                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JONATHAN MICHAEL                    No. 12-56829
CASTRO,
        Plaintiff-Appellee,            D.C. No.
                               2:10-cv-05425-DSF-JEM
            v.

COUNTY OF LOS ANGELES;                OPINION
LOS ANGELES SHERIFF’S
DEPARTMENT;
CHRISTOPHER SOLOMON;
DAVID VALENTINE,
Sergeant, aka Valentine,
    Defendants-Appellants.


      Appeal from the United States District Court
         for the Central District of California
       Dale S. Fischer, District Judge, Presiding

    Argued and Submitted En Banc March 22, 2016
              San Francisco, California

                 Filed August 15, 2016

  Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber, Ronald M. Gould, Richard A. Paez, Consuelo M.
 Callahan, Carlos T. Bea, Milan D. Smith, Jr., Sandra S.
 Ikuta, Paul J. Watford, John B. Owens, and Michelle T.
                 Friedland, Circuit Judges.
2              CASTRO V. CTY. OF LOS ANGELES

                   Opinion by Judge Graber;
               Partial Dissent by Judge Callahan;
                     Dissent by Judge Ikuta


                           SUMMARY*


                            Civil Rights

    The en banc court affirmed the district court’s judgment,
entered following a jury trial, in an action brought under 42
U.S.C. § 1983 by a pretrial detainee alleging that his due
process right to be protected from harm at the hands of other
inmates was violated when he was severely beaten and
injured in his cell by another inmate.

    The en banc court first held that the individual sheriff
deputies were not entitled to qualified immunity from suit
because plaintiff had a clearly established right to be free
from violence from other inmates and substantial evidence
supported the jury’s findings that the defendants understood
that placing plaintiff 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
plaintiff.

   Applying Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015), the en banc court concluded that the evidence
supported the jury’s findings that the officers knew of the
substantial risk of serious harm to plaintiff, which necessarily

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             CASTRO V. CTY. OF LOS ANGELES                    3

implied that the jury found that a reasonable officer would
have appreciated the risk. The en banc court further
concluded that there was sufficient evidence to support the
jury’s findings that the officers caused plaintiff’s injuries by
failing to take reasonable measures to address the risk.

    The en banc court held that the County of Los Angeles
and the Los Angeles Sheriff’s Department had notice that
their customs or policies posed a substantial risk of serious
harm to persons detained in the West Hollywood sobering
cell and were deliberately indifferent to that risk. The court
held that the custom or policy to use a sobering cell that
lacked adequate audio surveillance to detain more than one
belligerent drunk person while checking the cell visually only
every half hour caused plaintiff’s injury. Additionally,
substantial evidence supported the jury’s finding that the
County knew that its cell design might lead to a constitutional
violation among its inhabitants.

    Dissenting in part, Judge Callahan, joined by Judges Bea
and Ikuta, agreed that the judgment against the individual
defendants should be affirmed, but she dissented from the
affirmance of the judgment against the entity defendants on
the grounds that the record in this case showed that the
County of Los Angeles did not have a policy or custom that
reflected deliberate indifference and caused plaintiff’s
injuries.

    Dissenting, Judge Ikuta, joined by Judges Callahan and
Bea, stated that the en banc court misinterpreted Kingsley v.
Hendrickson, and made a mess of the Supreme Court’s
framework for determining when pretrial detainees have
suffered punishment in violation of their Fourteenth
Amendment due process rights.
4           CASTRO V. CTY. OF LOS ANGELES

                       COUNSEL

Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell
Cantrall LLP, Los Angeles, California, for Defendants-
Appellants.

John Burton (argued), Law Offices of John Burton, Pasadena,
California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, Los
Angeles, California; and M. Lawrence Lallande, Lallande
Law PLC, Long Beach, California, for Plaintiff-Appellee.

David M. Shapiro (argued), Roderick and Solange MacArthur
Justice Center, Northwestern University School of Law,
Chicago, Illinois; Paul W. Hughes, Mayer Brown LLP,
Washington, D.C.; David C. Fathi, ACLU National Prison
Project, Washington, D.C.; Peter Eliasberg, ACLU
Foundation of Southern California, Los Angeles, California;
for Amici Curiae ACLU of Southern California, American
Civil Liberties Union, Human Rights Defense Center,
National Police Accountability Project, and Roderick and
Solange MacArthur Justice Center.
               CASTRO V. CTY. OF LOS ANGELES                          5

                             OPINION

GRABER, Circuit Judge:

    The Los Angeles Sheriff’s Department (“LASD”)
detained Jonathan Castro in a sobering cell in the West
Hollywood police station. Several hours later, authorities
placed Jonathan Gonzalez, a combative inmate who had been
arrested on a felony charge, in the same cell. Castro banged
on the cell’s window to try to attract attention. Officials at
the jail ignored Castro’s attempts to seek help. The County
of Los Angeles and the LASD had not equipped the cell with
audio monitoring, and the cell was checked only sporadically.
Within hours of their co-confinement, Gonzalez severely beat
and injured Castro. Castro sued individual LASD officials,
the County of Los Angeles, and the LASD, under 42 U.S.C.
§ 1983, for violating his due process right as a pretrial
detainee to be protected from harm at the hands of other
inmates. After a trial, a jury found all Defendants liable.
Defendants timely appeal. We affirm.

       FACTUAL1 AND PROCEDURAL HISTORY

    Late in the evening of October 2, 2009, two LASD
deputies arrested Castro for public drunkenness, a
misdemeanor under California Penal Code section 647(f).
Castro, the officers reported, was staggering, bumping into
pedestrians, and speaking unintelligibly. The officers
arrested Castro for his own safety and transported him to the
West Hollywood police station. They placed him in the
station’s “sobering cell,” a fully walled chamber that was

  1
    We must construe the facts in the light most favorable to the jury’s
verdict. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).
6            CASTRO V. CTY. OF LOS ANGELES

stripped of objects with hard edges on which an inmate could
hurt himself; the cell contained only a toilet and some
mattress pads.

    Several hours later, authorities arrested Gonzalez on a
felony charge after he shattered a glass door with his fist at a
nightclub. LASD deputies described Gonzalez as acting
“bizarre” at the time of his arrest. The intake form
characterized Gonzalez as “combative.” The authorities
placed him in the sobering cell with Castro.

    The West Hollywood station manual defines a “sobering
cell” as a “cell with a padded floor and standard toilet with a
padded partition on one side for support. It must allow for
maximum visual supervision of prisoners by staff.” The
sobering cells are to be used to house inmates who are a
threat to their own safety or to others’ safety. The station
manual provides that non-compliant sobering cells “should
not be utilized.”

    California’s Building Code, adopted through legislative
action by the Los Angeles County Board of Supervisors as
County law, also includes standards that govern sobering
cells. L.A. Cty. Code tit. 26, ch. 1, § 100 (2007). In 2009,
the building code required maximum visual supervision of all
inmates by staff and provided that inmates requiring more
than minimum security must be housed in cells with an
inmate or sound-activated audio-monitoring system. Cal.
Bldg. Code tit. 24, §§ 1231.2.4, 1231.2.22 (2007). The
sobering cell at the West Hollywood police station met
neither of those requirements, yet it was used routinely.

    Shortly after Gonzalez entered the cell, Castro approached
the door and pounded on the window in the door, attempting
             CASTRO V. CTY. OF LOS ANGELES                  7

to attract an officer’s attention. No one responded.
Christopher Solomon, the station’s supervising officer, had
assigned an unpaid community volunteer to monitor the cell.
The volunteer walked by the cell about 20 minutes after
Castro had sought help. He noticed that Castro appeared to
be asleep and that Gonzalez was “inappropriately” touching
Castro’s thigh, in violation of jail policy. The volunteer did
not enter the cell to investigate. Instead, he reported the
contact to Solomon. Six minutes later, Solomon arrived at
the sobering cell and saw Gonzalez making a violent
stomping motion. He opened the door, discovered Gonzalez
stomping on Castro’s head, and found Castro lying
unconscious in a pool of blood. Solomon separated Gonzalez
from Castro and called for medical assistance.

    When the paramedics arrived, Castro was unconscious, in
respiratory distress, and blue. He was hospitalized for almost
a month, after which he was transferred to a long-term care
facility, where he remained for four years. He suffers from
severe memory loss and other cognitive difficulties.

    Castro filed a complaint against the County of Los
Angeles and the LASD (the “entity defendants”), as well as
Solomon and Solomon’s supervisor, David Valentine (the
“individual defendants”). He sought to recover actual
damages, future damages, punitive damages, and
compensation for pain and suffering. Castro claimed that
both the entity defendants and the individual defendants
violated his constitutional rights by housing him in the
sobering cell with Gonzalez and by failing to maintain
appropriate supervision of the cell.

   The case proceeded to trial. After Castro presented his
case, Defendants moved for judgment as a matter of law on
8             CASTRO V. CTY. OF LOS ANGELES

three grounds: (1) insufficient evidence that the design of a
jail cell constitutes a policy, practice, or custom by the
County that resulted in a constitutional violation;
(2) insufficient evidence that a reasonable officer would have
known that housing Castro and Gonzalez together was a
violation of Castro’s constitutional rights; and (3) insufficient
evidence for the jury to award punitive damages. The district
court denied the motion. The jury returned a verdict for
Castro on all counts and awarded him more than $2 million
in damages. Defendants then filed a renewed motion for
judgment as a matter of law. The district court denied the
renewed motion without issuing a written opinion.
Defendants timely appeal.

