Reginald Pittman, by and through his guardian and next friend, ROBIN M. HAMILTON v. Madison County, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2301
R EGINALD P ITTMAN, by and through his guardian and next
friend, R OBIN M. HAMILTON,
Plaintiff-Appellant,
v.
MADISON C OUNTY, ILLINOIS , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:08-cv-00890-DWD — David W. Dugan, Judge.
____________________
A RGUED A PRIL 2, 2024 — D ECIDED J ULY 16, 2024
____________________
Before R OVNER , HAMILTON, and S CUDDER , Circuit Judges.
SCUDDER , Circuit Judge. Reginald Pittman, a pretrial de-
tainee at the Madison County jail, attempted suicide while
awaiting trial. He survived but suffered a severe brain injury.
Complaining that two guards ignored his requests to see cri-
sis counseling before the suicide attempt, Pittman sued Mad-
ison County and various jail officials under 42 U.S.C. § 1983,
alleging that they violated the Fourteenth Amendment by

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2 No. 23-2301
failing to provide him with adequate medical care. What fol-
lowed is a lengthy procedural history including three appeals
and three trials. On appeal from the third trial and verdict for
the defendants, Pittman challenges a key jury instruction for
his Fourteenth Amendment claim. He contends that the in-
struction erroneously required proof that the officers were
subjectively aware or strongly suspected a high likelihood of
self-harm.
Pittman pressed this argument in a prior appeal, and we
rejected it. But much has evolved in our case law since that
decision, as numerous cases have required us to grapple with
the nuances of the state-of-mind requirements in claims
brought by pretrial detainees. Aided by those decisions, we
agree with Pittman that the jury instruction contained an er-
ror. Pittman did not need to prove subjective awareness of the
risk of harm to establish liability. Instead, the jury should
have been instructed to answer whether the defendants made
an intentional decision with respect to Pittman’s conditions of
confinement, and from there, whether defendants acted ob-
jectively unreasonably by failing to mitigate the risk Pittman
posed to himself.
In the end, though, we cannot conclude that the jury in-
struction error prejudiced Pittman. We reach that conclusion
based on a thorough examination of the evidence presented
at trial and the arguments of the parties. So we affirm.
I
A
The trial record following our most recent remand sup-
plies the operative facts.

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No. 23-2301 3
In August 2007, Reginald Pittman entered the Madison
County jail as a pretrial detainee. Within a few months, he re-
ported mental distress. In late October, he told a jail officer,
Deputy Matthew Werner, that he was suicidal. Deputy Wer-
ner referred Pittman to a social worker from Chestnut Health
Systems, also known as “crisis” counseling, and placed him
on suicide watch for several days. A few weeks later, Pittman
requested to see crisis counseling once again. At a counselor’s
suggestion, Sergeant Randy Eaton temporarily relocated
Pittman to the Special Housing Unit for additional observa-
tion.
On December 19, Pittman attempted suicide. He hung
himself from the bars of his cell with a bed sheet, resulting in
a severe brain injury. Pittman left a suicide note stating that
“the [g]uards” were “f***ing with [him]” and would not let
him talk to “crisis [counseling].”
According to Bradley Banovz, an inmate housed near
Pittman’s cell, Pittman had asked Deputy Werner and Ser-
geant Eaton to refer him to crisis counseling in the days lead-
ing up to his suicide attempt, but neither did. Banovz testified
that Pittman asked Deputy Werner to put him on the list for
crisis counseling on Friday, December 14. As Banovz remem-
bered, Deputy Werner did not take the request seriously, jok-
ing that Pittman did not need counseling. Deputy Werner re-
portedly told Pittman that he would be back on Monday and
schedule him for crisis counseling then. That never happened.
Banovz also recalled that Pittman asked Sergeant Eaton to
refer him to crisis counseling a few days later, on Tuesday,
December 18. As Sergeant Eaton made his rounds that night,
Banovz overheard Pittman—who was crying—ask to see cri-
sis counseling with Eaton responding that he would schedule

