Respondents Brief — Otis Crandel, as Dependent Administrator of and on Behalf of Billy Wayne Worl, Jr., et al., Petitioners v. Dalena Hall, et al.

No. 23-317

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

In The

Supreme Court of the United States

---------------------------------♦--------------------------------OTIS CRANDEL, as Dependent Administrator of and on

Behalf of Billy Wayne Worl, Jr., et al.,

Petitioners,

v.

DALENA HALL, et al.,

Respondents.

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

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------RESPONSE OF DALENA HALL AND

CARI RENEA MCGOWEN IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------GRANT D. BLAIES

Counsel of Record

State Bar No. 00783669

Email: grantblaies@bhilaw.com

JENNIFER HOLLAND LITKE

State Bar No. 24002481

Email: jlitke@bhilaw.com

BLAIES & HIGHTOWER, L.L.P.

420 Throckmorton St., Suite 1200

Fort Worth, Texas 76102

817.334.0800 – T / 817.334.0574 – F

Attorneys for Respondents Dalena Hall

and Cari Renea McGowen

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

The Petition presents the single question of

whether an objective reasonableness test applied to

pretrial detainees in excessive force cases in Kingsley

v. Hendrickson, 576 U.S. 389 (2015), should be expanded to a pretrial detainee’s claim for failure to protect from a substantial risk of suicide.

ii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

Table of Contents .................................................

ii

Table of Authorities .............................................

iii

Introduction .........................................................

1

Statement of the Case .........................................

2

I.

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

2

II.

Procedural History ....................................

7

Reasons for Denying the Petition ........................

8

I.

The Court of Appeals Applied the Proper

Standard ....................................................

8

II.

This is Not the Proper Case to Address

Any Circuit Split Over the Application of

Kingsley to Claims for Deliberate Indifference ............................................................ 15

III.

The Court of Appeals’ Decision was Correct Under Either Standard ...................... 20

IV.

This Court has Continually Denied Review of This Issue and Should Again ........ 24

Conclusion............................................................ 26

iii

TABLE OF AUTHORITIES

Page

CASES

Alderson v. Concordia Par. Corr. Facility, 848

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

Anderson v. Creighton, 483 U.S. 635 (1987) ...............25

Ashwander v. TVA, 297 U.S. 288 (1936) .....................25

Branton v. City of Moss Point, 261 Fed. App’x 659

(5th Cir. 2008)............................................................3

Brawner v. Scott County, 14 F.4th 585 (6th Cir.

2021) ............................................................ 15, 21, 22

Burton v. United States, 196 U.S. 283 (1905) .............25

Callwood v. Meyer, Nos. 20-2091-cv(L), 20-2096cv (CON), 2022 U.S. App. LEXIS 13933 (2d Cir.

May 24, 2022) ..........................................................22

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

(9th Cir. 2016).................................. 12, 15, 16, 21, 22

Charles v. Orange Cty., 925 F.3d 73 (2d Cir. 2019) .......20

Chilcutt v. Santiago, No. 22-2916, 2023 U.S. App.

LEXIS 18615 (7th Cir. July 21, 2023).....................22

Cope v. Cogdill, 142 S. Ct. 2573 (2022) ......................24

Crandel v. Hall, 75 F.4th 537 (5th Cir. 2023) ...............8

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

F.3d 1272 (11th Cir. 2017) ................................. 16, 22

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ............15

De Jesus Benavides v. Santos, 883 F.2d 385 (5th

Cir. 1989) .................................................................12

iv

TABLE OF AUTHORITIES—Continued

Page

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

489 U.S. 189 (1989) .................................................13

Domino v. Tex. Dep’t of Criminal Justice, 239

F.3d 752 (5th Cir. 2001) ...........................................19

Estate of Bonilla v. Orange County, 982 F.3d 298

(5th Cir. 2020)................................................ 3, 14, 18

Estelle v. Gamble, 429 U.S. 97 (1976) ....................... 8-9

Farmer v. Brennan, 511 U.S. 825 (1994)... 1, 9, 14, 18, 20

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

2018) ........................................................................22

Graham v. Connor, 490 U.S. 386 (1989) .....................11

Hare v. City of Corinth, 74 F.3d 633 (5th Cir.

1996) .................................................................... 9, 10

Helphenstine v. Lewis Cty., 60 F.4th 305 (6th Cir.

2023) ........................................................................21

Horton v. City of Santa Maria, 915 F.3d 592 (9th

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

Jump v. Village of Shorewood, 42 F.4th 782 (7th

Cir. 2022) .................................................................22

Keller v. Fleming, 952 F.3d 216 (5th Cir. 2020)..........25

Kingsley v. Hendrickson, 576 U.S. 389 (2015) ..... 1, 2, 7,

.......................................... 10-12, 15-18, 20, 22, 24-26

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

Cir. 2018) ........................................................... 15, 21

Pittman v. County of Madison, 970 F.3d 823 (7th

Cir. 2020) .................................................................16

v

TABLE OF AUTHORITIES—Continued

Page

Short v. Hartman, No. 21-1396, 2023 U.S. App.

