In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 23-2301 

REGINALD PITTMAN, by and through his guardian and next 

friend, ROBIN M. HAMILTON, 

Plaintiff-Appellant, 

v.

MADISON COUNTY, ILLINOIS, et al.,

Defendants-Appellees.

____________________ 

Appeal from the United States District Court for the 

Southern District of Illinois. 

No. 3:08-cv-00890-DWD — David W. Dugan, Judge. 

____________________ 

ARGUED APRIL 2, 2024 — DECIDED JULY 16, 2024 

____________________ 

Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges. 

SCUDDER, Circuit Judge. Reginald Pittman, a pretrial detainee at the Madison County jail, attempted suicide while 

awaiting trial. He survived but suffered a severe brain injury. 

Complaining that two guards ignored his requests to see crisis counseling before the suicide attempt, Pittman sued Madison County and various jail officials under 42 U.S.C. § 1983, 

alleging that they violated the Fourteenth Amendment by 
2 No. 23-2301

failing to provide him with adequate medical care. What followed is a lengthy procedural history including three appeals 

and three trials. On appeal from the third trial and verdict for 

the defendants, Pittman challenges a key jury instruction for 

his Fourteenth Amendment claim. He contends that the instruction erroneously required proof that the officers were 

subjectively aware or strongly suspected a high likelihood of 

self-harm.

Pittman pressed this argument in a prior appeal, and we 

rejected it. But much has evolved in our case law since that 

decision, as numerous cases have required us to grapple with 

the nuances of the state-of-mind requirements in claims 

brought by pretrial detainees. Aided by those decisions, we 

agree with Pittman that the jury instruction contained an error. Pittman did not need to prove subjective awareness of the 

risk of harm to establish liability. Instead, the jury should 

have been instructed to answer whether the defendants made 

an intentional decision with respect to Pittman’s conditions of 

confinement, and from there, whether defendants acted objectively unreasonably by failing to mitigate the risk Pittman 

posed to himself. 

In the end, though, we cannot conclude that the jury instruction error prejudiced Pittman. We reach that conclusion 

based on a thorough examination of the evidence presented 

at trial and the arguments of the parties. So we affirm. 

I

A

The trial record following our most recent remand supplies the operative facts. 
No. 23-2301 3

In August 2007, Reginald Pittman entered the Madison 

County jail as a pretrial detainee. Within a few months, he reported mental distress. In late October, he told a jail officer, 

Deputy Matthew Werner, that he was suicidal. Deputy Werner referred Pittman to a social worker from Chestnut Health 

Systems, also known as “crisis” counseling, and placed him 

on suicide watch for several days. A few weeks later, Pittman 

requested to see crisis counseling once again. At a counselor’s 

suggestion, Sergeant Randy Eaton temporarily relocated 

Pittman to the Special Housing Unit for additional observation.

On December 19, Pittman attempted suicide. He hung 

himself from the bars of his cell with a bed sheet, resulting in 

a severe brain injury. Pittman left a suicide note stating that 

“the [g]uards” were “f***ing with [him]” and would not let 

him talk to “crisis [counseling].”

According to Bradley Banovz, an inmate housed near 

Pittman’s cell, Pittman had asked Deputy Werner and Sergeant Eaton to refer him to crisis counseling in the days leading up to his suicide attempt, but neither did. Banovz testified 

that Pittman asked Deputy Werner to put him on the list for 

crisis counseling on Friday, December 14. As Banovz remembered, Deputy Werner did not take the request seriously, joking that Pittman did not need counseling. Deputy Werner reportedly told Pittman that he would be back on Monday and 

schedule him for crisis counseling then. That never happened.

Banovz also recalled that Pittman asked Sergeant Eaton to 

refer him to crisis counseling a few days later, on Tuesday, 

December 18. As Sergeant Eaton made his rounds that night, 

Banovz overheard Pittman—who was crying—ask to see crisis counseling with Eaton responding that he would schedule 
4 No. 23-2301

an appointment. But Sergeant Eaton did not refer Pittman to 

crisis counseling either.

