Petition for Writ of Certiorari — Otis Crandel, as Dependent Administrator of and on Behalf of Billy Wayne Worl, Jr., et al., Petitioners v. Dalena Hall, et al.

No. ______

IN THE

Supreme Court of the United States

____________________

OTIS CRANDEL, AS DEPENDENT ADMINISTRATOR OF,

AND ON BEHALF OF BILLY WAYNE WORL, JR., EMILY

GARCIA, JAMES MATTHEW GARCIA, AND JARED ANDREW GARCIA, INDIVIDUALLY, THE ESTATE OF BRENDA

KAYE WORL, AND BRENDA KAY WORL’S HEIRS-AT-LAW;

BILLY WAYNE WORL, JR., INDIVIDUALLY,

Petitioners,

v.

DALENA HALL AND CARI RENEA MCGOWEN,

Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

T. Dean Malone

Jennifer Kingaard

LAW OFFICES OF DEAN

MALONE, P.C.

900 Jackson Street

Suite 730

Dallas, TX 75202

Bruce K. Thomas

LAW OFFICE OF BRUCE K.

THOMAS

12900 Preston Road

Suite 590

Dallas, TX 75230

Michael Dreeben

Counsel of Record

Andrew R. Hellman

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5300

mdreeben@omm.com

Melissa C. Cassel

O’MELVENY & MYERS LLP

Two Embarcadero Center

San Francisco, CA 94111

(Additional Caption Information on Inside Cover)

OTIS CRANDEL, AS DEPENDENT ADMINISTRATOR OF,

AND ON BEHALF OF BILLY WAYNE WORL, JR., EMILY

GARCIA, JAMES MATTHEW GARCIA, AND JARED ANDREW GARCIA, INDIVIDUALLY, THE ESTATE OF BRENDA

KAYE WORL, AND BRENDA KAY WORL’S HEIRS-AT-LAW;

BILLY WAYNE WORL, JR., INDIVIDUALLY,

Petitioners,

v.

VEGAS HASTINGS AND DANIEL PIPER,

Respondents.

____________________

SHANON EDMISTON, INDIVIDUALLY; HELEN HOLMAN,

AS DEPENDENT ADMINISTRATOR OF, AND ON BEHALF OF

LISA WILLIAMS A/K/A LISA SCHUBERT, E.S., J.S. #1,

J.S. #1; SHANON EDMISTON, THE ESTATE OF JOHN

ROBERT SCHUBERT, JR., AND JOHN ROBERT SCHUBERT,

JR.’S HEIRS-AT-LAW,

Petitioners,

v.

OSCAR BORREGO, SR., OSCAR E. CARRILLO, AND PETER

E. MELENDEZ,

Respondents.

i

QUESTION PRESENTED

Whether the objective reasonableness test of

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

to pretrial detainees’ claims about their treatment

while in custody, including failure to protect from the

risk of suicide.

ii

RELATED PROCEEDINGS

Crandel v. Callahan Cnty., Tex., No. 1:21-cv-075C (N.D. Tex.)

Crandel v. Hall, No. 22-10360 (5th Cir.)

Crandel v. Hastings, No. 22-10361 (5th Cir.)

Edmiston v. Culberson Cnty., Tex., No. 3:21-cv00132-KC (W.D. Tex.)

Edmiston v. Borrego, No. 22-50102 (5th Cir.)

iii

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF CERTIORARI ........... 1

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

RELEVANT CONSTITUTIONAL

PROVISION ......................................................... 1

INTRODUCTION ..................................................... 1

STATEMENT ............................................................ 5

A. Legal Framework ........................................... 5

B. Facts And District Court Proceedings ........... 7

1. Edmiston v. Borrego .................................. 7

2. Crandel v. Hall .......................................... 9

C. Fifth Circuit Rulings .................................... 11

REASONS FOR GRANTING THE PETITION ..... 11

A. The Courts Of Appeals Are Intractably

Divided On This Question ............................ 12

B. The Question Presented Is

Exceptionally Important And Recurring ..... 16

C. This Case Is An Ideal Vehicle To

Address The Question Presented ................ 18

D. The Decisions Below Are Wrong .................. 23

CONCLUSION ........................................................ 27

iv

TABLE OF CONTENTS

(continued)

Page

Appendix A: Opinion of the United States

Court of Appeals for the Fifth Circuit in

Crandel v. Hall and Crandel v. Hastings

(Aug. 1, 2023) .................................................... 1a

Appendix B: Opinion of the United States

Court of Appeals for the Fifth Circuit in

Edmiston v. Borrego (Aug. 1, 2023) ............... 26a

Appendix C: Order from the United States

District Court for the Northern District

of Texas in Crandel v. Callahan Cnty.,

Tex. (Mar. 14, 2022), Dkt. 81 .......................... 47a

Appendix D: Order from the United States

District Court for the Northern District

of Texas in Crandel v. Callahan Cnty.,

Tex. (Mar. 14, 2022), Dkt. 83 .......................... 57a

Appendix E: Order from the United States

District Court for the Western District of

Texas in Edmiston v. Culberson Cnty.,

Tex. (Jan. 13, 2022) ......................................... 67a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Alderson v. Concordia Parish Corr. Facility,

848 F.3d 415 (5th Cir. 2017).........................14, 15

Bell v. Wolfish,

441 U.S. 520 (1979) ........................................ 6, 24

Boncher ex rel. Boncher v. Brown County,

272 F.3d 484 (7th Cir. 2001).............................. 18

Brawner v. Scott County,

14 F.4th 585 (6th Cir. 2021) .........................13, 21

Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016)............................ 14

