Conn v. City of Reno

• Decision Date: 24 July 2009
• Docket Number: No. 07-15572.,07-15572.
• Citation: 591 F.3d 1081
• Parties: Charla CONN; Dustin Conn, Plaintiffs-Appellants, v. CITY OF RENO; Ryan Ashton; David Robertson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

591 F.3d 1081

Charla CONN; Dustin Conn, Plaintiffs-Appellants, v. CITY OF RENO; Ryan Ashton; David Robertson, Defendants-Appellees.

No. 07-15572.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2008.

Filed July 24, 2009.

Amended January 8, 2010.

Terri Keyser-Cooper, Reno, NV, and Diane K. Vaillancourt, Santa Cruz, CA, for the plaintiffs-appellants.

John J. Kadlic, Reno City Attorney, Donald L. Christensen, Deputy City Attorney, Reno, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding. D.C. No. Cv-05-00595-HDM.

Before MARY M. SCHROEDER, DOROTHY W. NELSON and STEPHEN REINHARDT, Circuit Judges.

ORDER

The majority opinion filed July 24, 2009, slip op. 9581, and appearing at 572 F.3d 1047 (9th Cir.2009), is hereby amended as follows:

1. Slip op. at 9611, line 7: replace April 26, 2005.> with April 26, 2006 no such policy had been adopted and implemented.&gt

2. Slip op. at 9611, line 8: after April 26, 2006 no such policy had been adopted and implemented.>, insert the following footnote: See Fed. R.Evid. 407.>

The panel has voted to deny the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is denied. No further petitions for rehearing may be filed.

Chief Judge KOZINSKI, with whom Judges O'SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN, BEA and IKUTA join, dissenting from the denial of rehearing en banc.

Until this opinion came along, police officers weren't required to serve as babysitters, psychiatrists or social workers, and judges didn't run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micromanage the police, who in turn will serve as mental health professionals. The panel's reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions.

At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists. See, e.g., DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat.

We have recognized an exception to this rule when the state places a person in jail, but that exception has been strictly limited by its rationale. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation it has imposed on his freedom to act on his own behalf." DeShaney, 489 U.S. at 200, 109 S.Ct. 998. A prisoner cannot feed or clothe himself, and he cannot get himself to a doctor; it is therefore incumbent on his keeper to do those things for him. See, e.g., id.; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). And, because the state creates the prisoner's conditions of incarceration, the state has a duty not to purposefully create a risk of harm—for instance, by placing the prisoner in a cell with a person who intends to do him ill. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Apart from that rationale, there is no free-floating obligation to safeguard prisoners' health. Otherwise, the distinction between prisoners and non-prisoners would become illusory, and we would be forced to recognize a duty of care towards society as a whole.

The panel's opinion is significant because it cuts the state's obligation loose from this tether and creates novel duties to train and to report information that bear no relationship to the fact of incarceration. In the process, it strips the guts out of the deliberate indifference standard, as well as the requirement that plaintiffs show a violation of clearly established law to defeat qualified immunity. In the panel's hands, standards that are meant to limit liability to all but the most extreme cases become tools for imposing the policy preferences of unelected federal judges. This combination of errors amounts to a toxic recipe for judicial micromanagement of local institutions.

1. In a brief portion of the opinion that will nevertheless have far-reaching consequences, the panel finds the City of Reno potentially liable for failure "to train its officers in suicide prevention and the identification of suicide risks." Conn v. City of Reno, 572 F.3d 1047, 1063 (9th Cir.2009). To avoid liability under our federal Constitution, police departments throughout the Ninth Circuit must now transform their police officers into suicide prevention experts. This novel holding creates a clear inter-circuit split and is irreconcilable with the standard for liability fashioned by the Supreme Court in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

When ordinary citizens go about their business, they are not monitored by experts in suicide prevention. If you or I waltz up to a government employee—perhaps a mail man, dog catcher or meter maid—and announce, "today's a good day to kill myself," the Constitution does not guarantee that our chosen confidant will be a Sigmund Freud or Jacques Lacan. If we want to see a psychiatrist, we have to go see a psychiatrist. We certainly don't have a right to expect that every public servant we encounter will be specially trained to cater to our mental health needs.

According to the panel, citizens who are arrested fall into a different and more ratified class. When Brenda Clustka announced her suicidal thoughts to the officers sent to arrest her, she had the right to an audience trained in "suicide prevention and the identification of suicide risks." Conn, 572 F.3d at 1063. Indeed, the failure to provide that audience was "the functional equivalent of a decision by the city itself to violate the Constitution." Harris, 489 U.S. at 395, 109 S.Ct. 1197(O'Connor, J., concurring in part and dissenting in. part). But why? What constitutional penumbra turns the bench of a paddy wagon into a psychoanalyst's couch?

Plaintiffs are not the first litigants to seek to impose such a novel and dangerous duty, but other courts have steadfastly rejected similar claims. Manarite v. City of Springfield, 957 F.2d 953, 959 (1st Cir. 1992) (rejecting claim that city was liable for failing to provide "training and education ... in suicide detection and prevention"); Colburn v. Upper Darby Twp., 946 F.2d 1017, 1029-30 (3d Cir.1991) (rejecting claim that jail was liable because it "failed completely to formally train its staff in signs and symptoms of suicide," including "instruction to take all suicide threats seriously") (emphasis omitted); Popham v. City of Talladega, 908 F.2d 1561, 1564-65 (11th Cir.1990) (no liability for "failure to train jail personnel to screen detainees for suicidal tendencies"); Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir.1990) (no liability for "[f]ailure to train police officers in screening procedures geared toward detection of detainees with suicidal tendencies"); see also Harris, 489 U.S. at 396-97, 109 S.Ct. 1197 (O'Connor, J., concurring in part and dissenting in part) ("The claim in this case—that police officers were inadequately trained in diagnosing the symptoms of emotional illness— falls far short of the kind of `obvious' need for training that would support a finding of deliberate indifference....").

What Clustka surely did have was a right of access to medical treatment; because Clustka could not take herself to the doctor, the city had an obligation to make psychiatric care available to her. See Estelle, 429 U.S. at 103, 97 S.Ct. 285. The city more than fulfilled that obligation. Right before her arrest, Clustka was evaluated by a team of medics. At intake, she was examined by a nurse who received annual training in suicide prevention. She was then held in a detoxification cell that was regularly monitored by jail staff and nurses. After discharge, she was arrested a second time and brought by police to an emergency room, where she was seen by a physician. And when she was arrested a third time, she was booked into the mental health unit of the jail, which is managed by a licensed social worker and staffed around the clock. When Clustka committed suicide, she was scheduled to meet with a psychiatric nurse later that day. And there is no reason to think that Clustka would have been denied additional care if she had requested it.

Other circuits have rejected claims that the Constitution requires the kind of routine intake screening that was provided by the City of Reno. See Colburn, 946 F.2d at 1029-30; Popham, 908 F.2d at 1564; Burns, 905 F.2d at 104. Rightly so: Such screening may be laudable, but it also provides a benefit that prisoners could not reasonably expect to receive if they had not been arrested. The measures taken by the city therefore went far beyond anything the Constitution could...