for officers who are required to make snap decisions in real time and with

limited information. The “should have known” standard will force officers to constantly second-guess their

understanding of a situation, knowledge, and training,

resulting in inefficiency and delay that could pose dangerous consequences in a detention facility.

Constant second-guessing will similarly promote

the distrust of trained medical professionals upon

whom jailers were once entitled to rely. If constitutional liability is entirely untethered to personal

awareness, jailers with no medical education will be

required to scrutinize professional decisions out of fear

that medical professionals may have missed a sign or

symptom of which a “reasonable officer” should have

been aware.

This will likewise disrupt the chain of command

necessary for efficient functioning of a detention facility. Officers will fear trusting the observations or decisions of their superiors or of an earlier shift on the

possibility that those officers were not but should

have been aware of an inmate medical need. Indeed, if

an officer is to be held personally liable for failing to

recognize medical conditions, every officer must be always on alert for even the slightest possible medical

symptoms. This far exceeds the level of medical attention available to free persons outside of a detention facility.

While Amici continuously advocate for effective

training of custodial officials, it is unclear how even

26

additional training could prevent liability under a

standard that does not consider the “good faith” or

training of the officer, but a hypothetical objective officer known only through the litigation process. It is

only logical that, if individual jailers are held to a

medical malpractice standard while in the stressful

and often dangerous jail environment not designed for

medical treatment, qualified jail officers will fear entering the profession, leaving only the “most resolute

or the most irresponsible.” Crawford-El v. Britton, 523

U.S. 574, 590 n.12 (1998).

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

CONCLUSION

Since 2016, eight of the thirteen circuits have

weighed in on the standard to be applied to claims of

inadequate medical care by pretrial detainees. There is

now an even divide on the proper application of the

Fourteenth Amendment, developed and acknowledged

by the courts. Unless this Court grants certiorari, half

of the circuits will continue to issue faulty decisions affecting the lives of litigants, including the thousands of

officers represented by Amici. Amici urge this Court to

grant certiorari to provide clear guidance on the scope

27

of personal liability for individual officers under a consistent Fourteenth Amendment standard.

Respectfully submitted,

GEORGE G. MORRIS*

THOMAS J. MCGRAW

MCGRAW MORRIS P.C.

2075 W. Big Beaver Road,

Suite 750

Troy, MI 48084

*Attorneys for Amici Curiae

Counsel of Record