Deputy Werner and Sergeant Eaton both testified and offered an altogether different account. To be sure, they were 

quick to admit knowing that Pittman had been on suicide 

watch in October 2007. But they rejected Banovz’s account 

and denied ever hearing or seeing any indication of subsequent mental distress from Pittman or, more specifically, ever 

hearing him ask to return to crisis counseling. And, going further, Deputy Werner and Sergeant Eaton insisted that had 

Pittman asked for crisis counseling, they would have referred 

him for mental health treatment.

B

Through his guardian, Pittman sued Madison County, 

Deputy Werner, Sergeant Eaton, and others, bringing claims 

under 42 U.S.C. § 1983 and state law. Pittman’s § 1983 claim 

alleges that defendants violated the Due Process Clause of the 

Fourteenth Amendment by failing to respond to his requests 

for mental health treatment.

Pittman’s case has a lengthy history, including three prior 

appeals. See Pittman ex rel. Hamilton v. County of Madison

(Pittman I), 746 F.3d 766 (7th Cir. 2014) (reversing in part a 

grant of summary judgment for defendants because a triable 

issue of fact existed on Pittman’s claims against Deputy Werner and Sergeant Eaton); Pittman ex rel. Hamilton v. County of 

Madison (Pittman II), 863 F.3d 734 (7th Cir. 2017) (reversing 

and remanding for a new trial because the district court erroneously excluded Banovz’s recorded interview at the first 

trial); Pittman ex rel. Hamilton v. County of Madison (Pittman 

III), 970 F.3d 823 (7th Cir. 2020). Most relevant to this appeal 
No. 23-2301 5

is Pittman III, which involved a pivotal jury instruction articulating the elements of Pittman’s Fourteenth Amendment 

claim. In Pittman III, we held that a portion of that jury instruction misstated the law and remanded for a new trial.

The case then went to trial for the third time. Over 

Pittman’s objection, the district court instructed the jury in 

line with our ruling in Pittman III, using materially identical 

language to that which we approved in Pittman III. The jury 

returned a verdict for defendants, and this appeal followed.

II

The sole issue before us is whether the district court accurately instructed the jury on the elements of Pittman’s Fourteenth Amendment claim. Pittman believes that the instruction improperly injected a subjective component into an otherwise objective inquiry, contravening Kingsley v. Hendrickson, 576 U.S. 389 (2015), and our precedent. 

“We evaluate [] jury instructions anew when deciding if 

they accurately state the law.” Miranda v. County of Lake, 900 

F.3d 335, 350 (7th Cir. 2018). If the instruction contains a legal 

error, we will reverse only if the error prejudiced Pittman. See 

Cotts v. Osafo, 692 F.3d 564, 567 (7th Cir. 2012).

A

Incarcerated persons have a constitutional “right to receive adequate medical treatment,” including mental health 

treatment and protection from self-harm. Miranda, 900 F.3d at 

350 (citing Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). But the 

source and scope of that right turns “on the relationship between the state and the person in the state’s custody.” Collins 

v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017) (quoting Currie v. 

Chhabra, 728 F.3d 626, 630 (7th Cir. 2013)).
6 No. 23-2301

For convicted prisoners, the Eighth Amendment’s proscription on “cruel and unusual punishments” protects 

against deliberate indifference to serious medical needs. See

Estelle, 429 U.S. at 102–04. These claims measure state-ofmind, specifically, deliberate indifference, using a subjective 

standard: to be liable a prison official must be “aware of a substantial risk of serious harm, and effectively condone[] the 

harm by allowing it to happen.” Jones v. Mathews, 2 F.4th 607, 

613 (7th Cir. 2021) (citation and internal quotation marks 

omitted). “This subjective standard,” we have explained, “is 

closely linked to the language of the Eighth Amendment.” Miranda, 900 F.3d at 350.

Pretrial detainees, however “stand in a different position: 

they have not been convicted of anything, and they are still 

entitled to the constitutional presumption of innocence.” Id. 

