“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In July, Judge Mark Bennett—one of President Trump’s Ninth Circuit nominees—would have given qualified immunity to a prison warden alleged to have ignored reports that his staff was ignoring a prisoner’s serious medical condition. However, his dissent in Chandler v. Guttierrez did not carry the day.

Qualified immunity is a legal concept created and expanded by the Supreme Court by which government officials accused of violating the Constitution generally can’t be sued in their personal capacity unless what they did was indisputably unconstitutional under binding precedent. In making this pretrial decision, a judge accepts the plaintiff’s version of the facts. In effect, the doctrine has allowed courts to cite relatively small differences between the relevant precedents and the case before them as justification for immunizing a government official from a lawsuit.

In this case, the majority found that under the facts as alleged by Foy James Chandler, prison warden Phillip Guttierrez had violated his Eighth Amendment rights. The warden had been told directly by Chandler’s cellmate that he had been experiencing significant pain; that he was not getting adequate attention from the medical staff; that he had at one point missed five meals in a row; that he was unable to leave his cell to eat or get medical treatment. Chandler alleged that the warden did nothing to remedy the situation. The Ninth Circuit panel majority determined this was enough to deny qualified immunity, at least at this stage of litigation:

Viewing the facts in the light most favorable to Chandler, a reasonable jury could find that Warden Guttierrez’s failure to respond to Chandler’s request for medical help when faced with information that he was not receiving medical attention constituted deliberate indifference.

Judge Nelson disagreed. His dissent focused in part not on what the warden knew but on who delivered Chandler’s plea for help. The Ninth Circuit precedent cited by the majority involved an incarcerated person who had written a letter to the warden about his medical situation. Apparently because Chandler was far too ill to act on his own behalf, the warden heard about his situation from his cellmate. For Judge Nelson, that is a reason to grant qualified immunity. Even if precedent put the warden on notice that he could be liable for ignoring a prisoner’s request for help, Nelson wrote:

[That] does not place beyond debate that a warden will be similarly liable for failing to respond to secondhand reports of a third-party inmate’s problems. [emphasis in original]

But the dissent does not explain why a warden can simply ignore reports of prisoner mistreatment based on how he finds out about it.

Judge Nelson also created a far-fetched hypothetical to justify the distinction. Warden Guttierrez’s practice was to make himself available during lunch every weekday for inmates to discuss any topic with him. With 30-40 people standing on line for a conversation during a typical day, the dissent determines there are likely 150-200 conversations in an average week and more than 7,000 conversations in an average year:

Under the majority’s holding, each prisoner, during each conversation, can request help for medical issues on behalf of not only himself but also any other prisoner or prisoners, and a warden must—as a matter of constitutional law—follow up with each secondhand request or else risk potential personal monetary liability. No case clearly establishes this.

But the majority did not say the warden was obligated to follow up with “each” secondhand request—only with ones as grave as the one Chandler’s cellmate had with the warden. But even if every conversation reached that level of urgency, is Judge Nelson claiming that the warden can plausibly believe the Constitution would allow him to hear 150-200 warnings about a maltreated prisoner every week and ignore them because the person in question was unable to see the warden himself?

If Warden Guttierrez knew about Chandler’s medical needs being dangerously ignored and truly did nothing about it, as Chandler alleges, then that unquestionably constitutes deliberate indifference and violates the Eighth Amendment.