by David M. Reutter

Under the doctrine of qualified immunity (QI), prison and jail guards may be sued only when they disregard a known risk to a detainee under their watch. But in a recent case from Colorado, the U.S. Court of Appeals for the Tenth Circuit said that even actual or constructive knowledge of such a risk isn’t enough to overcome QI, so long as guards can claim they didn’t know about the risk at the moment that it resulted in harm to the detainee.

The Court’s decision was issued on April 14, 2022, in a case involving the suicide of Susanne Burgaz at the Jefferson County Detention Center (JCDC). Although she made several suicide attempts while detained there before she ultimately succeeded in killing herself on August 31, 2017, the Court said she was not subjected to deliberate indifference by guards — who left her alone in a dayroom where she hanged herself with a TV cord — because they didn’t know she was currently suicidal.

In addition to affirming a lower court’s grant of qualified immunity (QI) to the guards, the Court also affirmed dismissal of a failure-to-train claim against Sheriff Jeff Shrader in the lawsuit filed by Burgaz’s estate — even though JCDC records revealed that Burgaz had a history of mental illness and drug addiction, along with suicidal tendencies, and had attempted suicide during a previous detention at the same jail.

On the day she died, Burgaz was in the jail’s Special Housing Unit (SHU) when she was granted release in the case against her in Jefferson County. But she also learned of active warrants outstanding for her in other counties. Guard Petrina Pesapane escorted Burgaz on a roundtrip from the SHU day room to retrieve some paperwork from her cell. Once back in the day room, Pesapane left Burgaz alone.

Over the next seven minutes, Burgaz fashioned a noose from TV cords, making multiple attempts to hang herself before she finally succeeded. A second guard, Joseph Scalise, walked by the day room while Burgaz was making her suicide attempts, but he failed to look inside.

The federal court for the District of Colorado acknowledged that both guards knew or should have known Burgaz’s history of suicide attempts at the jail. But despite that, it granted the guards QI and dismissed the claim against the Sheriff.

On appeal, the Tenth Circuit affirmed, holding that despite their actual or constructive knowledge of the detainee’s suicide risk, neither guard knew that she was currently suicidal. Pesapane, the Court said, also reasonably relied upon the assumption that Burgaz would be observed in the day room and any self-harm behavior would be halted. But since Scalise had no interaction with the detainee, he also had no information to believe she was a harm to herself at the moment he walked by the room and failed to check on her, the Court said.

Burgaz’s estate also sued Shrader for a failure to train the guards, as outlined in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). But the district court dismissed that claim when it found no personal liability for anyone under the Sheriff’s command. The Tenth Circuit affirmed, noting that “the Estate could have argued that the deputies’ combined actions or omissions somehow violated Ms. Burgaz’s rights” — without any personal liability on their part — “[b]ut the Estate failed to do so, and instead only made the general allegation that ‘[Ms.] Burgaz would still be alive’ had the … sheriff ‘actually enforced [the corrective] policies.’”

Thus the district court’s dismissal of all the estate’s claims, including those under state law, was affirmed. The estate was represented by attorney Zachary D. Warren of the Highlands Law Firm in Denver. See: Estate of Burgaz v. Bd. of Cty. Comm’rs for Jefferson Cty. Colo., 30 F.4th 1181 (10th Cir. 2022).

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