“[P]retrial detainees (unlike convicted prisoners) cannot be 

punished at all,” Kingsley, 576 U.S. at 400, so “the [Eighth 

Amendment’s] punishment model is inappropriate for 

them,” Miranda, 900 F.3d at 350. Instead, they “are protected 

from certain abusive conditions” by the Fourteenth Amendment’s Due Process Clause. Id.; see also Bell v. Wolfish, 441 U.S. 

520, 535–36 (1979) (explaining that “the restrictions and conditions of the detention facility” cannot “amount to punishment” because “a detainee may not be punished prior to an 

adjudication of guilt in accordance with due process of law”).

These “different constitutional provisions” lead to “different standards.” Collins, 851 F.3d at 731 (quoting Currie, 728 

F.3d at 630). Yet for many years we “assessed pretrial detainees’ medical care (and other) claims under the Eighth Amendment’s [subjective] standards.” Miranda, 900 F.3d at 350. That 

changed in Kingsley.
No. 23-2301 7

In Kingsley, the Supreme Court held that an objective reasonableness standard applies to a pretrial detainee’s claim of 

excessive force. 576 U.S. at 392. Such a claim, the Court explained, involves “two separate state-of-mind” questions: 

(1) “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,” and (2) “the 

defendant’s state of mind with respect to whether his use of 

force was ‘excessive.’” Id. at 395. The former, which requires 

“a purposeful, a knowing, or possibly a reckless state of 

mind,” was not disputed in Kingsley itself. Id. at 396. Still, the 

Court took care to observe that this part of the mental-state

requirement safeguards against liability for “negligently inflicted harm,” which is “categorically beneath the threshold 

of constitutional due process.” Id. (citation and internal quotation marks omitted).

The Supreme Court focused its attention on the latter 

state-of-mind question, considering at some length whether 

“the defendant’s state of mind with respect to the proper interpretation of the force” is judged by an objective or subjective 

standard. Id. That question, the Court determined, requires 

proof “only that the force purposely or knowingly used 

against [the pretrial detainee] was objectively unreasonable.” 

Id. at 396–97. Applying this standard, the Court in Kingsley rejected jury instructions that suggested “weigh[ing] [a defendant’s] subjective reasons for using force and subjective views 

about the excessiveness of the force.” Id. at 403–04.

Concluding that the Supreme Court did not limit its reasoning in Kingsley to excessive force claims, we extended the 

objective reasonableness standard to pretrial detainees’ medical care claims in our decision in Miranda v. County of Lake. 
8 No. 23-2301

See 900 F.3d at 352. In doing so, we emphasized Kingsley’s reminder to pay careful attention to the different status of pretrial detainees. See id. at 352 (reiterating that “[t]he language 

of the two Clauses differs, and the nature of the claims often 

differs[, a]nd most importantly, pretrial detainees ... cannot 

be punished at all, much less maliciously and sadistically” (citation and internal quotation marks omitted)). Conceptualizing the Kingsley standard, we concluded that a jury must decide two questions: (1) “whether the medical defendants 

acted purposefully, knowingly, or perhaps even recklessly 

when they considered the consequences of their handling of 

[plaintiff’s] case” and (2) whether the defendants’ actions 

were “objectively reasonable.” Id. at 353–54.

B

Pittman III came not long after Miranda and confronted 

how to instruct a jury on Kingsley’s objective standard. 970 

F.3d at 827–28. During his second trial, which was reviewed 

on appeal in Pittman III, the district court instructed the jury 

that Pittman had to prove four elements to prevail on his 

Fourteenth Amendment claim against Deputy Werner and 

Sergeant Eaton for failing to respond to his requests for mental health care: 

(1) there was a strong likelihood that Pittman 

would seriously harm himself,

(2) the defendants were aware of ... or strongly 

suspected facts showing this strong likelihood,

(3) they consciously failed to take reasonable 

measures to prevent Pittman from harming 

himself, and 
No. 23-2301 9

(4) Pittman would have suffered less harm if the 

defendants had not disregarded the risk.

Id. at 827 (cleaned up). 

On appeal Pittman contended that the second and third 

elements of this instruction were inconsistent with Kingsley 

and Miranda because the “language directed the jury to apply 

the now-defunct subjective test rather than the [governing] 

objective test.” Id.

