by Megan Haddad*

Almost half a million people in U.S. jails are considered “pretrial detainees” 1—people who are incarcerated while they await trial. Yet even though our criminal system presumes that the pretrial detainee is innocent, for decades federal courts of appeals have assumed that when jail officials fail to protect people detained pretrial, those people are entitled only to the diminished constitutional rights of “a prisoner”—a person who is incarcerated after being convicted. Although some circuit courts have begun to reverse course on this issue in response to Kingsley v. Hendrickson, application of the “prisoner” constitutional standard was always incorrect. This Contribution argues that deliberate indifference—the legal standard announced in Estelle v. Gamble and Farmer v. Brennan, which holds that the prisoner can only establish a constitutional violation by showing officials are deliberately indifferent to a substantial risk of harm—should never have been applied to pretrial detainee claims. This Contribution first describes the difference between the pretrial detainee and prisoner status, including how each corresponds to a different constitutional provision (the Due Process Clause and the Cruel and Unusual Punishments Clause, respectively). It then discusses the deliberate indifference standard, and how it is inextricably linked to the Cruel and Unusual Punishments Clause. Finally, it demonstrates that Supreme Court jurisprudence has always indicated that pretrial detainee claims warrant a different, Due Process Clause-based standard, and urges litigants to use the full picture of pretrial detainee/prisoner jurisprudential history to convince the remaining circuits to abandon the deliberate indifference standard for pretrial detainee claims.

As of March 2024, over 450,000 human beings are being held in U.S. jails while they wait for their criminal cases to be resolved because they either cannot afford bail or were denied bail.2 Jails engender the same horrors as prisons, including deplorable and degrading conditions, lack of safety, and lack of medical care.3 In some cases, jails are worse.4 Our Constitution recognizes that the government is duty-bound to provide for the people whose freedom it has limited.5 Of course, the government often fails at this duty, necessitating lawsuits by incarcerated persons. For people who are detained pretrial, they are still entitled to the full range of constitutional rights under the Fourteenth Amendment, whereas the rights of convicted people reside in the Eighth Amendment.6 Yet for decades, federal courts of appeals have used a standard called “deliberate indifference” to evaluate all failure-to-protect and failure-to-provide-adequate-medical-care claims, regardless of the pretrial detainee/prisoner status of the litigant. But deliberate indifference was developed under the Eighth Amendment’s Cruel and Unusual Punishments Clause to distinguish permissible from unconstitutional punishment.7 As such, deliberate indifference is inapplicable to pretrial detainee claims because the Fourteenth Amendment’s Due Process Clause forbids any punishment before conviction.8

This Contribution argues that applying deliberate indifference to Fourteenth Amendment claims has always been an error. The Eighth and Fourteenth amendments have consistently demanded different tests, which the Supreme Court has recognized multiple times, including most recently in Kingsley v. Hendrickson.9 While some circuit courts have corrected their due process standard in response to Kingsley, many circuits have yet to follow suit. Litigants seeking to convince these courts should consider the broader history of Supreme Court jurisprudence around the prisoner/pretrial detainee distinction, rather than just relying on the narrative that Kingsley changed the status quo.

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People who are incarcerated while they wait for trial have rights under the Fourteenth Amendment’s Due Process Clause, which prohibits governmental deprivations of “life, liberty or property without due process of law.”10 People who are incarcerated post-conviction, however, are deemed to have already received “due process of law” by virtue of going through the adjudication process, so they derive their remaining rights from the Eighth Amendment’s Cruel and Unusual Punishments Clause.11 This partition is not just formalistic: it is crucial. While the Constitution permits punishment of people with convictions, it prohibits such treatment of people detained prior to trial.12 The Eighth Amendment only prohibits “cruel and unusual punishment.”13 It still permits punishment “deliberately administered for a penal or disciplinary purpose.”14 Incarceration and some of its collateral deprivations are legalized punishments for committing a crime.15 The Fourteenth Amendment, however, requires that due process of law be provided before the government can punish a person.16 Consequently, people who are incarcerated while they wait for trial—i.e., people who are waiting for their “due process of law”—cannot be incarcerated in a way that amounts to punishment.17 Thus, convictions create two distinct legal statuses: the pretrial detainee and the prisoner, each carrying different legal rights and constitutional protections.

