REVISED - March 5, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 96-60872

____________________

RICHARD HARE, Natural Father and next friend 

of Haley Hare, a minor; 

RICHARD HARE, Individually and in his 

official capacity as administrator of 

the estate of Tina Hare,

Plaintiffs-Appellees,

versus

CITY OF CORINTH, MS; ET AL.,

Defendants,

FRED JOHNSON, Individually and 

in his official capacity; 

BILLY CLYDE BURNS, Captain, Individually and 

in his official capacity; 

JAMES DAMONS, Captain, Individually and 

in his official capacity; 

BRENDA MOORE, Individually and 

in her official capacity,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

February 12, 1998

Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Concerning the suicide of pretrial detainee Tina Hare in July

1989, at issue in this interlocutory appeal on qualified immunity

is whether, by not preventing the suicide, Appellants acted

objectively unreasonably in the light of then clearly established
- 2 -

law. On remand from a similar interlocutory appeal, decided by our

en banc court, Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996)

(en banc), the district court again denied qualified immunity to

the individual defendants. We REVERSE.

I.

On remand, additional evidence was not presented. The parties

to this appeal agree that our en banc opinion accurately states the

facts in the light most favorable to the nonmovant, Richard Hare:

Shortly after midnight on the morning of

July [4], 1989, the Booneville [Mississippi]

Police Department notified the Corinth Police

Department that [Tina] Hare had been arrested

in Booneville on warrants for petty larceny

and forgery. Officer Larry Fuqua of the

Corinth Police Department immediately went to

Booneville to pick up Ms. Hare, at which time

the Booneville police informed Fuqua that Ms.

Hare was a “heavy drug user.” Fuqua took Ms.

Hare to the Corinth City Jail, where she was

jailed at approximately 1:45 a.m.

Ms. Hare’s husband, [Richard] Hare,

testified in his deposition that Ms. Hare

called him just after she was jailed. Mr.

Hare testified that his wife had never been in

jail before, and that she seemed scared and

frightened. Ms. Hare told her husband that

nothing could be done to secure her release

until after 8:00 a.m., so he went back to

sleep. Later that morning, at around 6:00

a.m., Mr. Hare contacted Ms. Hare’s divorced

parents, Guy Taylor and Patricia Morgan, to

inform them that their daughter was in the

Corinth jail and needed help. Shortly

thereafter, Mr. Hare met with Ms. Hare’s

parents; they decided that Ms. Hare’s parents

would go to the jail at 8:00 a.m. to seek

their daughter’s release, leaving Mr. Hare at

home to care for the Hares’ baby daughter.

When Ms. Hare’s parents went to the jail at

around 8:00 a.m., however, [Captain Billy

Clyde] Burns [of the Corinth Police

Department] told them that Ms. Hare was not

ready for release, and that it would take more
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time to complete the investigation of their

daughter. Accordingly, Burns told the parents

to return home and wait for his call.

In his deposition, Burns testified that

he was informed that Ms. Hare was a suspect in

a check forgery case, and that he first met

with Ms. Hare to interview her at

approximately 10:00 a.m. on July [4], 1989.

During this interview, Ms. Hare told Burns

that she had been forging checks and cashing

them to finance her dilaudid addiction.

According to Burns, Ms. Hare was depressed

about being in jail, and was sitting with both

feet in her chair in a defensive, “fetal-type”

position. Ms. Hare said that she was an unfit

mother and expressed concern about how her

husband would react to her predicament. Burns

observed that Ms. Hare was going through

withdrawal, which he understood to be a normal

reaction to her drug use; he also learned at

that time that Ms. Hare was scheduled to enter

a drug rehabilitation program the next day,

July [5], 1989, in Tupelo, Mississippi. Burns

indicated that Ms. Hare’s mood improved later

in the interview when she learned that her

bond amount would not be as high as she

initially had expected.

After the interview, Burns placed Ms.

Hare in a private cell and told the

dispatcher, Brenda Moore, to monitor Ms. Hare

in case her withdrawal symptoms required

medical attention. Ms. Hare was allowed to

call her parents to ask them to return to the

jail to assist with her bond so that she could

be released that afternoon. These plans never

materialized, apparently in part because of

Burns’ displeasure over Ms. Hare’s attempt to

destroy a videotape on which the interview had

been recorded. Also, in the meantime, the

Corinth police had received word of additional

charges on Ms. Hare. When Ms. Hare’s parents

arrived at the jail at around noon, Burns told

them that Ms. Hare could not go home at that

time.