LEXIS 32521 (4th Cir. Dec. 8, 2023) ........... 16, 17, 18

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

2020) .............................................................. 12, 13, 15

Taylor v. Barkes, 575 U.S. 822 (2015) ................... 14, 18

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

2022) ........................................................................21

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

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

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ............................................. 1, 11

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

U.S. Const. amend. XIV .............................. 1, 10, 17, 20

STATUTES

42 U.S.C. § 1983 ................................................ 7, 12, 19

RULES

S. Ct. R. 15.2 ..................................................................5

OTHER AUTHORITIES

Black’s Law Dictionary (11th ed. 2019) .....................12

1

INTRODUCTION

Brenda Worl was arrested and transported to the

Callahan County Jail. Less than forty minutes after

she arrived, she committed suicide. While tragic, this

happened very quickly and with no apparent warning.

Worl did not have a history of mental illness or prior

suicide attempts, and during the brief time she was

there she did not engage in conduct that would indicate to the jailers that she was a suicide risk. The

district court and the court of appeals reviewed the

summary judgment evidence and properly found no

genuine issue of material fact that the jailers perceived

Worl to be a suicide risk.

Petitioners ask this Court to disregard the deliberate indifference standard articulated by this Court

decades ago in Farmer v. Brennan for an “objective

reasonableness” standard adopted in Kingsley for excessive forces cases. Kingsley, however, is of limited

application and should not extend to deliberate indifference claims involving jail suicide. Kingsley drew from

Fourth Amendment excessive force claims to fashion

what is essentially a mirror-image standard for analyzing excessive force claims brought by pretrial detainees under the Fourteenth Amendment. Deliberate

indifference claims on the other hand are based on

wholly distinct governmental functions and corresponding rights of citizens that cannot be pigeonholed

into a single standard that fails to account for these

differences.

2

Nor is review warranted in this case because the

decision below would not change regardless of which

standard applies. Petitioners frame this case as one

where Worl’s “precarious mental health” was “apparent to the jailers” and “no objectively reasonable steps

[were] taken to avert the risk of suicide.” Pet. at 18. The

record, however, tells a different story. There was no

evidence Brenda Worl had mental health issues or a

history of suicide attempts, and she did not objectively

manifest any suicidal thoughts or actions that any reasonable officer would have, or should have, perceived

to suggest Worl would attempt to take her life that

evening. Therefore, applying Kingsley to the jailers’

conduct would not yield a different result. Under a subjective or objective standard of deliberate indifference,

the jailers were not deliberately indifferent to a substantial risk Brenda Worl would commit suicide that

evening. There is no reason for the Court to modify the

standard applied by the Fifth Circuit to this case, or a

reason to revisit its holding. Both were correct.

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

STATEMENT OF THE CASE

I.

Factual Background

On April 2, 2019, Brenda Worl was arrested by officers with the City of Clyde Police Department on

misdemeanor assault charges and transported to the

Callahan County Jail. ROA. 399. She arrived at 11:09

p.m. ROA. 399, 403, 418. Callahan County is a rural

Texas county with a population of approximately

3

13,000 people. Built in 1887, it is one of the oldest operating jails in Texas. It contains four rooms for housing inmates and detainees and can hold a maximum of

ten people. ROA. 427. The jailers on duty that night,

Respondents Delana Hall and Renea McGowen, initiated the book-in process that included conducting a

check through the Texas Health and Human Services

Commission CCQ system to determine if Worl had previously received state mental healthcare or had a

known intellectual or developmental disability. ROA.

399. The CCQ information came back negative for any

prior mental health issues. ROA. 399, 406. Respondents attempted to ask her questions to complete the

book-in process, but Worl was belligerent, drunk, uncooperative and refused to answer any questions.1 ROA.

399, 412, 413, 418. The jail was full that night. There

was no holding cell or open cell available, so McGowen

placed Worl in a visitation room—the only room available—to calm her down so the jailers could complete

the book-in process and to allow the jailers to clear a

cell for her to be placed in after booking was complete.

1

Petitioners relied heavily on Worl’s intoxication and behavior as alleged evidence she was a suicide risk. The Fifth Circuit

rightly rejected that argument. Pet. App. 13a-14a. A detainee’s

intoxication does not indicate to an official that the detainee is a

suicide risk. See Estate of Bonilla v. Orange County, 982 F.3d 298,

304-05 (5th Cir. 2020). Nor does aggressive or combative behavior. See Branton v. City of Moss Point, 261 Fed. App’x 659 (5th

Cir. 2008) (holding “neither potential drug use nor aggressive behavior, either alone or in combination, places an officer on notice

of a substantial risk of suicide”). People who are arrested are often

intoxicated and uncooperative. Neither condition inherently suggests they are a suicide risk.

4

ROA. 399-400, 418-419. McGowen performed a pat

search before placing her in the room and took her

shoes, coat, and a loose eye glass lens that she had on

her person so Worl could not use those items as devices

to hurt herself or others. ROA. 418.