    A three-judge panel affirmed the judgment of the district
court as to the individual defendants but reversed as to the
entity defendants. Castro v. County of Los Angeles, 797 F.3d
654 (9th Cir. 2015). A majority of active non-recused judges
voted to rehear the case en banc. 809 F.3d 536 (9th Cir.
2015).

                 STANDARD OF REVIEW

    We review de novo the district court’s denial of a motion
for judgment as a matter of law. Hangarter v. Provident Life
& Accident Ins. Co., 373 F.3d 998, 1005 (9th Cir. 2004). A
renewed motion for judgment as a matter of law is properly
granted only “if the evidence, construed in the light most
favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to the
jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.
2002). “A jury’s verdict must be upheld if it is supported by
substantial evidence, which is evidence adequate to support
the jury’s conclusion, even if it is also possible to draw a
                CASTRO V. CTY. OF LOS ANGELES                           9

contrary conclusion.” Id. In assessing the jury’s verdict, we
may not weigh the evidence but simply ask whether the
plaintiff has presented sufficient evidence to support the
jury’s conclusion. Johnson v. Paradise Valley Unified Sch.
Dist., 251 F.3d 1222, 1227–28 (9th Cir. 2001).

                            DISCUSSION

    We address first the claims against the individual
defendants and then the claims against the entity defendants.2

      A. Individual Defendants

    The jury found Solomon and Valentine liable for injuries
to Castro. Solomon and Valentine maintain that, as a matter
of law, they are entitled to qualified immunity and that Castro
has failed to show that they were deliberately indifferent to a
substantial risk of serious harm.

      1. Qualified Immunity

    Qualified immunity shields government actors from civil
liability under 42 U.S.C. § 1983 if “their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether

  2
    We incorporate by reference the three-judge panel’s opinion as to
punitive damages, contained in section II.C., Castro, 797 F.3d at 669–70,
and as to future medical expenses, contained in section II.E., id. at
675–76. And we reject the County’s claim that the Eleventh Amendment
bars this suit. See Jackson v. Barnes, 749 F.3d 755, 764–65 (9th Cir.
2014) (holding that a sheriff’s department is a county actor when
supervising a jail); Streit v. County of Los Angeles, 236 F.3d 552, 566–67
(9th Cir. 2001) (same).
10           CASTRO V. CTY. OF LOS ANGELES

an officer is entitled to qualified immunity, a court must
evaluate two independent questions: (1) whether the officer’s
conduct violated a constitutional right, and (2) whether that
right was clearly established at the time of the incident.
Pearson v. Callahan, 555 U.S. 223, 232 (2009).

    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. Fifteen years before
Castro’s arrest, in Farmer v. Brennan, 511 U.S. 825, 833
(1994), the Supreme Court made clear that “prison officials
have a duty to protect prisoners from violence at the hands of
other prisoners” because corrections officers have “stripped
[the inmates] of virtually every means of self-protection and
foreclosed their access to outside aid.” (Internal quotation
marks and ellipsis omitted.) And the Court had consistently
held (before Castro’s arrest) that the due process rights of a
pretrial detainee are “at least as great as the Eighth
Amendment protections available to a convicted prisoner.”
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244
(1983).

    The individual defendants acknowledge that the duty to
protect Castro from violence was clearly established at the
time of the incident. But they argue that such a broad
description of that duty is too general to guide our analysis.
They also contend that Castro failed to present substantial
evidence to establish that they violated their duty to protect
him. We disagree with both of those arguments.

    First, a right is clearly established when the “contours of
the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003)
             CASTRO V. CTY. OF LOS ANGELES                  11

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The “contours” of Castro’s right were his right to be free
from violence at the hands of other inmates. Farmer,
511 U.S. at 833. 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. Nor do the official’s actions,
in this context, require some affirmative act. As we held
months before Castro’s arrest, “direct causation by
affirmative action is not necessary: ‘a prison official may be
held liable under the Eighth Amendment if he knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.’”
Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (ellipsis
omitted) (quoting Farmer, 511 U.S. at 847). The contours of
the right required only that the individual defendants take
reasonable measures to mitigate the substantial risk to Castro.
Accordingly, we reject the individual defendants’ argument
that the law on which Castro bases his claim was not clearly
established at the time of the incident. Therefore, qualified
immunity does not bar the claim against them.

    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.
12             CASTRO V. CTY. OF LOS ANGELES

     2. Deliberate Indifference3

    Inmates who sue prison officials for injuries suffered
while in custody may do so under the Eighth Amendment’s
Cruel and Unusual Punishment Clause or, if not yet
convicted, under the Fourteenth Amendment’s Due Process
Clause. See Bell v. Wolfish, 441 U.S. 520, 535 (1979)
(holding that, under the Due Process Clause, a detainee may
not be punished prior to conviction). Under both clauses, the
plaintiff must show that the prison officials acted with
“deliberate indifference.”

    The standard under the Eighth Amendment to prove
deliberate indifference for individual defendants is well
established. 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.” Farmer,
511 U.S. at 837. “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),
cert. granted and judgment vacated, 563 U.S. 915 (2011),
opinion reinstated in relevant part, 658 F.3d 897 (9th Cir.
2011).

   The standard to find an individual deliberately indifferent
under the Fourteenth Amendment, however, is less clear. Our
court’s most recent pronouncement on the issue is in

 3
   Judge Watford joins the majority opinion with the exception of section
A.2 of the Discussion.
             CASTRO V. CTY. OF LOS ANGELES                  13

Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir.
2010). In Clouthier, parents of a pretrial detainee sued a
mental health specialist, sheriff’s deputies, and the County of
Contra Costa, claiming that the defendants had violated the
due process rights of their son by failing to prevent his
suicide. Id. at 1236. We read Farmer and Bell to create a
single “deliberate indifference” test for plaintiffs who bring
a constitutional claim—whether under the Eighth
Amendment or the Fourteenth Amendment. We interpreted
Bell to require proof of punitive intent for failure-to-protect
claims, whether those claims arise in a pretrial or a post-
conviction context. Id. We held that,

       [i]n light of the Supreme Court’s rulings that
       conditions of confinement violate pretrial
       detainees’ Fourteenth Amendment rights if
       the conditions amount to punishment and that
       failure to prevent harm amounts to
       punishment where detention officials are
       deliberately indifferent, . . . the “deliberate
       indifference” standard applies to claims that
       correction facility officials failed to address
       the medical needs of pretrial detainees.

Id. at 1242 (citations omitted). We further held that this
standard incorporates the subjective test articulated in
Farmer. Id. Under that test, we held that “[a]n official’s
failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of
punishment,” and so could not support liability under either
the Eighth or the Fourteenth Amendment. Id. (quoting
Farmer, 511 U.S. at 838).
14           CASTRO V. CTY. OF LOS ANGELES

    The Supreme Court, however, cast that holding into
serious doubt in Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015). There, the Court considered whether, to prove an
excessive force claim, a pretrial detainee must show that the
officers were subjectively aware that their use of force was
unreasonable, or only that the officers’ use of force was
objectively unreasonable. Id. at 2470. To analyze that
question with respect to the officers’ use of force, which had
included a five-second Taser stun blast to the pretrial
detainee’s back, the Supreme Court explained:

       In a case like this one, there are, in a sense,
       two separate state-of-mind questions. The
       first concerns the defendant’s state of mind
       with respect to his physical acts—i.e., his
       state of mind with respect to the bringing
       about of certain physical consequences in the
       world. The second question concerns the
       defendant’s state of mind with respect to
       whether his use of force was “excessive.”

Id. at 2472. The Court emphasized that there was “no
dispute” as to the first of those questions, because everyone
agreed that the officers’ use of force was intentional. Id. It
was the second question, on which there was a dispute, that
the Court answered. On that second issue, the Court
concluded that “the relevant standard is objective not
subjective.” Id. Putting it in other words, the Court
explained:

       In deciding whether the force deliberately
       used [by the officer on the pretrial detainee]
       is, constitutionally speaking, “excessive,”
       should courts use an objective standard only,
             CASTRO V. CTY. OF LOS ANGELES                   15

       or instead a subjective standard that takes into
       account a defendant’s state of mind? It is
       with respect to this question that we hold that
       courts must use an objective standard. In
       short, . . . a pretrial detainee must show only
       that the force purposely or knowingly used
       against him was objectively unreasonable.

Id. at 2472–73.

    Under Kingsley, then, it does not matter whether the
defendant understood that the force used was excessive, or
intended it to be excessive, because the standard is purely
objective. Id. In so holding, the Kingsley Court expressly
rejected the interpretation of Bell on which we had relied in
Clouthier. The Court concluded that, “as Bell itself shows
(and as our later precedent affirms), a pretrial detainee can
prevail by providing only objective evidence that the
challenged governmental action is not rationally related to a
legitimate governmental objective or that it is excessive in
relation to that purpose.” Id. at 2473–74 (emphasis added).
In sum, Kingsley rejected the notion that there exists a single
“deliberate indifference” standard applicable to all § 1983
claims, whether brought by pretrial detainees or by convicted
prisoners.