We agreed that the instruction’s use of the word “consciously” in the third element introduced a subjective component into the requirements for proving mental state. See id. at 

828–29. But we rejected Pittman’s argument that the instruction’s second element, requiring proof that defendants “were 

aware of ... or strongly suspected facts showing” a “strong 

likelihood” of harm, ran afoul of the guidance supplied by our 

post-Kingsley decision in Miranda. Id. at 827–28. That element, 

we concluded, was “consistent with Miranda” because it went 

“to Miranda’s first inquiry: whether the defendants acted purposefully, knowingly, or perhaps even recklessly.” Id. at 827 

(internal quotation marks omitted). 

We reasoned that “if the defendants ‘were aware’ that 

their actions would be harmful, then they acted ‘purposefully’ 

or ‘knowingly’; if they were not necessarily ‘aware’ but nevertheless ‘strongly suspected’ that their actions would lead to 

harmful results, then they acted ‘recklessly.’” Id. at 828. In 

other words, to act purposefully, knowingly, or recklessly, a 

defendant must have personal knowledge of—and thereby 

subjectively appreciate—the consequences of their actions.
10 No. 23-2301

C

Since Pittman III, we have had additional occasions to consider Kingsley’s two-stepped mental state requirement applicable to claims brought by pretrial detainees. As we extended 

Kingsley to the failure-to-protect context, we determined that 

a pretrial detainee does not have to show a defendant’s subjective awareness of the risk of harm. See Kemp v. Fulton 

County, 27 F.4th 491, 497 (7th Cir. 2022); Thomas v. Dart, 39 

F.4th 835, 841 (7th Cir. 2022); Echols v. Johnson, No. 22-3230, 

2024 WL 3197540, at *1 (7th Cir. June 27, 2024).

First, in Kemp v. Fulton County, we held that Kingsley abrogated our pre-Kingsley case law “to the extent that [it] require[d] pretrial detainees to show, in a failure-to-protect 

case, that a defendant was subjectively aware of a substantial 

risk of serious injury.” 27 F.4th at 497 (internal quotation 

marks omitted). Such a requirement “cannot be reconciled 

with Kingsley’s language, reasoning, and reminder to ‘pay 

careful attention to the different status of pretrial detainees.’” 

Id. (quoting Miranda, 900 F.3d at 352). Instead, a pretrial detainee must show that the defendant “intend[ed] to carry out 

a certain course of actions,” and “[a]t that point, the remaining question is whether that course is objectively reasonable.” 

Id.

We adhered to the same approach in Thomas v. Dart, articulating the elements of a Fourteenth Amendment failure-toprotect claim without reference to a defendant’s subjective 

awareness of the risk of harm: 

(1) the defendant made an intentional decision 

regarding the conditions of the plaintiff’s confinement; (2) those conditions put the plaintiff 
No. 23-2301 11

at substantial risk of suffering serious harm; 

(3) the defendant did not take reasonable available measures to abate the 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 inaction obvious; and (4) the defendant, by 

not taking such measures, caused the plaintiff’s 

injuries.

39 F.4th at 841. As in Kemp, we still considered awareness of 

the risk of harm, but from the perspective of a reasonable officer as part of Kingsley’s objective reasonableness inquiry. See 

also Echols, 2024 WL 3197540, at *3–4 (applying the Kingsley

standard in a recent failure-to-protect case and concluding 

that the jury instructions improperly required the plaintiff to 

prove subjective awareness of the risk of harm). 

D

We have canvassed these post-Kingsley decisions in order 

to reveal the tension, if not inconsistency, in our case law. Miranda and Pittman III can be read as requiring pretrial detainees alleging inadequate medical care claims to prove defendants’ subjective awareness of the risk of harm. See Miranda, 

900 F.3d at 353–54; Pittman III, 970 F.3d at 827–28. Yet in Kemp 

and Thomas we retreated from any such requirement in evaluating the requirements for failure-to-protect claims. See 

Kemp, 27 F.4th at 497; Thomas, 39 F.4th at 841.