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4 No. 23-2301
an appointment. But Sergeant Eaton did not refer Pittman to
crisis counseling either.
Deputy Werner and Sergeant Eaton both testified and of-
fered an altogether different account. To be sure, they were
quick to admit knowing that Pittman had been on suicide
watch in October 2007. But they rejected Banovz’s account
and denied ever hearing or seeing any indication of subse-
quent mental distress from Pittman or, more specifically, ever
hearing him ask to return to crisis counseling. And, going fur-
ther, Deputy Werner and Sergeant Eaton insisted that had
Pittman asked for crisis counseling, they would have referred
him for mental health treatment.
B
Through his guardian, Pittman sued Madison County,
Deputy Werner, Sergeant Eaton, and others, bringing claims
under 42 U.S.C. § 1983 and state law. Pittman’s § 1983 claim
alleges that defendants violated the Due Process Clause of the
Fourteenth Amendment by failing to respond to his requests
for mental health treatment.
Pittman’s case has a lengthy history, including three prior
appeals. See Pittman ex rel. Hamilton v. County of Madison
(Pittman I), 746 F.3d 766 (7th Cir. 2014) (reversing in part a
grant of summary judgment for defendants because a triable
issue of fact existed on Pittman’s claims against Deputy Wer-
ner and Sergeant Eaton); Pittman ex rel. Hamilton v. County of
Madison (Pittman II), 863 F.3d 734 (7th Cir. 2017) (reversing
and remanding for a new trial because the district court erro-
neously excluded Banovz’s recorded interview at the first
trial); Pittman ex rel. Hamilton v. County of Madison (Pittman
III), 970 F.3d 823 (7th Cir. 2020). Most relevant to this appeal

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No. 23-2301 5
is Pittman III, which involved a pivotal jury instruction artic-
ulating the elements of Pittman’s Fourteenth Amendment
claim. In Pittman III, we held that a portion of that jury in-
struction misstated the law and remanded for a new trial.
The case then went to trial for the third time. Over
Pittman’s objection, the district court instructed the jury in
line with our ruling in Pittman III, using materially identical
language to that which we approved in Pittman III. The jury
returned a verdict for defendants, and this appeal followed.
II
The sole issue before us is whether the district court accu-
rately instructed the jury on the elements of Pittman’s Four-
teenth Amendment claim. Pittman believes that the instruc-
tion improperly injected a subjective component into an oth-
erwise objective inquiry, contravening Kingsley v. Hendrick-
son, 576 U.S. 389 (2015), and our precedent.
“We evaluate [] jury instructions anew when deciding if
they accurately state the law.” Miranda v. County of Lake, 900
F.3d 335, 350 (7th Cir. 2018). If the instruction contains a legal
error, we will reverse only if the error prejudiced Pittman. See
Cotts v. Osafo, 692 F.3d 564, 567 (7th Cir. 2012).
A
Incarcerated persons have a constitutional “right to re-
ceive adequate medical treatment,” including mental health
treatment and protection from self-harm. Miranda, 900 F.3d at
350 (citing Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). But the
source and scope of that right turns “on the relationship be-
tween the state and the person in the state’s custody.” Collins
v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017) (quoting Currie v.
Chhabra, 728 F.3d 626, 630 (7th Cir. 2013)).

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6 No. 23-2301
For convicted prisoners, the Eighth Amendment’s pro-
scription on “cruel and unusual punishments” protects
against deliberate indifference to serious medical needs. See
Estelle, 429 U.S. at 102–04. These claims measure state-of-
mind, specifically, deliberate indifference, using a subjective
standard: to be liable a prison official must be “aware of a sub-
stantial risk of serious harm, and effectively condone[] the
harm by allowing it to happen.” Jones v. Mathews, 2 F.4th 607,
613 (7th Cir. 2021) (citation and internal quotation marks
omitted). “This subjective standard,” we have explained, “is
closely linked to the language of the Eighth Amendment.” Mi-
randa, 900 F.3d at 350.
Pretrial detainees, however “stand in a different position:
they have not been convicted of anything, and they are still
entitled to the constitutional presumption of innocence.” Id.
“[P]retrial detainees (unlike convicted prisoners) cannot be
punished at all,” Kingsley, 576 U.S. at 400, so “the [Eighth
Amendment’s] punishment model is inappropriate for
them,” Miranda, 900 F.3d at 350. Instead, they “are protected
from certain abusive conditions” by the Fourteenth Amend-
ment’s Due Process Clause. Id.; see also Bell v. Wolfish, 441 U.S.
520, 535–36 (1979) (explaining that “the restrictions and con-
ditions of the detention facility” cannot “amount to punish-
ment” because “a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law”).
These “different constitutional provisions” lead to “differ-
ent standards.” Collins, 851 F.3d at 731 (quoting Currie, 728
F.3d at 630). Yet for many years we “assessed pretrial detain-
ees’ medical care (and other) claims under the Eighth Amend-
ment’s [subjective] standards.” Miranda, 900 F.3d at 350. That
changed in Kingsley.

