In summer 2015, the suicides of Kalief Browder
and Sandra Bland
shed light on the consistently high rate of suicide in jails.
Suicide is the leading cause of death in jails
and has been since 2000.
In 2013, the mortality rate for jail suicide was 46 deaths per 100,000 local jail inmates, as compared to the overall mortality rate of 135 deaths per 100,000 local jail inmates.
Yet, despite the availability of well-established standards promulgated by organizations such as the American Corrections Association and the National Commission on Correctional Health Care, many jails continue to have nonexistent or insufficient suicide prevention policies.
The constitutional legal structure surrounding custodial suicide protects municipalities and correctional officials from accountability.
To succeed in a suicide claim concerning a convicted prisoner, the plaintiff (usually the prisoner’s estate) must invoke the Eighth Amendment’s Cruel and Unusual Punishment Clause and prove that a municipality or correctional official acted with deliberate indifference when the municipality or officer failed to address the inmate’s serious medical need or protect the inmate from a substantial risk of serious harm.
For Eighth Amendment claims against individual officers, deliberate indifference is a subjective standard
in contrast to the objective deliberate indifference standard used for municipal liability.
In order for an official to exhibit subjective deliberate indifference, the official must have had actual knowledge that the inmate had a strong likelihood of suicide and must have failed to take reasonable measures to address the substantial risk of serious harm.
This high standard is a contributing factor to an apparently low probability of success in suicide litigation.
A study examining suicide litigation brought under 42 U.S.C. § 1983 from 1994 through 2008 found that in over 800 published opinions, prisoners’ families were the prevailing parties only seventeen percent of the time.
The high hurdle for proving liability for custodial suicide supports a culture that favors custodial ignorance and deprioritizes suicide prevention policies.
The case in which the Supreme Court determined that the subjective deliberate indifference standard applies to claims of failure to protect from substantial risk of serious harm and serious medical needs was in the Eighth Amendment context.
The Eighth Amendment only protects convicted prisoners and not pretrial detainees. The Fourteenth Amendment serves as the basis for a pretrial detainee suicide claim.
Nevertheless, lower courts have typically assumed that the Eighth Amendment subjective deliberate indifference standard governs pretrial detainee Fourteenth Amendment claims.
Scholars and advocates have called for a shift away from using the subjective deliberate indifference standard for pretrial detainees’ claims and suggest that courts instead apply an objective deliberate indifference standard to these claims.
An objective standard would require plaintiffs to prove that the official should have known of the inmate’s serious medical needs or substantial risk of serious harm and failed to take reasonable measures to address the risk, rather than that the official had actual knowledge and failed to take such reasonable measures.
Arguments for the less demanding standard assert that an objective standard would better protect a pretrial detainee’s substantive due process rights.
This Note examines how the Supreme Court’s decision in Kingsley v. Hendrickson might serve as precedent for the application of an objective deliberate indifference standard for pretrial detainee suicide claims.
In Kingsley, the Court found that an objective standard should be used to determine whether an act of intentional force was “excessive” for a pretrial detainee’s excessive force claims.
As a result of this decision, the Court uses different standards to evaluate pretrial detainees’ excessive force claims brought under the Fourteenth Amendment and convicted prisoners’ excessive force claims brought under the Eighth Amendment. Pretrial detainees only have to prove that the force was objectively unreasonable, regardless of the official’s state of mind, but prisoners must prove that the force was “malicious and sadistic.”
Thus, pretrial detainees have less to prove. Post-Kingsley, courts and scholars are considering whether the decision mandates that an objective standard should govern pretrial detainees’ other Fourteenth Amendment claims.
This Note suggests that the Kingsley decision should lead courts to adopt the objective deliberate indifference standard for pretrial detainee Fourteenth Amendment claims of failure to protect from substantial risk of serious harm and serious medical needs. It posits that doing so might pressure municipalities to strengthen policies related to suicide prevention in jails. Part I of this Note provides background information about the legal claims, liability theories, and standards associated with suicide litigation. It also lays out the difficulties that plaintiffs face when proving inmate-suicide claims. Part II then explores the Supreme Court’s recent decision in Kingsley v. Hendrickson. It examines whether the opinion supports an objective deliberate indifference test for pretrial-detainee claims of failure to protect and failure to treat serious medical needs. Finally, Part III advocates for the adoption of the objective deliberate indifference standard for these claims and postures that this might lead to policies aimed at reducing suicides in jails.
I. An Overview of § 1983 Claims for Jail and Prison Suicides
Incarcerated individuals have limited legal protections.
This Part examines the foundation and evolution of inmates’ constitutional rights that are relevant to suicide litigation. Section I.A addresses the statutory and constitutional foundations for suicide claims and discusses liability theories. Section I.B then explores the development of the deliberate indifference standard and provides a detailed explanation of how courts apply the subjective standard. Finally, section I.C examines how the subjective deliberate indifference standard has been applied in suicide litigation.
A. The Legal Claim for Suicide Litigation
After a person in government custody commits suicide,
the deceased’s estate or survivors might bring a lawsuit for damages. Typically, the estate or survivors will sue correctional officers, medical staff, and the municipality
responsible for managing the jail or prison.
The plaintiff alleges that the defendants’ failure to prevent the suicide led to the inmate’s death.
Suicide claims based on federal law are generally brought under 42 U.S.C. § 1983,
which provides the cause of action for a claim that “[a] person . . . under color of any statute, ordinance, regulation, custom, or usage, of any State” violated a federally protected constitutional or statutory right.
This provision allows the victim’s estate to asserts a claim for damages. In a § 1983 claim against an individual, the plaintiff brings a lawsuit against a state or local officer in her individual capacity.
In a § 1983 claim against a municipality,
the plaintiff must prove that the municipality had an official policy, custom, or practice that actually inflicted injury and deprived the individual of a federal right.
The policy or custom must be the “moving force” of the constitutional violation
and the deprivation of the right must be the result of a government decision—it cannot be the result of aberrant action by an individual employee.
If the policy or custom is not in writing, the plaintiff must usually demonstrate that the violation was a pattern or “well settled” practice.