The confusion and discrepancy arise from our interpretation of Kingsley’s first state-of-mind inquiry: “the defendant’s 

state of mind with respect to his physical acts.” Kingsley, 576 

U.S. at 395. Pittman III, and to a lesser extent Miranda, 
12 No. 23-2301

conceptualize this inquiry as requiring proof of both intentional physical action and awareness of the consequences of 

that action. Pittman III, 970 F.3d at 827–28; Miranda, 900 F.3d 

at 353 (asking “whether the medical defendants acted purposefully, knowingly, or perhaps even recklessly when they 

considered the consequences” of their actions (emphasis added)). 

Under this interpretation, a defendant must subjectively 

know the consequences of their action or inaction to act purposefully, knowingly, or recklessly. 

On the other hand, our failure-to-protect cases perceive 

the first inquiry as a lower bar, requiring proof only that a defendant “intended to carry out a certain course of actions.” 

See, e.g., Kemp, 27 F.4th at 497. In these cases, once a defendant 

deliberately acts, their awareness of the risk of harm, or lack 

thereof, goes only to objective reasonableness. See id. at 496–

97.

We owe it to our case law and litigants alike to resolve this 

confusion. Given the volume and importance of § 1983 pretrial detainee litigation, now is the time to resolve any inconsistency within our case law. The circumstance before us is 

one of our own making, as we (like many other courts) have 

struggled to implement Kingsley’s standards outside the context of a pretrial detainee’s claim of excessive force. In light of 

today’s clarification of our case law, we circulated this opinion to the full court under Circuit Rule 40(e). No judge in active service requested to hear this case en banc.

III

A

As difficult as it is to acknowledge, we have a hard time 

squaring Pittman III with our post-Pittman III precedent 
No. 23-2301 13

interpreting and applying Kingsley. With the benefit of multiple cases in multiple contexts requiring application of this Circuit’s and our sister circuits’ analyses of Kingsley, we are left 

with the firm conviction that a pretrial detainee in a medical 

care case need not prove a defendant’s subjective awareness 

of the risk of harm to prevail on a Fourteenth Amendment 

Due Process claim. To the extent Pittman III concluded otherwise, it is overruled on this particular point.

The Supreme Court in Kingsley described the first inquiry 

as focusing on a defendant’s “state of mind with respect to the 

bringing about of certain physical consequences into the world.” 

Kingsley, 576 U.S. at 395 (emphasis added). In articulating the 

content of this first inquiry in the excessive-force context, the 

Court distinguished between intentional acts—“the swing of 

a fist that hits a face, a push that leads to a fall, or the shot of 

a Taser that leads to the stunning of its recipient”—that can 

lead to liability, and negligent acts—“if an officer’s Taser goes 

off by accident or if an officer unintentionally trips and falls 

on a detainee”—that cannot. Id. at 395–96. This framing asks 

strictly whether the defendant intended to commit the physical act that caused the alleged injury. 

Only at the next step—as part of the second state-of-mind 

inquiry—do we begin to “interpret” the “reasonableness” of 

the defendant’s action. Id. at 396. In the excessive-force context, “objective” factors informing this determination include 

“the relationship between the need for the use of force and the 

amount of force used” and “the threat reasonably perceived 

by the officer.” Id. at 397. “Subjective reasons for using force,” 

by contrast, and “subjective views about the excessiveness of 

the force,” are off-limits. Id. at 403–04 (emphasis added). The 

objective reasonableness of a decision to deny medical care 
14 No. 23-2301

likewise does not consider the defendant’s subjective views 

about risk of harm and necessity of treatment. Instead, the 

proper inquiry turns on whether a reasonable officer in the 

defendant’s shoes would have recognized that the plaintiff 

was seriously ill or injured and thus needed medical care.

This application of Kingsley comports with the Supreme 

Court’s reminder that pretrial detainees stand in a different 

position than convicted prisoners. Convicted prisoners serving a sentence must produce subjective evidence that a defendant was “aware ... that a substantial risk of serious harm 

exists” and “disregard[ed]” that risk to prevail. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Collins v. Seeman, 462 

F.3d 757, 761 (7th Cir. 2006) (requiring a “dual showing” that 

the defendant “(1) subjectively knew the prisoner was at a 

substantial risk of committing suicide and (2) intentionally 

disregarded that risk”). But “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, 576 U.S. at 398 (emphasis added); see also Bell, 

441 U.S. at 561. Accordingly, neither portion of the Eighth 

Amendment’s subjective dual showing is required to establish Fourteenth Amendment liability.