However, a conviction may not physically move a person from jail to prison. Many jails are used to incarcerate people both before and after trial.18 As a result, when a court receives a complaint that jail staff failed to protect or provide adequate medical care to a person in custody, that court may not readily know whether that person’s status is as a pretrial detainee or a prisoner. Because of the factual similarity between pretrial detainee and prisoner claims, courts have long lumped them both under the same standard: deliberate indifference.

“Deliberate indifference” refers to the mental state a jail official must have had in order to violate a person’s constitutional rights—they must have been deliberately indifferent to someone’s serious medical condition or some other substantial risk of serious harm (e.g., a threat from another person or self-inflicted harm).19 This meant that litigants seeking to vindicate their right to safety or medical treatment had to prove that a prison official was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]” and that the official actually “dr[ew] the inference.”20 Deliberate indifference thus contains a scienter component: the jail official violates the Constitution only if they had subjective, actual knowledge of the risk and ignored that risk. It does not matter if, objectively, a reasonable person in that official’s position would have known of the risk.21 It only matters if that specific defendant was aware of it and recklessly disregarded it.22

Deliberate indifference was developed via two cases that concerned the Eighth Amendment: Estelle v. Gamble and Farmer v. Brennan. Both J.W. Estelle and Dee Farmer, the plaintiffs in those cases, had convictions at the time of their injuries.23 What’s more, both cases repeatedly referenced the Eighth Amendment when determining what amounted to a constitutional violation.24

But despite the standard’s development under the Eighth Amendment, federal courts of appeals uniformly imposed deliberate indifference and its subjective intent requirement on pretrial detainee and prisoner claims alike.25 Only recently, because of Kingsley, have some circuits begun to reconsider their position. Kingsley concerned an excessive force claim under the Due Process Clause.26 While awaiting trial at a Wisconsin county jail, Michael Kingsley was severely injured by staff.27 Two officers put him in handcuffs, forcibly removed him from his cell, slammed his head into a bunk, and tased him for five seconds.28 A jury found for the officers.29 The jury instructions had directed them to find the officers liable only if the officers “knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded [Kingsley’s] safety” instead.30 Kingsley appealed, arguing that because of his status as a pretrial detainee, any amount of intentional force that a reasonable person would say is too much force is unconstitutional punishment.31 As such, whether the officers intended to use excessive force was irrelevant—as long as they intended to use some amount of force that was objectively an unreasonable amount, they violated his constitutional rights.32 The Supreme Court agreed, and explained that under the Fourteenth Amendment, a person being detained pre-adjudication need only show that an officer acted “objectively unreasonably” to establish a constitutional violation.33 For Kingsley, this meant he did not have to somehow prove that the officers knew they were being too violent, rather he only needed to prove the force they used was objectively too much.34

Several circuits have extended Kingsley’s reasoning about objective and subjective intent from the excessive force context to the failure-to-protect and failure-to-provide-adequate-medical-care contexts.35 As the Seventh Circuit explained: when the circuits previously “grafted the Eighth Amendment’s deliberate indifference requirement onto the pretrial detainee situation,” they failed to give “any attention to the difference that exists between the Eighth and the Fourteenth Amendment standards.”36 However, once they heeded Kingsley’s maxim that “[t]he language of the two Clauses differs, and the nature of the claims often differs,” they began creating objective tests for failure-to-protect and failure-to-provide-adequate-medical-care claims, displacing the old deliberate indifference standard.37 These circuits recognize that it should not matter that Kingsley was an excessive force case, as both excessive force and failure to protect are due process claims in the pretrial detainee context.38

No court of appeals has advanced a persuasive argument to support the continued use of deliberate indifference. In fact, most that still use deliberate indifference only do so because they have avoided the question or declined to reconsider under rules of orderliness.39 Only the Tenth Circuit has doubled down on the Farmer deliberate indifference test.40 Yet its analysis was primarily focused on factually distinguishing Kingsley.41