1. The Constitutional Protections for Convicted Prisoners. — In a § 1983 claim resulting from the suicide of a convicted prisoner, the plaintiff alleges a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”
The Court has held that the Eighth Amendment constrains the “treatment a prisoner receives in prison.”
Eighth Amendment protections include both protective
rights; not only are prisoners protected from government actions but the government has an obligation to “provide for [prisoners’] basic human needs.”
Two Eighth Amendment protections are relevant to suicide litigation: the right to be free from substantial risk of serious harm and the right to adequate medical care. In Farmer v. Brennan,
the Court found that an inmate has the right to be free from “substantial risk of serious harm”
—inmates require “reasonable safety”
and the government is responsible for protecting inmates from “unsafe” conditions.
Thus, prison officials have a duty to “provide humane conditions of confinement . . . and must ‘take reasonable measures to guarantee the safety of the inmates.’”
They may not “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering.”
An inmate bringing a claim under Farmer alleges that an official or the government failed to protect her from substantial risk of serious harm.
In Estelle v. Gamble,
the Court found that the Eighth Amendment guarantees prisoners the right to adequate medical care: The government has an “obligation to provide medical care” for prisoners who “rely on prison authorities to treat [their] medical needs.”
The Court explained that “deliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment.
Lower courts have read “serious medical needs” under Estelle to extend to mental health
and to include an obligation to protect inmates from self-harm.
The Supreme Court has never explicitly established that a prisoner has the right to be protected from suicide,
and lower courts have found no duty to screen all detainees for “suicidal tendencies.”
However, Farmer and Estelle establish that there is a duty to protect prisoners from conditions leading to suicide when they amount to a “condition posing a substantial risk of harm”
or when the officer failed to attend to a “serious medical need.”
When considering which of these two constitutional theories is at issue in a suicide case, courts often blend the two together.
Courts find that the exact right at issue is less relevant because the resulting duties serve the “same underlying purpose” of “prevent[ing] the detainee from suffering further physical pain or harm.”
For greater simplicity, courts might focus the analysis on whether there was “a known risk of suicide.”
Courts are able to combine an analysis of these two claims because both are evaluated under the same standard—deliberate indifference. The Court has determined that an official is liable in these cases if the official exhibits “‘deliberate indifference’ to a substantial risk of serious harm to an inmate”
or “deliberate indifference to serious medical needs.”
Under the Eighth Amendment, deliberate indifference requires a “sufficiently serious” deprivation of the right and that the prison official must have a “sufficiently culpable state of mind.”
2. The Constitutional Protections for Pretrial Detainees. — The Eighth Amendment protections described above apply only to convicted inmates. Pretrial detainees, individuals who are charged with a crime but not yet convicted,
rely on the protections of the Fourteenth Amendment’s Due Process Clause.
This is important because the Eighth Amendment protects convicted prisoners from cruel and unusual punishment, but the Fourteenth Amendment protects pretrial detainees from any punishment.
In Bell v. Wolfish, the Supreme Court explained that “in evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law . . . the proper inquiry is whether these conditions amount to punishment of the detainee.”
The Court held that pretrial detainees can be constitutionally subject to “regulatory restraints” that may interfere with the ability to live comfortably if such restraints are part of some other legitimate government purpose but not if they are “imposed for the purpose of punishment.”
A court can infer punishment “if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless.”
The Court emphasized that this decision was not meant to allow officials to “justify punishment” since “retribution and deterrence are not legitimate nonpunitive government objectives.”
In determining whether a restraint is punishment under Bell, a court first looks at whether there was intent to punish.
If there was no intent, the court then determines if there was a reasonable government purpose for the restraint and, given that purpose, whether the restraint was excessive.
The court might also consider whether there were less punitive alternatives.
Nearly four decades later, the Supreme Court still has yet to explain how Bell’s interpretation of pretrial detainees’ due process rights regarding jail conditions might guide the interpretation of pretrial detainees’ rights when an official fails to protect her from a substantial risk of serious harm or to provide care for a serious medical need.
In City of Revere v. Massachusetts General Hospital, the Court held only that a pretrial detainee’s “due process rights . . . are at least as great as the Eighth Amendment protections available to a convicted prisoner.”
This decision simply established that the Eighth Amendment protection from deliberate indifference serves as a floor for any standard used to evaluate pretrial detainee failure-to-protect or serious-medical-needs claims.
B. The Deliberate Indifference Standard
The deliberate indifference standard originated in Estelle,
but the opinion contained relatively little guidance on how to use it. Post-Estelle, courts generally agreed that deliberate indifference was “reckless disregard for risk.”
However, they disagreed as to whether to satisfy deliberate indifference, the custodian must have disregarded risks she knew or should have known—an objective standard—or risks she actually knew—a subjective standard.
For example, the Third Circuit found liability when an official disregarded a risk she “knew or should have known,”
but the Seventh Circuit required actual knowledge of the risk.
It was not until nearly twenty years later in Farmer that the Supreme Court honed and defined the standard as it is used today. In Farmer, the Court found that to prove deliberate indifference, a convicted prisoner’s claim must satisfy a subjective standard.
In doing so, the Court confirmed that “proof of a prison officials’ state of mind [is required] to demonstrate an Eighth Amendment violation.”
1. The Farmer Deliberate Indifference Test. — Farmer clarified the two-prong test to determine whether prison officials or municipalities have violated a convicted prisoner’s Eighth Amendment rights by failing to protect the inmate from “excessive risk to inmate health or safety.”
The Farmer Court recognized that its prior decision in Wilson v. Seiter had laid out two requirements for an Eighth Amendment violation in the context of a failure-to-protect claim:
The first is that there be an objective, “sufficiently serious” deprivation, and the second is that the prison official have a “sufficiently culpable state of mind.”
These requirements form the two prongs of the Eighth Amendment test.
In Farmer, the first prong of the test was not in dispute. Lower courts agreed that in a failure-to-protect claim, the plaintiff must first establish that the custodian committed an act or omission that was “sufficiently serious”
or “sufficiently harmful”
so as to deny the individual “the minimal civilized measure of life’s necessities.”