Charles v. Orange County,

925 F.3d 73 (2d Cir. 2019) ................................. 13

Cope v. Cogdill,

142 S. Ct. 2573 (2022)........................................ 22

Cope v. Cogdill,

3 F.4th 198 (5th Cir. 2021) ...............15, 19, 21, 22

Dang ex rel. Dang v. Sheriff, Seminole County,

871 F.3d 1272 (11th Cir. 2017).....................15, 16

Darnell v. Pineiro,

849 F.3d 17 (2d Cir. 2017) ................................. 13

Farmer v. Brennan,

511 U.S. 825 (1994) .............................................. 6

Gordon v. County of Orange,

888 F.3d 1118 (9th Cir. 2018)............................ 14

Grochowski v. Clayton County,

961 F.3d 1311 (11th Cir. 2020).......................... 20

Heidel v. Mazzola,

851 F. App’x 837 (10th Cir. 2021) ..................... 21

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Helphenstine v. Lewis County,

60 F.4th 305 (6th Cir. 2023) .............................. 12

Helphenstine v. Lewis County,

65 F.4th 794 (6th Cir. 2023) ...... 3-4, 12-13, 16, 26

Howell v. NaphCare, Inc.,

67 F.4th 302 (6th Cir. 2023) .............................. 23

Kingsley v. Hendrickson,

576 U.S. 389 (2015) ............................ 3, 6-7, 24-26

Mays v. Dart,

974 F.3d 810 (7th Cir. 2020).............................. 21

Miranda v. County of Lake,

900 F.3d 335 (7th Cir. 2018).........................14, 23

Sandoval v. County of San Diego,

985 F.3d 657 (9th Cir. 2021).............................. 21

Strain v. Regalado,

977 F.3d 984 (10th Cir. 2020).................12, 15, 21

Whitney v. City of St. Louis,

887 F.3d 857 (8th Cir. 2018).............................. 15

Wilson v. Seiter,

501 U.S. 294 (1991) ........................................ 5, 24

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1 ..................................... 1

OTHER AUTHORITIES

Henry J. Steadman, et al., Prevalence of

Serious Mental Illness Among Jail

Inmates, 60 Psychiatry Servs. 761 (2009)......... 17

IDB Appeals 2008-Present, Fed. Jud. Ctr. ............. 16

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Kate Lambroza, Pretrial Detainees and the

Objective Standard After Kingsley v.

Hendrickson, 58 Am. Crim. L. Rev. 429

(2021) .................................................................. 24

Martin Kaste, The “Shock of Confinement”:

The Grim Reality of Suicide in Jail,

N.P.R. (July 27, 2015, 5:59 PM ET) .................. 17

PEW Charitable Trusts, Jails: Inadvertent

Health Care Providers (Jan. 2018) .................... 17

Police Executive Research Forum, Managing

Mental Illness in Jails: Sheriffs Are

Finding Promising New Approaches (2018) ..... 17

The Sentencing Project, U.S. Criminal

Justice Data ....................................................... 17

Zhen Zeng & Todd D. Minton, Jail Inmates

in 2019, U.S. Department of Justice,

Bureau of Justice Statistics............................... 17

Zhen Zeng, Bureau of Justice Statistics, NCJ

251774, Jail Inmates in 2017 (2019) ................. 16

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to review the judgments of the United States

Court of Appeals for the Fifth Circuit in these cases.

OPINIONS BELOW

The Fifth Circuit’s opinion in the consolidated appeals Crandel v. Hall and Crandel v. Hastings is reported at 75 F.4th 537 and reprinted in the Appendix

to the Petition (“Pet. App.”) at 1a-25a. The Fifth Circuit’s opinion in Edmiston v. Borrego is reported at 75

F.4th 551 and reprinted at Pet. App. 26a-46a. The

district court’s unpublished decisions in Crandel v.

Callahan County are reprinted at Pet. App. 47a-66a.

The district court’s decision in Edmiston v. Culberson

County is reported at 580 F. Supp. 3d 411 and reprinted at Pet. App. 67a-113a.

JURISDICTION

The court of appeals entered its judgments on August 1, 2023, Pet. App. 1a and Pet. App. 26a. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fourteenth Amendment provides in relevant

part: “No state shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1.

INTRODUCTION

This petition presents a longstanding, entrenched,

and extensive conflict over the due process standards

governing claims brought by pretrial detainees, particularly in the context of failure to protect against the

2

risk of suicide. The nation’s detention facilities face

this vexing problem regularly, all too often with tragic

results. This Court’s intervention is needed to restore

uniform and clear constitutional standards in this vital area of detention-facility conduct.

These cases illustrate the stakes:

Brenda Worl arrived at the Callahan County Jail

in Texas at 11:00 p.m. after she called 911 to report

that her husband threw her across their trailer. She

was angry, agitated, and non-cooperative and appeared to have been drinking. When the jailer asked

her whether she had ever attempted suicide, she presented her arms and yelled, “I DON’T KNOW, HAVE

I?” Jail personnel left her alone in a visitation room;

when they came back fourteen minutes later, she was

sitting on the floor with a phone cord wrapped tightly

around her neck. Worl was pronounced dead the next

day.

The same scenario unfolded three months later

354 miles across Texas. John Robert Schubert, Jr.

was arrested after wandering shirtless around the

streets of Van Horn, telling people that someone “was

trying to kill him,” and asking for help. He was

brought to the Culberson County Jail, where he again

pleaded that someone was trying to kill him. Jail personnel left him alone; when they checked on him ten

minutes later, he was half-kneeling with a white

sheet mangled around his neck and tied to a shelf.

EMTs pronounced him dead later than evening.

Reasonable officers would have seen the red flags.

They would not have left Worl and Schubert alone,

especially with phone cords and bedding. But when

3

Worl’s and Schubert’s families sued the jailers for failing to protect them from the risk of suicide, the Fifth

Circuit rejected their claims. According to the Fifth

Circuit, whether the officers acted reasonably did not

matter; instead, plaintiffs could hold them accountable only if they could prove the officers actually knew

that leaving Worl and Schubert alone could end in suicide. The Fifth Circuit believed that they could not,

so their claims failed.

