Word of the Week: Deliberate Indifference

Deliberate indifference is a legal oxymoron that is used to categorize a behavior as specifically as possible.  It takes parts of negligence and expands on them, it takes parts of a harmful act or omission and reapplies the blame.  Deliberate indifference kicks in when you’re supposed to do something, because you created the potential of harm, and knew that there was potential harm, but chose to do nothing about it.

When the state takes a person into custody, a duty is formed.  The duty is formed because the state has limited your ability to ensure your own rights.  When a person is in the custody of the state, freedoms become limited.  This duty is formed by control.

So who is under state control?  Are prisoners under state control?  This is a solid yes.  Deliberate indifference is often, if not always applicable in prison scenarios.  It even applies all the way down to a “failure to train”.  The state prison system has a duty to ensure that its employees are trained correctly, should the prison fail to train an employee they are acting with deliberate indifference should an inmate’s rights be violated because of that lack of appropriate training.

On the lighter side of things, pseudofolliculitis barbae is not enough to qualify a deliberate indifference claim, that’s razor burn.  Seriously though, an inmate was forced to shave while he had razor burn and sought relief.  The Ninth Circuit found that this was not a significant medical need and did not grant relief.

But that is not to say that no medical relief is available.  In prison just as in outside life, legitimate medical needs arise.  When prison officials delay medical treatment, and the result is prolonged unnecessary, unreasonable pain, then deliberate indifference is triggered.  Similarly, if a prison official delays and renders the problem inoperable, or any number of additional negative side effects, deliberate indifference applies.

Prison isn’t the only place where deliberate indifference is the basis for relief.  Almost any state controlled interaction applies, with failure to train granting expansive access. Prosecutor’s Offices have been sued when their failure to train led to a man getting out of prison and murdering his family.  Foster care scenarios, where children have been taken out of their home and placed in greater harm have triggered deliberate indifference.   Places where the state has control, or should have had control and knew or had cause to know, triggers deliberate indifference.

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