This prong is an objective standard.
Lower courts diverged on the second prong of the test—specifically, courts disagreed about the state of mind required to support a deliberate indifference claim.
The Farmer Court clarified the second prong, holding that a subjective analysis must be used to determine if an individual acted with a deliberately indifferent state of mind. Under this requirement, there has to be “‘conscious disregar[d]’” of the risk to constitute punishment,
and so, an official must “know of and disregard an excessive risk to inmate health or safety.”
The official must both “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and “draw the inference.”
The Court explained that one way a plaintiff might establish the necessary knowledge is to prove that the risk was so obvious that the prison official must have been aware.
2. The Farmer Test: Application to Pretrial Detainees? — The Supreme Court has not addressed whether Farmer’s subjective deliberate indifference standard should also apply to pretrial detainee claims under the Fourteenth Amendment.
Nevertheless, all of the circuit courts have adopted the Farmer test for pretrial detainee medical-care claims, and those that have considered the issue have adopted the test for claims resulting from the suicide of pretrial detainees.
The circuits justify this position by suggesting that in order for an official’s failure to protect an inmate from substantial risk of serious harm or failure to adequately address a serious medical need to ever constitute punishment, the jail official must have acted knowingly. As the Fifth Circuit explained in Hare v. City of Corinth: “[T]here is no legally significant situation in which a failure to provide an incarcerated individual with medical care or protection from violence is punishment yet is not cruel and unusual.”
The Hare court’s reasoning implies that the subjective deliberate indifference test can constitutionally be applied to pretrial detainees, since the test essentially serves to protect any inmate, pretrial detainee, or convicted prisoner from all forms of punishment. As a result, for these claims, the circuits find that the standard to determine whether an official violates a pretrial detainee’s Fourteenth Amendment right not to be punished is “comparable” to the standard to determine whether there is a violation of a convicted prisoner’s right to be free from cruel and unusual punishment.
C. The Post-Farmer § 1983 Claim for Inmate Suicide
Since Farmer, courts have applied the subjective deliberate indifference standard to suicide-related § 1983 claims against individual officers. As a result, the plaintiff in a suicide-related claim is less likely to succeed on a § 1983 claim than in the pre-Farmer era when some courts still applied an objective deliberate indifference standard.
A study of pre- and post-Farmer suicide litigation demonstrates that pre-Farmer, the estate of an inmate who committed suicide in jail prevailed in twenty-five percent of jail-suicide cases; post-Farmer, the estate prevailed in only sixteen percent of these cases.
The decrease in success was even starker for litigation resulting from a combination of suicides in jail, lock-up, and prison: The success rate nearly halved from twenty-nine percent to seventeen percent.
This section examines the particular difficulties a plaintiff might face in a post-Farmer § 1983 suicide claim.
1. Individual Officer Liability. — To establish officer liability,
the plaintiff must satisfy both prongs of the Farmer test. First, the plaintiff alleges that the custodian committed a sufficiently serious act to constitute deprivation of the right. This objective component is “met by virtue of the suicide itself”:
In claims alleging failure to protect from a substantial risk of serious harm, courts have found that suicide is a serious harm, and in claims alleging deliberate indifference to a serious medical need, it is “well established” that a “risk of suicide by an inmate is a serious medical need.”
Next, the plaintiff must satisfy the second prong of the Farmer test by proving that the officer acted with subjective deliberate indifference.
To satisfy this prong, the plaintiff must first demonstrate that the official had individual-specific knowledge of the threat of serious harm to the inmate or had knowledge of a general risk that all prisoners in the inmate’s particular situation faced.
Frequently, officials have no individual-specific knowledge in suicide cases. Unlike physical ailments, a mental illness may not manifest itself in clear ways that would provide officials with actual knowledge of the inmate’s condition.
Also, inmates experiencing physical ailments or poor conditions of confinement might be more likely to inform prison officials of their risk of substantial harm than mentally ill patients—mentally ill patients might not have the capacity to provide this information or might fear that reporting such information would lead to retaliation or other unpleasant consequences, such as isolation or suicide watch.
Individual-specific knowledge is most successfully established when there are available records indicating prior suicide attempts or suicidal tendencies. Courts are unlikely to find liability if an inmate has not threatened or attempted suicide in the past, has not been previously identified as a suicide risk, or has not demonstrated extremely aberrant behavior.
Furthermore, even if records exist, the official must have been aware of, had access to, and have read the records.
Proving a generalized risk should be easier. However, since Farmer, courts have mostly declined to find that a generalized risk is sufficient to sustain liability without a threat specific to the individual inmate.
In fact, some circuits have explicitly refused to find that generalized risk is sufficient for a deliberate indifference claim in suicide litigation.
Notably, this is in direct contrast with the Farmer Court’s holding that “it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.”
The second step in proving subjective deliberate indifference is to establish that the official was not only aware of the facts but that she drew the inference that there was a substantial risk of serious harm to the inmate or a serious medical need. Most prison officials have some training in suicide prevention but are unlikely to have in-depth mental health training.
As a result, courts are sympathetic to officials and “‘continually hold guards to a lesser standard in recognizing [suicide] conditions[,]’ . . . shield[ing] [the guards] from the liability attached to subjective knowledge.”
Officials might be given the benefit of the doubt that a lack of expertise or experience might limit their ability to evaluate a potential harm and thereby their ability to “draw the inference.”
A plaintiff can attempt to argue that, given awareness of the facts, the official knew there was a risk of suicide because the risk was obvious.
However, courts have developed a high threshold for obviousness and tend not to find liability without an explicit suicide threat. The Third Circuit found no liability when a detainee had large, prominent scars on his arm suggestive of previous acts of self-harm because there was no additional evidence of an explicit threat.
Similarly, the Seventh Circuit failed to find officials liable for the suicide of an inmate who was known to have a history of mental illness and suicide attempts and was exhibiting “strange behavior.”
Finally, even if the plaintiff proves that an official knew of the actual risk, the plaintiff must also show that the official disregarded the risk. Under Farmer, an official can escape liability if she “responded reasonably to the risk.”
