Four employees of the Lincoln County Jail are not entitled to qualified immunity for their alleged actions to punish a pretrial detainee in a manner that violated his rights, the U.S. Court of Appeals for the 10th Circuit affirmed on Tuesday.

“It was clearly established at the time of Defendants’ conduct that the Fourteenth Amendment ‘prohibits any punishment’ of a pretrial detainee without due process,” wrote Judge Bobby R. Baldock for the three-member panel on Tuesday.

Terrell S. Hubbard pleaded guilty to criminal trespass in 2013 and received a sentence of two years in prison followed by parole. While imprisoned, Hubbard reportedly introduced dangerous contraband in the form of possessing a sharpened toothbrush, and upon parole he went to the Lincoln County Jail to await further proceedings on that charge.

The circuit panel acknowledged that Hubbard was not “a model detainee,” whose conduct included arguing, fighting and violating jail rules. Consequently, staff placed him on lockdown or transferred him to a segregated cell.

As part of Hubbard’s complaint against the jail employees, he described a series of incidents beginning in May 2015 in which he received punishment without notice or a hearing. First, staff placed him on lockdown after finding what appeared to be a note in Hubbard’s handwriting in a female inmate’s cell. In July, Hubbard received a nearly daylong lockdown for giving another inmate a bottle of cleaning solution without authorization. Shortly afterward, he went into segregated lockdown for four months for fighting.

Finally, in November of that year, Hubbard was in segregation for four or five days after a corporal at the jail heard that Hubbard was not participating in the cleaning crew to which he was assigned.

Under federal rule, the government does not have the power to punish an inmate until he pleads guilty or has been convicted. In a 1979 U.S. Supreme Court decision arising from conditions at a New York City detention center, Justice William H. Rehnquist wrote that “the Government concededly may detain [an individual] to ensure his presence at trial, and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.”

Laura I. Appleman, a law professor at Willamette University, wrote in 2012 that pretrial detention differs little from prison incarceration, meaning that accused offenders often face prison-like conditions while not adjudicated as guilty. Denver-based attorney Faisal Salahuddin said that while punishment is allowed in jails, it needs to happen through a process.

Jail personnel “have an important interest in ensuring the safety and smooth operation of the jail facility, which sometimes does require putting an inmate in a segregated situation,” he said. However, “just the mere fact that a fight occurred and I was a participant does not settle the debate of whether I was guilty of an assault….That’s the principle saying, you’ve got to give these folks a hearing and the opportunity to be heard.”

After Hubbard sued four individual employees and Sheriff Tom Nestor, they invoked a qualified immunity defense. Qualified immunity generally shields government employees from civil liability from the performance of their duties, unless they violate a person’s clearly established constitutional or statutory rights.

In denying the defendants’ request to dismiss the lawsuit in September 2019, U.S. District Court Judge Christine M. Arguello determined a jury could “reasonably find that Defendants carried out the disciplinary measures at issue with the intent to punish Plaintiff.”

The employees appealed, arguing the district court drew conclusions that were not based in fact, and that Hubbard failed to show how they had violated a clearly established right of his. The defendants also disputed how the court interpreted their state of mind.

“Defendants doggedly insist the district court erred in finding a constitutional violation because the summary judgment record does not establish they intended to punish Plaintiff,” wrote Baldock in the appellate opinion. The problem, he continued, was that the defendants’ argument alleged insufficient evidence, which is a matter for Hubbard to prove at trial.

The panel similarly rejected the proposition that Arguello’s factual determinations were wrong, deeming those arguments “wholly without merit.” As evidence, Baldock pointed to testimony from one of the defendants, Cpt. Michael Yowell, that Hubbard was “sanctioned” for his behavior.

Finally, the defendants argued that Hubbard was not a typical detainee, in that he was awaiting proceedings on the contraband charge while also serving his parole. However, the 10th Circuit declined to decide on that argument because defendants did not raise it previously.

“The thrust of Defendants’ counterargument is that this clearly established law is too general for them to have understood their conduct violated the Fourteenth Amendment,” Baldock concluded in reaffirming the defendants would not receive qualified immunity and allowing Hubbard’s lawsuit to proceed. The employees, in the panel’s view, seemed to sidestep the district court’s determination that they placed Hubbard in segregation to punish him. 

Although the defendants would be allowed to present contradictory evidence at trial to prove otherwise, “we have no trouble concluding a reasonable detention facility officer in Defendants’ shoes would have known their actions violated Plaintiff’s due process rights. We are thus unable to grant Defendants the immunity they seek,” wrote Baldock.

The case is Hubbard v. Nestor et al.