    Kingsley did not squarely address whether the objective
standard applies to all kinds of claims by pretrial detainees,
including both excessive force claims and failure-to-protect
claims. An excessive force claim, like the one at issue in
Kingsley, differs in some ways from a failure-to-protect
claim, like the one at issue here. An excessive force claim
requires an affirmative act; a failure-to-protect claim does not
require an affirmative act. And Kingsley’s holding concerned
16           CASTRO V. CTY. OF LOS ANGELES

whether the “force deliberately used is, constitutionally
speaking, ‘excessive,’” id. at 2472, which does not
necessarily answer the broader question whether the objective
standard applies to all § 1983 claims brought under the
Fourteenth Amendment against individual defendants.

     On the other hand, there are significant reasons to hold
that the objective standard applies to failure-to-protect claims
as well. “Section 1983 itself ‘contains no state-of-mind
requirement independent of that necessary to state a
violation’ of the underlying federal right.” Bd. of Cty.
Comm’rs v. Brown, 520 U.S. 397, 405 (1997) (quoting
Daniels v. Williams, 474 U.S. 327, 330 (1986)); see also
Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016)
(noting that the underlying right in a § 1983 suit tracks the
text of the Constitution). The underlying federal right, as
well as the nature of the harm suffered, is the same for
pretrial detainees’ excessive force and failure-to-protect
claims. Both categories of claims arise under the Fourteenth
Amendment’s Due Process Clause, rather than under the
Eighth Amendment’s Cruel and Unusual Punishment Clause.
“The language of the two Clauses differs, and the nature of
the claims often differs. And, most importantly, pretrial
detainees (unlike convicted prisoners) cannot be punished at
all, much less ‘maliciously and sadistically.’” Kingsley,
135 S. Ct. at 2475.

    We note, too, the broad wording of Kingsley. In rejecting
the interpretation of Bell on which we relied in Clouthier, the
Court wrote that “a pretrial detainee can prevail by providing
only objective evidence that the challenged governmental
action is not rationally related to a legitimate governmental
objective or that it is excessive in relation to that purpose.”
Kingsley, 135 S. Ct. at 2473–74 (emphasis added). The Court
             CASTRO V. CTY. OF LOS ANGELES                   17

did not limit its holding to “force” but spoke to “the
challenged governmental action” generally. We therefore
overrule Clouthier to the extent that it identified a single
deliberate indifference standard for all § 1983 claims and to
the extent that it required a plaintiff to prove an individual
defendant’s subjective intent to punish in the context of a
pretrial detainee’s failure-to-protect claim.

     On balance, we are persuaded that Kingsley applies, as
well, to failure-to-protect claims brought by pretrial detainees
against individual defendants under the Fourteenth
Amendment. Excessive force applied directly by an
individual jailer and force applied by a fellow inmate can
cause the same injuries, both physical and constitutional.
Jailers have a duty to protect pretrial detainees from violence
at the hands of other inmates, just as they have a duty to use
only appropriate force themselves.

    Because of the differences between failure-to-protect
claims and claims of excessive force, though, applying
Kingsley’s holding to failure-to-protect claims requires
further analysis. As explained above, Kingsley recognized
that there are two state-of-mind issues at play in an excessive
force claim.

    The first—the officer’s state of mind with respect to his
physical acts—was undisputedly an intentional one there,
because the officer had taken the affirmative act of using
force knowingly and purposefully. In the failure-to-protect
context, in which the issue is usually inaction rather than
action, the equivalent is that the officer’s conduct with
respect to the plaintiff was intentional. For example, if the
claim relates to housing two individuals together, the inquiry
at this step would be whether the placement decision was
18            CASTRO V. CTY. OF LOS ANGELES

intentional. Or, if the claim relates to inadequate monitoring
of the cell, the inquiry would be whether the officer chose the
monitoring practices rather than, for example, having just
suffered an accident or sudden illness that rendered him
unconscious and thus unable to monitor the cell. As the
Supreme Court in Kingsley explained, “if an officer’s Taser
goes off by accident or if an officer unintentionally trips and
falls on a detainee, causing him harm, the pretrial detainee
cannot prevail on an excessive force claim,” because the first
state-of-mind factor would not be satisfied. Id. at 2472.
Similarly, that factor would not be satisfied in the failure-to-
protect context if the officer’s inaction resulted from
something totally unintentional.

    Under Kingsley, the second question in the failure-to-
protect context would then be purely objective: Was there a
substantial risk of serious harm to the plaintiff that could have
been eliminated through reasonable and available measures
that the officer did not take, thus causing the injury that the
plaintiff suffered? That inquiry differs from the inquiry with
respect to an Eighth Amendment failure-to-protect claim:
There, “the deprivation alleged must objectively be
sufficiently serious; and the prison official must subjectively
have a sufficiently culpable state of mind.” Estate of Ford v.
Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). As we
have explained in the Eighth Amendment context, “[a] prison
official cannot be found liable under the Eighth Amendment
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.” Id. at 1050 (quoting Farmer, 511 U.S. at
837). Under Kingsley, a pretrial detainee need not prove
              CASTRO V. CTY. OF LOS ANGELES                   19

those subjective elements about the officer’s actual awareness
of the level of risk. At the same time, however, the Supreme
Court has instructed that “mere lack of due care by a state
official” does not “’deprive’ an individual of life, liberty, or
property under the Fourteenth Amendment.” Daniels,
474 U.S. at 330–31 (holding that negligent actions or
omissions by state officials are not actionable under § 1983);
accord Davidson v. Cannon, 474 U.S. 344 (1986) (same).
Thus, the test to be applied under Kingsley must require a
pretrial detainee who asserts a due process claim for failure
to protect to prove more than negligence but less than
subjective intent—something akin to reckless disregard.

    Putting these principles together, the elements of a pretrial
detainee’s Fourteenth Amendment failure-to-protect claim
against an individual officer are:

    (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
20              CASTRO V. CTY. OF LOS ANGELES

    (4) By not taking such measures, the defendant caused the
plaintiff’s injuries.4

     With respect to the third element, the defendant’s conduct
must be objectively unreasonable, a test that will necessarily
“turn[] on the ‘facts and circumstances of each particular
case.’” Kingsley, 135 S. Ct. at 2473 (quoting Graham v.
Connor, 490 U. S. 386, 396 (1989)); see also Restatement
(Second) of Torts § 500 cmt. a (Am. Law Inst. 2016)
(recognizing that “reckless disregard” may be shown by an
objective standard under which an individual “is held to the
realization of the aggravated risk which a reasonable [person]
in his place would have, although he does not himself have
it”).

    Although the jury instructions in this case differed from
the template that we establish today, the jury made findings
that would satisfy this test—or, to the extent that the jury did
not, Defendants have waived any challenge to those aspects
of the instructions. The district court instructed the jury that


     4
       Judge Ikuta, in dissent, suggests that this new test would be
“underinclusive.” She claims that it could relieve some officials of
liability despite their deliberate indifference because a jury might not find
intent where a defendant failed to act. Ikuta, J., dissenting at 52. But the
state-of-mind requirement articulated here is less stringent than the
subjective test that preceded it. In a failure-to-protect case where a
defendant actually knew of a substantial risk of serious harm and
consciously took no action, one would expect a jury to find that the
defendant made an intentional decision. Contrary to Judge Ikuta’s view,
the result in Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003),
would be the same under our test. Lolli held only that summary judgment
for some of the defendants was improper because factual issues remained
for the jury. Id. at 419–21. And the four required factors prevent
“overinclusiveness” by ensuring that liability will attach only in cases
where the defendant’s conduct is more egregious than mere negligence.
               CASTRO V. CTY. OF LOS ANGELES                         21

Castro’s claim involved Defendants’ deprivation of Castro’s
“constitutional right to have reasonable measures taken to
guarantee his safety when he was incarcerated at the West
Hollywood jail,” that Castro had to prove by a preponderance
of the evidence that “the plaintiff faced a substantial risk of
serious harm,” that “the defendant was deliberately
indifferent to that risk,” and that “the acts, or failure to act, of
the defendant caused harm to the plaintiff.” The instructions
further recognized that “deliberate indifference” required the
defendant to “fail[] to take reasonable measures to address
[the risk].” By finding in Castro’s favor, the jury necessarily
found that Castro had satisfied his burden of proof on all of
those points. To the extent that the instructions did not
explain that reasonable measures must be available or that the
circumstances must have been such that a reasonable officer
would have appreciated the risk, the individual defendants
have not challenged any of the objective components of the
instructions provided to the jury, nor have they argued that
any issue should be retried if the subjective element of the
test were eliminated in light of Kingsley.5

    Here, the individual defendants do not claim that there
was any miscommunication about the placement of Gonzalez
in Castro’s cell or that some other unintentional act created
the jail conditions at issue. Nor do the individual defendants
dispute that Castro faced a substantial risk of serious harm at
the hands of Gonzalez or that they failed to take reasonable
measures to mitigate that risk. Rather, the individual
defendants argue that there was insufficient evidence to
establish their subjective awareness of the danger that Castro


  5
   In response to orders from this court, the parties filed two rounds of
supplemental briefing specifically addressing the question of how
Kingsley affects this case.
22           CASTRO V. CTY. OF LOS ANGELES

faced and their knowing disregard of it, or to establish that
their conduct caused Castro’s injuries.