Though Ms. Hare was not released, she was

allowed to visit with her parents from around

2:00 p.m. to 3:00 p.m. During this private

meeting, Ms. Hare’s mother described Ms. Hare

as “emotionally distraught.” Burns likewise
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described Ms. Hare’s mood as “hyper” and

“frantic” while her parents were at the jail.

Ms. Hare attempted to convince Burns not to

hold her in jail another night and threatened

to commit suicide if he did. While Burns did

not consider the threat serious, Ms. Hare’s

father testified that he believed that she was

serious, observing that she had made the

suicide threat in a serious, believable tone

of voice. Burns acknowledged that it was

possible that Ms. Hare said to him that “her

life was in his hands,” but said that he could

not specifically remember whether she said

those words to him. In any event, Ms. Hare’s

threat prompted her father to seek assurance

from Burns that Ms. Hare would be safe. Burns

acknowledges telling Ms. Hare’s father that

the police would do “everything within [their]

power to make sure that nothing did happen to

her.”

After Ms. Hare’s parents left the jail,

Burns returned Ms. Hare to her original cell.

Burns subsequently moved her to an isolated

cell nearest the camera monitors and trusty

station, claiming that Police Chief Fred

Johnson instructed him to do so. Johnson

denies that he ever gave Burns such an

instruction. Since Ms. Hare had been stripsearched previously, Burns searched her cell,

took her shoes, and made sure that she did not

have a belt. Burns saw a blanket on the bunk

and considered the possibility that Ms. Hare

might use it to harm herself, but left it

there believing that she was not strong enough

to tear it. Burns instructed dispatcher Moore

to keep a close check on Ms. Hare and to have

the trusties check on her. Accordingly to

Burns, his primary concern was Ms. Hare’s

“withdrawal syndrome,” not her suicide threat.

Moore confirms that Burns told her to

keep an eye on Ms. Hare, and that he also

apprised her of Ms. Hare’s threat to harm

herself. Burns, however, believed that Moore

would be on duty until 10:00 p.m., when in

fact she was off duty at 5:00 p.m. Moore thus

went home at 5:00 p.m., at which time Captain

James Damons took over her dispatching duties.

Moore claims that she informed Damons that

Burns had left instructions to keep an eye on
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Ms. Hare, though Damons denies receiving such

information. 

Burns left the station some time after

3:00 p.m. At around 6:00 p.m., Burns called

the jail from his home and told Damons to have

the two trusties check on Ms. Hare at least

every forty-five minutes. Damons promptly

sent a trusty to check on Ms. Hare. When the

trusty arrived at Ms. Hare’s cell, he found

her hanging from the bars of her cell with a

noose that she had fashioned from strips of

the blanket. As the trusty did not have a key

to Ms. Hare’s cell, he immediately notified

Damons. Damons, in accordance with jail

procedures, could not leave his post, so he

called Burns. Ms. Hare was left there

hanging, though the summary judgment evidence

does not establish whether she was alive or

dead when the trusty first found her. Burns

told Damons to leave Ms. Hare undisturbed

until the State Investigator arrived.

Hare, 74 F.3d at 636-38.

Pursuant to 42 U.S.C. § 1983, Richard Hare sued the City of

Corinth, as well as the individual defendants bringing this appeal,

alleging that, inter alia, they were deliberately indifferent to

the risk of Tina Hare’s suicide. The district court denied summary

judgment, Hare v. City of Corinth, 814 F. Supp. 1312, 1314 (N.D.

Miss. 1993), and the individual defendants appealed, asserting

qualified immunity.

Our court’s original panel opinion held that Richard Hare had

alleged a violation of the clearly established right to medical

attention for suicidal tendencies, and that material fact issues

remained as to whether the individual defendants were deliberately

indifferent. Hare v. City of Corinth, 22 F.3d 612 (5th Cir. 1994),

withdrawn and superseded on rehearing by 36 F.3d 412 (5th Cir.