This Court should grant certiorari to review those

holdings. A widely acknowledged split exists over the

scope of this Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015). In Kingsley, the Court held

that pretrial detainees’ claims for excessive force are

measured by the officer’s objective reasonableness,

not subjective intent. Since then, courts have fractured over whether and how Kingsley’s standard applies to pretrial detainees’ other claims, including failure to protect from the risk of suicide. Four circuits

cabin Kingsley to excessive force claims, while four

others apply Kingsley to other claims brought by pretrial detainees challenging their treatment in custody.

As Judge Readler explained in recently calling on

the Court to resolve this very question, “the Kinglsey

split is more than mature—it is having offspring.”

Helphenstine v. Lewis County, 65 F.4th 794, 801 (6th

Cir. 2023) (Readler, J., respecting denial of rehearing

en banc). “Disagreements abound, from whether to

apply Kingsley to deliberate indifference claims, to

the test to apply if so, to whether the same test applies

in various settings.” Id. Accordingly, he wrote,

“[w]ith confusion rampant coast-to-coast, the

4

Supreme Court would appear to be the proper forum”

to intervene, and it should grant certiorari “soon.” Id.

The issue is profoundly important and recurring.

The volume of cases on federal dockets each year concerning detainees’ treatment in custody—nearly 17%

of all civil appeals—confirms the frequency with

which courts confront the question presented. And

the answer to that question has real-world effects:

American jails house more than a million people with

mental illness—people who are more likely to put

themselves and others in danger. Defining the constitutional standards that govern official conduct in

this setting is vital for custodians, detainees, and

their families nationwide.

This petition provides the ideal vehicle for review.

The decisions below directly implicate the circuit split

over Kingsley’s scope. The Fifth Circuit held that

Kingsley does not sweep beyond excessive force

claims. The panel’s refusal to apply Kingsley’s objective-reasonableness standard was outcome-determinative in both cases, where the officials’ conduct—

leaving pretrial detainees showing clear signs of mental distress unsupervised in rooms with “obvious ligatures”—would go to a jury under an objective-unreasonableness standard. And in four other circuits, that

is exactly what would have happened.

Review is also warranted because the decisions below are wrong. Kingsley’s objective-reasonableness

standard is not limited to excessive-force claims.

Kingsley based its standard on settled due process

principles applicable to pretrial detainees, and it rejected importing a subjective standard from Eighth

Amendment precedents applicable to convicted

5

prisoners. There is one due process clause in the

Fourteenth Amendment, and its objective test should

not vary depending on the nature of the claim—

whether the conduct alleged is excessive force, inadequate medical care, inhumane sleeping conditions, or

the failure to protect from the risk of suicide. The relevant factor is the status of the person in custody:

pretrial detainee or sentenced prisoner. The factors

that make conduct reasonable or unreasonable will

vary depending on the context, but the legal standard

will not. Reaffirming that basic point will resolve the

confusion in the lower courts and provide a clear and

stable framework for courts, officials, and detainees.

For all those reasons, the Court should grant certiorari and reverse the judgments below.

STATEMENT

A. Legal Framework

1. When convicted prisoners challenge their treatment in custody under the Eighth Amendment, establishing a claim “mandate[s] inquiry into a prison official’s state of mind.” Wilson v. Seiter, 501 U.S. 294,

299 (1991). That is because the Eighth Amendment

bans “cruel and unusual punishment”—punishment

imposed maliciously, sadistically or with deliberate

indifference. See id. at 300 (“if a guard accidentally

stepped on a prisoner’s toe and broke it, this would

not be punishment”) (internal quotation marks and

alterations omitted). When convicted prisoners claim

to have received medical care so deficient as to violate

the Eighth Amendment, for example, they must establish that prison officials “knew of” and “disregard[ed]” a substantial risk of harm “by failing to take

6

reasonable measures to abate it.” Farmer v. Brennan,

511 U.S. 825, 847 (1994).

2. When pretrial detainees challenge their treatment in custody, however, the Eighth Amendment

and its textually driven legal requirements do not apply. Pretrial detainees have not been convicted and

therefore cannot be punished at all, much less maliciously and sadistically. See Bell v. Wolfish, 441 U.S.

520, 535-37 (1979) (“a detainee may not be punished

prior to an adjudication of guilt”). Accordingly, the

Fourteenth Amendment protects pretrial detainees

from all punishment, not just the cruel and unusual

kind.

3. Following this logic, the Supreme Court addressed what state of mind a pretrial detainee must

establish to prove a claim of excessive force in Kingsley. The Court first held that such a case implicates

“two separate state-of-mind questions.” 576 U.S. at

395. The first pertains to the official’s mental state

“with respect to his physical acts”—the conduct that

harms the plaintiff. Id. On that issue, the Court held

that “the defendant must possess a purposeful, a

knowing, or possibly a reckless state of mind.” Id. at

396. That is because due process does not protect

against negligent conduct. Id. But on the second state

of mind—that is, on the issue of whether the force applied was “constitutionally speaking, ‘excessive’”—

Kingsley held that “the appropriate standard for a

pretrial detainee’s excessive-force claim is solely an

objective one.” Id. at 396-97. As the Court explained,

“proof of intent (or motive) to punish” is not “required

for a pretrial detainee to prevail on a claim that his

due process rights were violated”; rather, pretrial

7

detainees “can prevail by providing only objective evidence that the challenged government action is not

rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.”

Id. at 398. “Thus, there is no need here, as there

might be in an Eighth Amendment case, to determine

when punishment is unconstitutional.” Id. at 401.

4. Following Kingsley, the circuits have fallen into

a deep and intractable conflict over whether pretrial

detainees’ claims about their treatment in custody—

including failure to protect from the risk of suicide—

should be evaluated under the Eighth Amendment’s

deliberate indifference standard or Kingsley’s objective reasonableness standard. See infra at 12-16.

B. Facts And District Court Proceedings

The Fifth Circuit saw the facts of these cases as

follows.