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No. 23-2301 7
In Kingsley, the Supreme Court held that an objective rea-
sonableness standard applies to a pretrial detainee’s claim of
excessive force. 576 U.S. at 392. Such a claim, the Court ex-
plained, involves “two separate state-of-mind” questions:
(1) “the defendant’s state of mind with respect to his physical
acts—i.e., his state of mind with respect to the bringing about
of certain physical consequences in the world,” and (2) “the
defendant’s state of mind with respect to whether his use of
force was ‘excessive.’” Id. at 395. The former, which requires
“a purposeful, a knowing, or possibly a reckless state of
mind,” was not disputed in Kingsley itself. Id. at 396. Still, the
Court took care to observe that this part of the mental-state
requirement safeguards against liability for “negligently in-
flicted harm,” which is “categorically beneath the threshold
of constitutional due process.” Id. (citation and internal quo-
tation marks omitted).
The Supreme Court focused its attention on the latter
state-of-mind question, considering at some length whether
“the defendant’s state of mind with respect to the proper in-
terpretation of the force” is judged by an objective or subjective
standard. Id. That question, the Court determined, requires
proof “only that the force purposely or knowingly used
against [the pretrial detainee] was objectively unreasonable.”
Id. at 396–97. Applying this standard, the Court in Kingsley re-
jected jury instructions that suggested “weigh[ing] [a defend-
ant’s] subjective reasons for using force and subjective views
about the excessiveness of the force.” Id. at 403–04.
Concluding that the Supreme Court did not limit its rea-
soning in Kingsley to excessive force claims, we extended the
objective reasonableness standard to pretrial detainees’ med-
ical care claims in our decision in Miranda v. County of Lake.

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8 No. 23-2301
See 900 F.3d at 352. In doing so, we emphasized Kingsley’s re-
minder to pay careful attention to the different status of pre-
trial detainees. See id. at 352 (reiterating that “[t]he language
of the two Clauses differs, and the nature of the claims often
differs[, a]nd most importantly, pretrial detainees … cannot
be punished at all, much less maliciously and sadistically” (ci-
tation and internal quotation marks omitted)). Conceptualiz-
ing the Kingsley standard, we concluded that a jury must de-
cide two questions: (1) “whether the medical defendants
acted purposefully, knowingly, or perhaps even recklessly
when they considered the consequences of their handling of
[plaintiff’s] case” and (2) whether the defendants’ actions
were “objectively reasonable.” Id. at 353–54.
B
Pittman III came not long after Miranda and confronted
how to instruct a jury on Kingsley’s objective standard. 970
F.3d at 827–28. During his second trial, which was reviewed
on appeal in Pittman III, the district court instructed the jury
that Pittman had to prove four elements to prevail on his
Fourteenth Amendment claim against Deputy Werner and
Sergeant Eaton for failing to respond to his requests for men-
tal health care:
(1) there was a strong likelihood that Pittman
would seriously harm himself,
(2) the defendants were aware of … or strongly
suspected facts showing this strong likeli-
hood,
(3) they consciously failed to take reasonable
measures to prevent Pittman from harming
himself, and

