The case is Conn v. City of Reno, in which seven judges dissented from denial of rehearing en banc; Judge Kozinski wrote the dissent, and Judge Reinhardt wrote the panel opinion. According to the dissent, the panel opinion creates a conflict with other circuits. My guess is that there’s a very substantial chance of a grant of certiorari, if the defendants petition, as I expect they will.
The fact pattern and the arguments are pretty complicated, and I don’t have the time to summarize them here; the opinions I linked to lay it all out. But the opening paragraphs of the dissent capture well, I think, the tone that the certiorari petition is likely to set (and the dissenting opinion, which elaborates on these paragraphs, will be pretty significant support for that petition):
Until this opinion came along, police officers weren’t required to serve as babysitters, psychiatrists or social workers, and judges didn’t run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micromanage the police, who in turn will serve as mental health professionals. The panel’s reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions.
At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists. See, e.g., DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200 (1989). This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat.
We have recognized an exception to this rule when the state places a person in jail, but that exception has been strictly limited by its rationale. “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation it has imposed on his freedom to act on his own behalf.” DeShaney, 489 U.S. at 200. A prisoner cannot feed or clothe himself, and he cannot get himself to a doctor; it is therefore incumbent on his keeper to do those things for him. See, e.g., id.; Estelle v. Gamble, 429 U.S. 97, 103 (1976). And, because the state creates the prisoner’s conditions of incarceration, the state has a duty not to purposefully create a risk of harm — for instance, by placing the prisoner in a cell with a person who intends to do him ill. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Apart from that rationale, there is no free-floating obligation to safeguard prisoners’ health. Otherwise, the distinction between prisoners and non-prisoners would become illusory, and we would be forced to recognize a duty of care towards society as a whole.
The panel’s opinion is significant because it cuts the state’s obligation loose from this tether and creates novel duties to train and to report information that bear no relationship to the fact of incarceration. In the process, it strips the guts out of the deliberate indifference standard, as well as the requirement that plaintiffs show a violation of clearly established law to defeat qualified immunity. In the panel’s hands, standards that are meant to limit liability to all but the most extreme cases become tools for imposing the policy preferences of unelected federal judges. This combination of errors amounts to a toxic recipe for judicial micromanagement of local institutions.