1. Edmiston v. Borrego

a. On the evening of July 6, 2019, a jailer at the

Culberson County Jail in Van Horn, Texas, received

three calls. Pet. App. 28a. In the first, at 11:05 p.m.,

John Robert Schubert, Jr. asserted that “someone was

trying to kill him.” Id. In the second, at 11:09 p.m.,

an off-duty trooper stated that “a man was at his door

saying someone was trying to kill him.” Id. And in

the third, at 11:12 p.m., someone at a local hotel said

that “a man told the hotel clerk someone was trying

to kill him.” Id. Schubert, who had been wandering

the streets of Van Horn, shirtless, knocking on doors,

and asking strangers for help, was the subject of the

second and third calls. Id.; ROA 19, 24.

8

The jailer sent the sheriff’s deputy to the hotel to

talk with Schubert. Pet. App. 28a-29a. Schubert appeared nervous, told the deputy that people were trying to kill him, and was unable to accurately recall the

year of his birth. Pet. App. 29a. The deputy did not

seek to have Schubert mentally evaluated, but instead took him to a border patrol station for identification and, upon learning that Schubert had an active

arrest warrant for an alleged parole violation, arrested him and transported him to the Culberson

County Jail. Id.

Schubert and the deputy arrived at 12:14 a.m. on

July 7, and Schubert was placed in the booking area;

the sheriff, who had been monitoring the events by

radio, soon joined the other officers at the jail. Id.

While Texas state law requires officers to either complete a screening form for suicide and medical, mental, and developmental impairments for a detainee or,

if the form cannot be completed, place the detainee on

suicide watch, the officers here did neither. Pet. App.

30a. Rather, the officers gave Schubert jail-issued

clothing, escorted him to a cell, and provided him with

a mattress around 1:42 a.m. Id. Around this time,

Schubert repeated to the deputy that someone was

trying to kill him. Id.

At 2:42 a.m., another jail employee went to check

on Schubert. Pet. App. 31a. Upon arriving at his cell,

she found him “half-kneeling with a white sheet mangled on his neck and tied to a top grey shelf.” Id.

Schubert was pronounced dead. Id.

b. Schubert’s mother and estate filed suit against

the officers and Culberson County, relying on the

Fourteenth Amendment’s Due Process Clause and 42

9

U.S.C. § 1983 and alleging, in part, failure to protect

Schubert from suicide. Id. As relevant here, the officers moved to dismiss the complaint. Id. The district court partially denied their motions, concluding

that they were not entitled to qualified immunity on

the failure-to-protect claims. Pet. App. 31a-32a. Applying a subjective deliberate indifference standard,

the court concluded the complaint plausibly alleged

that the officers knew the risk of suicide or serious

harm “was obvious” yet failed to take action to abate

that risk. Pet. App. 32a.

The officers appealed to the Fifth Circuit. Id.

2. Crandel v. Hall

a. At 10:13 p.m. on April 2, 2019, Brenda Worl

called 911 and said she had been beaten by her husband with a banjo, “knocked across the kitchen,” and

thrown “from one end of the[ir] trailer to the other.”

Pet. App. 4a; ROA 469. The jailer-dispatcher sent two

officers. Worl’s husband told the officers that she had

a history of mental health issues. ROA 477. Although

it seemed “that the incident involved conduct by both

parties,” “jail-capacity concerns” meant “there was

only room for one of the Worls.” Pet. App. 4a. The

male officers arrested Brenda, notwithstanding that

she had been the one who called the police for help.

Id.

Worl and the officers arrived at the Callahan

County Jail around 11:00 p.m. Pet. App. 4a-5a. While

Worl waited to be booked, one of her hands slipped out

of her handcuffs. But rather than securing it, a jailerdispatcher removed the handcuffs. Pet. App. 5a. An

officer and a jailer then escorted Worl to the booking

10

area, where Worl grew increasingly agitated and refused to answer questions, including those for the

jail’s “screening form for suicide and medical/mental/developmental impairments.” Id. One jailer

asked whether World “had ever attempted suicide.”

Worl “presented her arms” and yelled, “I don’t know.

Have I?” Id. Worl was not placed on suicide watch.

At 11:33 p.m., Worl was placed in the jail’s visitation room, which contains two corded phones mounted

on the wall, and left unwatched and unrestrained.

Pet. App. 6a. Fourteen minutes later, two officers entered the visitation room. Id. Worl was sitting on the

floor, nonresponsive, with a phone cord wrapped

tightly around her neck. Id.

Worl was transported to the hospital, where she

was placed on life support. Id. She died the next day.

Id.

b. Worl’s spouse and estate filed suit against the

jailers and officers. Pet. App. 6a-7a. As relevant here,

relying on due process and Section 1983, plaintiffs alleged that the officers failed to protect Worl from the

risk of suicide. The district court granted summary

judgment in favor of defendants. In so doing, the

court concluded that “there [was] no evidence . . . to

raise a genuine issue of material fact as to whether

[defendants] appreciated that Worl was a suicide risk

or that the phone cord would likely be an instrument

of suicide” and that Worl’s belligerent behavior was

insufficient to make defendants subjectively aware of

a substantial risk of self-harm. Pet. App. 7a.

Plaintiffs appealed to the Fifth Circuit.

11

C. Fifth Circuit Rulings

The court of appeals rendered contemporaneous

opinions, reversing in Edmiston and affirming in

Crandel. In both cases, the court first observed that

it was “bound by” the circuit’s “rule of orderliness” on

what standard governed the failure-to-protect claims.

Pet. App. 11a, 37a. Accordingly, the panel followed

prior Fifth Circuit opinions applying the subjective

deliberate-indifference standard in cases like this and

rejected the application of the objective-unreasonableness standard adopted in Kingsley.

In so doing, the panel held that to satisfy the deliberate-indifference standard, plaintiffs must allege

(or show, at summary judgment) that the officers had

subjective knowledge of a substantial risk of serious

harm and failed “to take reasonable measures to

abate” the risk. Pet. App. 11a, 36a. In the panel’s

view, the Edmiston plaintiffs “fail[ed] to plausibly allege [the officers] had the requisite subjective

knowledge of a substantial risk of suicide,” Pet. App.