1994), on rehearing en banc, 74 F.3d 633 (5th Cir. 1996), on
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remand, 949 F. Supp. 456 (N.D. Miss. 1996). However, that panel

revised its opinion, holding: (1) that “the jail officials were

under a clearly established constitutional duty to provide pretrial

detainees with reasonable care for serious medical needs, unless

the deficiency reasonably served a legitimate governmental

objective”; and (2) that a material fact issue existed as to

whether the jail officials “knew or should have known of Tina

Hare’s vulnerability to suicide”. Hare, 36 F.3d at 415-17, on

rehearing en banc, 74 F.3d 633, on remand, 949 F. Supp. 456.

Our court took this case en banc, for the following reasons

stated in the resulting opinion, and held:

As our cases suggest, we have traveled a

peripatetic route in invoking different

measures of the constitutional rights of

pretrial detainees to medical care and

protection from harm. Close analysis,

however, discloses much consistency in our

treatment of the underlying constitutional

claims. Our goal in deciding this case today

is to clarify our case law and to articulate

the proper legal measure of a State’s duty to

tend to a pretrial detainee posing a risk of

suicide.

* * *

[W]e conclude that a state jail official’s

constitutional liability to pretrial detainees

for episodic acts or omissions should be

measured by a standard of subjective

deliberate indifference as enunciated by the

Supreme Court in Farmer [v. Brennan, 511 U.S.

825 (1994)].

Hare, 74 F.3d at 643. This holding is restated at the conclusion

of the opinion:

In sum, we hold (1) that the State owes

the same duty under the Due Process Clause and

the Eighth Amendment to provide both pretrial
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detainees and convicted inmates with basic

human needs, including medical care and

protection from harm, during their

confinement; and (2) that a state jail

official’s liability for episodic acts or

omissions cannot attach unless the official

had subjective knowledge of a substantial risk

of serious harm to a pretrial detainee but

responded with deliberate indifference to that

risk.

Id. at 650 (emphasis added). 

Accordingly, this case was remanded to the district court with

the following instructions:

Richard Hare alleges that the defendants

violated the Due Process Clause of the

Fourteenth Amendment by causing Tina Hare to

be deprived of her right to reasonable care.

The district court found that there was a

genuine issue of material fact as to whether

the defendants knew or should have known of

Ms. Hare’s suicide risk. As we have

explained, however, the correct legal standard

is not whether the jail officers “knew or

should have known,” but whether they had

gained actual knowledge of the substantial

risk of suicide and responded with deliberate

indifference. This appeal comes from a denial

of summary judgment rejecting qualified

immunity. We remand for application of the

standard announced today. See Rankin v.

Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).

We express no opinion regarding the outcome of

such further proceedings in the trial court.

Id. (Emphasis added). 

As noted, additional evidence was not presented on remand.

The district court again denied summary judgment, both on the

merits and on qualified immunity, holding that material fact issues

remained as to whether the individual defendants had subjective

knowledge of the risk of Tina Hare’s suicide and whether they acted
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with deliberate indifference to that risk. Hare, 949 F. Supp. at

460-66.

II.

The denial of summary judgment on qualified immunity is, of

course, immediately appealable, even when a genuine issue of

material fact exists, when the order determines a question of law.

E.g., Wren v. Towe, No. 96-11388, slip op. at 1193 (5th Cir. Dec.

30, 1997) (“A district court’s denial of summary judgment is not

immune from interlocutory appeal simply because the denial rested

on the fact that a dispute over material issues of fact exists.”)

(citation omitted); Coleman v. Houston Indep. Sch. Dist., 113 F.3d

528, 531 (5th Cir. 1997) (discussing Behrens v. Pelletier, 516 U.S.

299 (1996)).

Along this line, Richard Hare moved to dismiss this appeal.

In an unpublished opinion, our court held: 

We conclude that these [individual] defendants

have a right to an interlocutory appeal to

assert their qualified-immunity defense

because they are challenging the district

court’s legal reasoning rather than merely its

factual findings.

* * *

They are not arguing, for example, that there

was insufficient summary judgment evidence for

the district court to permit a jury to

conclude that they left Ms. Hare with the

blanket that she used to hang herself. They

claim not that they didn’t do it, but that

even if they did it, it didn’t violate a

clearly established constitutional right and

thus doesn’t defeat their immunity.
- 9 -

Hare v. City of Corinth, No. 96-60872, at 2, 6 (5th Cir. filed Mar.

