By Ryan Dreveskracht
On Monday, the Ninth Circuit Court of Appeals made clear that jurors do not need to be mind-readers when it comes to determining whether adequate medical care was provided to pretrial detainees. In clarifying that these Fourteenth Amendment claims must be evaluated under an objective standard—as opposed to the Eighth Amendment’s subjective standard—the Court significantly eased the burden on § 1983 plaintiffs.
In Farmer v. Brennan, the U.S. Supreme Court held that under the Eighth Amendment's "cruel and unusual punishments" clause jail employees must "take reasonable measures to guarantee" an inmate's safety, which includes providing "adequate . . . medical care." 511 U.S. 825, 832 (1994). The Court then articulated a two-prong inquiry for determining whether this standard is violated.
First, the jury must consider whether a person is detained “under conditions posing a substantial risk of serious harm." Id. at 834. Second, the jailers who put the inmate in those conditions must both "know[] of" and purposefully disregard those conditions. Id. at 837. In other words, the jury must go into jailers' heads and determine (1) whether they actually believed the inmate was put at an increased risk of harm or death, and (2) whether the jailer made the conscious decision to keep the inmate in harm’s way despite that risk. As the Court observed, under this test a jailer could escape liability under the second prong if he or she “knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Id. at 844. Or, alternatively, a jailer so aware would not be liable if he or she “responded reasonably to the risk, even if the harm ultimately was not averted.” Id.
Four years later, in Frost v. Agnos, the Ninth Circuit Court of Appeals held that "[b]ecause pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment . . . we apply the same standards." 152 F.3d 1124, 1128 (9th Cir. 1998). Other Courts of Appeal held likewise, refusing to "distinguish between Eighth and Fourteenth Amendment standards." Funchess v. John Doe #1, No. 96-4767, 1997 WL 12785, at *2 (N.D. Ill. Jan. 10, 1997). In other words, the law did not distinguish between convicted felons serving their sentence and pretrial detainees not convicted of anything—Farmer's subjective test applied to everyone.
Then, in 2015, the Supreme Court decided Kingsley v. Hendrickson, holding, in relevant part:
In deciding whether the force deliberately used [by the officer on the pretrial detainee] is, constitutionally speaking, “excessive,” should courts use an objective standard only, or instead a subjective standard that takes into account a defendant's state of mind? It is with respect to this question that we hold that courts must use an objective standard. In short, . . . a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.
135 S.Ct. 2466, 2472-73 (2015). Since "a subjective standard will be more demanding, requiring the plaintiff to allege specific facts that shed light on the defendant's mental state, rather than more general notions of what should have been objectively clear," Kingsley's application of the objective test to Fourteenth Amendment excessive force cases was a huge step forward for civil rights plaintiffs. Kedra v. Schroeter, 876 F.3d 424, 454 (3d Cir. 2017).
Shortly after Kingsley, in Castro v. County of Los Angeles, the Ninth Circuit held that Kingsley's Fourteenth Amendment objective test applied to "failure to protect" cases, as well as those where officers use excessive force. 833 F.3d 1060, 1070 (9th Cir. 2016). As the Castro court explained:
Excessive force applied directly by an individual jailer and force applied by a fellow inmate can cause the same injuries, both physical and constitutional. Jailers have a duty to protect pretrial detainees from violence at the hands of other inmates, just as they have a duty to use only appropriate force themselves. . . . [T]here are significant reasons to hold that the objective standard applies to failure-to-protect claims as well.
What followed was an erratic series of rulings by district courts “on whether to extend the objective reasonableness standard of review set forth in Kingsley to cases of pretrial detainees that do not involve the use of excessive force (i.e., cases challenging medical treatment . . . ).” Castillo v. Dubose, No. 14-0987, 2017 WL 3765772, at *6 (M.D. Ala. Jul. 31, 2017) (quotation omitted). In the Ninth Circuit, district courts that addressed Kingsley's objective standard applied it with hesitancy, holding, for example, that "factual allegations are sufficient under either standard." Williams v. Cty., No. 15-1760, 2016 WL 4745179, at *6 (D. Or. Sept. 12, 2016); see also Bremer v. Cty. of Contra Costa, No. 15-1895, 2016 WL 6822011, at *6 (N.D. Cal. Nov. 18, 2016) ("The Court need not decide whether the subjective or objective standard applies here as no reasonable jury could find the Individual Defendants were deliberately indifferent under either standard."). Defendants, of course, continued to argue that a subjective standard should be applied in all but excessive force and failure-to-protect cases, while inmates and the families of deceased inmates argued that the less-demanding objective standard applied.
Then, on Monday, the Ninth Circuit Court of Appeals issued an order that provided clarity once and for all. In Gordon v. Cty. of Orange the court expressly held that that "claims for violations of the right to adequate medical care brought by pretrial detainees against individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate indifference standard." No. 16-56005, 2018 WL 1998296, at *5 (9th Cir. Apr. 30, 2018).
Gordon leaves jurors no longer needing to read jailers’ minds in order to find them liable for failure to render medical care to inmates.
Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights litigation against jails and prisons for their unlawful treatment of inmates. He can be reached at (206) 909-3842 or ryan@galandabroadman.com.