While it is commendable that some circuit courts are rectifying their mistakes, it should not have taken Kingsley for them to realize that deliberate indifference has no bearing on a pretrial detainee claim. First, deliberate indifference is irrevocably tied to the Eighth Amendment. Its subjective knowledge requirement, which was created to distinguish permissible punishment from unconstitutional punishment, has no place under the Fourteenth Amendment, which prohibits punishment wholesale. Second, the Supreme Court has always treated the pretrial detainee/prisoner distinction as functional. Kingsley is just the most recent in a long line of cases that have never wavered from this view. Finally, in all cases addressing standards for pretrial detainee claims, the Supreme Court has uniformly applied variations on objective reasonableness standards, making deliberate indifference—and its subjective component—an outlier in the pretrial detainee context.

First, deliberate indifference and its subjective knowledge requirement are part and parcel of the Eighth Amendment’s distinction between permissible punishment and cruel and unusual punishment. “The source of the intent requirement is not the predilections of this Court, but the Eighth Amendment itself, which bans cruel and unusual punishment.”42 While prison officials owe a duty to incarcerated people to protect them from harm, not every harm is considered punishment that amounts to a constitutional violation.43 A prison official’s failure to protect a convicted person only constitutes cruel and unusual punishment if the official knew of the risk and chose to disregard it.44 However, people being detained before trial cannot be punished, let alone cruelly and unusually.45 Using deliberate indifference—a subjective standard created to differentiate permissible conditions from cruel and unusual punishment—makes little sense in the context of the Fourteenth Amendment where no punishment is allowed.

Second, the Supreme Court has never treated the Eighth/Fourteenth Amendment distinction as merely a matter of form, both in pretrial detainee/prisoner context and beyond. In multiple instances where the Court confronted a version of state custody other than imprisonment after conviction, it applied the Fourteenth Amendment. When addressing what rights a person in police custody has, the Court reasoned that, “[b]ecause there had been no formal adjudication of guilt . . . the Eighth Amendment has no application” there.46 Instead, the Court applied the Fourteenth Amendment.47 Likewise, when schoolchildren sued school officials for using corporeal punishment, the Court rejected application of the Eighth Amendment and analyzed their claims under the Fourteenth Amendment.48 When a civilly committed individual sued for excessive force and failure to protect, the Court again applied the Fourteenth Amendment.49 And finally, the Supreme Court has explicitly held that persons detained before trial derive their rights from the Fourteenth Amendment.50 In all these instances, the Court applied a due process-based test while eschewing Eighth Amendment standards.51

Kingsley, therefore, simply re-affirmed this pattern. As it straightforwardly put it: “the language of the two Clauses differs, and the nature of the claims often differs.”52 Thus, “pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less maliciously and sadistically.”53

Third, and relatedly, the Supreme Court has repeatedly used objective standards for other Fourteenth Amendment detainee claims. This began with Bell v. Wolfish, which was decided just three years after deliberate indifference was announced in Estelle.54 In Bell, plaintiffs at the Metropolitan Correction Center (MCC), a New York City-based federal short-term detention facility, sued the MCC under the Due Process Clause for various conditions including overcrowding, understaffing, and routine strip searches.55 The Court ruled that a condition of confinement violates the Fourteenth Amendment if it amounts to punishment, is not reasonably related to a legitimate nonpunitive governmental purpose, or is excessive in relation to that purpose.56 Notably, this standard is objective: what constitutes “legitimate governmental purposes” or “excessiveness” is judicially determined (albeit with deference to detention facilities’ judgments).57 Bell made no mention of deliberate indifference. Instead, it created an objective test tailored to the Fourteenth Amendment’s guarantee against punishment before process.58

Youngberg v. Romeo continued this trend. Youngberg concerned people who were civilly committed for mental disabilities.59 While civil commitment differs in many respects from pretrial detention, the sine qua non of both confinements is that the government’s deprivation of liberty cannot amount to punishment.60 In Youngberg, the Court determined the appropriate standard was whether a decision “is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgement.”61 The Court even expressly rejected the use of deliberate indifference for these claims, chastising the district court for “erroneously us[ing] the deliberate-indifference standard articulated in [Estelle].”62

