Fourteenth Amendment substantive due process claim; 42 USC § 1983 action by a pretrial detainee for deliberate indifference; Farmer v Brennan; Brawner v Scott Cnty; Kingsley v Hendrickson; Westmoreland v Butler Cnty; Conditions-of-confinement claims; Failure to protect; Subjective or objective standard; Municipal liability; Monell v Department of Soc Servs

In an en banc opinion, the court held that Farmer’s subjective deliberate-indifference standard continues to be the proper one for evaluating pretrial detainee conditions-of-confinement claims, including plaintiff-Poynter’s failure to protect claim. Because the district court applied Westmoreland in considering defendants’ summary judgment motion, the court vacated its order granting their motion, and remanded for the district court to consider whether plaintiff’s claim was viable under Farmer. The original panel on appeal applied the objective-reasonableness-only standard in reversing the district court. The court “granted rehearing en banc to consider whether Farmer or Kingsley should govern Fourteenth Amendment deliberate-indifference claims.” Plaintiff suffered a traumatic brain injury when he was attacked by two cellmates after he was arrested for civil contempt of court. He alleged that by allowing them to stay in the general population, despite their lengthy histories of violence, defendant-County was deliberately indifferent to his safety. The court concluded that, in assessing “whether a pretrial detainee had been punished by the state, we asked the following: Was there a ‘substantial risk of serious harm’ the state knew about and disregarded? If not, the state has not been deliberately indifferent to the detainee’s conditions of confinement. Farmer’s subjective-knowledge requirement plays an important gatekeeping role in this substantive-due-process setting.” It found that cases interpreting Brawner had “discarded a subjective inquiry in favor of an objective-reasonableness-only approach that lowers the threshold of constitutional liability perilously close to negligence—the very thing all of us otherwise seem to agree is insufficient for constitutional liability.” The court determined that “until the Supreme Court says otherwise, Farmer’s recognition of a right against a jailer’s subjective decision to punish” is binding. The district court’s application of Westmoreland here “potentially changed the course of the litigation,” and the parties agreed that vacating and remanding was a permissible course if the court discarded Brawner.