9.31 PARTICULAR RIGHTS—FOURTEENTH AMENDMENT—PRETRIAL DETAINEE'S CLAIM OF FAILURE TO PROTECT

As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff's claim].

Under the Fourteenth Amendment, a pretrial detainee has the right to be protected while in custody. In order to prove the defendant deprived the plaintiff of this right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

1.	The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;

2.	Those conditions put the plaintiff at substantial risk of suffering serious harm;

3.	The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and

4.	By not taking such measures, the defendant caused the plaintiff's injuries.

With respect to the third element, the defendant's conduct must be objectively unreasonable.

Comment

See Castro v. Cnty. of L.A., 833 F.3d. 1060 (9th Cir.2016) (en banc).