In Pittman III, we expanded Kingsley’s first inquiry and 

risked collapsing this distinction. Instead of asking solely 

about a defendant’s state-of-mind as to “the bringing about” 

of certain physical conditions, Kingsley, 576 U.S. at 398, we 

asked about their state-of-mind as to the risks that action or 

inaction posed. Pittman III, 970 F.3d at 828. This error likely 

originated with our observation in Miranda that Kingsley asks 

whether a defendant “acted purposefully, knowingly, or 
No. 23-2301 15

perhaps even recklessly when they considered the consequences of their handling of [a plaintiff’s] case.” Miranda, 900 

F.3d at 353–54 (stating that a properly instructed jury could 

find the defendant failed to act “with purposeful, knowing, or 

reckless disregard of the consequences”); Pittman III, 970 F.3d 

at 827–28 (interpreting Miranda). But in charting this course, 

the mistake we made was in reintroducing what Kingsley prohibited: consideration of a defendant’s “intent (or motive) to 

punish.” Kingsley, 576 U.S. at 398.

While recognizing our error, we acknowledge the difficulty we faced in Pittman III. This is a very complicated area 

of law, and in no way are we alone in struggling to discern 

the appropriate mental state standard for judging pretrial detainees’ claims. See, e.g., Helphenstine v. Lewis County, 60 F.4th 

305, 315–17 (6th Cir. 2023) (collecting cases). The Supreme 

Court in Kingsley focused on a narrow question: whether, in 

the excessive force context, an objective or subjective standard 

applied to a defendant’s state of mind regarding the interpretation of the force. See Kingsley, 576 U.S. at 395. As a result, the 

Court understandably left unresolved the several issues that 

the Pittman III panel faced, including the contours of the first 

Kingsley inquiry, how the two state-of-mind requirements interact, and how the Kingsley standard works in different contexts such as cases of inaction.

At the time of Pittman III, few courts had weighed in on 

these issues. But that has changed. Several of our fellow circuits now agree that a pretrial detainee does not have to prove 

a defendant’s subjective awareness of a serious risk of harm. 

See Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 

2016) (en banc) (holding in the failure-to-protect context that 

“[u]nder Kingsley, a pretrial detainee need not prove those 
16 No. 23-2301

subjective elements about the officer’s actual awareness of the 

level of risk”); Gordon v. County of Orange, 888 F.3d 1118, 1124–

25 (9th Cir. 2018) (extending Castro’s reasoning to medicalcare claims by pretrial detainees); Darnell v. Pineiro, 849 F.3d 

17, 35 (2d Cir. 2017) (concluding that “the Due Process Clause 

can be violated when an official does not have subjective 

awareness that the official’s acts (or omissions) have subjected 

the pretrial detainee to a substantial risk of harm” in a conditions of confinement case); Short v. Hartman, 87 F.4th 593, 611 

(4th Cir. 2023) (determining, in the medical care context, that 

“[t]he plaintiff no longer has to show that the defendant had 

actual knowledge of the detainee’s serious medical condition 

and consciously disregarded the risk that their action or failure to act would result in harm”); Lawler ex rel. Lawler v. Hardeman, 93 F.4th 919, 927 (6th Cir. 2024) (explaining that “officers can face liability even if they did not actually know of a 

risk of harm to a pretrial detainee” if there is proof “that the 

officers recklessly disregarded a risk so obvious that they either knew or should have known of it” in a medical care case). 

We know of no circuit court that has reached a contrary conclusion.