38a, and the Crandel plaintiffs failed “to establish

genuine disputes of material fact regarding defendants’ subjective knowledge of a substantial risk of suicide,” Pet. App. 13a. Accordingly, the panel held that

none of the failure-to-protect claims was viable. The

panel in Edmiston thus vacated the district court’s order denying the officers’ motions to dismiss and in

Crandel affirmed the district court’s grant of summary judgment.

REASONS FOR GRANTING THE PETITION

The courts of appeals are deeply divided on the due

process standard that governs claims brought by

12

pretrial detainees challenging their treatment in custody. In the wake of Kingsley, the circuits have divided into two camps—those applying Kingsley’s test

of objective reasonableness to these due process

claims, and those adhering to a subjective deliberateindifference test drawing on Eighth Amendment

standards for convicted prisoners. The issue has surpassing significance for officers across the nation

dealing with pretrial detainees evidencing serious

mental-health issues raising a suicide risk, and for

the detainees themselves and their families. This

case clearly and squarely presents the issue. And the

decision below is wrong. This state of affairs benefits

no one. This Court should grant certiorari to settle

the issue, provide uniform national due process standards, and correct the errors below.

A. The Courts Of Appeals Are Intractably Divided On

This Question

The courts of appeals have acknowledged that “the

circuits are split” on whether Kingsley’s objective

standard applies to pretrial detainees’ failure-to-protect claims. Strain v. Regalado, 977 F.3d 984, 990

(10th Cir. 2020); see Helphenstine v. Lewis County, 60

F.4th 305, 316 (6th Cir. 2023) (“our sister circuits are

all over the map on this issue”). As Judge Readler

recently put it, “[w]ith signs pointing in all directions,

even the most careful reader would likely find herself

at a crossroads.” Helphenstine, 65 F.4th at 801

(Readler, J., respecting denial of rehearing en banc).

Until “Supreme Court intervention comes to pass, we

are left to muddle on, following paths leading in any

and all directions.” Id. at 802.

13

1. Since Kingsley, “at least four circuit courts (arguably five, depending on who you ask)” hold that

Kingsley’s logic extends to pretrial-detainee claims of

inadequate care. Helphenstine, 65 F.4th at 795

(Readler, J., respecting denial of rehearing en banc).

a. Second Circuit: In Darnell v. Pineiro, 849 F.3d

17 (2d Cir. 2017), the court reasoned that Kingsley

made it “plain that punishment has no place in defining the mens rea element of a pretrial detainee’s claim

under the Due Process Clause.” Id. at 35. Accordingly, while Kingsley specifically concerned an excessive force claim, the Second Circuit concluded that the

“same objective analysis should apply to an officer’s

appreciation of the risks associated with . . . a claim

for deliberate indifference under the Fourteenth

Amendment.” Id. Although “Darnell did not specifically address medical treatment,” the Second Circuit

later reasoned that “the same principle applies” to

claims of inadequate care. Charles v. Orange County,

925 F.3d 73, 87 (2d Cir. 2019).

b. Sixth Circuit: In Brawner v. Scott County, 14

F.4th 585 (6th Cir. 2021), the Sixth Circuit acknowledged its “precedent applying a subjective standard to

deliberate-indifference claims by pretrial detainees,”

but concluded that Kingsley “require[d] modification

of [its] caselaw.” Id. at 596. “Given Kingsley’s clear

delineation between claims brought by convicted prisoners under the Eighth Amendment and claims

brought by pretrial detainees under the Fourteenth

Amendment,” the Sixth Circuit held that Kingsley’s

objective standard governs pretrial detainees’ claims

of inadequate care. Id.

14

c. Seventh Circuit: In Miranda v. County of Lake,

900 F.3d 335 (7th Cir. 2018), the Seventh Circuit reasoned that “the logic the Supreme Court used in

Kingsley” called for different analysis of Eighth

Amendment claims and Fourteenth Amendment

claims—not “dissection of the different types of claims

that arise under the Fourteenth Amendment’s Due

Process Clause.” Id. at 352. Heeding the Court’s directive “that courts must pay careful attention to the

different status of pretrial detainees,” the Seventh

Circuit held “that medical-care claims brought by pretrial detainees under the Fourteenth Amendment are

subject only to the objective unreasonableness inquiry

identified in Kingsley.” Id.

d. Ninth Circuit: In Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), the Ninth

Circuit rejected the notion that Kingsley reached no

further than excessive force claims; the court was instead “persuaded that Kingsley applies, as well, to

failure-to-protect claims brought by pretrial detainees

against individual defendants under the Fourteenth

Amendment.” Id. at 1070. The Ninth Circuit later

followed Castro’s reasoning to hold that Kingsley

equally applies to and requires an objective standard

for pretrial detainees’ Fourteenth Amendment

“claims for violations of the right to adequate medical

care.” Gordon v. County of Orange, 888 F.3d 1118,

1124-25 (9th Cir. 2018).

2. Four other circuits confine Kingsley to excessive-force claims, with most of these courts addressing the issue in cursory footnotes.

a. Fifth Circuit: In Alderson v. Concordia Parish

Correctional Facility, 848 F.3d 415 (5th Cir. 2017), a

15

Fifth Circuit panel majority ruled, over a vigorous dissent, that it was “bound by [the court’s] rule of orderliness” to apply a subjective standard to a pretrial detainee’s failure-to-protect claims, because “the Fifth

Circuit ha[d] continued . . . to apply a subjective

standard post-Kingsley,” albeit in cases that did not

confront the Kingsley issue at all. Id. at 419 n.4. The

Fifth Circuit later reiterated that position in another

split decision, in which the panel majority cabined

Kingsley to claims “alleging excessive force” and rejecting the contention that Kingsley’s logic reached

“claims regarding medical treatment.” Cope v. Cogdill, 3 F.4th 198, 207 n.7 (5th Cir. 2021). “Since