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No. 23-2301 9
(4) Pittman would have suffered less harm if the
defendants had not disregarded the risk.
Id. at 827 (cleaned up).
On appeal Pittman contended that the second and third
elements of this instruction were inconsistent with Kingsley
and Miranda because the “language directed the jury to apply
the now-defunct subjective test rather than the [governing]
objective test.” Id.
We agreed that the instruction’s use of the word “con-
sciously” in the third element introduced a subjective compo-
nent into the requirements for proving mental state. See id. at
828–29. But we rejected Pittman’s argument that the instruc-
tion’s second element, requiring proof that defendants “were
aware of … or strongly suspected facts showing” a “strong
likelihood” of harm, ran afoul of the guidance supplied by our
post-Kingsley decision in Miranda. Id. at 827–28. That element,
we concluded, was “consistent with Miranda” because it went
“to Miranda’s first inquiry: whether the defendants acted pur-
posefully, knowingly, or perhaps even recklessly.” Id. at 827
(internal quotation marks omitted).
We reasoned that “if the defendants ‘were aware’ that
their actions would be harmful, then they acted ‘purposefully’
or ‘knowingly’; if they were not necessarily ‘aware’ but nev-
ertheless ‘strongly suspected’ that their actions would lead to
harmful results, then they acted ‘recklessly.’” Id. at 828. In
other words, to act purposefully, knowingly, or recklessly, a
defendant must have personal knowledge of—and thereby
subjectively appreciate—the consequences of their actions.

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10 No. 23-2301
C
Since Pittman III, we have had additional occasions to con-
sider Kingsley’s two-stepped mental state requirement appli-
cable to claims brought by pretrial detainees. As we extended
Kingsley to the failure-to-protect context, we determined that
a pretrial detainee does not have to show a defendant’s sub-
jective awareness of the risk of harm. See Kemp v. Fulton
County, 27 F.4th 491, 497 (7th Cir. 2022); Thomas v. Dart, 39
F.4th 835, 841 (7th Cir. 2022); Echols v. Johnson, No. 22-3230,
2024 WL 3197540, at *1 (7th Cir. June 27, 2024).
First, in Kemp v. Fulton County, we held that Kingsley abro-
gated our pre-Kingsley case law “to the extent that [it] re-
quire[d] pretrial detainees to show, in a failure-to-protect
case, that a defendant was subjectively aware of a substantial
risk of serious injury.” 27 F.4th at 497 (internal quotation
marks omitted). Such a requirement “cannot be reconciled
with Kingsley’s language, reasoning, and reminder to ‘pay
careful attention to the different status of pretrial detainees.’”
Id. (quoting Miranda, 900 F.3d at 352). Instead, a pretrial de-
tainee must show that the defendant “intend[ed] to carry out
a certain course of actions,” and “[a]t that point, the remain-
ing question is whether that course is objectively reasonable.”
Id.
We adhered to the same approach in Thomas v. Dart, artic-
ulating the elements of a Fourteenth Amendment failure-to-
protect claim without reference to a defendant’s subjective
awareness of the risk of harm:
(1) the defendant made an intentional decision
regarding the conditions of the plaintiff’s con-
finement; (2) those conditions put the plaintiff

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No. 23-2301 11
at substantial risk of suffering serious harm;
(3) the defendant did not take reasonable avail-
able measures to abate the risk, even though a
reasonable officer in the circumstances would
have appreciated the high degree of risk in-
volved, making the consequences of the defend-
ant’s inaction obvious; and (4) the defendant, by
not taking such measures, caused the plaintiff’s
injuries.
39 F.4th at 841. As in Kemp, we still considered awareness of
the risk of harm, but from the perspective of a reasonable of-
ficer as part of Kingsley’s objective reasonableness inquiry. See
also Echols, 2024 WL 3197540, at *3–4 (applying the Kingsley
standard in a recent failure-to-protect case and concluding
that the jury instructions improperly required the plaintiff to
prove subjective awareness of the risk of harm).
D
We have canvassed these post-Kingsley decisions in order
to reveal the tension, if not inconsistency, in our case law. Mi-
randa and Pittman III can be read as requiring pretrial detain-
ees alleging inadequate medical care claims to prove defend-
ants’ subjective awareness of the risk of harm. See Miranda,
900 F.3d at 353–54; Pittman III, 970 F.3d at 827–28. Yet in Kemp
and Thomas we retreated from any such requirement in eval-
uating the requirements for failure-to-protect claims. See
Kemp, 27 F.4th at 497; Thomas, 39 F.4th at 841.
The confusion and discrepancy arise from our interpreta-
tion of Kingsley’s first state-of-mind inquiry: “the defendant’s
state of mind with respect to his physical acts.” Kingsley, 576
U.S. at 395. Pittman III, and to a lesser extent Miranda,

