OMW Municipal Law Blog

In Clouthier v. County of Contra Costa (decision issued on January 14, 2010), the Ninth Circuit held for the first time that corrections officers and mental health professionals at municipal jails are liable for the suicide of an inmate only if they show a “deliberate indifference” to the inmate’s health and safety.  Under the “deliberate indifference” standard, a court asks whether (1) an inmate was confined under conditions posing a “substantial risk of serious injury,” and (2) whether the corrections officers or other personnel involved knew of and were deliberately indifferent to that risk.  With respect to suicidal inmates, this means that an officer or mental health professional must know that the inmate is suicidal and that the conditions under which the inmate is confined (such as placement in the general population, lack of precautions, failing to keep on a watch list) pose a substantial risk that the inmate will attempt to commit suicide. 

In the Clouthier case the court found that there was insufficient evidence to establish that the corrections officers who were on duty at the time of the suicide had the requisite knowledge for liability and dismissed claims brought by the inmate’s family.  The court found sufficient evidence to allow the case to proceed to trial against the mental health professional at the jail because she was aware that the inmate had been suicidal earlier in his confinement and that the MHP on duty before her had ordered restrictions on the inmate as a precaution.  Because she released the inmate into the general population and removed the restrictions, the court held that a jury might reasonably find that she was “deliberately indifferent” to the risk.

The court also upheld a summary judgment dismissing §1983 claims against the County for violation of the inmate’s civil rights.  §1983 liability can be based on one of three theories: (1) a local government is liable “when implementation of it official policies or established customs inflicts the constitutional injury,” (2) a local government is liable for “acts of omission” when such omissions amount to the local government’s policy; and (3) a local government is liable when the individual who committed the constitutional injury was an official with final policy-making authority or such an official ratified a subordinate’s unconstitutional decision and the basis for it.  The court held that while the actions of the corrections officers and mental health professional may have been deficient here, there was no evidence that the actions were part of any official policy or that any policy-maker had ratified them.

The Ninth Circuit issued its first opinion, Bryan v. McPherson, regarding the use of a taser and excessive force.  Taking into account the physical pain and risk of additional injury due to the paralyzing effect of the shock, the court concluded that the taser is an intermediate level of force for purposes of excessive force analysis.  Accordingly, a taser may only be used when a strong government interest compels employment of such force.  Generally, the government’s interest in the use of force is evaluated according to three factors: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to flee.  The court acknowledged that there is a continuum of resistance, ranging from passive resistance to physical assault.  The use of a taser should be reserved for those instances where a suspect is closer to active resistance than passive resistance.  Please contact your city attorney should you need assistance in reviewing your taser policy in light of this case.