Lower courts have interpreted this to mean that liability will only ensue if an official responds recklessly; negligence will not suffice.
Courts have declined to find liability when officials improperly delegated suicide prevention responsibilities or did not follow municipal policies intended to prevent suicide.
Furthermore, in some cases in which courts have found evidence of deliberate indifference, the court has emphasized the official’s prior experience with suicidal inmates, suggesting that expertise beyond that of a typical official might be necessary for a liability claim to be successful.
This section demonstrates that in order for a plaintiff to succeed in suicide litigation against a jail official under Farmer’s standard, the plaintiff must prove that the official: (1) had actual knowledge, individual specific or generalized, of the factors creating a risk; (2) drew the inference of a substantial risk to harm; and (3) knowingly disregarded the risk. This is a heavy burden. Thus, it is not surprising that there is a low rate of success in suicide litigation against jail officials under the subjective deliberate indifference standard.
2. Municipal Liability. — Establishing municipal liability for suicide is also a difficult task, and very few litigants have been successful.
For a successful municipal-liability claim in a suicide case, the plaintiff must establish that the municipality’s policies or customs exhibited deliberate indifference to the inmate’s serious medical needs or unsafe conditions and that these policies caused the plaintiff to suffer a constitutional injury.
In suicide litigation, the plaintiff often alleges that the municipality’s failure to train its officers—an omission—led to a violation of the constitutional right.
Courts rarely find a municipality liable if its policy is “reasonable and comprise[s] an effort to prevent suicides,”
regardless of whether the policy is effective in practice. Courts do not view conditions and policies in isolation; the fact that one condition or policy may facilitate suicidal behavior is not sufficient evidence for deliberate indifference if other precautions are taken.
In the limited body of cases in which courts have found municipal deliberate indifference, there has been evidence of a pattern of past suicides in the jails, as well as evidence that the municipality had knowledge of effective policy-based remedies to prevent future deaths.
The Farmer mandate of a subjective deliberate indifference standard for failure-to-protect and serious-medical-needs claims against individual officers ensures that plaintiffs have a high burden of proof to establish custodial liability. Lower courts have relied on Farmer as guidance for suicide claims
and have imposed requirements that are extremely difficult for plaintiffs to meet. Parts II and III examine the possibility of a shift to an objective deliberate indifference standard for pretrial detainee suicide cases and how such a shift might increase the success of jail-suicide litigation and lead to better jail-suicide prevention policies.
II. A Changing Landscape for Pretrial Detainees? The Impact of Kingsley v. Hendrickson
In summer 2015, the Supreme Court heard a § 1983 case, Kingsley v. Hendrickson, in which the plaintiff, a pretrial detainee, argued that the jury should use an objective standard to evaluate his claim that jail officials used unreasonable force.
Previously, the Court had applied the “malicious and sadistic” standard to convicted prisoners’ claims to determine if intentional force was excessive but had explicitly left open what standard should be applied to similar claims by pretrial detainees.
Lower courts had been free to determine whether the Eighth Amendment subjective standard for excessive force or an objective standard consistent with precedent in other Fourteenth Amendment cases
should apply. In Kingsley, the Court agreed with the plaintiff and held that an objective standard should apply to determine whether intentional force used against pretrial detainees is excessive.
The impact of Kingsley on other claims by pretrial detainees could be significant. In the Kingsley decision, the Court reaffirmed Bell’s holding that punishment does not require scienter.
Kingsley consequently raises the question of whether an objective standard should govern other Fourteenth Amendment due process claims brought by pretrial detainees. Section II.A explains the Kingsley decision, describes the objective standard for excessive force claims, and analyzes the Court’s justification for applying the objective standard to pretrial detainees. Section II.B discusses the potential impact of a shift to an objective deliberate indifference standard on failure-to-protect and serious-medical-needs claims. It then presents arguments for and against the proposition that Kingsley requires courts to apply the objective deliberate indifference test to such claims by pretrial detainees.
A. Kingsley, the Kingsley Standard, and the Court’s Reasoning
In Kingsley v. Hendrickson, pretrial detainee Michael Kingsley was removed from his prison cell after refusing to take down a piece of paper covering his cell light.
Correctional officers carried him to a receiving cell, placed him face down on a bunk, and handcuffed him.
Hendrickson, one of the correctional officers, placed his knee in Kingsley’s back, allegedly in response to Kingsley’s resistance.
Kingsley claims that Hendrickson and another officer, Degner, then slammed his head into the concrete bunk.
At this point, it is undisputed that Hendrickson ordered Degner to taser Kingsley.
Degner applied the taser for about five seconds.
After the incident, Kingsley brought a § 1983 excessive force claim under the Fourteenth Amendment.
The district court found against Kingsley.
Kingsley then appealed to the Seventh Circuit on the grounds that the “correct standard for judging a pretrial detainee’s excessive force claim is objective unreasonableness” and that the lower court’s jury instructions were not reflective of that standard.
The majority denied Kingsley’s appeal, and the Supreme Court granted certiorari.
In Kingsley, the Court recognized that excessive force claims contain two separate tests, both of which address the official’s state of mind. The first test is whether the official used force “deliberate[ly],” which the Court defines as “purposefully or knowingly.”
This test is subjective and was not disputed in Kingsley because the officers intended to use force.
The second test is whether “the defendant’s physical acts in the world . . .
involv[ed] force that was ‘excessive.’”
In Kingsley, the Court directly addressed this test, asking: “In deciding whether the force deliberately used 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?”
The Court held that “the relevant standard is objective not subjective”
and found that to determine whether the force was “objectively unreasonable,” and thus excessive, the decisionmaker should consider multiple factors that might indicate how a reasonable official would have acted in the same circumstances.