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12 No. 23-2301
conceptualize this inquiry as requiring proof of both inten-
tional physical action and awareness of the consequences of
that action. Pittman III, 970 F.3d at 827–28; Miranda, 900 F.3d
at 353 (asking “whether the medical defendants acted pur-
posefully, knowingly, or perhaps even recklessly when they
considered the consequences” of their actions (emphasis added)).
Under this interpretation, a defendant must subjectively
know the consequences of their action or inaction to act pur-
posefully, knowingly, or recklessly.
On the other hand, our failure-to-protect cases perceive
the first inquiry as a lower bar, requiring proof only that a de-
fendant “intended to carry out a certain course of actions.”
See, e.g., Kemp, 27 F.4th at 497. In these cases, once a defendant
deliberately acts, their awareness of the risk of harm, or lack
thereof, goes only to objective reasonableness. See id. at 496–
97.
We owe it to our case law and litigants alike to resolve this
confusion. Given the volume and importance of § 1983 pre-
trial detainee litigation, now is the time to resolve any incon-
sistency within our case law. The circumstance before us is
one of our own making, as we (like many other courts) have
struggled to implement Kingsley’s standards outside the con-
text of a pretrial detainee’s claim of excessive force. In light of
today’s clarification of our case law, we circulated this opin-
ion to the full court under Circuit Rule 40(e). No judge in ac-
tive service requested to hear this case en banc.
III
A
As difficult as it is to acknowledge, we have a hard time
squaring Pittman III with our post-Pittman III precedent

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No. 23-2301 13
interpreting and applying Kingsley. With the benefit of multi-
ple cases in multiple contexts requiring application of this Cir-
cuit’s and our sister circuits’ analyses of Kingsley, we are left
with the firm conviction that a pretrial detainee in a medical
care case need not prove a defendant’s subjective awareness
of the risk of harm to prevail on a Fourteenth Amendment
Due Process claim. To the extent Pittman III concluded other-
wise, it is overruled on this particular point.
The Supreme Court in Kingsley described the first inquiry
as focusing on a defendant’s “state of mind with respect to the
bringing about of certain physical consequences into the world.”
Kingsley, 576 U.S. at 395 (emphasis added). In articulating the
content of this first inquiry in the excessive-force context, the
Court distinguished between intentional acts—“the swing of
a fist that hits a face, a push that leads to a fall, or the shot of
a Taser that leads to the stunning of its recipient”—that can
lead to liability, and negligent acts—“if an officer’s Taser goes
off by accident or if an officer unintentionally trips and falls
on a detainee”—that cannot. Id. at 395–96. This framing asks
strictly whether the defendant intended to commit the physi-
cal act that caused the alleged injury.
Only at the next step—as part of the second state-of-mind
inquiry—do we begin to “interpret” the “reasonableness” of
the defendant’s action. Id. at 396. In the excessive-force con-
text, “objective” factors informing this determination include
“the relationship between the need for the use of force and the
amount of force used” and “the threat reasonably perceived
by the officer.” Id. at 397. “Subjective reasons for using force,”
by contrast, and “subjective views about the excessiveness of
the force,” are off-limits. Id. at 403–04 (emphasis added). The
objective reasonableness of a decision to deny medical care