And finally, in Kingsley, the Court reaffirmed Bell’s and Youngberg’s holdings that due process claims use an objective standard.63 The Court held that for excessive force claims, pretrial detainees need only show that an officer acted “objectively unreasonably.”64 Kingsley made no reference to Estelle, Farmer, or deliberate indifference. For over forty years, the Court has consistently held that pretrial detainee claims are evaluated objectively without regard to the subjective intent or knowledge of the defendant.65

With pretrial detainee claims for excessive force and conditions of confinement—as well as all types claims by people who are civilly committed—using objective standards, that leaves deliberate indifference for pretrial detainee claims as the sole outlier under the Due Process Clause with a subjective requirement.

No principled reason remains to justify this distinction. In his dissent in Kingsley, Justice Scalia grieved that the decision would turn the Due Process Clause into a “font of tort law.”66 While it is true that the Due Process Clause does not cover negligence,67 an objective standard for failure-to-protect or failure-to-provide-adequate-medical-care claims does not necessarily spell the doom Justice Scalia feared. The “objectively unreasonable” standard goes beyond mere failure to take reasonable precautions. Objective unreasonableness distinguishes between an intentional act and a purely accidental one, and makes officials liable only for their intentional acts.68 The Ninth Circuit, when applying Kingsley to a failure to protect claim, clarified that “intentional act” means the act must be intentional “with respect to the conditions under which the plaintiff was confined.”69 Thus, injuries that result from pure accidents—like tripping over a pillowcase left accidentally on a stairwell, or from an attack that occurred because the monitoring guard was suddenly ill and incapacitated—are still not constitutional injuries.70 However, if jail officials chose to place someone in a sobering cell with an obviously violent person when they should have known other options were available, that is a constitutional injury.71 The objective standard appropriately lowers the bar for the pretrial detainee to make their claim, but maintains the line between constitutional injury and ordinary tort liability.

Applying deliberate indifference and its subjective component to pretrial detainee claims was wrong all along. While some circuits have used Kingsley as the impetus to correct this mistake, many have yet to tackle the issue. It is high time they do. For litigants seeking to course-correct the remaining circuits, it may be worthwhile to consider reversing the typical narrative. Rather than argue that Kingsley changed the status quo, litigants could use the Supreme Court’s broader history of distinguishing between prisoner and pretrial detainee claims to demonstrate that the Constitution has always demanded a less stringent standard for the latter under the Fourteenth Amendment.

* Megan Haddad is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 William B. Spong, Jr. Moot Court Tournament, hosted by William & Mary Law School. One of the questions presented was whether a person being detained pretrial should have to demonstrate that a jail official subjectively knew about the risk of harm the person faced in order to prevail, or whether demonstrating that objectively they should have known would be sufficient. This Contribution distills one side of the argument.

1. A note on language: throughout this Contribution, I use the labels “pretrial detainee” and “prisoner” to describe the legal statuses of being incarcerated pre-adjudication and post-conviction, respectively. I have endeavored to use people-first language where possible because use of these words to describe human beings is extremely degrading. However, their use as names for a legal status, not unlike married and divorced, can be a helpful shorthand.

2. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie, Slideshow 2 Prison Policy Initiative (March 14, 2024), https://www.prisonpolicy.org/reports/pie2024.html, (placing the number of people in pretrial detention at local jails at around 448,000, and estimating that at least another 27,000 people are detained pre-adjudication by the federal government and other authorities).

3. See, e.g., Erica Bryant, It’s] a Torture Chamber: Stories from Riker’s Island, Vera Institute (Feb. 2022), https://www.vera.org/its-a-torture-chamber (collecting firsthand accounts from people detained on Riker’s Island, a New York City jail with a long history of human rights abuses).

4. See id. (describing Eileen Maher’s story, a Bronx woman who was held at Riker’s Island for over a year, who observed that in upstate prisons “you’re broken down, and then they build you back up again. In Rikers, they break you down, but there’s no building. It is just one continuous loop of torture.”).