31, 1997) (unpublished).

It bears repeating that this appeal is brought only by the

individual officers, not the City of Corinth, concerning only

qualified immunity, not the merits. And, it is well to remember

that qualified immunity serves a number of quite important goals.

Courts have expressed a concern over “the deterrent effect that

civil liability may have on the willingness of public officials to

fully discharge their professional duties”. Sanchez v. Swyden, No.

96-40557, slip op. at 1390-91 (5th Cir. Jan. 13, 1998) (citing

Pierson v. Ray, 386 U.S. 547, 555 (1967); Anderson v. Creighton,

483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982); and Scheuer v. Rhodes, 416 U.S. 232, 239-41 (1974)).

Moreover, we seek to “avoid excessive disruption of government”.

Malley v. Briggs, 475 U.S. 335, 341 (1986). To this end, qualified

immunity serves to terminate a claim against a public official as

soon as possible in a judicial proceeding, even before discovery.

See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (“‘Until this

threshold [qualified] immunity question is resolved, discovery

should not be allowed.’”) (quoting Harlow, 457 U.S. at 818).

“Decision of this purely legal question [of qualified

immunity] permits courts expeditiously to weed out suits which fail

the test without requiring a defendant who rightly claims qualified

immunity to engage in expensive and time consuming preparation to

defend the suit on its merits.” Siegert, 500 U.S. at 232 (emphasis

added). “One of the purposes of immunity, absolute or qualified,
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is to spare a defendant not only unwarranted liability, but

unwarranted demands customarily imposed upon those defending a long

drawn out lawsuit.” Id. Accordingly, the doctrine of qualified

immunity “provides ample protection to all but the plainly

incompetent or those who knowingly violate the law”. Malley, 475

U.S. at 335. Needless to say, some of these goals are not

reflected in the instant case; the issue of qualified immunity is

still unresolved more than six years after the complaint was filed.

The bifurcated test for qualified immunity is quite familiar:

(1) whether the plaintiff has alleged a violation of a clearly

established constitutional right; and, (2) if so, whether the

defendant’s conduct was objectively unreasonable in the light of

the clearly established law at the time of the incident. E.g.,

Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). It goes

without saying that we review a summary judgment de novo, viewing

the evidence in the light most favorable to the nonmovant. E.g.,

Abbott v. Equity Group, Inc., 2 F.3d 613, 618-19 (5th Cir. 1993).

A.

Again, the first step is to determine whether the plaintiff

has alleged “violation of a clearly established constitutional

right”. Siegert, 500 U.S. at 231. E.g., White v. Taylor, 959 F.2d

539, 545 n.4 (5th Cir. 1992) (“We have interpreted Siegert to

require that we examine whether the plaintiff has stated a claim

for a constitutional violation before reaching the issue of

qualified immunity.”); Connelly v. Comptroller of the Currency, 876

F.2d 1209, 1212 (5th Cir. 1989) (“It is a common failing in
- 11 -

qualified immunity decisions that courts avoid deciding exactly

what constitutional violation might have occurred if the facts are

as a plaintiff alleged.... The purpose of requiring careful

characterization of plaintiff’s claim at the outset of a qualified

immunity analysis is to effectuate the goal of that defense”).

This analysis is made under the “currently applicable

constitutional standards”. Rankin v. Klevenhagen, 5 F.3d 103, 106

(5th Cir. 1993).

Richard Hare claims that the individual defendants “violated

the Due Process Clause of the Fourteenth Amendment by causing Tina

Hare to be deprived of her right to reasonable care”. Hare, 74

F.3d at 650. Appellants counter that there is no duty to diagnose

her with a mental illness that would trigger a duty to protect her

from suicide. And, again, our en banc opinion stated:

We hold that the episodic act or omission of a

state jail official does not violate a

pretrial detainee’s constitutional right to be

secure in his basic human needs, such as

medical care and safety, unless the detainee

demonstrates that the official acted or failed

to act with deliberate indifference to the

detainee’s needs.

Id. at 647-48.

Richard Hare has consistently alleged that the individual

defendants knew, or should have known, that Tina Hare was

exhibiting suicidal tendencies, and that the defendant’s actions,

and inactions, by, inter alia, placing Tina Hare in an isolated

cell, without removing the blanket, constituted deliberate

indifference to Tina Hare’s serious medical/psychiatric needs.