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14 No. 23-2301
likewise does not consider the defendant’s subjective views
about risk of harm and necessity of treatment. Instead, the
proper inquiry turns on whether a reasonable officer in the
defendant’s shoes would have recognized that the plaintiff
was seriously ill or injured and thus needed medical care.
This application of Kingsley comports with the Supreme
Court’s reminder that pretrial detainees stand in a different
position than convicted prisoners. Convicted prisoners serv-
ing a sentence must produce subjective evidence that a de-
fendant was “aware … that a substantial risk of serious harm
exists” and “disregard[ed]” that risk to prevail. Farmer v. Bren-
nan, 511 U.S. 825, 837 (1994); see also Collins v. Seeman, 462
F.3d 757, 761 (7th Cir. 2006) (requiring a “dual showing” that
the defendant “(1) subjectively knew the prisoner was at a
substantial risk of committing suicide and (2) intentionally
disregarded that risk”). But “a pretrial detainee can prevail by
providing only objective evidence that the challenged govern-
mental action is not rationally related to a legitimate govern-
mental objective or that it is excessive in relation to that pur-
pose.” Kingsley, 576 U.S. at 398 (emphasis added); see also Bell,
441 U.S. at 561. Accordingly, neither portion of the Eighth
Amendment’s subjective dual showing is required to estab-
lish Fourteenth Amendment liability.
In Pittman III, we expanded Kingsley’s first inquiry and
risked collapsing this distinction. Instead of asking solely
about a defendant’s state-of-mind as to “the bringing about”
of certain physical conditions, Kingsley, 576 U.S. at 398, we
asked about their state-of-mind as to the risks that action or
inaction posed. Pittman III, 970 F.3d at 828. This error likely
originated with our observation in Miranda that Kingsley asks
whether a defendant “acted purposefully, knowingly, or

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No. 23-2301 15
perhaps even recklessly when they considered the conse-
quences of their handling of [a plaintiff’s] case.” Miranda, 900
F.3d at 353–54 (stating that a properly instructed jury could
find the defendant failed to act “with purposeful, knowing, or
reckless disregard of the consequences”); Pittman III, 970 F.3d
at 827–28 (interpreting Miranda). But in charting this course,
the mistake we made was in reintroducing what Kingsley pro-
hibited: consideration of a defendant’s “intent (or motive) to
punish.” Kingsley, 576 U.S. at 398.
While recognizing our error, we acknowledge the diffi-
culty we faced in Pittman III. This is a very complicated area
of law, and in no way are we alone in struggling to discern
the appropriate mental state standard for judging pretrial de-
tainees’ claims. See, e.g., Helphenstine v. Lewis County, 60 F.4th
305, 315–17 (6th Cir. 2023) (collecting cases). The Supreme
Court in Kingsley focused on a narrow question: whether, in
the excessive force context, an objective or subjective standard
applied to a defendant’s state of mind regarding the interpre-
tation of the force. See Kingsley, 576 U.S. at 395. As a result, the
Court understandably left unresolved the several issues that
the Pittman III panel faced, including the contours of the first
Kingsley inquiry, how the two state-of-mind requirements in-
teract, and how the Kingsley standard works in different con-
texts such as cases of inaction.
At the time of Pittman III, few courts had weighed in on
these issues. But that has changed. Several of our fellow cir-
cuits now agree that a pretrial detainee does not have to prove
a defendant’s subjective awareness of a serious risk of harm.
See Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir.
2016) (en banc) (holding in the failure-to-protect context that
“[u]nder Kingsley, a pretrial detainee need not prove those

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16 No. 23-2301
subjective elements about the officer’s actual awareness of the
level of risk”); Gordon v. County of Orange, 888 F.3d 1118, 1124–
25 (9th Cir. 2018) (extending Castro’s reasoning to medical-
care claims by pretrial detainees); Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017) (concluding that “the Due Process Clause
can be violated when an official does not have subjective
awareness that the official’s acts (or omissions) have subjected
the pretrial detainee to a substantial risk of harm” in a condi-
tions of confinement case); Short v. Hartman, 87 F.4th 593, 611
(4th Cir. 2023) (determining, in the medical care context, that
“[t]he plaintiff no longer has to show that the defendant had
actual knowledge of the detainee’s serious medical condition
and consciously disregarded the risk that their action or fail-
ure to act would result in harm”); Lawler ex rel. Lawler v. Har-
deman, 93 F.4th 919, 927 (6th Cir. 2024) (explaining that “offic-
ers can face liability even if they did not actually know of a
risk of harm to a pretrial detainee” if there is proof “that the
officers recklessly disregarded a risk so obvious that they ei-
ther knew or should have known of it” in a medical care case).
We know of no circuit court that has reached a contrary con-
clusion.
And our post-Pittman III failure-to-protect cases have ex-
plained the Kingsley standard in cases of inaction. Leaning on
Kingsley, we have concluded that Kingsley’s first inquiry re-
quires proof only that a defendant made an intentional deci-
sion about the plaintiff’s conditions. See Kemp, 27 F.4th at 496–
97. For example, in Kemp, it was enough to show that the de-
fendant “intentionally chose not to wear his hearing aid on
the day of the fight,” even if he did not appreciate the risk of
harm from that choice. Id. at 497.

