State Supreme Court got it right when it refused to grant qualified immunity in COVID-19 prison deaths

On May 13, the California Supreme Court denied the State of California’s petition for certiorari when it refused to take on appeal the Michael Hampton, et al. v. State of California, et al. 21-cv-03058-LB (N.D. Cal. Mar. 20, 2022), cert. denied. In so doing, the Supreme Court agreed with the district court’s order denying the State’s motion to dismiss on the basis of qualified immunity in an action brought against California prison officials arising from the death of a San Quentin inmate from COVID-19. These were the underlying facts of the Hampton case.

To understand the significance of the Supreme Court’s decision, we must understand the grave conditions under which the Hampton case arose. The COVID-19 pandemic spread through every continent and every country. It ravaged all communities, including the incarcerated community. Two months into the pandemic, California Department of Corrections and Rehabilitation (CDCR) correctional facilities felt its wrath. One of the facilities, however, was hit the hardest.

This facility was the California Institution for Men (CIM) where 600 inmates were infected, and nine inmates succumbed to the virus resulting in death. These alarming numbers would then prompt a transfer of 122 CIM prisoners into the CDCR San Quentin facility. At that time, San Quentin had zero COVID-19 cases. This transfer would later be coined by California lawmakers as “the worst prison health screw-up in state history.”

The virus spread like wildfire. By June, there were 499 COVID-19 cases in San Quentin, affecting both prisoners and guards alike. By September, that number quadrupled with close to 2,500 people being infected, the majority of whom were prisoners—incarcerated persons who were forced to live under conditions of COVID-19 infestation.

The Hampton case is just one of many cases filed by revolutionary civil rights attorneys, which include Michael Haddad and Julia Sherwin, following the deaths of 26 prisoners and one guard during the COVID-19 pandemic. And why do I say revolutionary attorneys? Because it takes a certain type of advocate to pursue claims that no one else has ever pursued, particularly within the context of prisons where you are up against the Eighth Amendment.

A civil rights lawsuit arising from an in-custody death has different culpability standards which are wholly dependent on whether the death occurred in a jail or a prison. If the death occurred in a jail, then the mental culpability standard is proven under the Fourteenth Amendment: a pretrial detainee must show the defendant officials were objectively deliberately indifferent to that serious medical need. Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). To demonstrate objective deliberate indifference, a pretrial detainee must show: “(1) [t]he defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) [t]hose conditions put the plaintiff at substantial risk of suffering serious harm; (3) [t]he 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) [b]y not taking such measures, the defendant caused the plaintiff’s injuries.” Id.

The mental culpability standard under the Eighth Amendment is quite the beast to prove, hence why so many attorneys, even skilled civil rights practitioners, shy away from “prison work.” A prison official cannot be found liable under the Cruel and Unusual Punishment Clause for denying an inmate humane conditions of confinement “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) “In other words, the official must demonstrate a subjective awareness of the risk of harm.” Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010)

And that’s exactly what Hampton stood for when the CDCR prison officials made the conscious decision to transfer the 122 CIM inmates to San Quentin:

“Castro serves as a useful guide for articulating the right at issue here at the proper level of generality. There, an inmate asserted an Eighth Amendment claim after being severely beaten by his cellmate. Sitting en banc, we described the “contours” of the relevant Eighth Amendment right in that case as the inmate’s “right to be free from violence at the hands of other inmates.” Id. Articulated at that same level of generality, the right at issue here is an inmate’s right to be free from exposure to a serious disease. That right has been clearly established since at least 1993, when the Supreme Court decided Helling v. McKinney, 509 U.S. 25 (1993).”

Essentially, the Supreme Court refused to give the State of California a free pass by allowing the CDCR officials to rely on qualified immunity. Qualified immunity is typically relied on by law enforcement agencies when constitutional rights are violated. The underlying premise (and hope for the wrongdoer) is that because the right was not “clearly established,” i.e., “I didn’t know I was violating a right,” then conduct should be immune. Well, because of Hampton and the Supreme’s Courts decision this week to deny the writ of certiorari, that’s now an argument of the past as it pertains to government officials engaging in conscious conduct that puts the lives of those incarcerated at risk, particularly within the context of a contagious disease.