Therefore, pursuant to the standard established by our en banc
- 12 -

opinion, Richard Hare has alleged the violation of a clearly

established constitutional right.

B.

The second prong of the qualified immunity test is better

understood as two separate inquiries: whether the allegedly

violated constitutional rights were clearly established at the time

of the incident; and, if so, whether the conduct of the defendants

was objectively unreasonable in the light of that then clearly

established law. See Pierce v. Smith, 117 F.3d 866 (5th Cir.

1997); Rankin, 5 F.3d at 108 (“When evaluating whether a plaintiff

stated a constitutional violation, we looked to currently

applicable constitutional standards. However, the objective

reasonableness of an official’s conduct must be measured with

reference to the law as it existed at the time of the conduct in

question.”) (internal quotes and citations omitted) (emphasis

added). 

1.

As discussed fully in our en banc opinion, review of the case

law as of the time of the incident, July 1989, reveals that the

standard of care owed to pretrial detainees, in protection of their

due process right to medical care or protection from harm, was

confused and often conflicting. See generally Hare, 74 F.3d at

639-43 (detailing the relevant case law on this issue prior to the

en banc opinion). We revisit it briefly.
- 13 -

In Bell v. Wolfish, 441 U.S. 520, 539 (1979), the Court

provided the following standard to be applied in a case involving

a pretrial detainee’s due process rights:

[I]f a particular condition or restriction of

pretrial detention is reasonably related to a

legitimate governmental objective, it does

not, without more, amount to ‘punishment.’

Conversely, if 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.

This standard is contrasted with the requirement of

“deliberate indifference”, which has been employed in cases

involving prisoner claims of Eighth Amendment violations due to

denial or interference with medical needs. Estelle v. Gamble, 429

U.S. 97, 104-05 (1976). This was explained in our en banc opinion

in Hare:

When dealing with a pretrial detainee’s right

to medical care or protection from harm, it is

argued, we must apply the reasonable

relationship test of Bell, since that test was

designed specifically to define the scope of

due process rights of pretrial detainees.

With equal fervor it is urged that the

deliberate indifference standard applied in

the Court’s Eighth Amendment cases ought to be

the choice, since those cases have addressed

the specific type of right asserted in this

case—the right to medical care or protection

from harm.

74 F.3d at 640.

The case law in this circuit in the decade following Bell and

Estelle did little to clarify the proper standard in pretrial

detainee suicide cases. Johnston v. Lucas, 786 F.2d 1254 (5th Cir.
- 14 -

1986), held that a prisoner must show that the jailers acted with

“conscious or callous indifference” to their duty to protect the

prisoner from others. Shortly after Lucas, we held that, in cases

involving claims by a pretrial detainee under the Eighth Amendment

right to be free from the constant threat of harm by fellow

inmates, “[t]he same conditions of violence and sexual abuse which

constitute cruel and unusual punishment may also render the

confinement of pretrial detainees punishment per se.” Alberti v.

Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986).

Finally, in Partridge v. Two Unknown Police Officers, 791 F.2d

1182 (5th Cir. 1986), our court was presented with a case involving

a pretrial detainee suicide. We held that, under Bell, “the

defendants had a duty, at a minimum, not to be deliberately

indifferent to [the pretrial detainee’s] serious medical needs”.

Id. at 1187 (emphasis added). This decision clearly held that

negligence is an insufficient basis on which to state a claim, and

pointed to a standard of deliberate indifference to a pretrial

detainee’s medical needs. However, the applicable standard was

again obfuscated by our decision in Cupit v. Jones, 835 F.2d 82, 85

(5th Cir. 1987), which signaled a return to the Bell test by

requiring that an official’s failure to provide reasonable medical

care must be “reasonably related to a legitimate governmental

objective”.

These cases show that the parameters of the law in 1989 were

far from clearly defined. But, on the other hand, they demonstrate

that it was clearly established that, at a minimum, the standard of
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care was as described in our 1996 en banc opinion in this case.

See Hare, 949 F. Supp. at 464 (“[T]he duty of law enforcement

officials not to be deliberately indifferent to serious medical

needs of pre-trial detainees has long since been the minimum duty

owed to a pre-trial detainee.”) (citing as authority Estelle, 429

U.S. 97; Bell, 441 U.S. at 535 n.16; City of Revere v.

Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Jones v.

Diamond, 636 F.2d 1364, 1378 (5th Cir. 1981), overruled on other

grounds by International Woodworkers of Am., AFL-CIO and its Local

No. 5-376 v. Champion Int’l. Corp., 790 F.2d 1174 (5th Cir. 1986);

and Partridge, 791 F.2d at 1187).

Therefore, the deliberate indifference test enunciated in our

1996 en banc opinion was a clearly established minimum standard of

conduct when the incident occurred in 1989. In other words, at the

very least, that standard was clearly established as of then.

Therefore, it is that standard to which we hold the individual

defendants in determining, objectively, the reasonableness of their

conduct. See Anderson, 483 U.S. at 640 (“[T]he ‘contours’ of the

right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”); Sanchez,

No.96-40557, slip op. at 1390 (“[T]he official’s knowledge of the

relevant law need not rise to the level of a ‘constitutional

scholar.’”) (citing Harlow, 457 U.S. at 815-17).

2.

Accordingly, we turn to whether the conduct of the individual

defendants was objectively reasonable in the light of the then
- 16 -

clearly established law. E.g., Rankin, 5 F.3d at 108; Spann v.

Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). “The stated purpose

underlying adoption of an objective test was to ‘permit the

resolution of many insubstantial claims on summary judgment’ and to

avoid ‘subject[ing] government officials either to the costs of

trial or to the burdens of broad-reaching discovery’ in cases in

which the legal norms the officials are alleged to have violated

were not clearly established at the time the events occurred.”

Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987) (citing

Harlow, 457 U.S. at 817-18) (emphasis added).

On this appeal, objective reasonableness has been confused

with the separate subjective standard of deliberate indifference.

This is understandable. As the district court recognized, other

courts have experienced difficulty determining the relationship

between these two standards in the context of qualified immunity.

See, e.g., Scott v. Abate, No. CV-93-4589, 1995 WL 591306, at *10

n.5 (E.D.N.Y. Sept. 27, 1995) (“It is ... difficult to imagine

factual circumstances in which a trier of fact could find

deliberate indifference as defined by Farmer and nevertheless

conclude that a reasonable person in [the] defendant’s position was

not chargeable with knowledge that his or her actions violated the

plaintiff’s clearly established constitutional rights.”) (quoting

Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328, at *6

(N.D.N.Y. Dec. 16, 1994)).

Again, this appeal is brought only by the individual officers,

not the City of Corinth, contesting the qualified immunity denial,
- 17 -

not the merits. And, again, in addressing qualified immunity, the

test is objective reasonableness. And, again, objective

reasonableness is a question of law for the court. E.g., Mangieri

v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (“[I]n evaluating a

claim of qualified immunity, the district court is to make a

determination of the objective reasonableness of the official’s act

as a matter of law.”) 

Obviously, the analysis for objective reasonableness is

different from that for deliberate indifference (the subjective

test for addressing the merits). Otherwise, a successful claim of

qualified immunity in this context would require defendants to

demonstrate that they prevail on the merits, thus rendering

qualified immunity an empty doctrine. See Hart v. O’Brien, 127

F.3d 424, 454 (5th Cir. 1997) (“A public official who attacks a

plaintiff’s ability to prove her case is not raising a qualified

immunity defense, which is ‘conceptually distinct from the merits

of the plaintiff’s claim.’”) (quoting Johnson v. Jones, 515 U.S.

304, 314 (1995)).

Accordingly, for this appeal on qualified immunity, the

subjective deliberate indifference standard serves only to

demonstrate the clearly established law in effect at the time of

the incident, as discussed supra. And, under that standard — the

minimum standard not to be deliberately indifferent — the actions

of the individual defendants are examined to determine whether, as

a matter of law, they were objectively unreasonable.
 