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No. 23-2301 17
With the benefit of these developments, we recognize our
error in Pittman III. By requiring proof that “the defendants
were aware of … or strongly suspected facts showing” a
strong likelihood of harm, Pittman III, 970 F.3d at 827, we in-
troduced a subjective component into Kingsley’s otherwise
objective inquiry. The district court, following our guidance
in Pittman III, thus erred (through no fault of its own) by in-
structing the jury in this most recent trial that Pittman must
prove that the defendants “were aware … or strongly sus-
pected facts showing a strong likelihood that [Pittman]
would be seriously harmed.”
Instead, on the mental-state element in question, the dis-
trict court should have instructed the jury that, to prevail,
Pittman must prove that the defendants did not take reason-
able available measures to abate the risk of serious harm to
Pittman, even though reasonable officers under the circumstances
would have understood the high degree of risk involved, making the
consequences of the defendants’ conduct obvious. That is the
essential objective inquiry.
B
We have no doubt our course of action will catch the de-
fendants by surprise. As they see it, we already approved the
challenged language as consistent with Kingsley in Pittman III,
creating law of the case that precludes further consideration.
Tempting though it is, we cannot accept their invitation.
“The doctrine of law of the case establishes a presumption
that a ruling made at one stage of a lawsuit will be adhered to
throughout the suit.” Cannon v. Armstrong Containers, Inc., 92
F.4th 688, 701 (7th Cir. 2024) (quoting Avitia v. Metro. Club of
Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)); Pepper v. United

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18 No. 23-2301
States, 562 U.S. 476, 506 (2011) (defining the doctrine to
“posit[] that when a court decides upon a rule of law, that de-
cision should continue to govern the same issues in subse-
quent stages in the same case” (quoting Arizona v. California,
460 U.S. 605, 618 (1983))). It prevents a party from getting a
“second bite at the [] apple.” Grede v. FCStone, LLC, 867 F.3d
767, 775 (7th Cir. 2017). But “[t]he doctrine is discretionary,
‘not an inflexible dictate.’” Cannon, 92 F.4th at 701 (quoting
Chi. Joe’s Tea Room, LLC v. Village of Broadview, 894 F.3d 807,
818 (7th Cir. 2018)); Evans v. City of Chicago, 873 F.2d 1007, 1014
(7th Cir. 1989) (describing the doctrine as “a self-imposed pru-
dential limitation rather than a recognition of a limitation on
the courts’ power” (citation omitted)); Avitia, 49 F.3d at 1227
(“But it is no more than a presumption, one whose strength
varies with the circumstances; it is not a straitjacket.”).
Typically, courts will only depart from an earlier decision
because of “good reason” or “unusual circumstances.” Can-
non, 92 F.4th at 701 (internal quotation marks omitted). That
might include “(1) substantial new evidence introduced after
the first review, (2) an intervening change in the law, and (3) a
clearly erroneous decision.” Id. But the “duty of adherence is
less rigid” “if the ruling in question was by the same court.”
Avitia, 49 F.3d at 1227. In those circumstances, “[t]he doctrine
does not apply if the court is ‘convinced that [its prior deci-
sion] is clearly erroneous and would work a manifest injus-
tice.’” Agostini v. Felton, 521 U.S. 203, 236 (1997) (quoting Ari-
zona, 460 U.S. at 618 n.8).
Because we conclude Pittman III would be decided differ-
ently given our current understanding of Kingsley, adherence
to that decision risks a manifest injustice and the law of the
case doctrine does not apply.