Factors that a decisionmaker may consider in the analysis include but are not limited to: “the relationship between the need for . . . and the amount of force used; the extent of the plaintiff’s injury; any effort made . . . to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”
1. The Kingsley Court’s Reasoning. — The Court concluded that an objective standard is appropriate for several reasons. Most significantly, the objective standard is consistent with precedent. In Kingsley, the Court relied on Bell and explicitly rejected the allegation that a subjective standard is required to determine punishment. The Court cited Bell’s extensive examination of pretrial detainees’ rights,
reaffirming that intent to punish is not required for an act to constitute punishment and that therefore, intent is not a “necessary condition for liability.”
The Court differentiated Kingsley from earlier cases involving convicted prisoners in which it had applied a subjective standard. The Court acknowledged that “pretrial detainees (unlike convicted prisoners) cannot be punished at all”
and rejected the argument that cases brought by convicted prisoners under the Eighth Amendment should guide the analysis of pretrial detainees’ claims under the Fourteenth Amendment. The Court explained that not only does the “language of the two Clauses differ [but] the nature of the claim often differs.”
The Court also addressed practical considerations regarding the objective standard. First, the standard is “workable” because lower courts effectively apply similar jury instructions.
Second, the standard is consistent with training practices used in many facilities when instructing officers how to interact with inmates.
Third, the standard is sufficient to adequately protect “an officer who acts in good faith.”
The standard protects these officers because courts must examine reasonableness from the perspective and knowledge of the defendant officer, and the reasonableness evaluation must also take into account the government’s interests in maintaining order and security in managing a jail.
Furthermore, the standard applies only in situations in which the officer intended to use force, precluding liability for negligence.
2. The Impact of the Kingsley Decision. — The inquiry into Kingsley’s impact raises two key questions. The first is whether the Court actually intended to set a precedent that Fourteenth Amendment and Eighth Amendment claims require different standards. In the opinion, the Court acknowledged that the decision “may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners” but deliberately chose not to address the issue. Instead, it limited the decision to the Fourteenth Amendment claim at hand.
The second question is whether, if the Court did mean to apply two different standards, this lesser standard for pretrial detainees was meant to extend to other types of Fourteenth Amendment claims. In the post-Kingsley period, lower courts have begun to grapple with whether the Kingsley holding that intent is not required for an act to be considered punishment serves as precedent for applying an objective deliberate indifference standard to pretrial detainees’ failure-to-protect or serious-medical-needs claims.
B. Extending the Kingsley Decision
Applying the Kingsley decision’s underlying conclusions—that intent to punish is not required to constitute punishment and that objectively unreasonable conduct can constitute punishment—to pretrial detainees’ failure-to-protect and serious-medical-needs claims would result in a deliberate indifference standard that is objective and not subjective. The objective standard would lead to liability when the official’s failure to address the inmate’s needs was “objectively unreasonabl[e]”
and not necessarily done with the intent to harm.
Notably, in pretrial detainee excessive force cases, there is still the first state-of-mind test, which is a subjective requirement that the official must have intended to use harm.
As the Kingsley Court emphasized, this protects the officer from liability in accidental uses of force, such as when an officer trips and falls on a detainee.
In order to extend Kingsley, a similar subjective requirement would be necessary for failure-to-protect or serious-medical-needs cases. This requirement might be addressed by identifying a correctional official’s intentional decision to refrain from acting.
This subjective test would ensure that the officer’s action or inaction resulted from an intentional decision and not negligence.
The next state-of-mind test, however, would be objective. Plaintiffs would still have to satisfy the first prong of the Farmer test by establishing that there was a substantial risk of serious harm or a serious medical need, but the burden of proof under the second prong of the Farmer test would change. The plaintiff would now have to prove that a reasonable officer should have known of the risk or medical need and thus should have acted to protect the inmate.
This is an objective deliberate indifference test—the test that many of the circuits were using pre-Farmer.
1. The Objective Deliberate Indifference Standard in Practice. — Scholars have suggested that a shift to an objective deliberate indifference standard for pretrial detainees would better align with constitutional standards,
permit courts to recede from the trend of deference to prison officials, and afford greater protection for individual rights.
The change in the standard would refocus a court’s analysis. The analysis would shift away from identifying the official’s intent and toward considering whether the official, given the circumstances, should have identified and acted upon the substantial risk.
This would relieve the plaintiff of the difficult task of providing evidence demonstrating the official’s state of mind. This might be particularly important for pretrial detainees given that a detainee’s period of incarceration can be relatively short, which may make it more difficult to establish behavioral patterns that might indicate an official had actual knowledge.
Use of an objective deliberate indifference standard could also impact cultural norms that favor officials’ disengagement with prisoners’ needs.
Under Farmer’s actual-knowledge requirement, a prison official might purposefully avoid knowledge of risk in order to avoid potential liability.
But under the objective standard, the official and the municipality would be held accountable regardless of whether the official knew or successfully avoided the information.
Until Kingsley, there was no clear precedent to establish greater protection for pretrial detainees than for convicted prisoners with respect to claims that a pretrial detainee brings under the Fourteenth Amendment and a convicted prisoner brings under the Eighth Amendment, even though these amendments suggest different levels of protection. Now, Kingsley might provide lower courts with an opportunity to build upon the decision’s differentiation of the rights of pretrial detainees and prisoners to establish an objective deliberate indifference standard for other Fourteenth Amendment claims.
2. Lower Court Decisions Post-Kingsley. — Failure-to-protect and serious-medical-needs claims share many similarities with excessive force claims; this suggests that the Kingsley decision might mandate extending an objective standard to these claims brought by pretrial detainees. Excessive force, failure-to-protect, and serious-medical-needs claims all come from the same constitutional rights. While in these claims how a prisoner might have been punished differs, whether by force or by exposure to risk, the fundamental protection under the Constitution is the same: The Eighth Amendment protects convicted prisoners from cruel and unusual punishment, and the Fourteenth Amendment protects pretrial detainees from any punishment.
District courts have generally been hesitant to extend Kingsley’s logic and stray from circuit precedent, despite these similarities.
However, the Ninth Circuit, the only circuit that has addressed the question directly, has affirmed that Kingsley changes the standard for pretrial detainees’ failure-to-protect claims. In Castro v. County of Los Angeles, a pretrial detainee brought a failure-to-protect claim against jail officials after suffering injuries resulting from an attack by another inmate.