5. Farmer v. Brennan, 511 U.S. 825, 833 (1994).

6. Bell v. Wolfish, 441 U.S. 520, 528, 535 (1979).

7. See Farmer, 511 U.S. at 838–39 (discussing how deliberate indifference, like other Eighth Amendment standards, has a subjective component because “a subjective approach isolates those who inflict punishment”).

8. Bell, 441 U.S. at 535 (“For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”).

9. 576 U.S. 389 (2015).

10. U.S. Const. amend. XIV; Bell, 441 U.S. at 535.

11. Ingraham v. Wright, 430 U.S. 651, 671–72 n. 40 (1977).

12. Bell, 441 U.S. at 536–37. This Contribution assumes for the purposes of its argument that punishment of convicted persons, including by incarceration and other means, is legal. For a more nuanced examination of “punishment” and what it could be limited to, see Judith Resnik, (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”, 129 Yale L.J.F. 365 (2020).

13. U.S. Const. amend. VIII.

14. Wilson v. Seiter, 501 U.S. 294, 300–01 (1991) (citation omitted).

15. See id. at 297 (discussing how the Eighth Amendment applies to deprivations “that were not specifically part of the sentence but were suffered during imprisonment,” and noting that only severe deprivations are constitutional violations whereas minimal ones are permissible).

16. Bell, 441 U.S. at 535–36. The government is able to justify detaining people before trial by asserting its interest in ensuring that an adjudication occurs, but only for that limited purpose. Id.

17. Id.

18. See Sawyer & Wagner, supra note 2 at Slideshow 1.

19. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (finding deliberate indifference to a serious medical need); Farmer, 511 U.S. at 828–29 (finding deliberate indifference to a substantial risk of serious harm).

20. Farmer, 511 U.S. at 837.

21. Id. at 838.

22. See id. at 839 (equating deliberate indifference to criminal recklessness under the Model Penal Code).

23. See Estelle, 429 U.S. at 98; Farmer, 511 U.S. at 829.

24. See, e.g., Farmer, 511 U.S. at 838–40 (detailing the development of intent requirements under the Cruel and Unusual Punishments Clause, culminating in the conclusion that “subjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases”).

25. See Surprenant v. Rivas, 424 F.3d 5, 18–19 (1st Cir. 2005); Caiozzo v. Koreman, 581 F.3d 63, 71 (2d Cir. 2009); Serafin v. City of Johnstown, 53 F. App’x 211, 213–14 (3d Cir. 2002); Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001); Hare v. City of Corinth, 74 F.3d 633, 647 (5th Cir. 1996) (en banc); Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 539–40 (6th Cir. 2008); Henderson v. Sheahan, 196 F.3d 839, 844–45 (7th Cir. 1999); Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005); Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010); Estate of Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir. 1994); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).

26. Kingsley, 576 U.S. at 391.

27. Id. at 392–93.

28. Id.

29. Id.

30. Id. at 393 (citation omitted) (emphasis added).

31. Id. at 394.

32. Id.

33. Id. at 396–97.

34. Id.

35. See Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Short v. Hartman, 87 F.4th 593, 604–05 (4th Cir. 2023); Miranda v. Cnty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc); Banks v. Booth, 468 F. Supp. 3d 101, 100 (D.D.C. 2020), appeal dismissed, cause remanded, 3 F.4th 445 (D.C. Cir. 2021).

36. Miranda, 900 F.3d at 350–51.

37. Darnell, 849 F.3d at 34–35 (quoting Kingsley, 576 U.S. at 400); Castro, 833 F.3d at 1070 (same).

38. See Castro, 833 F.3d at 1069–70 (“Excessive force applied directly by an individual jailer and force applied by a fellow inmate can cause the same injuries, both physical and constitutional.”).