And our post-Pittman III failure-to-protect cases have explained the Kingsley standard in cases of inaction. Leaning on 

Kingsley, we have concluded that Kingsley’s first inquiry requires proof only that a defendant made an intentional decision about the plaintiff’s conditions. See Kemp, 27 F.4th at 496–

97. For example, in Kemp, it was enough to show that the defendant “intentionally chose not to wear his hearing aid on 

the day of the fight,” even if he did not appreciate the risk of 

harm from that choice. Id. at 497.
No. 23-2301 17

With the benefit of these developments, we recognize our 

error in Pittman III. By requiring proof that “the defendants 

were aware of ... or strongly suspected facts showing” a 

strong likelihood of harm, Pittman III, 970 F.3d at 827, we introduced a subjective component into Kingsley’s otherwise 

objective inquiry. The district court, following our guidance 

in Pittman III, thus erred (through no fault of its own) by instructing the jury in this most recent trial that Pittman must 

prove that the defendants “were aware ... or strongly suspected facts showing a strong likelihood that [Pittman] 

would be seriously harmed.”

Instead, on the mental-state element in question, the district court should have instructed the jury that, to prevail, 

Pittman must prove that the defendants did not take reasonable available measures to abate the risk of serious harm to 

Pittman, even though reasonable officers under the circumstances 

would have understood the high degree of risk involved, making the 

consequences of the defendants’ conduct obvious. That is the 

essential objective inquiry. 

B

We have no doubt our course of action will catch the defendants by surprise. As they see it, we already approved the 

challenged language as consistent with Kingsley in Pittman III, 

creating law of the case that precludes further consideration. 

Tempting though it is, we cannot accept their invitation. 

“The doctrine of law of the case establishes a presumption 

that a ruling made at one stage of a lawsuit will be adhered to 

throughout the suit.” Cannon v. Armstrong Containers, Inc., 92 

F.4th 688, 701 (7th Cir. 2024) (quoting Avitia v. Metro. Club of 

Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)); Pepper v. United 
18 No. 23-2301

States, 562 U.S. 476, 506 (2011) (defining the doctrine to 

“posit[] that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case” (quoting Arizona v. California, 

460 U.S. 605, 618 (1983))). It prevents a party from getting a 

“second bite at the [] apple.” Grede v. FCStone, LLC, 867 F.3d 

767, 775 (7th Cir. 2017). But “[t]he doctrine is discretionary, 

‘not an inflexible dictate.’” Cannon, 92 F.4th at 701 (quoting 

Chi. Joe’s Tea Room, LLC v. Village of Broadview, 894 F.3d 807, 

818 (7th Cir. 2018)); Evans v. City of Chicago, 873 F.2d 1007, 1014 

(7th Cir. 1989) (describing the doctrine as “a self-imposed prudential limitation rather than a recognition of a limitation on 

the courts’ power” (citation omitted)); Avitia, 49 F.3d at 1227 

(“But it is no more than a presumption, one whose strength 

varies with the circumstances; it is not a straitjacket.”). 

Typically, courts will only depart from an earlier decision 

because of “good reason” or “unusual circumstances.” Cannon, 92 F.4th at 701 (internal quotation marks omitted). That 

might include “(1) substantial new evidence introduced after 

the first review, (2) an intervening change in the law, and (3) a 

clearly erroneous decision.” Id. But the “duty of adherence is 

less rigid” “if the ruling in question was by the same court.” 

Avitia, 49 F.3d at 1227. In those circumstances, “[t]he doctrine 

does not apply if the court is ‘convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.’” Agostini v. Felton, 521 U.S. 203, 236 (1997) (quoting Arizona, 460 U.S. at 618 n.8).

Because we conclude Pittman III would be decided differently given our current understanding of Kingsley, adherence 

to that decision risks a manifest injustice and the law of the 

case doctrine does not apply. 
No. 23-2301 19

IV

Pittman’s task on appeal is not yet over. We must still assess whether the jury instruction error prejudiced him. Cotts, 

692 F.3d at 567. “When evaluating prejudice, we view the evidence as a whole to determine whether the jury could have 

reached a different outcome had the instructions been correct.” Kuberski v. Rev Recreation Grp., 5 F.4th 775, 780 (7th Cir. 

2021). On this trial record—and especially mindful of the evidence and arguments by both parties—we conclude that the 

erroneous instruction did not impact the jury’s verdict. 