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No. 23-2301 19
IV
Pittman’s task on appeal is not yet over. We must still as-
sess whether the jury instruction error prejudiced him. Cotts,
692 F.3d at 567. “When evaluating prejudice, we view the ev-
idence as a whole to determine whether the jury could have
reached a different outcome had the instructions been cor-
rect.” Kuberski v. Rev Recreation Grp., 5 F.4th 775, 780 (7th Cir.
2021). On this trial record—and especially mindful of the evi-
dence and arguments by both parties—we conclude that the
erroneous instruction did not impact the jury’s verdict.
At bottom, the parties presented this case as a credibility
contest: which version of events—Bradley Banovz’s or the of-
ficers’—was more believable? Pittman’s counsel told the jury
that Banovz was the “lynchpin” of the case, and defense coun-
sel agreed. In framing the case (and the accompanying
presentation of evidence) this way, neither Pittman nor the
defendants focused on Deputy Werner’s or Sergeant Eaton’s
subjective mental states about the risk of harm Pittman posed
to himself. To the contrary, the parties pinpointed their focus
on whether, in the weeks before his suicide attempt, Pittman
ever asked Deputy Werner or Sergeant Eaton to return to cri-
sis counseling.
Pittman urged the jury to believe Banovz’s testimony that
he asked Officers Werner and Eaton for crisis counseling and
that the officers promised to make the referral. Banovz further
testified that Sergeant Eaton heard Pittman crying in his cell—
possibly for hours—the night he asked Eaton to see crisis
counseling. It is undisputed that no referral was made—de-
spite both officers’ knowledge that Pittman had spent time on
suicide watch about two months earlier. So, relying on multi-
ple lay and expert witnesses, Pittman urged the jury to find

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20 No. 23-2301
that a properly-trained correctional officer at the Madison
County jail would have understood the need to follow
through on an inmate’s request for crisis counseling—espe-
cially after promising to make the referral.
Deputy Werner and Sergeant Eaton pressed an entirely
different account. They testified that they had a positive rela-
tionship with Pittman—testimony that aligned with Banovz’s
statements that Pittman viewed both officers as his favorites
within the Madison County jail. Werner and Eaton denied
ever hearing Pittman ask to return to crisis counseling and
testified that, had they ever heard such a request, they would
have made the referral. Both went a step further and agreed
that failing to respond to an inmate’s request for crisis coun-
seling would have been unreasonable.
The parties put the case to the jury in this exact way—as a
binary choice on credibility: believe Bradley Banovz or be-
lieve the two officers. Given this presentation, we cannot see
how the erroneous jury instruction had any impact on the
jury’s verdict for the defendants. Neither Pittman nor the de-
fendants focused their arguments on Deputy Werner’s and
Sergeant Eaton’s subjective awareness of what would likely
happen to Pittman if they ignored his request for crisis coun-
seling. The case went to the jury with both sides hinging eve-
rything on whether Pittman asked for crisis counseling at all.
Presented in that way, the correct instruction would not
have changed the outcome. If the jury believed the defend-
ants’ testimony, a reasonable officer in their shoes would
know only that Pittman had previously been on suicide watch
a few weeks before his attempt. But many detainees spend
time on suicide watch without later attempting suicide, so
that alone would not put a reasonable officer on notice of a

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No. 23-2301 21
substantial risk of harm or render defendants’ failure to sua
sponte refer Pittman to crisis counseling objectively unreason-
able.
Conversely, if the jury believed Banovz’s testimony, Dep-
uty Werner and Sergeant Eaton admitted that ignoring an in-
mate’s crisis counseling request would be unreasonable. As
such, neither party presented a theory whereby a jury could
believe that even though a reasonable officer would have ap-
preciated the risk of harm, Deputy Werner and Sergeant
Eaton subjectively did not. Because of the way the parties pre-
sented this case, we conclude that the erroneous jury instruc-
tion did not steer the jury toward a verdict that turned on de-
fendants’ subjective awareness of the risk of harm to Pittman.
V
The broader circumstances and duration of this litigation
are not lost on us. Pittman filed suit before Kingsley and in the
years since, the legal landscape for assessing pretrial detainee
claims has meaningfully changed. Kingsley set in motion that
change and ever since, we have confronted nuanced legal is-
sues presented by pretrial detainees’ Fourteenth Amendment
claims. While we hold that the district court erred when in-
structing the jury that a pretrial detainee must show a defend-
ant was subjectively aware of the risk of harm, we do not fault
the district court or parties for this error.
As the record reveals, the district court and parties han-
dled this case and the jury instructions with care. The district
court faithfully applied our guidance in Pittman III and ulti-
mately, the legal mistake we recognize today did not preju-
dice Pittman.
In the final analysis, then, we AFFIRM.

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