    In light of the analysis above, to affirm the jury’s verdict
we need only determine that there was substantial evidence
that a reasonable officer in the circumstances would have
appreciated the high degree of risk involved and that the
officers’ failure to take reasonable measures to protect Castro
caused his injuries. The jury here found that the officers
knew of the substantial risk of serious harm to Castro, which
necessarily implies that the jury found that a reasonable
officer would have appreciated the risk. Indeed, the jury
found that the risk was so obvious, and the individual
defendants’ lack of response to it was so blameworthy, that
it awarded punitive damages after being instructed as follows:

            You may award punitive damages only if
       you find that the defendant’s conduct that
       harmed the plaintiff was malicious,
       oppressive, or in reckless disregard of the
       plaintiff’s rights. Conduct is malicious if it is
       accompanied by ill will, or spite, or if it is for
       the purpose of injuring the plaintiff. Conduct
       is in reckless disregard of the plaintiff’s rights
       if, under the circumstances, it reflects
       complete indifference to the plaintiff’s safety
       or rights, or if the defendant acts in the face of
       a perceived risk that his actions will violate
       the plaintiff’s rights under federal law. An act
       or omission is oppressive if the defendant
       injures or damages or otherwise violates the
       rights of the plaintiff with unnecessary
       harshness or severity, such as by the misuse or
       abuse of authority or power or by the taking
              CASTRO V. CTY. OF LOS ANGELES                   23

        advantage of some weakness or disability or
        misfortune of the plaintiff.

     There clearly is sufficient evidence to support those
findings, as well as the jury’s finding that the officers caused
Castro’s injuries by failing to take reasonable measures to
address the risk. The individual defendants knew that Castro,
who had been detained only for a misdemeanor, was too
intoxicated to care for himself; they knew that Gonzalez, a
felony arrestee, was enraged and combative; they knew or
should have known that the jail’s policies forbade placing the
two together in the same cell in those circumstances; and they
knew or should have known that other options for placing
them in separate cells existed. Moreover, Valentine decided
to house Castro in a fully walled sobering cell with a
“combative” inmate even though separate cells were typically
available and unused. Solomon failed to respond to Castro’s
banging on the window in the door of the cell. Jail video of
the hallway showed Castro pounding on his cell door for a
full minute, while Solomon remained unresponsive, seated at
a desk nearby. Solomon failed to respond fast enough to
Gonzalez’ inappropriate touching of Castro. Solomon also
erred in delegating the safety checks to a volunteer.
Valentine failed to supervise Solomon in a way that would
have prevented harm to Castro. We have no difficulty
concluding that this evidence is sufficient to sustain the jury’s
verdict in Castro’s favor.

    B. Entity Defendants

    Castro has also sued the County of Los Angeles and the
LASD under 42 U.S.C. § 1983. In Monell v. Department of
Social Services, 436 U.S. 658 (1978), the Supreme Court held
that a municipality may not be held liable for a § 1983
24              CASTRO V. CTY. OF LOS ANGELES

violation under a theory of respondeat superior for the actions
of its subordinates. In order to establish municipal liability,
a plaintiff must show that a “policy or custom” led to the
plaintiff’s injury. Id. at 694. The Court has further required
that the plaintiff demonstrate that the policy or custom of a
municipality “reflects deliberate indifference to the
constitutional rights of its inhabitants.” City of Canton v.
Harris, 489 U.S. 378, 392 (1989).

    In this case, the district court instructed the jury as
follows with respect to the entity defendants:6

             In order to prevail on his claim against
         [the entity defendants], plaintiff must prove
         each of the following elements by a
         preponderance of the evidence:

            1. the plaintiff was deprived of a
         constitutional right;

            2.      the [entity defendants] had a
         longstanding practice or custom of detaining
         highly intoxicated people in the West
         Hollywood jail detoxification cell without
         constitutionally adequate visual surveillance
         and audio monitoring;

  6
    The court did not define “deliberately indifferent” in the instruction
concerning the entity defendants, but the entity defendants do not assign
error to that omission. In an earlier instruction concerning the individual
defendants, the court defined “deliberately indifferent” to mean that “the
defendant knew of the risk and disregarded it by failing to take reasonable
measures to address it. Merely being negligent, or failing to alleviate a
significant risk that the defendant should have perceived but didn’t, does
not constitute ‘deliberate indifference.’”
             CASTRO V. CTY. OF LOS ANGELES                   25

           3. the [entity defendants’] longstanding
       practice or custom regarding the level of
       visual surveillance and audio monitoring of
       the West Hollywood jail detoxification cell
       was unconstitutional in that it was deliberately
       indifferent to a substantial risk of serious
       harm to prisoners in the West Hollywood jail
       detoxification cell;

           4. the [entity defendants’] longstanding
       practice or custom caused harm to plaintiff.

           Plaintiff must establish an affirmative link
       between the practice or custom and the
       particular constitutional violation at issue.

           “Practice or custom” means any
       permanent, widespread, well-settled practice
       or custom that constitutes a standard operating
       procedure of the defendant County of Los
       Angeles.

The court also described the alleged constitutional violation
specifically, explaining that Castro’s claim was that the entity
defendants “deprived him of his constitutional right to have
reasonable measures taken to guarantee his safety when he
was incarcerated at the West Hollywood jail.” Finally, the
court cautioned:

           In evaluating the facts in this case, you
       must consider the context in which the jails
       operate. In determining whether defendants
       violated plaintiff’s rights as alleged, you
       should give deference to jail officials in the
26              CASTRO V. CTY. OF LOS ANGELES

         adoption and execution of policies and
         practices that in their judgment are needed to
         preserve discipline and to maintain internal
         security. In other words, you must consider
         whether, in allegedly exposing plaintiff to
         danger, the defendants were guided by equally
         important considerations. The existence of
         arguably superior alternatives to the design,
         operation, and conditions in place in a jail
         does not necessarily give rise to constitutional
         liability.

    The entity defendants contest the verdict against them on
several grounds: that the instructions were erroneous because
they spelled out what custom or practice Castro alleged; that
the design of a jail cell is not a policy, custom, or practice;
and that the evidence failed to show either causation or
deliberate indifference.7 We are not persuaded. Grouping
those challenges somewhat differently, we will address, first,
whether the instructions were adequate; second, whether the
entity defendants had a policy or custom that caused Castro’s


  7
    The entity defendants also argue that a plaintiff can establish neither
a custom or practice, nor deliberate indifference, without proving prior
incidents of harm. The entity defendants failed to preserve that argument
in the district court. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510,
515 (9th Cir. 1992) (holding that an appeals court will generally not
consider an argument raised for the first time on appeal). Indeed, they
argued the very opposite. At trial, Defendants vigorously opposed the
introduction of Castro’s anticipated “evidence of prior or subsequent
assaults on other inmates,” on the ground that “such evidence is irrelevant
and unduly prejudicial.” Even if not waived or forfeited, the argument is
legally inaccurate. See Brown, 520 U.S. at 409 (noting that evidence of
a single violation of federal rights can, in some circumstances, trigger
municipal liability).
             CASTRO V. CTY. OF LOS ANGELES                   27

injury; and, third, whether the policy or custom reflected
deliberate indifference on the part of the municipality.

   1. Jury Instructions

    We review the formulation of jury instructions for abuse
of discretion in a civil case, considering the instructions as a
whole. Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th
Cir. 2001). Under that standard, we see no error. The
instructions properly identified the elements of Castro’s claim
against the entity defendants. The district court’s decision to
focus the jury’s attention on the particular custom or practice
alleged was neither misleading nor inadequate. See id.
(stating that the appellate court determines whether the
instructions, considered as a whole, are misleading or
inadequate). To the contrary, the instruction clarified
precisely what the jury was called on to decide.

   2. Policy or Custom Causing Injury

    The “first inquiry in any case alleging municipal liability
under § 1983 is the question whether there is a direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton, 489 U.S. at 385.
The custom or policy must be a “deliberate choice to follow
a course of action . . . made from among various alternatives
by the official or officials responsible for establishing final
policy with respect to the subject matter in question.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)
(plurality opinion).

    As noted, the entity defendants argue that the architecture
of the West Hollywood police station’s sobering cell cannot
be a policy, custom, or practice. We need not decide that
28             CASTRO V. CTY. OF LOS ANGELES

question, because the design of the cell is not the custom or
practice alleged by the plaintiff and found by the jury.
Whether or not the design of the cell is a policy, custom, or
practice, it is a fact; the sobering cell lacked audio monitoring
and video surveillance.8

    That is, the design of the cell is only the backdrop for the
entity defendants’ policy or custom, as described in the jury
instructions and as reflected in the record. The LASD and the
County made deliberate choices in light of the poor design
and location of the sobering cell. There was a custom of
housing intoxicated inmates in sobering cells that contained
inadequate audio monitoring. A representative of the County
admitted that other options existed; there were other cells in
which to detain intoxicated prisoners. The entities chose a
policy to check on inmates only every 30 minutes. A
representative of the County testified that supervision of the
sobering cell consisted of “half-hour checks by the jailer.”
These routine practices were consciously designed and,
together, they amount to a custom or policy.9 The custom or


  8
   We note, though, that every construction project requires deliberate
choices in design and implementation. The West Hollywood station is no
exception. For example, the County admitted that it chose not to install
a video camera that records what happens inside the cell, because it
wanted to protect the privacy of detainees.
   9
     Judge Callahan’s dissent takes issue with formulating a “custom or
practice” that has more than one component. Callahan, J., dissenting at
41–43. The entity defendants have not made that argument and, therefore,
have forfeited or waived it. See Greenwood v. Fed. Aviation Admin.,
28 F.3d 971, 977 (9th Cir. 1994) (holding that generally we will not
consider issues not presented in an appellant’s opening brief). Moreover,
a “custom or practice” need not be narrowly unitary in this context. We
have found no case holding that a “policy” must be one-dimensional. To
the contrary, many cases describe multi-faceted policies, which are not
                CASTRO V. CTY. OF LOS ANGELES                            29

policy, in summary, was to use a sobering cell that lacked
adequate audio surveillance to detain more than one
belligerent drunk person while checking the cell visually only
once every half hour.

