Brawner Is Gone. Farmer Is Back.
In Poynter v. Shirley, also captioned Fernandez v. Shirley, the Sixth Circuit brought in the full roster to settle the standard for conditions-of-confinement claims brought by pretrial detainees.
Jump to the practical advice ↓
TL;DR: Brawner’s modified test is no longer good law. In the Sixth Circuit, Farmer v. Brennan again governs claims involving inmate medical care, safety, or conditions of confinement, whether the plaintiff is a convicted prisoner or a pretrial detainee. The plaintiff must prove that the defendant actually knew of and disregarded a substantial risk of serious harm.
One of my first projects as a government-liability associate was a summary judgment motion involving excessive force and conditions of confinement claims arising during arrest and pretrial detention. Just two weeks before I started that position, the Supreme Court had decided Kingsley v. Hendrickson, holding that a pretrial detainee’s excessive-force claim is governed by an objective standard. That holding was different from the Sixth Circuit’s prior announcement that those claims were governed by a “shocks the conscience” standard.
Yikes, was I confused. How was I supposed to organize the brief, and did the objective standard analyzed in Kingsley also apply to conditions of confinement claims? My boss explained that he did not expect me to know whether Kingsley also changed the standard for conditions of confinement claims because nobody knew.
He was right.
In 2021, the Sixth Circuit tried to answer the question in Brawner v. Scott County, 14 F.4th 585 (6th Cir. 2021). Instead, Brawner produced years of conflicting decisions about medical care, failure to protect, and other deliberate indifference claims. Even one of the best attorneys I know recently expressed to me how confusing and frustrating the state of these issues had become.
On September 8, 2026, the en banc court held 10–7 that Farmer supplies the standard for deliberate-indifference claims under both the Eighth and Fourteenth Amendments. Poynter, by and through his guardian, Fernandez v. Shirley, No. 25-5188, slip op. at 3 (6th Cir. Sept. 8, 2026) (en banc).
What happened in Poynter
Luther Poynter was detained for civil contempt. The jail placed him in a general-population cell with two convicted state prisoners described by jail personnel as frequent fliers. Less than 90 seconds later, they attacked Poynter, causing a traumatic brain injury and permanent impairment.
Poynter alleged that Barren County routinely made housing decisions without considering detainees’ histories of institutional violence. Relying on Brawner and Westmoreland v. Butler County, 29 F.4th 721 (6th Cir. 2022), he argued that placing him with Guess and Wix was objectively unreasonable given their violent histories.
The district court granted summary judgment to the County. A three-judge panel reversed under an objective standard, and the Sixth Circuit vacated that decision to rehear the case en banc.
How did we get there?
In 1994, the Supreme Court decided Farmer, an Eighth Amendment failure-to-protect case involving a convicted prisoner. The Court required proof of two things:
- The prisoner faced an objectively substantial risk of serious harm.
- The defendant subjectively knew of the risk and disregarded it.
It wasn’t enough that the defendant should have recognized the danger. The defendant must actually have inferred that a substantial risk exists. Courts long applied the same standard to pretrial detainees’ Fourteenth Amendment claims too.
Then came Kingsley. The Supreme Court held that a pretrial detainee alleging excessive force need not prove that an officer subjectively understood the force to be excessive. The detainee must prove that the officer purposely or knowingly used force, but the amount of force is judged objectively.
Kingsley concerned excessive force, not Farmer or deliberate indifference. But the plaintiffs’ bar saw an opening, and courts divided over whether its reasoning extended to medical care, failure to protect, and other confinement claims.
The Sixth Circuit extended Kingsley to conditions of confinement claims in Brawner. A pretrial detainee no longer had to prove actual knowledge of the risk. Later panels disagreed about how much of Farmer remained or how Brawner applied beyond medical-care claims. One district court analyzed both standards “with fingers crossed that they agree.” Campbell v. Riahi, No. 2:20-cv-678, 2023 WL 5979211, at *4 (S.D. Ohio Sept. 13, 2023).
Farmer governs again
The en banc majority returned to the Due Process Clause, which protects against deliberate governmental deprivations of life, liberty, or property. A lapse in due care or an ordinary state-law tort is not a constitutional violation.
The majority reasoned that an objective standard fits excessive-force claims because they begin with an affirmative act. The plaintiff must prove that the officer purposely or knowingly used force; the amount of force is then judged objectively. An accidental Taser discharge doesn’t count.
Conditions of confinement claims usually involve inaction, such as failing to provide medical care or protection. The majority held that the failure cannot be deliberate unless the defendant actually knew of the risk. It also concluded that Brawner moved constitutional liability too close to negligence by asking what a reasonable official should have known.
What does this change in real life?
Not much. Poynter makes federal conditions of confinement claims harder to prove, but it is not permission to ignore a serious risk until someone puts it in exactly the right words. Under Farmer, actual knowledge may be proven through circumstantial evidence, and a factfinder may infer knowledge when a risk was obvious.
For jails and other public entities, your work should not relax - collect useful information, route it to the people responsible for acting, and document the response. Classification records, keep-separate alerts, medical requests, incident reports, and staff communications may show what an official knew and when. Knowledge can still be proven through circumstantial evidence.
Also, don’t view the return to Farmer as permission to keep your head in the sand to avoid gaining any actual knowledge of confinement conditions. Plaintiffs can and will still sue under state law theories and will certainly look for creative ways to do so.
For attorneys, discovery and summary judgment should focus on actual awareness, not merely what a reasonable official would have discovered. And below is a handy chart clarifying the current state of standards and case law governing excessive force and conditions of confinement claims in the Sixth Circuit.
Where the standards now stand
The governing standard depends on both the claim and the plaintiff’s custodial status:
| Claim and status | Amendment | Governing authority | Required inquiry |
|---|---|---|---|
| Excessive force during an arrest or other Fourth Amendment seizure | Fourth Amendment | Graham v. Connor, 490 U.S. 386, 396–97 (1989) | Whether the force was objectively reasonable |
| Excessive force against a pretrial detainee or civil contemnor | Fourteenth Amendment | Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015) | The force must be purposely or knowingly used; whether it was excessive is objective |
| Excessive force against a convicted prisoner | Eighth Amendment | Whitley v. Albers, 475 U.S. 312, 320–21 (1986); Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) | Whether force was applied maliciously and sadistically to cause harm |
| Deliberate indifference involving a pretrial detainee or other unconvicted detainee | Fourteenth Amendment | Farmer v. Brennan, 511 U.S. 825, 837 (1994); Poynter v. Shirley, No. 25-5188, slip op. at 29 (6th Cir. Sept. 8, 2026) (en banc) | Objectively substantial risk plus actual knowledge and disregard of that risk |
| Deliberate indifference involving a convicted prisoner | Eighth Amendment | Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994) | Objectively substantial risk plus actual knowledge and disregard of that risk |
* For excessive force claims, the Sixth Circuit treats the judicial determination of probable cause as the dividing line between the Fourth and Fourteenth Amendments. Aldini v. Johnson, 609 F.3d 858, 865–66 (6th Cir. 2010).
For Sixth Circuit practitioners, analyzing the same claim under competing versions of Brawner, Westmoreland, and Farmer is over. Do not delete the post-Brawner cases; they may remain useful on issues Poynter did not disturb. But for the governing mental-state standard, Farmer controls.