After conducting research on decisions written by particular federal appellate judges that are later granted by the Court, I am of the belief that perhaps Supreme Court Rule 10 should officially be modified. While a conflict among the lower courts remains the prevailing reason why the Court grants cert, there are other certworthy factors not mentioned in the “Considerations Governing Review on Certiorari.”  Those factors include the following:  “Ninth Circuit,” “Opinion by Judge Reinhardt,” and “Dissent to Order by Chief Judge Kozinski.”  

The petition for writ of certiorari in City of Reno et al., v. Conn, presents all of the above.  In short, the lower court opinion—written by Ninth Circuit Judge Reinhardt—places (and arguably expands) 42 U.S.C. § 1983 liability on municipalities and law enforcement when they are confronted with the unenviable task of treating mentally ill detainees.  In doing so, the decision created circuit conflicts, and ultimately, a scorching dissent from the denial of rehearing en banc by Chief Judge Kozinski.

In requesting the Court’s review, the City of Reno petition emphasizes that the lower court opinion created circuit splits on two issues, including a 5-2 split on whether municipalities can be held liable for failing to train law enforcement on diagnosing suicidal detainees. The petition also argues that:

Both issues recur frequently, affecting well over a million law-enforcement officers and more than fourteen million arrests across the country each year.  The issues are also crucially important.  Judge Reinhardt’s opinion imposes novel, undefined, and potentially costly psychiatric-training duties on thousands of cities and towns throughout the nine states in the Ninth Circuit.   It obligates officers to make nuanced psychiatric diagnoses, even where (as here) medical professionals repeatedly screen a detainee for suicide risk.  Only this Court can resolve these conflicts and give needed, uniform guidance to cities and police departments across the country.

This case also has the benefit of timing because the Court, this term, has been increasingly receptive to cases involving immunity and especially immunity involving municipalities and/or law enforcement (i.e., Pottawattamie County v. McGhee, No. 08-1065, Los Angeles v. Humphries, 09-350, Connick v. Thompson, 09-571).

All of these factors lead to the strong likelihood of a cert grant in this case. 

The petition can be viewed here.  The Ninth Circuit decision and denial of rehearing en banc can be viewed here.