    The entity defendants’ custom or policy caused Castro’s
injury. 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,10 Gonzalez’ attack on Castro could have been
averted. The stated purpose of the sobering cell is the
housing of prisoners who are a threat to their own safety. But
the absence of frequent visual checks and the lack of audio


rejected for that reason. See, e.g., Garcia v. County of Riverside, 817 F.3d
635, 638, 642 (9th Cir. 2016) (describing the relevant policy of the Los
Angeles Sheriff’s Department as having several components).
  10
     Judge Callahan’s dissent also appears to argue that there cannot be a
deliberately chosen custom or practice of housing a belligerent detainee
in the same sobering cell as another detainee because a written policy
prohibited it. Callahan, J., dissenting at 43 n.5. But a plaintiff can show
a custom or practice of violating a written policy; otherwise an entity, no
matter how flagrant its actual routine practices, always could avoid
liability by pointing to a pristine set of policies. See City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion) (holding that
“egregious attempts by local governments to insulate themselves from
liability for unconstitutional policies are precluded” and “a plaintiff may
be able to prove the existence of a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent
and well settled as to constitute a custom or usage with the force of law”
(internal quotation marks omitted)). Here, for example, there was
testimony that “two or more belligerent drunk individuals” were housed
in “this detox cell” “[m]any times.” Taking the facts in the light most
favorable to the prevailing party, as our standard of review requires, we
conclude that the jury permissibly found that such testimony established
a policy of deliberate indifference.
30            CASTRO V. CTY. OF LOS ANGELES

monitoring clearly made the risk of serious harm to such
prisoners substantial. The jury found that LASD’s and the
County’s custom or practice caused Castro’s injury.
Substantial evidence supports the jury’s findings.

     3. Deliberate Indifference

    It is not sufficient for a plaintiff to identify a custom or
policy, attributable to the municipality, that caused his injury.
A plaintiff must also demonstrate that the custom or policy
was adhered to with “deliberate indifference to the
constitutional rights of [the jail’s] inhabitants.” City of
Canton, 489 U.S. at 392.

    The Supreme Court has strongly suggested that the
deliberate indifference standard for municipalities is always
an objective inquiry. In City of Canton, which concerned a
Fourteenth Amendment claim for failure to train, the Court
held that a municipality was deliberately indifferent when
“the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need.” Id. at
390. The Court articulated a standard permitting liability on
a showing of notice: “Where a § 1983 plaintiff can establish
that the facts available to city policymakers put them on
actual or constructive notice that the particular omission is
substantially certain to result in the violation of the
constitutional rights of their citizens, the dictates of Monell
are satisfied.” Id. at 396 (emphasis added).

    In Farmer, the Court clarified its earlier holding: “[I]t
would be hard to describe the Canton understanding of
deliberate indifference, permitting liability to be premised on
                CASTRO V. CTY. OF LOS ANGELES                           31

obviousness or constructive notice, as anything but
objective.” Farmer, 511 U.S. at 841. The Court understood
that this objective standard necessarily applied to
municipalities for the practical reason that government
entities, unlike individuals, do not themselves have states of
mind: “Needless to say, moreover, considerable conceptual
difficulty would attend any search for the subjective state of
mind of a governmental entity, as distinct from that of a
governmental official.” Id. We, too, have recognized that an
objective standard applies. Gibson v. County of Washoe,
290 F.3d 1175, 1195 (9th Cir. 2002). To the extent that
Gibson or our other cases suggest otherwise, we now overrule
those holdings.

    Here, substantial evidence supported the jury’s finding
that the County knew that its cell design might lead to a
constitutional violation among its inhabitants. At the time of
the attack in this case, the Los Angeles County Code
“adopted by reference and incorporated into . . . the Los
Angeles County Code as if fully set forth below” chapters of
the California Building Code.11 L.A. Cty. Code tit. 26, ch. 1,
§ 100 (2007). In turn, the California Building Code requires
“an inmate- or sound-actuated audio monitoring system in . . .
sobering cells . . . which is capable of alerting personnel who
can respond immediately.” Cal. Bldg. Code tit. 24
§ 1231.2.22 (2007). Furthermore, the West Hollywood police
station’s own manual mandates that a sobering cell “allow for

  11
     Even though the County Code provision was not in evidence in the
district court, we may take judicial notice of it because it is “not subject
to reasonable dispute” and “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b)(2); see also Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (holding that local
ordinances are proper subjects for judicial notice).
32           CASTRO V. CTY. OF LOS ANGELES

maximum visual supervision of prisoners by staff.” The
station manual forbids the use of non-compliant sobering
cells.

    Judge Callahan’s dissent makes much of the fact that the
California Building Code contains a “grandfather” clause.
Callahan, J., dissenting at 38. But the dissent overlooks that
the West Hollywood manual contains no such “grandfather”
clause. To the contrary, that manual expressly refers to
current building standards and expressly declines to permit
the use of older cells simply by virtue of their having been
previously compliant:

           A sobering cell is generally defined as a
       cell with a padded floor and standard toilet
       with a padded partition on one side for
       support. It must allow for maximum visual
       supervision of prisoners by staff. For specific
       construction specifications refer to Uniform
       Building Code, Title 24, Section 13-102(c)2
       and 13-102(c)3.

           Most station sobering cells (built prior to
       current State standards) have a hard floor,
       standard toilet, wash basin, drinking fountain,
       and a solid raised ledge or bench. Unless
       otherwise exempted by the State Board of
       Corrections, these sobering cells are out of
       compliance with current standards and should
       not be utilized.

The West Hollywood sobering cell was non-compliant in at
least two respects, in that it lacked all the required padding
             CASTRO V. CTY. OF LOS ANGELES                   33

and, more importantly for our purposes, did not “allow for
maximum visual supervision of prisoners by staff.”

    The County Board of Supervisors’ affirmative adoption
of regulations aimed at mitigating the risk of serious injury to
individuals housed in sobering cells, and a statement to the
same effect in the station’s manual, conclusively prove that
the County knew of the risk of the very type of harm that
befell Castro. See Brown, 520 U.S. at 405–06 (describing
Owen v. City of Independence, 445 U.S. 662 (1980), and City
of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), as
municipal liability cases involving “no difficult questions of
fault” because they involved “formal decisions of municipal
legislative bodies”). The adoption of a regulation by the
County’s legislative body suffices as proof of notice because
the County necessarily has knowledge of its own ordinances.
We have said that “a municipality’s policies [that] explicitly
acknowledge that substantial risks of serious harm exist” may
demonstrate municipal knowledge of that risk for the
purposes of a Fourteenth Amendment failure-to-protect
claim. Gibson, 290 F.3d at 1188 n.10. Here, the ordinance
adopted by the County is a policy that explicitly
acknowledges the relevant substantial risks of serious harm.

    Accordingly, the entity defendants had notice that their
customs or policies posed a substantial risk of serious harm
to persons detained in the West Hollywood sobering cell and
were deliberately indifferent to that risk. Therefore, we
affirm the judgment against the entity defendants.

   AFFIRMED.
34              CASTRO V. CTY. OF LOS ANGELES

CALLAHAN, Circuit Judge, with whom BEA and IKUTA,
Circuit Judges join, dissenting in part:

    I agree that the judgment against the individual
defendants should be affirmed,1 but I dissent from the
affirmance of the judgment against the entity defendants. I
agree with the majority’s conceptual approach: we must first
determine whether the entity defendants had a policy or
custom that caused Castro’s injury, and second determine
whether the policy or custom reflected deliberate
indifference. Maj. Op. at 26–27. However, the majority
understates what is necessary to show a policy related to
Castro and uses “smoke and mirrors” to find deliberate
indifference. Regardless of what evidence Castro might have,
could have, or should have produced at trial, the record in this
case—even construed in the light most favorable to Castro—
permits only one conclusion: the County of Los Angeles did
not have a policy or custom that reflected deliberate
indifference and caused Castro’s injury.