In an en banc opinion, the majority held that Kingsley “rejected the notion that there exists a single ‘deliberate indifference’ standard applicable to all § 1983 claims, whether brought by pretrial detainees or convicted prisoners.”
The panel found that while excessive force claims and failure-to-protect claims differ, there are “significant reasons” to apply the objective standard to failure-to-protect claims.
These reasons include: the fact that § 1983 does not have a state-of-mind requirement, the similarity in the underlying constitutional rights, the similarity between the injuries of excessive force by officials and force applied by a fellow inmate, and the broad language in the Kingsley decision that “a pretrial detainee can prevail by providing only objective evidence that the challenged government action” constitutes punishment, rather than specifying that the action must be force.
A strong dissent in Castro argued that the majority’s opinion “made a mess” of existing precedent for pretrial detainees’ punishment claims.
The dissent emphasized the difference between failure-to-protect claims and excessive force claims and the different types of analysis such claims receive under the Eighth Amendment. Relying heavily on Farmer, the dissent argued that “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” and that therefore, even when a failure to act is “objectively unreasonable,” it is “negligent at most.”
Part III examines these arguments and suggests that courts should apply the objective deliberate indifference standard for failure-to-protect claims. It argues that doing so could lead to significant municipal policy changes that might well save lives.
III. Adoption of the Objective Deliberate Indifference Standard: A Step Forward for Jail-Suicide Liability and Prevention
The use of an objective deliberate indifference standard could have many important benefits for pretrial detainees. In the area of jail suicide, it could strengthen jail policies regarding suicide prevention, which ultimately might prevent suicides from occurring. This Note concludes that lower courts should adopt the objective deliberate indifference standard for failure-to-protect and serious-medical-needs claims by pretrial detainees. Section III.A advocates for the adoption of the objective deliberate indifference standard for failure-to-protect and serious-medical-needs claims and addresses potential objections to its application. Section III.B then examines how the standard would apply to suicide claims and how the switch from a subjective to objective deliberate indifference standard might increase the plaintiff success rate in suicide litigation. This Part concludes in section III.C by examining whether changing the standard could lead municipalities to improve suicide prevention policies.
A. Courts Should Adopt the Objective Deliberate Indifference Standard for Pretrial Detainee Failure-to-Protect and Serious-Medical-Needs Claims
Courts should adopt the objective deliberate indifference standard for pretrial detainee failure-to-protect and serious-medical-needs claims because the Kingsley decision provides strong precedent for a shift in the traditional analysis of these claims, existing precedent does not preclude the use of the standard, the standard is pragmatic, and the standard aligns with existing legal trends.
1. Supreme Court Precedent Supports the Standard. — The Supreme Court has now twice held that a pretrial detainee’s claim under the Fourteenth Amendment requires analysis using an objective standard to determine if the inmate was unconstitutionally punished.
The Court has never held that a pretrial detainee would have to prove the official’s intent to punish.
The Kingsley decision’s affirmation of Bell’s holding that the Fourteenth Amendment requires an objective analysis to determine punishment and that “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”
suggests that all pretrial-detainee due process claims require evaluation using an objective standard.
Furthermore, as the Ninth Circuit has identified, the “broad wording” in Kingsley that this interpretation of Bell applies to “challenged governmental action,” rather than simply to excessive force, offers support that the Kingsley decision was meant to extend beyond excessive force.
2. Supreme Court Precedent Does Not Preclude the Standard. — The difference between excessive force claims and failure-to-protect and serious-medical-needs claims is insufficient to prevent the application of the Kingsley decision to the latter two. First, the Eighth Amendment standard for failure-to-protect and serious-medical-needs claims is not so different from the Eighth Amendment standard for excessive force claims. Both standards, subjective deliberate indifference for failure-to-protect claims
and “malicious and sadistic”
for excessive force claims, require intent. In Graham v. Connor, the Court emphasized this similarity, observing that the subjective motivations of individual officers are of central importance in finding an Eighth Amendment violation.
While the apparent unreasonableness of an official’s actions is considered in Eighth Amendment excessive force cases, it is used for the purpose of assessing whether there was malicious and sadistic intent.
Second, the Court’s decision in Daniels v. Williams
should not be read to conflict with the application of an objective analysis to failure-to-act claims. In Daniels, the Court found that a state official’s “mere lack of due care” does not violate an individual’s Fourteenth Amendment rights and that a negligent act is insufficient for liability under the Due Process Clause.
By eliminating liability for negligence, the decision does not necessarily require a purposeful state of mind. The Daniels Court, like the Kingsley Court,
left open whether something more than negligence but less than intent was sufficient for a due process violation.
In Castro, the Ninth Circuit addressed the Daniels decision directly and concluded that “the test to be applied [to failure-to-protect claims] under Kingsley must require a pretrial detainee who asserts a due process claim for failure to protect to prove more than negligence but less than subjective intent—something akin to reckless disregard.”
This test fits within the area left open by the Daniels Court, permitting liability for acts that are between negligence and intentional punishment. Furthermore, this test also fits within the Daniels reasoning—the Daniels Court emphasized that its decision was meant to preclude liability specifically for “injuries that attend living together in society.”
Use of an objective standard in a failure-to-protect or serious-medical-needs case ensures that liability is being considered for injuries that supersede this baseline standard because the finding of a substantial risk or a serious medical need is a prerequisite to reaching the deliberate indifference test.
The fact that failure-to-protect claims or serious-medical-needs claims do not always involve an affirmative act does not mean that these types of claims require a subjective deliberate indifference analysis.
As the Ninth Circuit’s test indicates, the failure-to-act analysis to avoid liability for negligence could begin by requiring an “intentional decision” with respect to the inmate’s conditions of confinement, which would serve a similar purpose to the affirmative act.
Alternatively, circumstantial evidence can be used to establish that given a situation of a “substantial risk” or “serious medical need,” a reasonable person would have identified and acted upon the risk. Either of these measures would ensure that the failure to act was beyond simple negligence.