Worl was placed in the visitation room at 11:33

p.m., just twenty-four minutes after she arrived at the

jail.2 ROA. 399-400, 419, 439. Just twelve minutes

later, at approximately 11:45 p.m., Hall checked on

Worl and observed her sitting on the stool with no

apparent issues. ROA. 400, 439.3 Two minutes later,

McGowen checked on Worl.4 She appeared to be sitting

on the floor and McGowen could only observe the top

of her head, so McGowen retrieved the visitation room

key from the dispatch office, entered the room, and discovered Worl had attempted suicide by using a telephone cord from one of the two telephones in that

room.5 ROA. 419. Worl had been at the jail only 38

minutes, had been in the visitation room only 14

minutes, and had been checked on only a few minutes

2

McGowen can be seen on the jail video at timestamp

14:58:21 when she was on her way back to the dispatch office after

placing Worl in the visitation room. ROA. 419, 435.

3

Jail video corroborates this as it recorded Hall walking to

and from the visitation room area at that time. ROA. 400, 435.

4

These checks were made in far less time than the 30-minute checks the County jailers would have been required to perform had they known she was a suicide risk. ROA. 432.

5

The officers immediately initiate CPR and dispatched EMS

to the scene. EMS was able to obtain a pulse and transported Worl

to the nearest medical center where she was pronounced dead the

following day. ROA. 400, 419.

5

before they discovered she had attempted suicide.

ROA. 399-400, 418-419. During her brief time in custody, Worl did not appear to be suicidal or manifest any

intent to commit suicide. ROA. 400, 419.

Petitioners make several factual assertions not

supported by the record and ask this Court to draw inferences from the record that are not there.6 Petitioners begin their account by reciting the circumstances

of the initial domestic disturbance call Worl made to

the Callahan County Sheriff ’s Office and subsequent

events that occurred when officers arrived at her home.

They state Worl’s husband, Billy Worl, told the officers

she had a history of mental health issues. Pet. at 9.

This mischaracterizes the record. As reflected in the

body camera footage from that night, Clyde Police

Department Officer Daniel Piper asked Billy Worl if

Brenda had a mental disability, “like bi-polar” to which

Billy responded, “in the past,” but when asked if she

suffered from any mental illness during the four years

they had been together he answered, “no.” ROA. 445.

Billy did not explain what, if any, past disability Worl

may have had, nor was there any indication it involved

suicidal ideations. Importantly, Billy denied Worl was

presently suffering from any disability or mental

health issues. This exchange also occurred at the scene

of the arrest. The jailers were not present and had no

6

Respondents are compelled to address these assertions to

“address . . . misstatement[s] of fact . . . in the petition that bear[ ]

on what issues properly would be before the Court if certiorari

were granted.” S. Ct. R. 15.2.

6

knowledge of any statements made by Billy Worl to the

officers.7 ROA. 399, 400, 418, 419.

Petitioners primarily rely on the fact that, when

asked by McGowen whether she had ever attempted

suicide, Worl presented her arms to McGowen and

stated, “I don’t know, have I?” Pet. at 2; ROA. 418-419,

449-450. Petitioners seek to turn that inference on its

head—as some indication Worl had previously attempted suicide. But Worl did not have any injuries,

scars or markings on her wrists or arms that would indicate a prior suicide attempt, a fact that was corroborated by one of the Clyde Police Officers. ROA. 419,

449-450, 1289. Extending and revealing a wrist lacking

in visible scars, markings, or other signs of suicide attempts would lead a reasonable officer to conclude that

Worl had not attempted suicide in the past, which is

the inference that McGowen reasonably drew. ROA.

418-419. In fact, the record is devoid of any evidence

that Worl had previously attempted suicide—a fact

that Petitioners certainly could have introduced into

evidence had that occurred. It did not.

By asking Worl about past suicide attempts,

McGowen was trying to determine if Worl was a suicide risk so she would be able to protect Worl if she did

7

While not related to Petitioners’ claims against these Respondents, they also criticize the Clyde Police Department Officers for arresting Worl after she had been the one to make the 911

call for help. It is undisputed she had been in a physical altercation with her husband prior to her arrest and she admitted to

hitting him. ROA. 445; see also ROA. 449, 453. As a result, the

officers arrested her for Class C misdemeanor assault. ROA. 399.

7

have a history of self-harm. Worl’s response did not

give her any reason to believe Worl had attempted suicide in the past or was a present suicide risk. In fact,

Worl did not make any statements to indicate she intended to harm herself. ROA. 400, 419. Worl did not

exhibit suicidal behavior or otherwise display any sign

she had mental health issues, nor did Respondents believe she was suicidal or had mental health issues

based on their observations, and Worl did not have any

outward signs of injury or illness that would suggest

she was a suicide risk. ROA. 400, 419.

II.

Procedural History

Petitioners filed their Complaint against Respondents in the United States District Court for the

Northern District of Texas, Abilene Division, asserting

claims under 42 U.S.C. § 1983, for allegedly failing to

protect Brenda Worl from committing suicide that

evening. The trial court granted Respondents’ Motion

for Summary Judgment based on qualified immunity,

holding “there [was] no evidence before the Court, beyond speculative 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.” Pet. App. 7a.