I. The Legal Standard for Monell Liability

    The Supreme Court has been fairly consistent in
explaining the basis for Monell liability. In Pembaur v. City
of Cincinnati, the Court held “municipal liability under
§ 1983 attaches where—and only where—a deliberate choice
to follow a course of action is made from among various
alternatives by the official or officials responsible for


     1
     As the majority opinion makes clear, the judgment against the
individuals is sound even under the standard set forth in Clouthier v.
County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010). Thus, while I
agree with the majority that the judgment against the individual defendants
should be affirmed, I do not join in its reasoning.
             CASTRO V. CTY. OF LOS ANGELES                   35

establishing final policy with respect to the subject matter in
question.” 475 U.S. 469, 483 (1986).

    In City of Canton, Ohio v. Harris, the Court addressed
“whether a municipality’s failure to train employees can ever
be a basis for § 1983 liability.” 489 U.S. 378, 388 (1989). It
held “that the inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons
with whom the police come into contact,” and the policy was
“the moving force [behind] the constitutional violation.” Id.
(internal quotation marks omitted). The Court emphasized
that “the need for more or different training [must be] so
obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the
need.” Id. at 390.

   In Board of County Commissioners of Bryan County,
Oklahoma v. Brown, 520 U.S. 397, 404–05 (1997), the Court
explained:

       As our § 1983 municipal liability
       jurisprudence illustrates, however, it is not
       enough for a § 1983 plaintiff merely to
       identify conduct properly attributable to the
       municipality.     The plaintiff must also
       demonstrate that, through its deliberate
       conduct, the municipality was the “moving
       force” behind the injury alleged. That is, a
       plaintiff must show that the municipal action
       was taken with the requisite degree of
       culpability and must demonstrate a direct
36           CASTRO V. CTY. OF LOS ANGELES

       causal link between the municipal action and
       the deprivation of federal rights.

    More recently, in Connick v. Thompson, the Supreme
Court reiterated that deliberate indifference “is a stringent
standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.”
563 U.S. 51, 61 (2011) (quoting Brown, 520 U.S. at 410).
The Court explained, “[a] less stringent standard of fault for
a failure-to-train claim ‘would result in de facto respondeat
superior liability on municipalities.’” Id. (quoting City of
Canton, 489 U.S. at 392).

    Accordingly, even accepting that an “objective” standard
applies to the inquiry into the propriety of a municipality’s
actions, Monell liability requires first, a showing of “a
deliberate choice to follow a course of action . . . from among
various alternatives.” Pembaur, 475 U.S. at 483. Second,
where Monell liability is based on the municipality’s failure
to act or to train its employees, there must be a showing of
deliberate indifference: “proof that a municipal actor
disregarded a known or obvious consequence of his action.”
Brown, 520 U.S. at 410. Third, there must be a “a direct
causal link between the municipal action and the deprivation
of federal rights.” Id. at 404.
             CASTRO V. CTY. OF LOS ANGELES                   37

II. The record does not support a finding of a deliberate
    choice sufficient to support Monell liability

   1. Castro presented insufficient evidence to support a
      finding that the West Hollywood station’s sobering
      cell was unsafe.

   The majority asserts that when Castro was assaulted in
2009, the applicable building codes required maximum visual
supervision and that sobering cells contain an audio-
monitoring system. Maj. Op. at 6. But the record in this case
does not support this conclusion.

    No evidence was introduced at trial that federal or state
law required video monitoring of a sobering cell. No County
Code provisions or relevant California statutes were
introduced at trial. Moreover, it appears that the California
Building Code, tit. 24, § 1231.2.22 (2007), which the
majority cites, did not say anything about sobering cells.
Coverage of sobering cells was added to that section when the
code was updated in 2010, after Castro had been assaulted.
Cal. Building Code tit. 24 § 1231.2.22 (2010).

    Instead, the majority relies on the County Board of
Supervisors’ adoption “through legislative action” of
provisions of the California Building Code that the majority
characterizes as “aimed at mitigating the risk of serious injury
to individuals housed in sobering cells.” See Maj. Op. at 6,
33. But the County Code provision adopting the provisions
of the California Building Code was not placed in evidence
in the district court. As this material was not before the jury,
the jury could not have relied upon it to find a policy or
custom.
38           CASTRO V. CTY. OF LOS ANGELES

    Furthermore, the majority’s characterization of the
“legislative action” is hardly fair. In 2007, the County
adopted by reference and incorporated into its code several
chapters of the California Building Code. Within the over
1,300 pages adopted are provisions calling for maximum
visual supervision and audio-monitoring of sobering cells.
Cal. Bldg. Code tit. 24 §§ 1231.2.4, 1231.2.22. But this did
not give rise to the constructive knowledge alleged by the
majority because the California Building Code has a
“grandfather” clause. It provides that “[t]hese requirements
shall not be applicable to facilities which were constructed in
conformance with the standards of the Corrections Standard
Authority in effect at the time of initial architectural
planning.” Cal. Code Regs. Title 24, § 13-102(6) (2008).
Indeed, we previously recognized the import of this clause in
Blackwell v. City & County of San Francisco, 506 F. App’x
585, 587 (9th Cir. 2013) (unpublished) (citing the statement
in Californians for Disability Rights v. Mervyn’s LLC,
165 Cal. App. 4th 571 (2008), that Title 24 “does not require
facilities that predate its enactment to comply with its
regulations unless and until the facility is altered”). In
addition, the existence of the grandfather clause indicates that
the new audio and visual monitoring standards in the
California Building Code were not essential for the safety of
detainees. Thus, the County’s adoption of 1,300 pages of the
California Building Code in 2007, could not have alerted the
County to the alleged risk of being housed in the West
Hollywood station’s sobering cell.

    At the end of its opinion, the majority attempts to
downplay the importance of the grandfather clause by arguing
that a provision in the West Hollywood manual does not
contain a grandfather clause. Maj. Op. at 32. This is true, but
the document is not sufficient to support Monell liability.
               CASTRO V. CTY. OF LOS ANGELES                       39

While the cited first paragraph of the West Hollywood
station’s manual generally defines a sobering cell and
requires “maximum visual supervision of prisoners by staff,”
the second paragraph states:

        Most station sobering cells (built prior to
        current State standards) have a hard floor,
        standard toilet, wash basin, drinking fountain,
        and a solid raised ledge or bench. Unless,
        otherwise exempted by the State Board of
        Corrections, these sobering cells are out of
        compliance with current standards and should
        not be utilized.

Notably, the inadequacy of visual inspection is not listed as
an example of non-compliance excluding the use of a
sobering cell.      Moreover, this provision presumably
precluded the use of the West Hollywood sobering cell by
anyone at any time. It does not appear that the general
propriety of using the West Hollywood station’s sobering cell
was raised or considered in the trial court.2

    Furthermore, Castro offered no evidence as to whether the
sobering cell met that applicable standards when it was built
or those in effect in 2007. He was offered an opportunity to
present evidence of prior incidents at the West Hollywood
station, but declined to do so. Indeed, it appears that Castro’s
choice to focus on the officers’ deliberate indifference was


  2
    The majority asserts that the sobering cell was non-compliant both
because it “lacked all the required padding” and did not “allow for
maximum visual supervision of prisoners by staff.” Maj. Op. at 32–33.
This seems to detract from its argument that there was a “deliberate
choice” not to monitor Castro.
40              CASTRO V. CTY. OF LOS ANGELES

both strategic and successful. An argument that the structure
of the West Hollywood police station was even partially
responsible for Castro’s injuries might have, in the eyes of the
jury, reduced the level of the individual officers’ culpability.

    The record in this case does not support an inference that
any provision in the station manual or the adoption of various
chapters of the California Building Code somehow
established that the West Hollywood station’s sobering cell
presented a known or obvious danger.

     2. There is insufficient evidence to support a finding of
        a custom or policy.

     The majority proceeds to offer a hodgepodge of rationales
in an attempt to discern a deliberate choice or policy. First,
implicitly acknowledging the lack of evidence concerning the
propriety of the design of the sobering cell, the majority
disclaims that the design of the cell is a policy, custom, or
practice, asserting that “the design of the cell is only the
backdrop.”3 Maj. Op. at 28. Second, the majority asserts that
“in light of the poor design and location of the sobering cell
. . . there was a custom of housing intoxicated inmates in
sobering cells that contained inadequate audio monitoring.”
Maj. Op. at 28. Third, it asserts that there were “other cells


  3
    Nonetheless, in a footnote the majority suggests that the construction
of the cell was a deliberate choice. Maj. at 28 n.8. In support of this
assertion, the majority cites a deputy who stated that they did not put a
video camera in the cell “because of privacy issues.” However, the deputy
also noted that there is a video camera outside the cell that is aimed
through the cell door’s window. In any event, the comments of a deputy
whose assignment to the West Hollywood station began well after the
station was constructed, do not support a finding of “deliberate choice in
design and implementation.”
             CASTRO V. CTY. OF LOS ANGELES                   41

in which to detain intoxicated prisoners.” Maj. Op. at 28.
Fourth, the majority criticizes the “half-hour checks by the
jailer.” Maj. Op. at 28. The majority then cobbles these
assertions together and proclaims that they constitute a
custom or policy “to use a sobering cell that lacked adequate
audio surveillance to detain more than one belligerent drunk
person while checking the cell visually only once every half
hour.” Maj. Op. at 28–29.