Kingsley discussed a different type of constitutional

claim,” the Cope majority deemed it irrelevant to the

court’s “deliberate-indifference precedent.” Id.

b. Eighth Circuit: In Whitney v. City of St. Louis,

887 F.3d 857 (8th Cir. 2018), the Eighth Circuit similarly refused to apply Kingsley to inadequate-care

claims, dismissing the argument that Kingsley swept

beyond the specific claim it addressed. Id. at 860 n.4

(“Kingsley does not control because it was an excessive force case, not a deliberate indifference case.”).

c. Tenth Circuit: In Strain v. Regalado, 977 F.3d

984 (10th Cir. 2020), the Tenth Circuit expressly “decline[d] to extend Kingsley to Fourteenth Amendment

deliberate indifference claims,” insisting that “Kingsley turned on considerations unique to excessive force

claims” and thus did not reach beyond them. Id. at

991.

d. Eleventh Circuit: In Dang ex rel. Dang v. Sheriff, Seminole County, 871 F.3d 1272 (11th Cir. 2017),

the Eleventh Circuit, like the Fifth and Eighth

16

Circuits, rejected in a footnote an argument for applying Kingsley. Emphasizing that “Kingsley involved an

excessive-force claim, not a claim of inadequate medical treatment,” the court ruled that Kingsley did not

require or even permit it to revisit its precedent on

claims of inadequate care. Id. at 1279 n.2.

Only this Court can resolve the stark divide between the circuits on this frequently recurring issue.

B. The Question Presented Is Exceptionally Important And Recurring

“This is no small matter”: pretrial detainee cases

“populate every docket across the federal courts.”

Helphenstine, 65 F.4th at 801 (Readler, J., respecting

denial of rehearing en banc). Since 2008, more than

76,000 “prisoner civil rights” and “prison condition”

claims have reached federal appellate courts—approximately 16.8% of all civil appeals. IDB Appeals

2008-Present, Fed. Jud. Ctr., http://www.fjc.gov/research/idb/interactive/21/IDB-appeals-since-2008; see

also Zhen Zeng, Bureau of Justice Statistics, NCJ

251774, Jail Inmates in 2017, at 1 (2019) (reporting

that almost two-third of jail inmates were “unconvicted”). “That so many [courts] have said so much in

so little time” since Kingsley confirms “the frequency

with which these cases appear on [federal] docket[s].”

Helphenstine, 65 F.4th at 797 (Readler, J., respecting

denial of rehearing en banc).

Not only are these claims recurring and frequent,

but for detainees and prison officials alike, the applicable standard is not just a “theoretical concept[] to

debate”; it “govern[s] [jailers’] everyday conduct.” Id.

at 801; see PEW Charitable Trusts, Jails: Inadvertent

17

Health Care Providers 9 (Jan. 2018) (more than 90%

of large jails have been sued for denial of medical

care). Jails, officials, institutional supervisors, and

pretrial detainees all need guidance on the applicable

standard.

1. In recent years, studies have noted that at least

725,000 pretrial detainees are being held in jails

across the United States. The Sentencing Project,

U.S. Criminal Justice Data, http://www.sentencingproject.org/the-facts/#detail; Zhen Zeng &

Todd D. Minton, Jail Inmates in 2019, U.S. Department of Justice, Bureau of Justice Statistics,

http://www.bjs.gov/content/pub/pdf/ji19.pdf; Henry J.

Steadman, et al., Prevalence of Serious Mental Illness

Among Jail Inmates, 60 Psychiatry Servs. 761, 761

(2009). Many suffer from mental health crises. Indeed, “county jails have become the de facto mental

health care system for large numbers of individuals in

many communities.” Police Executive Research Forum, Managing Mental Illness in Jails: Sheriffs Are

Finding Promising New Approaches 5 (2018); see

Steadman, supra (people in jail five times more likely

than general population to suffer from serious mental

illness).

2. People with mental illness are significantly

more likely to put themselves and others in danger.

The “grim reality,” then, is that jails have high suicide

rates—even higher than prisons. Martin Kaste, The

“Shock of Confinement”: The Grim Reality of Suicide

in Jail, N.P.R. (July 27, 2015, 5:59 PM ET). “About

1,000 people die in American jails every year and

about a third of those are suicides.” Id. (suicide rates

inside jails are “three times worse than on the

18

outside”). And the arrival at jail with the initial shock

of confinement is a particularly dangerous interval.

See Boncher ex rel. Boncher v. Brown County, 272 F.3d

484, 486 (7th Cir. 2001) (Posner, J.,) (“[T]he risk [of

suicide] is concentrated in the early days and even

hours of being placed in jail, before the inmate has

had a chance to adjust to his dismal new conditions.”).

3. Jails that confront these issues have a pressing

need to understand the constitutional baseline of care

and the scope of their obligations to pay attention to

the risks to detainee health posed in confinement.

Clear national standards will guide training programs and set standards for accountable behavior.

And subjective standards impose needless risks on detainees. In cases like this, where the precarious mental health condition of a detainee is apparent to jailers

and no objectively reasonable steps are taken to avert

the risk of suicide, the result is needless, preventable

tragedy.

This Court’s intervention to address

whether the Fourteenth Amendment’s Due Process

Clause tolerates that result is imperative.

C. This Case Is An Ideal Vehicle To Address The

Question Presented

This case is an excellent vehicle for the Court’s review. The issue was preserved below; the panel

squarely addressed it; and it was outcome-determinative. This petition is not the first raising the issue,

but it is the first to offer the Court an ideal opportunity to finally resolve an important and recurring

legal question with profound human stakes.

1. The decisions below starkly implicate the circuit

split. In both cases, the Fifth Circuit expressly

19

refused to “apply the objective-unreasonableness

standard the Court adopted in Kingsley,” describing

that standard as limited to “claims of excessive force

(not failure to protect).” Pet. App. 11a, 36a. And in

both cases, the Fifth Circuit reasoned that the “rule of

orderliness” bound the court to adhere to its prior ruling that Kingsley “did not abrogate [this court’s] deliberate-indifference precedent.” Pet. App. 11a, 37a

(quoting Cope, 3 F.4th at 207 n.7).