The Fifth Circuit declined to extend the objective-unreasonableness standard in Kingsley v. Hendrickson,

citing the court’s “rule of orderliness.” Pet. App. 11a.

8

In a published opinion,8 the Fifth Circuit affirmed.

Pet. App. 3a. As to Respondent Hall, the Fifth Circuit

held, “Plaintiffs fail to establish a genuine dispute of

material fact that Worl did or said anything to show

Hall that she was suicidal or intended to harm herself

or that Hall otherwise drew that inference.” Pet. App.

16a. As to McGowen, the Fifth Circuit held, [b]ecause

plaintiffs failed to establish a genuine dispute of material fact regarding McGowen’s subject knowledge of a

substantial risk of suicide they fail to show a violation of Worl’s statuary or constitutional right.” Pet.

App. 18a.

Because the Fifth Circuit found no genuine issue

of material fact regarding Respondents’ subjective

knowledge, Worl was a substantial suicide risk, it did

not reach the question of whether Respondents acted

with deliberate indifference. Pet. App. 13a. It also did

not reach the second prong of the qualified immunity

analysis, whether the right at issue was clearly established. Pet. App. 12a.

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

REASONS FOR DENYING THE PETITION

I.

The Court of Appeals Applied the Proper

Standard

This Court recognized a claim for deliberate indifference to the serious medical needs of convicted

prisoners under the Eighth Amendment in Estelle v.

8

Crandel v. Hall, 75 F.4th 537 (5th Cir. 2023).

9

Gamble, 429 U.S. 97, 104 (1976). In Farmer v. Brennan,

511 U.S. 825, 836-37 (1994), the Court adopted a criminal recklessness standard for deliberate indifference,

which requires as part of the analysis, “disregard[ing]

a risk of harm of which [the officer] is aware.” The

Court reasoned that “punishment” under the Eighth

Amendment required a culpable state of mind and that

the subjective understanding and intent of the officer

was critical in analyzing whether their actions would

rise to the level of constitutionally prohibited punishment. The Court considered, but rejected, the civil

definition of recklessness that applied an objective

standard for evaluating the officer’s conduct, reasoning

that it was akin to imposing tort liability and not appropriate for constitutional consideration:

An act or omission unaccompanied by knowledge of a significant risk of harm 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. 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.

Id. at 837-38 (citation omitted).

The Fifth Circuit in Hare v. City of Corinth applied the subjective deliberate indifference standard

announced in Farmer to claims brought by pretrial

10

detainees. 74 F.3d 633, 647-48 (5th Cir. 1996) (“[N]o

constitutionally relevant difference exists between the

rights of pretrial detainees and convicted prisoners to

be secure in their basic human needs.”) For almost

thirty years, the Fifth Circuit and the other circuits

have consistently used this standard to evaluate

claims brought by pretrial detainees alleging claims

for inadequate medical care and specifically failure to

protect from suicide.

Petitioners nevertheless urge the Court to discard

this well-developed area of the law in favor of the

standard announced in Kingsley. They reason that a

singular standard should apply to all claims under

the Fourteenth Amendment, that the “status of the

person in custody” should control, not the “nature of

the claim.” Pet. at 5. To the contrary, Fourteenth

Amendment due process cannot be examined through

the lens of a single standard. Due process encompasses varying government responsibilities and citizen rights that require different criteria for examining

these corresponding rights and obligations based on

the claim asserted. There is no justification for disregarding established precedent for a standard uniquely

suited for excessive force claims and that would be unsuitable for analyzing claims for deliberate indifference in the jail suicide context.

Kingsley addressed the limited question of the

standard to be applied to an excessive force claim

brought by a pretrial detainee under the Fourteenth

Amendment. 576 U.S. at 391. In fact, the Court took

care to limit its opinion to excessive force claims only.

11

576 U.S at 395-96. Kingsley specifically addressed how

to evaluate objectively the actual force applied, i.e., the

offending conduct, not the officer’s underlying motive

or intent for the use of force in the first place. 576

U.S. at 395-96.9 In answering this question the Court

looked to excessive force cases involving arrests, investigatory stops, and seizures under the Fourth Amendment for guidance. 576 U.S. at 397-98 (citing Graham

v. Connor, 490 U.S. 386 (1989)).

Excessive force claims involve different governmental action, interests, and corresponding rights of

the detainee than that of deliberate indifference claims

arising from the state’s provision of medical care. Excessive force claims “protect[ ] a pretrial detainee from

the use of excess of force that amounts to punishment,”

576 U.S. at 397. That force is the product of deliberate,

affirmative acts committed by officers while in the

exercise of quintessential police functions, including

maintaining order and institutional security. Id. at

399-400. Whether the force applied is considered excessive can be judged by the observable acts of the officer

and whether that force is objectively reasonable for the

circumstances necessitating its use.

9

The Court did not address the motive or intent of the officers, which would implicate inquiry into their state of mind, because it was undisputed the officers intended to use force against

the detainee. Id. at 396. Kingsley nevertheless confirmed there is

a state of mind requirement for the question of the officer’s intent

on the use of force in the first place. It is that intent that still must

be discerned, which necessarily requires inquiry into the officer’s

state of mind at the time he or she acted or failed to act.