39. See Crandel v. Hall, 75 F.4th 537, 544 (5th Cir. 2023) (rejecting plaintiff’s argument under Kingsley because “we are bound by our rule of orderliness”); Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018) (disposing of plaintiff’s Kingsley argument in a footnote by simply saying that because Kingsley “was an excessive force case, not a deliberate indifference case,” it “does not control”); Nam Dang ex rel. Vina Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (remarking in a footnote that the court cannot reach the Kingsley question because Kingsley “does not actually abrogate or directly conflict with prior [circuit] precedent” (internal citations and quotations omitted)).

40. See Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020) (“[W]e apply the same deliberate indifference standard no matter which amendment provides the constitutional basis for the claim.”).

41. See id. at 991 (declining to extend Kingsley because (1) it was an excessive force claim, not a claim for failure to provide adequate medical care; (2) as such, it would require overruling circuit precedent to extend it; and (3) deliberate indifference presupposes a subjective standard).

42. Wilson, 501 U.S. at 300.

43. Farmer, 511 U.S. at 833, 838.

44. Id. at 837.

45. Bell, 441 U.S. at 535.

46. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

47. Id.

48. Ingraham, 430 U.S. at 671.

49. Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982).

50. Bell, 441 U.S. at 535.

51. Youngberg, 457 U.S. at 321–22 (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”); Ingraham, 430 U.S. at 671–72 (describing the “familiar two-stage analysis” under the Due Process Clause after declaring the Eighth Amendment “inapplicable”); see Bell, 441 U.S. at 535 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”); cf. Revere, 463 U.S. at 244 (“In fact, the due process rights of a person in [custody from a police chase] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”).

52. 576 U.S. at 400.

53. Id.

54. Bell v. Wolfish was decided in 1979. Estelle v. Gamble was decided in 1976.

55. Bell, 441 U.S. at 526–27.

56. Id. at 561.

57. Id. at 537–39.

58. By contrast, deliberate indifference remains the standard for Eighth Amendment conditions claims. Thomas-El v. Francis, 99 F.4th 1115, 1117 (8th Cir. 2024); see Wilson, 501 U.S. at 303.

59. Youngberg, 457 U.S. at 307.

60. Compare Bell, 441 U.S. at 535 (“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, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.”), with Youngberg, 457 U.S. at 321–22 (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”).

61. Youngberg, 457 U.S. at 323.

62. Id. at 312 n.11.

63. See Kingsley, 576 U.S. at 391–92.

64. Id. at 396–97.

65. This is not to say that deliberate indifference never appears in connection with the Fourteenth Amendment—deliberate indifference is a standard with multiple meanings in different contexts. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 836 (1988) (police officers do not violate due process when acting with deliberate indifference during a high-speed chase because their actions did not “shock the conscience”); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 398 (1997) (a government entity can violate due process by being deliberately indifferent to inadequate training). In the specific context of the duty government officers owe to detainees, the Supreme Court has never held that only deliberately indifferent actors violate the Fourteenth Amendment. In the singular instance where it has examined the deliberate indifference standard in relation to such a claim, the Court took care to avoid ruling on whether deliberate indifference was the proper standard. See Ziglar v. Abbasi, 582 U.S. 120, 146 (2017) (“[A]ssum[ing]” deliberate indifference to be correct “for purposes of this case” because “the parties appear to agree on this standard”). Indeed, the Court highlighted that the Court of Appeals had relied on “its own precedents” to determine that deliberate indifference was the correct standard rather than Supreme Court precedent. Id.

66. Kingsley, 576 U.S. at 408 (Scalia, J., dissenting) (citation omitted).

67. Id. at 396 (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” (quoting Lewis, 523 U.S. at 849)).

68. See id. (“Thus, if an officer’s Taser goes off by accident or if an officer unintentionally trips and falls on a detainee, causing him harm, the pretrial detainee cannot prevail on an excessive force claim.”).

69. Castro, 833 F.3d at 1071.

70. Id. at 1070 (explaining that incapacitating illness would excuse a failure to protect); accord Daniels v. Williams, 474 U.S. 327, 332 (1986) (holding that inadvertently leaving a pillow on a jail staircase that is later tripped over does not give rise to a constitutional injury).

71. See Castro, 833 F.3d at 1073.