Fault Lines
14 October 2017

SCOTUS Still Rejects The Right To Survive Prison As “Clearly Established”

June 16, 2015 (Mimesis Law) — The same week the tragedy of Kalief Browder’s death rocked New York, the United States Supreme Court ruled in Taylor v. Barkes, a civil-rights case dealing with jail suicide. The decision was issued with little fanfare. It was a summary reversal, meaning no briefing, no oral arguments, and only a short, unsigned opinion about the doctrine of qualified immunity.

The court cut straight to the chase. It characterized Christopher Barkes, the man who committed suicide at the Howard R. Young Correctional Institution in Wilmington, Delaware, as “a troubled man with a long history of mental health and substance abuse problems.” The only reason he landed there was violating his probation. He didn’t last a day before taking his own life, placed in a cell all by himself.

The reason Barkes’ family sued jail officials was an apparent failure to take preventive measures to keep him from doing harm to himself. Though his intake at the jail included a mental-health screening by a nurse, and disclosure by Barkes that he was on medication and had attempted suicide once, he withheld information about at least three other suicide attempts. And he said that he had no suicidal thoughts at the moment of the screening. After a phone call to his wife telling her he “can’t live this way anymore,” he hanged himself with a sheet the next morning.

Barkes’ family initially lost at the trial-court level, but prevailed at the U.S. Court of Appeals for the Third Circuit. The panel there concluded that it was “clearly established” at the moment of Barkes’ death that he has an Eighth Amendment “right to the proper implementation of adequate suicide prevention protocols,” and thus jail officials were subject to liability for his death. It turned out there was evidence that the medical contractor in charge of examining people like Barkes did not employ the “latest standards” in suicide-prevention screening, including examination by a “qualified mental health professional.” In addition, the record showed the nurse had no access to Barkes’ probation records, a review of which would have revealed a more complete picture of his mental health history.

The Supreme Court was not impressed with the Third Circuit’s conclusion. After a brief review of its qualified immunity jurisprudence, including the reminder that the doctrine “protects all but the clearly incompetent or those who knowingly violate the law,” the court ruled the jail officials were not liable for failing to run the jail in a way that would’ve prevented Barkes’ suicide. All for the simple reason that it wasn’t “clearly established” in 2004, when Barkes died, that a person behind bars was entitled to “proper implementation of adequate suicide prevention protocols.”

The amazing thing about this holding — which probably makes formal sense, but not much else — is that it does nothing to explain when, if ever, it will be clearly established that jails will have a constitutional duty to prevent suicides inside their walls. By keeping the discussion relegated to 2004, the Supreme Court has found a neat way to immunize government officials while keeping the law about the wrongs officials did or did not commit stuck in the past.

This is somewhat similar to what the Supreme Court did last month in San Francisco v. Sheehan, a police-shooting case where the justices punted on the legal claims made by the shooting victim, but were eager to grant immunity to the shooting officers. To UCLA Law professor Richard Re, cases like Sheehan and Barkes point to a larger trend in the court’s docket to grant immunity to government officials no matter what — a tendency that “would operate as a pure gain for officers and a pure loss for plaintiffs.”

The justices would never admit that much. But after so many summary rulings granting immunity to government officials — over at SCOTUSblog, Scott Michelman said this is the fourth year in a row the court has done such a thing — maybe Professor Re’s observation holds true, and immunizing officers is indeed a “new normal” for the Supreme Court.

Main image via Flickr/Global Panorama

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  • Burgers Allday
    16 June 2015 at 9:54 am - Reply

    1. The qualified immunity reversal in Tolan (2014) benefitted civil rights plaintiffs.

    2. It seems to me that Circuit Courts can write opinions that do both of the following: (i) clearly state that the complained of conduct is to be considered as a 4A (or 8A) violation on a going-forward basis; and (ii) further state that the violation was established as of the date of the complained-of law enforcement behavior. That way, when SCOTUS summarily reverses based on the “clearly established” prong of Saucier/Pearson, there will still be a benefit to civil rights plaintiffs.

    3. I think that Circuit Courts can also urge district courts to provide injunctive relief in a case like Barkes, Lyons notwithstanding.

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