12

Deliberate indifference claims on the other hand

are based on an alleged failure to act, which cannot be

objectively evaluated without inquiring into the state

of mind of the officer whose alleged failure to act is being challenged. “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. Rather, a person who unknowingly fails to act—even when such a

failure is objectively unreasonable—is negligent at

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

1086 (9th Cir. 2016) (en banc) (Ikuta, J., dissenting); see

also Strain v. Regalado, 977 F.3d 984, 991 (10th Cir.

2020). Petitioners acknowledge and Kingsley confirms,

negligence does not equate to deliberate indifference

and is not subject to constitutional protection. “[T]he

defendant must possess a purposeful, a knowing, or

possibly a reckless state of mind. 576 U.S. at 396; De

Jesus Benavides v. Santos, 883 F.2d 385, 388 (5th Cir.

1989) (“Section 1983 does not federalize tort law. . . .

[T]here is a significant distinction between tort and a

constitutional wrong.”) (emphasis in original). Deliberate indifference by definition “presupposes a subjective

component.” Strain, 977 F.3d at 992 (“After all, deliberate means ‘intentional,’ ‘premeditated,’ or ‘fully considered.’ ”) (quoting Black’s Law Dictionary 539 (11th

ed. 2019)).

Deliberate indifference claims also derive from,

and protect, different rights than excessive force

claims. “The deliberate indifference cause of action

does not relate to punishment, but rather safeguards

13

a pretrial detainee’s access to adequate medical care.”

Strain, 977 F.3d at 991. Thus, the deliberate indifference standard was developed to evaluate claims arising from the government’s role in providing access to

the provision of services, i.e., medical care, that is not

otherwise constitutionally guaranteed but for the government’s exercise of custody over the detainee.

There is a critical distinction between analyzing

the constitutionality of the state affirmatively causing

injury through its exercise of authority versus the constitutionality of the state’s provision of medical care.

There is generally no affirmative constitutional right

to medical care. See DeShaney v. Winnebago Cty. Dep’t

of Soc. Servs., 489 U.S. 189, 196 (1989) (“The Due Process Clauses generally confer no affirmative right to

governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of

which the government itself may not deprive the individual.”). The exception to that general proposition, implicated here, is “[w]hen the State takes a person into

its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety.” Id. at 199200. This “custody exception” triggers a constitutional

duty to provide adequate medical care to incarcerated

prisoners, pretrial detainees, and those under “other

similar restraint of personal liberty.” Id. at 200. And

while the state may have an obligation to provide some

level of medical care, this Court has never recognized

a constitutional right to “the proper implementation of

adequate suicide prevention [or screening] protocols.”

14

Taylor v. Barkes, 575 U.S. 822, 826 (2015); see also Estate of Bonilla v. Orange County, 982 F.3d 298, 307 (5th

Cir. 2020) (holding no Fifth Circuit decision establishes

the right to adequate suicide screening or suicide prevention protocols).

“The affirmative duty to protect arises not from

the State’s knowledge of the individual’s predicament

or from its expressions of intent to help him, but from

the limitation which it has imposed on his freedom to

act on his own behalf. In the substantive due process

analysis, it is the State’s affirmative act of restraining

the individual’s freedom to act on his own behalf—

through incarceration, institutionalization, or other

similar restraint of personal liberty—which is the

‘deprivation of liberty’ triggering the protections of the

Due Process Clause, not its failure to act to protect

his liberty interests against harms inflicted by other

means.” Id. at 200 (citation omitted).

In other words, the obligation to provide care derives from the incarceration itself and not the arbitrary distinction between whether the incarcerated

individual has been convicted or not. There is therefore

no substantive difference between the standard to be

applied when analyzing the constitutional threshold

of liability for the failure to provide such care and,

therefore, no reason to depart from the deliberate indifference standard articulated in Farmer for claims

brought by pretrial detainees.

15

II.

This is not the Proper Case to Address any

Circuit Split Over the Application of Kingsley to Claims for Deliberate Indifference

Petitioners cite opinions from the Second, Sixth,

Seventh and Ninth Circuits adopting Kingsley’s objective standard to deliberate indifference primarily in

claims for failure to protect the detainee from violence,

conditions of confinement, and denial of medical care,

not to the specific issue here—deliberate indifference

to the substantial risk of suicide. See Darnell v. Pineiro,

849 F.3d 17, 34-35 (2d Cir. 2017) (adopting an objective standard in a conditions of confinement case);

Brawner v. Scott County, 14 F.4th 585, 596 (6th Cir.

2021) (adopting an objective standard in a denial of

medical care case); Miranda v. County of Lake, 900 F.3d

335, 352 (7th Cir. 2018) (adopting an objective standard in a denial of medical care case); Castro v. County

of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en

banc) (adopting an objective standard in a case alleging the failure to protect an inmate from harm by another inmate).

Conversely, the Fifth, Eighth, Tenth and Eleventh

Circuits have limited Kingsley to excessive force claims

and continue to apply a subjective deliberate indifference standard. See Alderson v. Concordia Par.