At bottom, the parties presented this case as a credibility 

contest: which version of events—Bradley Banovz’s or the officers’—was more believable? Pittman’s counsel told the jury 

that Banovz was the “lynchpin” of the case, and defense counsel agreed. In framing the case (and the accompanying 

presentation of evidence) this way, neither Pittman nor the 

defendants focused on Deputy Werner’s or Sergeant Eaton’s 

subjective mental states about the risk of harm Pittman posed 

to himself. To the contrary, the parties pinpointed their focus 

on whether, in the weeks before his suicide attempt, Pittman 

ever asked Deputy Werner or Sergeant Eaton to return to crisis counseling. 

Pittman urged the jury to believe Banovz’s testimony that 

he asked Officers Werner and Eaton for crisis counseling and 

that the officers promised to make the referral. Banovz further 

testified that Sergeant Eaton heard Pittman crying in his cell—

possibly for hours—the night he asked Eaton to see crisis 

counseling. It is undisputed that no referral was made—despite both officers’ knowledge that Pittman had spent time on 

suicide watch about two months earlier. So, relying on multiple lay and expert witnesses, Pittman urged the jury to find 
20 No. 23-2301

that a properly-trained correctional officer at the Madison 

County jail would have understood the need to follow 

through on an inmate’s request for crisis counseling—especially after promising to make the referral.

Deputy Werner and Sergeant Eaton pressed an entirely 

different account. They testified that they had a positive relationship with Pittman—testimony that aligned with Banovz’s 

statements that Pittman viewed both officers as his favorites 

within the Madison County jail. Werner and Eaton denied 

ever hearing Pittman ask to return to crisis counseling and 

testified that, had they ever heard such a request, they would 

have made the referral. Both went a step further and agreed 

that failing to respond to an inmate’s request for crisis counseling would have been unreasonable.

The parties put the case to the jury in this exact way—as a 

binary choice on credibility: believe Bradley Banovz or believe the two officers. Given this presentation, we cannot see 

how the erroneous jury instruction had any impact on the 

jury’s verdict for the defendants. Neither Pittman nor the defendants focused their arguments on Deputy Werner’s and 

Sergeant Eaton’s subjective awareness of what would likely 

happen to Pittman if they ignored his request for crisis counseling. The case went to the jury with both sides hinging everything on whether Pittman asked for crisis counseling at all. 

Presented in that way, the correct instruction would not 

have changed the outcome. If the jury believed the defendants’ testimony, a reasonable officer in their shoes would 

know only that Pittman had previously been on suicide watch 

a few weeks before his attempt. But many detainees spend 

time on suicide watch without later attempting suicide, so 

that alone would not put a reasonable officer on notice of a 
No. 23-2301 21

substantial risk of harm or render defendants’ failure to sua 

sponte refer Pittman to crisis counseling objectively unreasonable. 

Conversely, if the jury believed Banovz’s testimony, Deputy Werner and Sergeant Eaton admitted that ignoring an inmate’s crisis counseling request would be unreasonable. As 

such, neither party presented a theory whereby a jury could 

believe that even though a reasonable officer would have appreciated the risk of harm, Deputy Werner and Sergeant 

Eaton subjectively did not. Because of the way the parties presented this case, we conclude that the erroneous jury instruction did not steer the jury toward a verdict that turned on defendants’ subjective awareness of the risk of harm to Pittman. 

V

The broader circumstances and duration of this litigation 

are not lost on us. Pittman filed suit before Kingsley and in the 

years since, the legal landscape for assessing pretrial detainee 

claims has meaningfully changed. Kingsley set in motion that 

change and ever since, we have confronted nuanced legal issues presented by pretrial detainees’ Fourteenth Amendment 

claims. While we hold that the district court erred when instructing the jury that a pretrial detainee must show a defendant was subjectively aware of the risk of harm, we do not fault 

the district court or parties for this error.

As the record reveals, the district court and parties handled this case and the jury instructions with care. The district 

court faithfully applied our guidance in Pittman III and ultimately, the legal mistake we recognize today did not prejudice Pittman. 

In the final analysis, then, we AFFIRM.