SAN FRANCISCO (CN) — West Hollywood jail officers must pay up after a brutal night in the drunk tank left one man permanently brain damaged, the en banc Ninth Circuit ruled Monday.
Slamming Los Angeles County for deliberate indifference, the 33-page lead opinion says the "West Hollywood sobering cell was noncompliant in at least two respects, in that it lacked all the required padding and, more importantly for our purposes, did not 'allow for maximum visual supervision of prisoners by staff.'"
These two lapses proved nearly fatal to Jonathan Castro after his Oct. 2, 2009, arrest on a misdemeanor charge of public drunkenness.
It was not long after officers put Jonathan Gonzalez in Castro's cell that Castro began banging on the window of the cell.
Unlike Castro, Gonzalez had been arrested on a felony charge — shattering a glass door at a nightclub with his fist. Officers described Gonzalez as "combative" on the intake form.
Several officers were within earshot as Castro pounded for a full minute, but no one responded.
When a community volunteer at the jail came by 20 minutes later, he reported to the supervising officer that Castro appeared to be asleep and that Gonzalez was "inappropriately" touching Castro's thigh.
Touching violates jail policy, but it took another six minutes for the supervising officer, Christopher Solomon, to investigate.
He found Gonzalez stomping on Castro's head. Castro was unconscious in a pool of blood. He suffered a broken jaw and spent a month in the hospital before he was transferred to a long-term care facility, where he spent another four years.
In addition to permanent cognitive impairments, Castro continues to suffer from severe memory loss. His family is now responsible for his basic care.
Though a federal jury awarded Castro $2.6 million for constitutional violations, the parties later stipulated to $840,000 in attorneys' fees, $12,000 in punitive damages against supervisor Valentine and $6,000 in punitive damages against Solomon.
A three-judge panel of the Ninth Circuit reversed the verdict against the county in May 2015, but later withdrew that decision in favor of an en banc rehearing.
On Monday, the 8-3 court affirmed the verdict against the county, Solomon and Valentine.
"We have no difficulty concluding that this evidence is sufficient to sustain the jury's verdict in Castro's favor," U.S. Circuit Judge Susan Graber wrote for the majority.
"Here, Castro — a pretrial detainee who had not been convicted of any crime — had a due process right to be free from violence from other inmates," the decision states.
Blaming both the county and the officers for Castro's injuries, the majority noted the evidence that Gonzalez was violent and that the holding cell lacked adequate audio monitoring and video surveillance.
"The entity defendants' custom or policy caused Castro's injury," Graber wrote. "Had the entity defendants provided consistent monitoring, or had the entity defendants required Castro and his attacker to be housed in different locations, which were available, Gonzalez' attack on Castro could have been averted."
Kingsley v. Hendrickson, a 2015 Supreme Court decision, proved critical to the Ninth Circuit's analysis.
"The Supreme Court need not catalogue every way in which one inmate can harm another for us to conclude that a reasonable official would understand that his actions violated Castro's right," Graber wrote. "Nor do the official's actions, in this context, require some affirmative act. Second, as a factual matter, the jury found that both Solomon and Valentine understood that placing Castro in a cell with a combative inmate, when the cell had no audio or video surveillance and only occasional monitoring, could lead to serious violence against Castro. Substantial evidence supports those findings."
Graber had been on the original panel, dissenting at the time over the reversal.
U.S. Circuit Judge Consuelo Callahan, who sided with the county last year in the panel decision, wrote a partial dissent today.
Though Callahan conceded that "Castro's tragic injuries were a preventable tragedy," she disputes that there was enough evidence to show "that the county had a policy or custom that reflected deliberate indifference that led to Castro's injuries."
Callahan said there was no evidence at trial that the holding cell required video monitoring, and that the county could not have known that Castro would be attacked.
"Castro was attacked by Gonzalez who, pursuant to the county's express policy, should not have been placed in the cell occupied by Castro," the dissent states. "There is nothing to suggest that the County should have anticipated violations of its policy. The majority's need to cobble together different 'choices' in order to construct a policy of deliberate indifference also reflects the fact that there is no direct causal link between the policy perceived by the majority and Castro's injury."
U.S. Judges Sandra Ikuta and Judge Carlos Bea joined Callahan's ruling. Callahan and Bea meanwhile also joined a separate dissent by Ikuta regarding the Kingsley standard.
Ikuta said Kingsley does not apply in cases where a government official fails to act, and that the officers were negligent at most.
"The Supreme Court has made clear that 'liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,'" Ikuta wrote. "Realizing this difficulty, the majority fiddles with the standard applicable to failure-to-act claims to create a new test ... [one that] simply doesn't fit a failure-to-act claim."
Ikuta added: "In sum, the majority unnecessarily muddles our longstanding test for claims alleging that an officer's failure to act amounted to punishment based on its mistaken assumption that it must achieve consistency with the test enunciated in Kingsley."
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