    This conclusion is illusory. First, it depends on a “policy”
which does not exist. There is no policy “to place more than
one belligerent drunk” in one cell. Rather, there was an
explicit written policy forbidding the placement of more than
one person in the detoxication cell. A deputy testified that
when it became absolutely necessary to place a second person
in the detoxication cell, they would take the less belligerent
individual over to the Beverly Hills station and use its
sobering cell. Indeed, the majority itself affirms that the
individual defendants knew that Castro “was too intoxicated
to care for himself; they knew that Gonzalez, a felony
arrestee, was enraged and combative; they knew or should
have known that the jail’s policies forbade placing the two in
the same cell in those circumstances; and they knew or should
have known that other options for placing them in separate
cells existed.” Maj. Op. at 23 (emphasis added).

    Second, the majority’s “the whole is greater than the sum
of its parts” argument is not persuasive. Neither the
individual parts nor their accumulation amount to a deliberate
choice among various alternatives. The statement that there
“was a custom of housing intoxicated inmates in sobering
cells that contained inadequate audio monitoring” simply
restates the majority’s factually unsupported conclusion that
inadequate audio monitoring at the West Hollywood station
42              CASTRO V. CTY. OF LOS ANGELES

violated Castro’s constitutional rights. That there were other
cells available makes it clear that the officers should have
followed the County’s policy against placing a second person
in the sobering cell. Also, the majority’s denigration of the
half-hour checks lacks any evidentiary basis. There is
nothing in the record to suggest this policy was unreasonable
or reflected deliberate indifference to the constitutional rights
of detainees. Indeed, there was testimony that the half-hour
checks were mandated by both state and department rules.

    The record in this case includes no evidence that anyone
in the County had considered, prior to this litigation, whether
the new California Building Codes, with its grandfather
clause, applied, or might have applied, to the West
Hollywood police station. While there was evidence of the
station’s physical layout, there was no evidence that the
spacing had caused any prior problems.4 Rather than reflect
deliberate indifference, the “choices” the majority
manufactures from a sparse record appear to be independent
factors that by chance coincided to Castro’s detriment,
primarily because the individual officers failed to house
Castro separately as required by the County’s policy.

   Of course, a custom or policy may have more than one
component and may be contrary to a written policy. See Maj.
Op. at 28–29, nn. 9–10. However, here, Castro failed to




   4
     The majority suggests that the County has failed to preserve the
argument that there was no evidence of prior incidents of harm. Maj. Op.
at 26 n.7. But our inquiry is whether there are any indicia of a policy of
deliberate indifference. The County’s alleged waiver does not create
evidence that was never admitted (and may not exist).
                CASTRO V. CTY. OF LOS ANGELES                         43

present a factual basis that can support a finding of deliberate
indifference.5

III.     There is no evidence of deliberate indifference

    The majority quotes from the Supreme Court’s opinion in
City of Canton to support the position that constructive notice
may be sufficient to establish the deliberate indifference
required for Monell liability. Maj. Op. at 30 (quoting City of
Canton, 489 U.S. at 396). But, as noted, the Supreme Court
further explained that “the inadequacy of police training may
serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of
persons with whom the police come in contact.” Id. at 388
(emphasis added). In Connick the Supreme Court reiterated
that deliberate indifference requires “proof that a municipal

 5
    The assertion at the end of the majority’s footnote 9 that two or more
belligerent drunks were housed in the detox cells many times, reflects the
dangers inherent in an appellate court reviewing the record to determine
facts that were not developed at trial. The officer who testified that two
“belligerent” drunks might be placed in the same cell, defined belligerent
as:

         Not following instructions, just pretty much not
         wanting to be in there and just not going with the
         program, but it doesn’t mean they were not getting
         along with other people. Just pretty much not helping
         us to give us information and just pretty much just
         manners kind of thing. Not physical. Not that they
         would show violence to people around them but mostly
         to the staff. Just annoyance kind of thing.

Moreover, as previously noted, there was also testimony that “99.9 percent
of the time” when they had more than one belligerent and combative
persons they would “take the less combative or belligerent of the two over
to the Beverly Hills station and use their sobering cell.”
44            CASTRO V. CTY. OF LOS ANGELES

actor disregarded a known or obvious consequence of his
action.” 563 U.S. at 61 (quoting Brown, 520 U.S. at 410). In
City of Canton, the Court explained that “the need for more
or different training [must be] so obvious, and the inadequacy
so likely to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.” 489 U.S. at 390
(emphasis added). Justice Brennan, in his concurring
opinion, noted that only where “a § 1983 plaintiff can
establish that the facts available to city policymakers put
them on actual or constructive notice that the particular
omission is substantially certain to result in the violation of
the constitutional rights of their citizens” are the dictates of
Monell satisfied. 489 U.S. at 396 (Brennan, J., concurring).

    Here, there was no “known or obvious consequence,”
there was nothing “so obvious” or “so likely to result in the
violation of constitutional rights” as to support a
determination of deliberate indifference, and there was no
substantial certainty. Castro was attacked by Gonzalez who,
pursuant to the County’s express policy, should not have been
placed in the cell occupied by Castro. There is nothing to
suggest that the County should have anticipated violations of
its policy. Moreover, the majority observes that the jury
found that the individual officers “knew or should have
known that the jail’s policies forbade placing the two together
in the same cell in those circumstances.” Maj. Op. at 23.

    Fairly viewed, the record is devoid of evidence that the
County “disregarded a known or obvious consequence,”
Connick, 563 U.S. at 61, and there is neither the obviousness
nor the likelihood of a violation of a constitutional right
necessary to support a finding of deliberate indifference. See
City of Canton, 489 U.S. at 390.
              CASTRO V. CTY. OF LOS ANGELES                   45

IV.     There is no direct causal link between the
        County’s conduct and Castro’s injuries

     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. Castro
was injured by Gonzalez, a violent detainee who was placed
in the sobering cell with Castro in direct contravention of the
County’s clear policy against such placement. Moreover,
Castro’s injuries resulted from, or were aggravated by, his
jailer’s reckless disregard. The majority itself notes:

        Solomon failed to respond to Castro’s banging
        on the window in the door of the cell. Jail
        video of the hallway showed Castro pounding
        on his cell door for a full minute, while
        Solomon remained unresponsive, seated at a
        desk nearby. Solomon failed to respond fast
        enough to Gonzalez’s inappropriate touching
        of Castro.

Maj. Op. at 23. Indeed, the jury determined that the
individual defendants were liable for punitive damages
because they had “act[ed] with malice, oppression, or reckless
disregard for plaintiff’s rights.” We, in turn, have affirmed
the punitive damages award. Maj. Op. at 9 n.2.

    There is no direct link between any of the alleged
“choices” identified by the majority and Castro’s assault. The
adoption of the Building Code provides no connection as the
Code included a grandfather clause exempting buildings like
the West Hollywood station from the new audio and visual
monitoring standards. There was no evidence that the
46           CASTRO V. CTY. OF LOS ANGELES

conditions in the sobering cell endangered detainees, absent
the unauthorized placement of a violent detainee into the cell.
There was no evidence showing that the “choice” of visual
checks every 30 minutes was insufficient to protect properly
placed detainees.

    In Clouthier v. County of Contra Costa, we noted the
Supreme Court’s warning that “[i]n virtually every instance
where a person has had his or her constitutional rights
violated by a city employee, a § 1983 plaintiff will be able to
point to something the city ‘could have done’ to prevent the
unfortunate incident.” 591 F.3d at 1253–54 (quoting Canton,
489 U.S. at 392). We concluded that “[h]olding the County
liable for the missteps of its employees in this case would
therefore amount to ‘de facto respondeat superior liability,’
an avenue rejected in Monell.” This conclusion is equally
applicable to this case. See Molton v. City of Cleveland,
839 F.2d 240, 246 (6th Cir. 1988) (noting that “[t]he City’s
failure to build a suicide-proof jail cell, and its inadequate
training of its police force, may well be acts of negligent
omission, but they have not been shown to be the result of
municipal policy: ‘a deliberate choice to follow a course of
action . . . made from among various alternatives by the
official or officials responsible for establishing formal policy
with respect to the subject matter in question.’”) (quoting
Pembaur, 475 U.S. at 483). On the record before us, holding
the County liable is tantamount to de facto respondeat
superior liability, which the Supreme Court has consistently
disapproved. See Connick, 563 U.S. at 61; Canton, 489 U.S.
at 392.
             CASTRO V. CTY. OF LOS ANGELES                  47

V. Conclusion

    Castro’s tragic injuries were a preventable tragedy, and
we affirm the jury’s determination of the individual
defendants’ culpability. However, the evidence proffered by
Castro at trial does not support a finding that the County had
a policy or custom that reflected deliberate indifference that
led to Castro’s injuries. Castro presented insufficient
evidence that audio monitoring was required for the West
Hollywood station’s sobering cell in 2009. The adoption of
California Building Code standards for audio and visual
monitoring did not give the County even constructive notice
that monitoring at the West Hollywood police station might
be substandard because the Code includes a grandfather
clause stating that the new standards are not applicable to
existing structures. Moreover, there was no evidence of any
prior incidents. The other alleged “choices” manufactured by
the majority—the availability of other cells and “a policy to
check inmates only every 30 minutes”—do not support a
determination of deliberate indifference. Moreover, the
immediate cause of Castro’s injuries was the individual
officers’ placement of Gonzalez in Castro’s cell in direct
violation of the County’s policy. In sum, there is insufficient
evidence to support a finding of deliberate indifference by the
County and there is no direct causal link between the
County’s maintenance of the West Hollywood sobering cell
and Castro’s injuries. Accordingly, I would vacate the award
against the entity defendants.
48           CASTRO V. CTY. OF LOS ANGELES

IKUTA, Circuit Judge, with whom, CALLAHAN and BEA,
Circuit Judges, join, dissenting:

   I join Judge Callahan’s dissent in full, but I write
separately to express my dismay that the majority has
misinterpreted Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015), and made a mess of the Supreme Court’s framework
for determining when pretrial detainees have suffered
punishment in violation of their Fourteenth Amendment due
process rights.

