Pre-Trial Detainees have Due Process Right to Adequate Safety Checks
Video Monitoring is Insufficient-Direct View Safety Checks Required

The United States Court of Appeals for the 9th Circuit sent a clear message to jails with respect to the manner in which safety checks must be conducted.

The court outlined the facts in Gordon v. Orange County[i] as follows:

On September 8, 2013, Gordon was arrested by the Placentia Police Department on heroin-related charges and booked into the Orange County Central Men’s Jail. During his intake at approximately 6:47 p.m. that day, Gordon informed defendant Debbie Finley, a registered nurse, of his 3-grams-a-day heroin habit.

At the time the Jail had two detox protocols for substance withdrawal one dealing with alcohol and one dealing with opiate withdrawal.  For alcohol, CIWA or Clinical Institute Withdrawal Assessment for Alcohol.  For Opiates, COWS or Clinical Opiate Withdrawal Scale.

The doctor at the jail, who was not a party in this lawsuit, put Gordon on the alcohol withdrawal protocol instead of the opiate withdrawal protocol notwithstanding the fact that Gordon had reported a heroin addiction.  According to the jail forms, Gordon was to be placed on the alcohol withdrawal protocol for four days.  The Doctor also ordered that “Gordon be placed in regular housing rather than medical unit housing and prescribed Tylenol for pain, Zofran for nausea, and Atarax for anxiety.”

The court continued:

After his intake assessment, Gordon began the “loop” phase of the booking process during which time he waited nearly ten hours to enter the general population. During this period, another inmate had observed Gordon vomiting and dry heaving for 45 minutes. Nurse Finley testified that she did not assess Gordon during this timeframe.

Gordon exited the loop at approximately 8:30 a.m. the next day, September 9, when he was transferred to Tank 11 in Module C of the jail. There, he presented his identification card which stated: “Medical Attention Required.” (Further detail of the card is not in the record).  Gordon was administered his detoxification medications three times over the course of his first day in Module C. However, no CIWA form or other evaluation of Gordon occurred that day, despite the ordered daily CIWA assessment. Defendant Brianna Garcia, a licensed vocational nurse, completed Gordon’s last pill pass at approximately 8:30 p.m. that evening.

Meanwhile, deputies were responsible for conducting safety checks of the inmates in Module C at least every 60 minutes. Based on the safety check log, at approximately 6:47 p.m., defendant Deputy Robert Denney and another deputy conducted a check that included a physical count of all the inmates in the module. Thereafter, additional safety checks were conducted at approximately 8:03 p.m., 8:31 p.m., 9:29 p.m., and 10:10 p.m., as indicated by the log.

According to the plaintiff, the two safety checks conducted by Deputy Denney at 8:31 p.m. and 9:29 p.m. did not comply with applicable law. Specifically, Section 1027 of Title 15 of the California Code of Regulations, in effect at the time, required that “[a] sufficient number of personnel shall be employed in each local detention facility to conduct at least hourly safety checks of inmates through direct visual observation of all inmates.” 15 C.C.R. § 1027 (effective September 19, 2012).  Moreover, the Orange County Sheriff’s Department had a policy that correctional staff “will conduct safety checks from a location which provides a clear, direct view of each inmate”; “observe each inmate’s presence and apparent condition and investigate any unusual circumstances or situations”; and “pay special attention to areas with low visibility.” None of the deputies could account for who conducted the 10:10 p.m. safety check.

Deputy Denney testified that he was aware that Gordon required medical attention based on the module identification card, though he did not know his specific ailment. Deputy Denney conducted his safety check of Gordon from a corridor that was approximately six feet elevated from the tank floor and 12 to 15 feet away from the foot of Gordon’s bunk. Deputy Denney admitted that, from his vantage point, he was unable to ascertain whether Gordon was breathing, alive, sweating profusely, drooling, or had any potential indicators of a physical problem.

At approximately 10:45 p.m. that evening, deputies heard inmates from Tanks 11 and 12 yelling “man down.” Deputies summoned jail medical staff immediately, and they responded within minutes. Deputy Denney testified that upon his arrival on the scene, he observed that Gordon’s “face was blue, he was unresponsive, and his skin was cold to the touch.” Paramedics arrived at approximately 11:00 p.m. and transported Gordon to a local hospital where he was pronounced dead. The record reflects that defendant Brian Tunque was the supervising Sergeant on the night of the incident but was apparently not otherwise involved in these events.

The court addressed two issues with respect to the care and custody of Mr. Gordon, the first being proper medical screening to ensure initiation of the medically appropriate protocol with respect to Nurse Finley.  The court held that the law was clearly established that pretrial detainees have a right to proper medical screening.   As such, the grant of qualified immunity to Nurse Finley by lower court was improper.

The second issue and the issue focused on here is whether pretrial detainees have the right to a direct-view safety check sufficient to evaluate an apparent medical condition and thus the liability of Deputy Denney, who acknowledged that from the position where he conducted the safety checks “he was unable to ascertain whether Gordon was breathing, alive, sweating profusely, drooling, or had any potential indicators of a physical problem.”

The court noted that there is a Constitutional duty to ensure that when an inmate has a serious acute medical condition, jail officials cannot stand idly by, but rather they must act with reasonable diligence to treat the condition.

In this case, the court answered both questions in the qualified immunity analysis finding that detainees do have a Constitutional Right to direct-view safety checks and then finding Gordon.  Thus, although Denney was dismissed from the lawsuit on qualified immunity grounds, the court made clear that moving forward pre-trial detainees in the 9th Circuit have a Constitutional right to direct-view safety checks.

In finding this right to direct-view safety checks, the court pointed out cases from lower courts that have recognized the right to “direct-view safety checks even where medical attention was not required.”

The court held: “We now hold that pre-trial detainees have a right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment.”

The court went on to warn: However, law enforcement and prison personnel should heed this warning because the recognition of this constitutional right will protect future detainees.”

It should be noted that while the court asserted that the jail officials were on notice that Gordon required medical attention, the holding did not offer any qualifier indicating that the right to direct-view supervision only applies when the jail is on notice that a person needs medical attention.

Bottom Line:  Pretrial Detainees in a Ninth Circuit Jurisdiction have a Constitutional Right to Direct-View Safety Checks while being held in a Jail which must be sufficient to determine whether their presentation indicates the need for medical treatment.


[i] Gordon v. Orange County Central Men’s Jail, 6 F.4th 961 (9th Cir. 2021).

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