In Herrera v. Los Angeles Unified School District, published December 1, 2021, the 9th Circuit Court of Appeals affirmed summary judgment granted to the defendant district, a school aide, and other defendants in a 42 U.S.C. section 1983 suit. During a tenth-grade party at a park, a student told the defendant aide that he was going to the park's swimming pool. Three lifeguards monitored the pool. The aide watched the student from a designated observation area. The aide allegedly knew that the student had asthma and could not swim. The aide saw the student exit the shallow end of the pool and enter the locker room area. The aide left the observation area to wait for the student to exit the locker room. Instead of changing, the student returned to the pool. Five minutes later, the aide searched for the student and found lifeguards attempting to resuscitate the student, who had drowned. The student's parents brought suit.
The court of appeals analyzed whether the aide had violated the student's Fourteenth Amendment rights by affirmatively placing the student in danger by acting with deliberate indifference to a known or obvious danger. Deliberate indifference generally requires that the defendant subjectively recognize the unreasonable risk and actually intend to expose the plaintiff to that risk without regard to the consequences to the plaintiff--to know that something is going to happen but ignore the risk and expose the plaintiff to it. The 9th Circuit departed from that standard when holding a pretrial detainee can state a due process violation for a government official's failure to act under an objective deliberate indifference standard. That objective standard has also been applied in excessive force and detention cases. But the panel here held that, based on precedent, the subjective deliberate indifference standard applied to this failiure-to-protect case, which did not involve a pretrial detainee or excessive force. Under that standard, considering that the aide protected the student's privacy and independence by not following him into the locker room, and that the pool was guarded by three lifeguards, a reasonable jury could not conclude that the aide acted with deliberate indifference.
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