                               I

     A pretrial detainee has a constitutional right under the
Fourteenth Amendment to be free from punishment without
due process of law. Bell v. Wolfish, 441 U.S. 520, 534
(1979); Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).
According to Bell, when a pretrial detainee alleges a violation
of a constitutional right (and does not point to a violation of
any “express guarantee of the Constitution”), the only
question is whether the situation at issue amounts to
punishment of the detainee. 441 U.S. at 534. This right to be
free from punishment under the Due Process Clause is the
only constitutional right at issue in this case; neither Castro
nor the majority claims that any other constitutional right is
at issue.

   Under Supreme Court precedent, there are four ways
for pretrial detainees to establish that they were
unconstitutionally punished.

    First, and most obviously, a pretrial detainee can show
that a government official’s action was taken with an
              CASTRO V. CTY. OF LOS ANGELES                    49

“expressed intent to punish.” Kingsley, 135 S. Ct. at 2473
(quoting Bell, 441 U.S. at 538).

    Second, a pretrial detainee can show that a government
official’s deliberate action was objectively unreasonable. Id.
at 2472–73. An objectively unreasonable action is one that
is not reasonably related to the government’s legitimate
interests, like interests in managing the detention facility and
maintaining order. Id. at 2473. Because an objectively
unreasonable action has no “legitimate nonpunitive
governmental purpose,” it indicates an intent to punish. Id.
(quoting Bell, 441 U.S. at 561). A claim that an official used
excessive force, rather than reasonable force necessary to
maintain order, falls into this category. Id.

    Third, a pretrial detainee can establish that a restriction or
condition of confinement, such as a strip search requirement,
is not reasonably related to a legitimate government purpose,
which indicates that the purpose behind the condition is
punishment. “[I]f a restriction or condition is not reasonably
related to a legitimate goal—if it is arbitrary or
purposeless—a court permissibly may infer that the purpose
of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.”
Bell, 441 U.S. at 539.

    Finally, a pretrial detainee can show that a governmental
official’s failure to act constituted punishment if the detainee
can establish that the official was deliberately indifferent to
a substantial risk of harm. The Supreme Court has made
clear that a failure to act is not punishment at all unless the
government official actually knew of a substantial risk and
consciously disregarded it. Farmer v. Brennan, 511 U.S. 825,
837–38 (1994). This standard follows from the “intent
50            CASTRO V. CTY. OF LOS ANGELES

requirement” implicit in the word “punishment,” Wilson v.
Seiter, 501 U.S. 294, 298–300 (1991); the unintentional or
accidental infliction of harm amounts at most to negligence,
which is not a due process violation, Kingsley, 135 S. Ct. at
2472. We have long applied this deliberate indifference
standard to claims that a government official failed to address
medical needs or otherwise protect pretrial detainees. See
Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017–18 (9th
Cir. 2010); Clouthier v. Cty. of Contra Costa, 591 F.3d 1232,
1241–42 (9th Cir. 2010); Lolli v. County of Orange, 351 F.3d
410, 418–19 (9th Cir. 2003); Cabrales v. Cty. of Los Angeles,
864 F.2d 1454, 1461 & n. 2 (9th Cir. 1988), cert. granted,
judgment vacated, 490 U.S. 1087 (1989), opinion reinstated,
886 F.2d 235 (9th Cir. 1989).

    Castro’s claim falls into this last category. He alleges that
a government official actually knew of a substantial risk of
serious harm by putting Gonzalez in his cell and failed to
protect him from that risk. As stated in Judge Callahan’s
dissent, we can affirm the judgment against the individual
defendants on this ground.

                               II

    Rather than apply this well-established framework, the
majority inexplicably holds that we must analyze a claim that
a government official’s failure to act constituted punishment
under the standard applicable to excessive force claims,
relying on the Supreme Court’s recent decision in Kingsley.

    A description of Kingsley shows it is entirely inapposite.
In that case, when a detainee refused to remove a piece of
paper covering his light fixture, four officers handcuffed him,
forcibly removed him from the cell, and applied a Taser to his
             CASTRO V. CTY. OF LOS ANGELES                  51

back for about five seconds. 135 S. Ct. at 2470. The detainee
brought an action under § 1983 claiming that the officers used
excessive force against him in violation of the Fourteenth
Amendment’s Due Process Clause. Id. at 2470–71. The
Court held that where officers deliberately use force against
a pretrial detainee, the standard to determine whether the
force is excessive is an objective one. Id. at 2472–73. The
detainee need not prove that the officer intended to punish; it
amounts to punishment if “the force purposefully or
knowingly used against him was objectively unreasonable.”
Id. Kingsley is consistent with the Supreme Court cases
establishing that where the government official’s affirmative
acts are shown to be “excessive in relation” to any “legitimate
governmental objective,” a court “permissibly may infer” that
they are punitive in nature. Bell, 441 U.S. at 537–39.

    But the Kingsley standard is not applicable to cases where
a government official fails to act. As explained in Bell, in
analyzing a pretrial detainee’s Fourteenth Amendment claim,
the key question is whether the situation at issue amounts to
a punishment of the detainee. Id. While punitive intent may
be inferred from affirmative acts that are excessive in
relationship to a legitimate government objective, the mere
failure to act does not raise the same inference. See Farmer,
511 U.S. at 837–38. Rather, a person who unknowingly
fails to act—even when such a failure is objectively
unreasonable—is negligent at most. Id. And the Supreme
Court has made clear that “liability for negligently inflicted
harm is categorically beneath the threshold of constitutional
due process.” Kingsley, 135 S. Ct. at 2472 (citing County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).

    Realizing this difficulty, the majority fiddles with the
standard applicable to failure-to-act claims to create a new
52            CASTRO V. CTY. OF LOS ANGELES

test: It holds that a pretrial detainee can state a due process
violation for an official’s failure to act by showing that (i) the
official made an intentional decision with respect to the
plaintiff’s conditions of confinement; (ii) the decision put the
detainee at substantial risk of suffering serious harm; (iii) the
official was objectively unreasonable in not fixing the risk;
and (iv) the failure to undertake a fix caused the detainee’s
injuries. Maj. Op. at 19–20.

    This test simply doesn’t fit a failure-to-act claim. On its
face, the majority’s test is underinclusive; it may relieve some
officials of liability despite their deliberate indifference. For
instance, under a straightforward application of the test, we
would have come out a different way in Lolli v. County of
Orange, 351 F.3d 410 (9th Cir. 2003). In that case, Lolli, a
pretrial detainee, told Deputy Walker that he was diabetic,
feeling very sick, and needed food. Id. at 420. Deputy Kent
was merely standing near Deputy Walker when Lolli shared
this information. Id. at 420. We held that Deputy Kent could
be liable based on his failure to provide medical care to Lolli
because a reasonable jury could have found that Deputy Kent
actually perceived Lolli’s serious medical need and failed to
bring him food. Id. at 420–21. Under the most natural
reading of the majority’s new test, Deputy Kent could not be
held liable because he made no “intentional decision with
respect to the conditions under which the plaintiff was
confined.” See Maj. Op. at 19–20. In other words, while the
majority’s test fits the specific facts of this case, where the
individual officers intentionally and unreasonably housed
Castro with a combative inmate, it doesn’t readily apply in
other failure-to-act cases where the plaintiff is unable to point
to the officer’s intentional decision with respect to the
plaintiff’s conditions.
              CASTRO V. CTY. OF LOS ANGELES                    53

    To avoid this outcome, the majority simply announces
that a juror would likely conclude that if a “defendant actually
knew of a substantial risk of serious harm and consciously
took no action,” then “the defendant made an intentional
decision” with respect to the conditions under which the
plaintiff was confined, which satisfies the first prong of the
majority’s new test. Maj. Op. at 20 & n.4. Of course, this is
merely the old deliberate indifference standard. The rest of
the majority’s test adds nothing to this standard (the second
prong requires a showing that the officer’s inaction “put the
plaintiff at substantial risk of suffering serious harm,” and the
third prong requires a finding that the officer “did not take
reasonable available measures to abate that risk”). Maj. Op.
at 19–20. The majority apparently reinstates the deliberate
indifference standard because it cannot explain how an
official’s failure to act could otherwise constitute an
intentional decision. In other words, the majority has simply
dressed up the Farmer test in Kingsley language for no
apparent reason; it conflates the two standards only to end up
where we started.

    In sum, the majority unnecessarily muddles our long-
standing 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. But Kingsley applies to a different category of
claims: those involving intentional, objectively unreasonable
actions. Because the majority’s reasoning is both mistaken
and unnecessary, I dissent.