2. The panel’s refusal to apply the Kingsley standard was outcome determinative here. In both cases,

the panel’s analysis started and ended with the subjective-intent inquiry it erroneously undertook. See

Pet. App. 12a-13a (“Because plaintiffs . . . fail to establish genuine disputes of material fact regarding

defendants’ subjective knowledge of a substantial risk

of suicide, whether defendants responded with deliberate indifference does not come into play.”); Pet. App.

38a (“For the reasons that follow, plaintiffs fail to

plausibly allege appellants had the requisite subjective knowledge of a substantial risk of suicide. Accordingly, whether they responded to that putative

risk with deliberate indifference does not come into

play.”). And in both cases, the defendants’ conduct

was objectively unreasonable—at the very least, the

defendants’ conduct in Crandel raised a jury question,

and the complaint in Edmiston alleged objectively unreasonable conduct plausibly enough to survive a motion to dismiss. Pet. App. 8a (acknowledging that defendants “plac[ed] unsupervised Worl in the visitation

room containing a telephone cord, a commonly known

obvious ligature”); Pet. App. 32a (describing how district “court concluded the ‘risk was obvious,’ based on:

20

Schubert’s fragile psychological state; his statements

regarding an unidentified assailant; and [defendants’]

knowledge about the risk of jail suicides”—yet the defendants “respond[ed] by giving the detainee loose

bedding, an obvious ligature”).

In any event, the outcome in the Fifth Circuit

plausibly would come out the opposite way under a

Kingsley-derived objective-reasonableness standard.

That is an issue for remand if this Court rejects the

Fifth Circuit’s legal standard.

3. Many parties on both sides of the split have

sought the Court’s review of this question, including

in at least ten petitions in the last five Terms. But

those petitions suffered from flaws not present here.

To begin, many prior petitions sought the Court’s

review of decisions issued before the question presented had adequately percolated through the lower

courts and before the circuit split had fully crystallized. See, e.g., Pet. Writ Cert., County of Orange v.

Gordon, No. 18-337 (U.S. Sept. 12, 2018); Pet. Writ.

Cert., Cowlitz County v. Crowell, No. 18-476 (U.S.

Oct. 10, 2018); Pet. Writ. Cert., Saunders v. Ivey, No.

18-760 (U.S. Dec. 13, 2018). Timing issues similarly

made Grochowski v. Clayton County, 961 F.3d 1311

(11th Cir. 2020), a poor vehicle for this issue, because

that case involved conduct that occurred before Kingsley was decided. Id. at 1318 n.4 (“We decline to apply

Kingsley because Grochowski’s death occurred in

2012 and Kingsley was decided in 2015. We are not

aware of any court that has ruled that Kingsley has

retroactive effect. We therefore do not consider

whether Kingsley would otherwise be applicable.”).

21

Other petitions did not cleanly present the Kingsley question for this Court’s review. The petitioner

seeking review of the Seventh Circuit’s application of

Kingsley in Mays v. Dart, 974 F.3d 810 (7th Cir. 2020),

for example, had not preserved the issue below. See

Br. Opp., Dart v. Mays, No. 20-990, at 5-7 (U.S. June

11, 2021) (detailing how the petitioner had “affirmatively embraced” Kingsley in the Seventh Circuit and

“argu[ed] only that the district court misapplied it,”

id. at 6). Other petitions sought review of cases where

the applicable standard may not—or even clearly

would not—have been outcome-determinative. See

Brawner, 14 F.4th at 592 (“[T]he facts here, viewed in

the light most favorable to Brawner, support a finding

of deliberate indifference under either Farmer’s subjective or Kingsley’s objective standard.” (footnote

omitted)); Sandoval v. County of San Diego, 985 F.3d

657, 679-80 & n.16 (9th Cir. 2021) (describing how

reasonable jury could have found that defendants

subjectively knew detainee urgently needed medical

treatment); Heidel v. Mazzola, 851 F. App’x 837, 840

(10th Cir. 2021) (facts at summary judgment at least

arguably insufficient to satisfy even an objective

standard); Strain, 977 F.3d at 996-97 (same, for allegations in complaint).

Cope v. Cogdill, 3 F.4th 198 (5th Cir. 2021), involved facts that were deeply troubling—and troublingly similar to the facts here—but similarly suffered from vehicle problems absent here. Most saliently, even if the Fifth Circuit had applied the objective standard there and found a constitutional violation, that would not have affected the ultimate analysis or result because the court rested its decision on

22

the lack of clearly established law under qualified immunity’s second prong. See id. at 208 (because one

defendant “appear[ed] to concede” his subjective

knowledge of the detainee’s suicide risk, the court’s

“analysis turn[ed] to this second prong: whether the

unlawfulness was clearly established”); id. at 210

(reasoning that even if other defendants’ “actions

were constitutionally unlawful, they are entitled to

qualified immunity if the constitutional right at issue

was not ‘clearly established’”). The petition in that

case also did not focus on the Kingsley issue, which

the petition presented as the second of three questions. See Pet. Writ Cert., Cope v. Cogdill, No. 21-783

(U.S. Nov. 22, 2021).

Yet as one Justice of this Court recognized in dissenting from the denial of certiorari in Cope, the

“uniquely troubling facts” of that case made it an exceptionally compelling candidate for review—and the

recurrence of strikingly similar circumstances here

shows that those facts sadly are not unique, which

makes them even more troubling. See Cope v. Cogdill,

142 S. Ct. 2573, 2576 (2022) (Sotomayor, J., dissenting from denial of certiorari). There, as here, a pretrial detainee showed signs of mental distress, including a risk of self-harm, to Texas jailers. Id. at 2573.