Corr. Facility, 848 F.3d 415, 419 & n.4 (5th Cir. 2017)

(continuing to require a subjective element in a failureto-protect case); Whitney v. City of St. Louis, 887 F.3d

857, 860 n.4 (8th Cir. 2018) (continuing to require a

subjective element in a jail suicide case); Strain v. Regalado, 977 F.3d 984, 993 (10th Cir. 2020) (continuing

16

to require a subjective element in an inadequate medical care case); Dang ex rel. Dang v. Sheriff, Seminole

Cnty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (continuing to require a subjective element in an inadequate

medical care case).

There is a lack of developed authority on the specific issue of whether Kingsley extends to jail suicide

cases and, if so, how it would be applied in evaluating

the actions of the officers or, more precisely, the failure

of the officers to respond to a substantial suicide risk.

As conceded by Petitioners, this question should not be

taken up by this Court if it has not “adequately percolated” through the courts for there to be a “fully crystalized” circuit split. Pet. at 20. On that, there can be

no doubt this issue has not been fully considered.

There is a dearth of cases that have applied Kingsley

specifically to jail suicides. See Pittman v. County of

Madison, 970 F.3d 823 (7th Cir. 2020) (attempted suicide after detainee who had previously been on suicide

watch had made repeated request for crisis counseling

that went ignored); Horton v. City of Santa Maria, 915

F.3d 592 (9th Cir. 2019) (Pre-Castro attempted suicide

acknowledging change in the deliberate indifference

standard in light of Kingsley but holding officer entitled to qualified immunity under the law existing at

the time).

The Fourth Circuit in Short v. Hartman, No. 211396, 2023 U.S. App. LEXIS 32521, *15-16 (4th Cir.

Dec. 8, 2023), recently applied Kingsley in a suicide

context. However, Short bears no factual similarity to

this case. In Short, the detainee had a prior suicide

17

attempt for which the Sheriff ’s department had been

dispatched to her home, and they were again notified

she was suicidal when they responded to a domestic

disturbance call at her home on the evening that resulted in her arrest. Id. at *2-3. Following her arrest,

and despite the fact the detainee was a known suicide

risk, deputies placed her in an isolation cell with a

sheet and did not observe her as often as jail policy required. Id. at *3-6. Forty minutes elapsed between one

check and the next check when an officer discovered

she had hung herself with the sheet. Id. at *6.

The district court granted the defendants’ motion

for judgment on the pleadings, ruling in part that the

plaintiff had failed to allege the defendants deprived

the detainee of her constitutional rights. Id. at *9-10.

On appeal, the Fourth Circuit requested that the parties brief whether the Fourteenth Amendment claims

should be evaluated under the Kingsley standard. Id.

at *10-11. In reaching its decision, the court of appeals

acknowledged the question it raised about application

of Kingsley was “antecedent to our consideration of the

district court’s disposition of [the plaintiff ’s] claims.”

Id. at *14. The Court framed the issue for consideration generally as whether it should apply an objective

standard for “claims for deliberate indifference to a

serious risk of harm,” (id. at *27), and specifically to

deliberate indifference to a “medical need.” Id. at *28.

The court held Kingsley required it to adopt an objective test for Fourteenth Amendment claims for deliberate indifference to medical care. It reversed on the

basis that the district court had improperly applied a

18

subjective standard, while at the same time concluding

the plaintiff ’s allegations were sufficient to state a

claim under either an objective or subjective test.10 Id.

at *29.

Importantly, Short applied Kingsley to deliberate

indifference claims generally, and specifically in the

medical care context, but it did not fully examine how

or why it should be incorporated to the specific circumstances of suicide. That distinction matters. As previously addressed, this Court has never recognized that

the obligation to provide some level of medical care

extends to a constitutional right to “the proper implementation of adequate suicide prevention [or screening] protocols.” Taylor v. Barkes, 575 U.S. 822, 826

(2015); Estate of Bonilla v. Orange County, 982 F.3d

298, 307 (5th Cir. 2020) (holding no Fifth Circuit decision establishes the right to adequate suicide screening or suicide prevention protocols). This raises the

threshold question of the constitutional protection that

extends to these claims and whether a departure from

Farmer is warranted.

Deliberate indifference in the context of failure to

protect, conditions of confinement, and inadequate medical care claims do not necessarily involve the same

considerations present in jail suicide cases, namely

their inherent unpredictability and the difficulty in

10

The court held the plaintiff ’s complaint was sufficient to

state a claim that the defendant jail sergeant was deliberately indifferent to the detainee’s serious medical needs because she

failed to follow jail policy to mitigate the detainee’s suicide risk.

Id. at *38.

19

recognizing and responding to a detainee’s risk or potential for committing suicide. Domino v. Tex. Dep’t of

Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).

When a detainee resolves in his or her mind to commit

suicide, they carry it out through their own action. The

officer’s “conduct” being scrutinized centers on understanding, observing, and reacting to the subjective psyche of the detainee that is only revealed, if at all, from

some outward expression of intent to commit the act,

and the proper precautions to be taken for considering

the circumstances known by the officer at the time

based on those expressions of intent. Thus, what a defendant officer subjectively knows matters when dealing with an inmate’s state of mind and then deciding

what, if any, precautions may be taken to prevent the

detainee from engaging in that course of action.

