If you’ve followed this blog during COVID-19, when we were litigating Eighth Amendment cases at Quentin and beyond, or read FESTER (you should!), then you know an unpleasant truth about prison impact litigation: the house always wins. Judges feel bound by Turner v. Safley or by the PLRA or whatnot, and even in the rare occasion that cruel and unusual punishment is found, the remedies seem meaningless. And yet, when Judge Howard told us all that the Eighth Amendment was violated and yet we get bupkis in terms of remedies, I thought to myself, “boy, I really hope that someone’s family runs with this and sues them for all they’ve got and cleans them out.”

That is exactly what seems to be happening now: several lawsuits for wrongful death have been filed against San Quentin and CDCR by families of people who died in the horrific outbreak, and despite the state’s best efforts to dismiss these lawsuits using the sort of bad-faith, cynical arguments we’ve come to expect in this matter, the Ninth Circuit has just decided that the lawsuit on behalf of the bereaved family of Sgt. Gilbert Polanco can go forward.

To make a long story short, here’s the legal framework: Generally speaking, state actors are not liable under the Due Process Clause for omissions (as opposed to affirmative acts), but this rule has exceptions, as the Ninth Circuit explains:

Under the state-created danger doctrine, state actors may be liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced”. . . In the context of public employment, although state employers have no constitutional duty to provide their employees with a safe working environment, the state-created-danger doctrine holds them liable when they affirmatively, and with deliberate indifference, create or expose their employees to a dangerous working environment.

To prove state-created danger, plaintiffs need to show three things: (1) “affirmative conduct” on the part of the state, (2) “particularized danger” to the plaintiff, and (3) “deliberate indifference” on the part of the state. The Ninth Circuit seemed appalled, and with good reason, with the state’s argument that Sgt. Polanco could’ve just quit his job if he thought it was too dangerous. And remember, we already have a finding of deliberate indifference from the Marin Superior Court and from the CA Court of Appeal. I’ll keep you posted.

In some ways, this development goes hand in hand with an excellent suggestion made in a paper by Aaron Littman called Free-World Law Behind Bars. We talk about this idea quite a bit in the last chapter of FESTER: the idea is to move away from litigating constitutional standards toward regulatory frameworks of health and safety. You know, like in any other environment where humans experience risky conditions not of their making. There were already some interesting examples of these, such as the CAL/OSHA action brought by prison employees about their horrifically cavalier work conditions that yielded a whooping $421,888 fine. The Polanco family lawsuit does use constitutional arguments, but is looking to obtain damages. I hope the lawsuits brought by families of incarcerated people–who didn’t even have the choices that the staff had–go forward. And I also hope that the CCPOA sits up and takes notice of what happens when a union does not advance the rational interests of its members.

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