1 Richard Hare contends that the failure to check Tina

Hare’s pulse or body temperature when she was found hanging in the

cell could, by itself, allow a reasonable juror to find that the

defendants were deliberately indifferent to Tina Hare’s medical

needs. This contention was not made in the pleadings. In fact,

the complaint alleges that Tina Hare was found hanging in her cell

at approximately 6:00 p.m. on 4 July 1989, but that she “died at

approximately 5:30 p.m. ... while in the custody of the

Defendants”. The only reference whatsoever in the record vis-a-vis

this argument is in the plaintiff’s motion to amend the pretrial

order to include a conflict of law as to “[w]hether the

Constitution requires a municipality or its employees to ensure

that inmates receive care for their serious medical needs,

specifically, emergency care for inmates discovered hanging in

their cells.” Because Richard Hare did not make this contention in

district court in response to the summary judgment motion, much

less present any supporting evidence, it is not properly presented

on appeal.

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Officer Burns was present at a meeting between Tina Hare and

her parents, at which Tina Hare threatened suicide. Officer Burns

placed her in the private cell closest to the monitor and the

trusty’s station, searched the cell, ensured that Tina Hare did not

have a belt, and removed her shoes because they had laces. Officer

Burns did not remove the blanket from the cell because he believed

that Tina Hare, who weighed only approximately 100 pounds, was not

strong enough to tear it. Officer Burns instructed Officer Moore

to keep a close check on Tina Hare. On the afternoon of the

suicide, Appellants, or the jail trusties, checked on Tina Hare

when she went to her cell at 3:00 p.m., when Officer Damons came on

duty at 4:00 p.m., when Tina Hare was fed at 5:00 p.m., and when

Officer Burns called at 6:00 p.m. Moreover, the only evidence in

the record concerning Tina Hare’s physical state when she was found

is Officer Burn’s report, which states that Officer Damons reported

that she was dead.1
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Needless to say, in this context, the objective reasonableness

standard does not afford a simple bright-line test. See, e.g.,

Rellergert v. Cape Girardeau County, 924 F.2d 794, 797 (8th Cir.

1991) (“While we conclude that the law is clearly established that

jailers must take measures to prevent inmate suicides once they

know of the suicide risk, we cannot say that the law is established

with any clarity as to what those measures must be.”). However, we

conclude that, against the backdrop of the deliberate indifference

standard enunciated in the en banc opinion, which was the only

clearly established standard in 1989, the actions of the individual

defendants are within the parameters of objective reasonableness.

Cf. Rhyne v. Henderson County, 973 F.2d 386, 393 (5th Cir. 1992)

(holding that giving a blanket to an inmate who had twice attempted

suicide and was diagnosed as suicidal, and not placing the inmate

under continuous observation, is not a constitutional violation);

State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.)

(removing belt and shoelaces were “reasonable precautions” even

though inmate was placed in a cell not visible from the booking

area and later hanged himself with his shirt), cert. denied, 464

U.S. 995 (1983); Popham v. City of Talladega, 908 F.2d 1561, 1564

(11th Cir. 1990) (holding that removing shoes and ensuring detainee

had no belt demonstrate a lack of deliberate indifference); Schmelz

v. Monroe County, 954 F.2d 1540, 1545 (11th Cir. 1992) (finding no

deliberate indifference when officers failed to remove a blanket as

part of a suicide watch, even though the detainee had previously
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requested to see the jail psychologist, because such conduct “can

be characterized at best as mere negligence”).

It is important to underline our narrow holding: we do not

address arguments concerning the material fact issues designated by

the district court. Instead, we hold that the undisputed facts,

viewed in the light most favorable to the nonmovant, do not

constitute objectively unreasonable conduct when applied against

the deliberate indifference standard.

In this regard, it should be noted that our holding does not

insulate all public officials from liability for suicides by

pretrial detainees. Based on evidence that an officer was

subjectively, deliberately indifferent, as described in our en banc

opinion, the objective reasonableness analysis may well result in

that officer not being entitled to qualified immunity. It goes

without saying that each case will turn on the evidence to which

the objective standard is applied. On the other hand, as

discussed, and where appropriate, qualified immunity serves

important purposes by terminating an action early in the

proceedings. E.g, Hunter v. Bryant, 502 U.S. 224, 227 (1991)

(“Immunity ordinarily should be decided by the court long before

trial.”).

III.

In sum, as a matter of law, the district court should have

granted summary judgment to Appellants on qualified immunity
 

2 Obviously, the sanctions sought against Appellants for

claimed undue delay and frivolousness of the appeal are DENIED.

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grounds.2 Accordingly, the denial of summary judgment is REVERSED

as to Appellants; judgment is RENDERED for them; and this matter is

REMANDED for further proceedings.