There, as here, jailers confined the detainee in quarters that “contained an obvious risk for suicide by

strangulation”—“a 30-inch telephone cord” in that

case. Id. at 2574. And there, as here, the detention

ended not with trial, but with the detainee’s tragic—

and preventable—death by suicide. Id.

This petition thus involves deeply disturbing facts

regrettably similar to cases the Court has seen before.

23

But this petition, unlike prior petitions, presents the

Kingsley question in the cleanest possible form. The

recurrence of both this factual scenario and this legal

issue call for this Court’s review, and this petition presents an ideal vehicle for the Court to resolve the

question presented once and for all.*

D. The Decisions Below Are Wrong

No principled basis justifies cabining Kingsley to

pretrial detainees’ excessive force claims, rather than

applying its objective reasonableness test to all detainee due process claims. Still less justified would be

wrenching a subjective standard from the distinguishable Eighth Amendment context that applies to

sentenced prisoners and applying it to detainees protected by due process.

1. While Kingsley specifically considered pretrial

detainee excessive-force claims, “nothing in the logic

the Supreme Court used in Kingsley . . . would support . . . dissection of the different types of claims that

arise under the Fourteenth Amendment’s Due Process Clause.” Miranda, 900 F.3d at 352. To the contrary, Kingsley made clear that the applicable

* At least one other petition raising the Kingsley issue is cur-

rently pending before the Court. See Petition for Cert., Jordan

v. Howell, No. 23-210 (U.S. filed Aug. 31, 2023). That petition

underscores why this Court should take up the question, but this

case offers a superior vehicle for answering it, including because

this case does not implicate the complicating issue of what constitutes proper medical judgment. See Howell v. NaphCare, Inc.,

67 F.4th 302, 312-14 (6th Cir. 2023) (analyzing whether defendant, who believed detainee “was experiencing a psychiatric episode, “acted recklessly by failing to treat [detainee]’s sickle cell

disease,” id. at 313).

24

standard turns not on the nature of the claim, but the

status of the claimant.

Kingsley analyzed cases involving a wide range of

pretrial-detention issues—not just excessive force—

en route to its conclusion that “a pretrial detainee can

prevail” on a claim about her treatment in custody by

relying on “objective evidence.” 576 U.S. at 398 (citing, e.g., Bell v. Wolfish, 441 U.S. 520 (1979)). This

Court’s precedents thus teach that the doctrinal distinction that matters is not what type of mistreatment

the detainee alleges, but at what stage she alleges it—

pretrial detention or postconviction confinement.

That distinction reflects basic constitutional principles. When convicted prisoners challenge their

treatment in custody under the Eighth Amendment,

courts apply a subjective standard because evaluating

whether punishment is cruel and unusual requires

knowing the official’s state of mind: punishment is

only cruel and unusual if inflicted maliciously, sadistically or with deliberate indifference. Kingsley, 576

U.S. at 400; see Wilson, 501 U.S. at 299. But the same

is not true for pretrial detainees. “[P]retrial detainees . . . cannot be punished at all, much less ‘maliciously and sadistically.’” Kingsley, 576 U.S. at 400;

see Bell, 441 U.S. at 535 (“a detainee may not be punished prior to an adjudication of guilt in accordance

with due process of law”). It follows that “the Eighth

and Fourteenth Amendments are fundamentally different to the degree that cases involving one claim

cannot be legitimately compared to cases involving

another.” Kate Lambroza, Pretrial Detainees and the

Objective Standard After Kingsley v. Hendrickson, 58

Am. Crim. L. Rev. 429, 453 (2021).

25

By importing the Eighth Amendment’ subjective

standard onto pretrial detainees’ due process claims,

the courts in the Fifth Circuit’s camp improperly narrowed the protection to which the detainees in this

case were entitled—protection from all punishment—

to protection from only cruel and unusual punishment. Only this Court can correct that error.

2. What is more, lest there be any question about

whether Kinglsey’s “objective standard is workable,”

this Court has already determined that the answer is

yes: many facilities “train officers to interact with all

detainees as if the officers’ conduct is subject to an objective reasonableness standard.” Kingsley, 576 U.S.

at 399. And an objective standard adequately protects officers who act “in good faith”: courts must “take

account of the legitimate interests in managing a jail,

acknowledging as part of the objective reasonableness

analysis that deference to policies and practices

needed to maintain order and institutional security is

appropriate.” Id. at 399-400.

As in Kingsley itself, a wide range of factors bears

on objective reasonableness, and the different contexts in which the issue may arise may result in differing factors having more or less prominence. Id. at

397. Courts applying a due process standard are accustomed to paying close attention to the facts. And

jail officials are never held strictly liable for tragic

deaths by suicide of individuals in their custody. As

Kingsley clarified, the official must have acted purposely, knowingly, or at least recklessly with respect

to his action or inaction towards the detainee. Id. at

395-96. Only then do courts move on to the objective

reasonableness of the official’s conduct. And the

26

objective standard applies to “the perspective of a reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.” Id. at 397. Those safeguards ensure that the

objective reasonableness test of Kingsley, as applied

to this context, is both sound and workable.

* * *

As Judge Readler counseled, “[f]or the sake of litigants and courts alike, the Supreme Court should

soon grant certiorari in a case involving allegedly unconstitutional deliberate indifference toward a pretrial detainee.”

Helphenstine, 65 F.4th at 801

(Readler, J., respecting denial of rehearing en banc).

The time is now.

27

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

T. Dean Malone

Jennifer Kingaard

LAW OFFICES OF DEAN

MALONE, P.C.

900 Jackson Street

Suite 730

Dallas, TX 75202

Bruce K. Thomas

LAW OFFICE OF BRUCE K.

THOMAS

12900 Preston Road

Suite 590

Dallas, TX 75230

September 22, 2023

Michael Dreeben

Counsel of Record

Andrew R. Hellman

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5300

mdreeben@omm.com

Melissa C. Cassel

O’MELVENY & MYERS LLP

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San Francisco, CA 94111