Subjective appreciation by the officer of the danger

is important when analyzing the reasonableness of

their conduct, as there must be an appreciation of the

risk to mitigate against it. In making that determination, you cannot separate the consciousness from the

conduct—the officer’s knowledge from scrutiny of their

alleged failure to act. Absent inquiry into the subjective perception of the officers, there is no way to evaluate whether their failure to act was intended as

punishment and thus prohibited under the Constitution, or merely negligent or grossly negligent, which

does not give rise to a constitutional deprivation. Eliminating the subjective component of the inquiry “constitutionalizes” tort law though Section 1983. This

same consideration is not present in an excessive force

20

case and further illustrates why Kingsley should not

be applied to this case.

III. The Court of Appeals’ Decision was Correct Under Either Standard

The circuits applying Kingsley to failure to protect,

conditions of confinement, and medical care claims

have essentially adopted an “objective” deliberate indifference standard based on the definition of civil

recklessness articulated in Farmer. Although the specific elements adopted by the circuits differ in some

respects, they essentially incorporate a “should have

known” element to the officer’s perception of “an unjustifiably high risk of harm.” 511 U.S. at 836.

Under the standard adopted by the Second Circuit, “[A] detainee asserting a Fourteenth Amendment

claim for deliberate indifference to his medical needs

can allege either that the defendants knew that failing

to provide the complained of medical treatment would

pose a substantial risk to his health or that the defendants should have known that failing to provide the

omitted medical treatment would pose a substantial

risk to the detainee’s health.” Charles v. Orange Cty.,

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

Despite adopting objective deliberate indifference as

the standard, however, the court did not explain how

to distinguish between “negligence” and “conscious disregard” absent inquiry into the subjective state of mind

of the officer—an inquiry that takes on a greater importance when the challenged conduct in one of a

21

“failure to act” where no affirmative conduct is or can

be evaluated.

The Sixth Circuit requires a plaintiff show: “(1)

that [he or she] had a sufficiently serious medical need

and (2) that each defendant acted deliberately (not accidentally), but also recklessly in the face of an unjustifiably high risk of harm that is either known or so

obvious that it should be known.” Helphenstine v. Lewis

Cty., 60 F.4th 305, 317 (6th Cir. 2023) (cleaned up) (emphasis added). However, Helphenstine acknowledged

the inconsistency with which the courts have applied

this standard. Id. at 316-17 (citing Trozzi v. Lake

County, 29 F.4th 745 (6th Cir. 2022) and Brawner v.

Scott County, 14 F.4th 585 (6th Cir. 2021)).

The Seventh Circuit extended Kingsley to deliberate indifference claims but did not articulate a specific

standard for analyzing “objective reasonableness,” recognizing only that negligence or gross negligence is not

sufficient, but that “something akin to reckless disregard” would suffice. Miranda v. County of Lake, 900

F.3d 335, 353 (7th Cir. 2018) (quoting Castro, 833 F.3d

at 1071).

Lastly, the Ninth Circuit requires the following:

“(i) the defendant made an intentional decision with

respect to the conditions under which the plaintiff was

confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to

abate that risk, even though a reasonable official in the

circumstances would have appreciated the high degree

22

of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such

measures, the defendant caused the plaintiff ’s injuries.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25

(9th Cir. 2018) (citing Castro v. County of Los Angeles,

833 F.3d 1060, 1071 (9th Cir. 2016)). The third element

again requires “more than negligence but less than

subjective intent—something akin to reckless disregard.” Id. (quoting Castro, 833 F.3d at 1071).

The courts that have adopted or considered Kingsley nevertheless recognize that “objective unreasonableness” is not met if the detainee does not provide

information or engage in conduct that would support a

finding the officer “should have known [the detainee’s]

condition posed an excessive risk to [his] health or

safety or that [the officer’s] failure to intervene was a

violation of [the detainee’s] constitutional rights.” See

Callwood v. Meyer, Nos. 20-2091-cv(L), 20-2096-cv

(CON), 2022 U.S. App. LEXIS 13933, at *7 n.2 (2d Cir.

May 24, 2022) (cleaned up); see also Chilcutt v. Santiago, No. 22-2916, 2023 U.S. App. LEXIS 18615, at *9

(7th Cir. July 21, 2023) (citing Jump v. Village of Shorewood, 42 F.4th 782, 793 (7th Cir. 2022)) (no objective

unreasonableness when “officer has no reason to think

a detainee is suicidal”); Brawner v. Scott County, 14

F.4th 585, 603-04 (6th Cir. 2021) (Readler, J., dissenting) (discussing that the majority opinion addressing

Kingsley was not necessary to the ruling as well as past

Sixth Circuit cases refusing to address Kingsley when

it would not have impacted the outcome); Dang ex rel.

Dang v. Sheriff, Seminole Cnty., 871 F.3d 1272, 1279 n.2

23

(11th Cir. 2017) (finding that even if the court applied

an objective standard, the outcome would be the same

because the allegations only amount to negligence).