Finally, up to now, the Supreme Court has only applied a subjective analysis to failure-to-act claims because it has only heard such claims in Eighth Amendment cases; the Court has never considered what standard would apply to pretrial detainees’ failure-to-act claims under the Fourteenth Amendment. As a result, the Court’s precedent does not lend support to the cursory conclusion that a claim that involves an omission, rather than an affirmative act, necessarily requires a subjective analysis outside of the Eighth Amendment context.
In that vein, it is important to reiterate that Farmer, which many of the lower courts have heavily relied on in pretrial detainees’ cases, is an Eighth Amendment case—a fact that the Farmer Court made very clear in the opinion. In Farmer, the Court used the decision in Wilson v. Seiter, an Eighth Amendment prison-condition case, to support the application of a subjective deliberate indifference standard to failure-to-protect claims.
The Court relied on the detailed justifications provided in Wilson for why the subjective standard should apply to Eighth Amendment claims,
and explicitly stated that Wilson requires the subjective analysis in claims of “cruel and unusual punishment.”
This reliance on Wilson and emphasis on the fact that Wilson was an Eighth Amendment case further suggest that the Farmer Court’s holding should be limited to claims under the Eighth Amendment.
3. The Standard Is Workable and Practical. — The third reason courts should adopt the objective deliberate indifference standard is that the standard is workable and practical.
As previously discussed, courts have applied the objective deliberate indifference standard in the past, prior to the Farmer decision.
Also, the standard would “protect an officer who acts in good faith” in the same way the Kingsley Court found an objective standard would in excessive force claims—by examining reasonableness from the perspective of the defending officer and taking into account the realities and necessities in running an effective corrections facility.
In Kingsley, the Court did not closely examine logistical concerns associated with implementing a different standard for pretrial detainees and convicted prisoners. State officials and legal scholars often raise these concerns.
These concerns can be particularly relevant for the provision of medical care, which is often centralized in a facility that contains both detainees and prisoners, even if they are housed separately.
At this time, this practical concern does not have an empirical basis, and even if it did, a practical concern might not be sufficient to limit the application of constitutionally mandated protections for pretrial detainees.
Moreover, there are ways to address this issue. Prisons or jails might mitigate this problem by housing detainees and prisoners in separate areas, mandating different clothing or identification tags, or even applying the objective standard to interactions with all inmates.
4. The Standard Aligns with Legal Trends. — The final reason to adopt the objective standard is that improving enforceability of constitutional rights is in line with a developing legal and popular movement to improve prisoners’ rights. In Davis v. Ayala, Justice Kennedy wrote, “There are indications of a new and growing awareness in the broader public of the subject of corrections . . . .”
Justice Kennedy referenced articles describing punitive conditions of incarceration and the impact these conditions have on individuals and society.
The Justice recognized a need to reexamine the treatment of persons in jails and prisons
and explicitly called upon the legal community to advocate for these changes.
Application of an objective deliberate indifference standard aligns with the movement toward ensuring that prisoners receive adequate treatment and protection from abuse and neglect.
B. The Impact of the Objective Deliberate Indifference Standard on Individual Suicide Claims
As this Note argues, a shift toward an objective deliberate indifference standard for pretrial detainees could make it easier for detainees to hold officers accountable for injuries resulting from failure to protect or deliberate indifference to serious medical needs. A closer examination of how the objective deliberate indifference standard would impact pretrial-detainee suicide litigation suggests that it not only could facilitate greater accountability for violations of a pretrial detainee’s right to be free from punishment but also could lead to changes in policy that would prevent violations from occurring in the first place.
One of the difficulties in suicide litigation is establishing that the official actually knew that the inmate was suicidal.
Under the objective standard, actual knowledge of the threat would no longer be required; instead, plaintiffs would need only to establish that an official, given the circumstances, should have known of the need for medical care or protection.
Prior to Farmer, courts applying this objective standard in suicide cases found liability when the “‘strong likelihood’ of suicide [was] ‘so obvious that a lay person would easily recognize the necessity for’ preventative action.”
Under this standard, a court might find officials responsible for failing to identify a substantial suicide risk because they did not examine existing jail records containing past suicide threats or attempts. Courts have not found liability under subjective deliberate indifference for failure to read an inmate’s records even if the information was easily accessible.
In these cases, the official’s ignorance is a defense to liability. A court-imposed duty to access available records could have a large impact, particularly since many inmates are individuals who were previously incarcerated and are likely to have records from prior incarcerations.
The success of these types of claims would likely depend on the officer’s ability to access the information and the amount of time the inmate was in jail before the suicide. Furthermore, if a jail has a poor system for centralizing this information, courts might not be inclined to hold officers accountable for failure to access and review an inmate’s records.
Courts might also be more likely to find officials accountable when an inmate’s statements or actions strongly suggested but did not explicitly communicate suicidal tendencies.
These claims might be most persuasive to judges or juries when the inmate is at a statistically higher risk for suicide. The Department of Justice provides data detailing characteristics that make an incarcerated individual a higher suicide risk.
Demographic information itself would likely not be sufficient to establish liability; however, this information in combination with other behavioral indicators could be sufficient to satisfy the objective “should-have-known” standard even though it would not have satisfied the subjective deliberate indifference standard.
If so, this could encourage officers to be more cognizant of an inmate’s statements and actions and to take threats more seriously.
The shift in standard could also address what has been categorized as a “hand-off” problem in which officers do not effectively pass along information about inmates to one another.
Courts have been mixed in finding liability when officers have failed to pass along a threat that an inmate was suicidal, finding liability when there is “clear and unequivocal information” but not when information is even slightly ambiguous.
A “should-have-known” standard would encourage officers to be more cognizant of asking for inmate-specific information, as ignorance of actual knowledge would no longer be a complete defense from liability.
Last, courts would be more likely to hold officials accountable for ensuring adequate protections once an inmate is recognized as suicidal. For example, under the subjective deliberate indifference standard, a court found no liability when an intoxicated woman who was threatening to “slash [her] throat” used a metal-clad phone cord to hang herself.
The officer was not liable because there was no evidence on record that he, or anyone else at the jail, realized the inmate could hang herself with the phone cord.
Under an objective standard, a court could find that this was something the officer should have known, particularly in circumstances like these in which the presence of the phone in a secure cell violated the jail’s policy against structural projections.
The objective deliberate indifference standard could ultimately make it easier for the estates of pretrial detainees to succeed in claims resulting from in-custody suicides. Removing the actual-knowledge requirement makes the evidentiary requirement significantly easier. The lower standard allows for the use of circumstantial evidence to demonstrate that an official should have known of the suicide threat and removes the official’s ability to rely on the ignorance defense.
C. The Impact of the Shift on Jail-Suicide Prevention Policies
The use of the objective deliberate indifference standard for pretrial detainees in suicide litigation could lead to an increase in the number of individual damages awards. In the long term, this increase in successful litigation could lead to improvement of municipalities’ policies aimed at protecting inmates from suicide. This result is particularly important because adequate suicide prevention policies are key to reducing suicide rates,
but courts’ ability and willingness to mandate these policies are limited.
The Supreme Court has never held that an inmate has the right to adequate suicide prevention policies,
and generally, significant obstacles stand in the way of judicial intervention in correctional facilities.
Under the existing § 1983 framework, it is difficult to succeed on claims for injunctive relief against a municipality.
Courts are often hesitant to require policy changes they see as outside of the realm of judicial expertise. Even if courts do mandate policy changes, they can be limited in their ability to force municipalities to carry them out.
Furthermore, in suicide litigation, standing issues might also limit the ability to request injunctive relief, as policy changes will have no impact on the suicide victim.
1. Strengthening and Developing Suicide Prevention Policies. — The shift in the deliberate indifference standard would not change the analysis for a municipality’s liability in suicide litigation.
However, increasing liability for § 1983 claims against individual officers might induce municipalities to make structural changes in order to protect their officers from damages liability,
which in turn could lead to policy change without a court mandate.
Municipalities have incentives to avoid § 1983 lawsuits against their officers. Most municipalities indemnify their officers
and are ultimately responsible for paying damages in civil rights suits against indemnified officers. They also have an interest in avoiding having their officers spending time on the lawsuits, which might impact both performance and morale. Finally, municipalities might worry that a high likelihood for a lawsuit would disincentivize potential employees from working in jails. Municipalities could attempt to avoid these consequences by ensuring better implementation of existing suicide prevention policies and developing more adequate suicide prevention plans.
The present availability of national guidelines for adequate suicide prevention plans could facilitate the process of policy change.
Multiple organizations have produced standards and guidelines for adequate suicide prevention policies in jails.
The National Center on Institutions and Alternatives
provides research-based policy guidelines for effective prevention programs in jails to ensure the proper identification of inmates at risk for suicide, as well as the implementation of continuing noninvasive, nonpunitive suicide prevention policies throughout incarceration.
Municipalities and states that have effectively implemented these policies, such as Massachusetts, can serve as examples for how to approach revision of suicide prevention practices.
It is important to note that the expectation of a suicide prevention policy is not to prevent all jail suicides from occurring but rather to enact “reasonable and attainable . . . rules designed to reduce . . . custodial suicide and provide just compensation where liability is established.”
Preventing all suicides would require an approach of “over-inclusiveness” that would employ extraordinary measures that significantly infringe on the inmate’s privacy and are extremely unpleasant for the inmate.
Policies should be aimed at balancing an appropriate level of precaution with the practicalities of implementation.
2. Potential Limitations of Increased Liability on Policy Change. — While the courts tend to assume that lawsuits have a strong power to deter, scholars are split as to whether such lawsuits actually deter illegal action and facilitate policy remediation.
Deterrence theories rely on the premise that the prevalence of lawsuits impacts policymakers and that policymakers engage in “rational decisionmaking” and have access to the information needed to make these decisions.
Empirical research suggests that lawsuits can influence decisionmaking only if policymakers actually have information about the lawsuits
and the lawsuits are impactful enough to “create external pressures to review incidents or policies.”
Jail-suicide policy, as compared to prison-suicide policy or other instances of municipal liability, is an area that is more likely to be influenced by § 1983 lawsuits.
Jails are usually small entities
run by local municipalities.
Local policymakers might be more aware of what is going on in the jails and thus have knowledge of suicide-related lawsuits. The smaller size also means that lawsuits are more likely to create “external pressures.”
First, any amount of damages might have a significant impact on the locality’s limited budget.
Second, local newspapers are more likely to be interested in covering lawsuits in local jails than larger newspapers would be for state prisons. This is significant because the media can be a key “external pressure” by creating public demand for municipalities to examine policies. The media can also have a strong influence on elected jail officials.
Additionally, when considering the impact of damages suits as deterrence, scholars have suggested that the municipality might find that the costs of liability are worth paying relative to the potential gains from the unconstitutional conduct.
However, suicide litigation results from unconstitutional conduct that is not usually associated with actions that make officials seem tough on crime or that officials believe are necessary to maintain order. Instead, in suicide litigation, the unconstitutional conduct provides little to no advantage to the municipality, and changing the conduct might actually better align with maintaining jail security and order.
Together, these considerations suggest that there is a strong likelihood that an increase in successful lawsuits resulting from jail suicides could result in action by municipalities to align suicide prevention policies with contemporary policy guidelines.
The Kingsley decision creates precedent to extend constitutionally mandated protections to pretrial detainees that adequately protect detainees from any punishment. In failure-to-protect claims and serious-medical-needs claims, this would entail review using an objective, rather than subjective, deliberate indifference standard. The application of the objective deliberate indifference standard to such claims by pretrial detainees might begin to reverse the post-Farmer limitations on custodial liability that emerged under the subjective deliberate indifference standard. The change in standard could not only increase the success of damages claims by individual litigants that result from jail officials’ often blatant disregard for inmate safety, but also could pressure municipalities to enact more effective and purposeful suicide prevention policies that courts are unable, or unwilling, to mandate through injunctive relief. As this Note suggests, this shift might ultimately help lead to a reduction in jail suicides.