Regardless of the standard applied, there would be

no different outcome here. There is no evidence in the

record that would suggest the jailers acted with “reckless disregard” or otherwise should have known that

Brenda Worl was a suicide risk. Petitioners focus on

the fact that the jailers placed Worl in a room (temporarily) with a telephone cord. Placing a detainee in a

room with a telephone cord as a temporary measure

while a cell is being prepared is not itself objectively

unreasonable and it is certainly not reckless. It only

potentially becomes a problem if the detainee is likely

to use that cord as a ligature. There must be an objective manifestation by the detainee, observed and appreciated by the jailer, that he or she is a suicide risk

before the act of placing them in a cell with a phone

cord is subject to scrutiny. Absent such a manifestation by the detainee, the jailer’s actions are not unreasonable.

There would be no different outcome applying an

objective component to the question, i.e., not whether

there was an actual appreciation of that risk, but

whether a reasonable jailer should have appreciated it,

as there was no objective reason for the jailers to believe Worl would use the telephone cord as a ligature

to commit suicide. Worl did not say or do anything

that would suggest she was at a substantial risk for

committing suicide. Worl did not objectively express

24

any suicidal thoughts or exhibit any suicidal actions;

she did not have a history of mental illness; she had

never attempted suicide in the past; and she did not

threaten to or otherwise indicate that she was going

to attempt to kill herself that evening. Thus, even if

one were to apply an “objective reasonableness”

standard to the jailers, they would be entitled to

summary judgment, as there is no evidence the jailers

should have perceived Worl to be a substantial suicide risk.

IV. This Court has Continually Denied Review

of this Issue and Should Again

Petitioners acknowledge the Court has denied certiorari numerous times on this very issue, recently in

a case from the Fifth Circuit, Cope v. Cogdill, 142 S. Ct.

2573 (2022) (Sotomayor, J., dissenting).11 Pet. at 2022. They nevertheless argue that these cases were either not fully developed, or that the underlying facts

would not result in a change in the court’s ruling regardless of the standard applied. This case suffers

the same infirmities. As previously addressed, the

question of whether Kingsley applies to deliberate

11

The dissent in Cope did not advocate modifying of the deliberate indifference standard. Rather, Justice Sotomayor believed reversal was appropriate because the record in the case

reflected the jailers actually knew the detainee was a substantial

suicide risk and, therefore, the officers were not entitled to qualified immunity under any standard of deliberate indifference. Id.

at 2576. Cope bears no factual similarity to this case, as Worl

never indicated she was a suicide risk.

25

indifference claims involving jail suicide has not been

fully developed or resulted in a circuit split that requires this Court to resolve.

And applying Kingsley to the conduct of the jailers would not change the outcome. “It is not the habit

of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the

case.” Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)

(Brandeis, J., concurring) (quoting Burton v. United

States, 196 U.S. 283, 295 (1905)). The jailers’ conduct

was not objectively unreasonable considering the facts

known to them, or that should have been known to

them. The jailers were not aware, nor should they have

been aware, that Brenda Worl was a substantial suicide risk and, therefore, their actions did not rise to the

level of either subjective or objective deliberate indifference.

Further, if the Court were to take up this case and

expand Kingsley to the circumstances of this case, not

only would Petitioners’ claims fail on their merits,

but Respondents would be entitled to qualified immunity, as that would signal a departure from existing precedent that would not have been clearly

established as of April 2, 2019. Keller v. Fleming, 952

F.3d 216, 225 (5th Cir. 2020) (quoting Anderson v.

Creighton, 483 U.S. 635, 641, (1987)) (“For purposes

of determining whether the right was clearly established, ‘[t]he relevant question . . . is . . . whether a

reasonable officer could have believed [his or her conduct] to be lawful, in light of clearly established law

26

and the information the . . . officers possessed.’ ”).

Again, there would be no change in the outcome of

the case on that basis as well.

This case is not one through which the Court

should review this question. Even if this issue is one

that is properly considered by this Court, it should address it in a case or cases that erroneously apply Kingsley to a pretrial detainee suicide and where application

of Kingsley would result in a different outcome.

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

CONCLUSION

Respondents were not deliberately indifferent to

the substantial risk that Brenda Worl would commit

suicide. There was no evidence that the jailers perceived, or should have perceived, that Worl was a

suicide risk that evening. Therefore, under either

standard the court of appeals did not err in affirming

the summary judgment in favor of Respondents. There

is no basis for this Court to review the standard applied

27

by the court of appeals or its ultimate holding. Respondents respectfully request the Court deny the Petition.

Respectfully submitted,

GRANT D. BLAIES

Counsel of Record

State Bar No. 00783669

Email: grantblaies@bhilaw.com

JENNIFER HOLLAND LITKE

State Bar No. 24002481

Email: jlitke@bhilaw.com

BLAIES & HIGHTOWER, L.L.P.

420 Throckmorton St., Suite 1200

Fort Worth, Texas 76102

817.334.0800 – T / 817.334.0574 – F

Attorneys for Respondents Dalena Hall

and Cari Renea McGowen