dissenting:
In what amounts to social engineering by judicial fiat, the panel majority has decided that as a matter of constitutional imperative, the city must maintain a minimum of two male guards, or at least one female guard, in its jail whenever a female detainee is present. Béeause there is no showing — even remotely — of a constitutional violation by the city, and because the summary judgment evidence does not support a finding of deliberate indifference, I respectfully dissent.
I.
My first disagreement is over the standard we use to determine municipal liability. Both sides treat this as a controversy over inadequate staffing and analyze the city’s conduct under the deliberate indifference standard. Erroneously, however, the majority applies the reasonable relationship standard of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
A.
Deliberate indifference is the proper standard for assessing municipal liability when the custom at issue is one of inadequate staffing. See Colle v. Brazos County, 981 F.2d 237, 245-46 (5th Cir.1993); Rhyne v. Henderson County, 973 F.2d 386, 393-94 (5th Cir.1992). The custom challenged in this case is one of providing staffing that is inadequate to protect female detainees from sexu*237al assaults. The plaintiffs challenge to this custom is that the city’s failure to adopt a different policy — i.e., to require the presence of additional guards — caused her injury. “The Supreme Court has held that municipal failure to adopt a policy does not constitute such an intentional choice unless it can be said to have been ‘deliberately indifferent.’ ” Id. at 392.
Treating this case as one about conditions of confinement is a misapplication of Hare v. City of Corinth, 74 F.3d 633 (5th Cir.1996) (en banc). The majority concludes, without explanation, that the city’s custom of allowing a single male to guard a female detainee is a condition of confinement. At a high level of generality, this could be so, in the sense that one of the conditions in the jail is a lack of extra guards. But, at that level of generality, the omission that led to the suicide in Hare also could be called a “condition of confinement”: A condition in the jail was the lack of a guard to watch over the suicidal detainee.
The problem with the majority’s approach is that it ignores both the common-sense understanding of “conditions of confinement” and the reasons articulated in Hare for distinguishing those conditions from episodic acts or omissions. In Hare, this court carefully distinguished episodic acts or omissions from conditions of confinement. We did so because a pretrial detainee has a due process right to be free from punishment, and a hardship amounts to punishment when there is an intent to punish. See Wolfish, 441 U.S. at 538, 99 S.Ct. at 1873 (“A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.”) (emphasis added).
When asking whether a jailer intended to punish a detainee, the reasonable relationship test works comfortably in “jail condition cases,” because intent can be presumed in the form of the challenged condition, practice, rule, or restriction. Hare, 74 F.3d at 644. Thus, when the hardship of which the detainee complains is the very act of imposing a condition, practice, rule, or restriction, the only question is whether there is a reasonable relationship to a legitimate state interest. In the case of episodic acts or omissions, on the other hand, the reasonable relationship test is more difficult to apply, as intent cannot be presumed.1
The lesson of Hare is that a condition of confinement is a condition, practice, rule, or restriction that itself is the wrong of which the detainee complains. The common-sense interpretation of a “condition of confinement” includes the number of bunks in a cell, the number of showers and meals per day, and even a policy of daily beatings.2 The intent to impose the hardship can be presumed from the existence of the policy.
Here, the wrong of which the plaintiff complains is the sexual assaults; the policy she attacks is the lack of additional staffing. One cannot infer an intent to cause the wrong merely from the existence of the challenged policy. Certainly, if the city’s policy were the complained-of disability (such as in a double-bunking case), the standard for mu*238nicipal and jailer liability theoretically could merge.3 In this ease, it should not.4
B.
A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely consequence of not adopting a policy will be a deprivation of constitutional rights. City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). The plaintiff relies on the affidavit of Charles Craig, an expert on jail policy, who averred that his experience showed him that a prison should have female officers to prevent sexual assaults, or that male officers should be supervised when allowed access to female inmates. He concluded that a failure to have two guards or a female guard could not be justified.
The record also establishes that the city has followed the same staffing procedures since the late 1970’s, yet no incident such as this has transpired.5 Jailers were subjected to a number of background checks, including a polygraph test,6 and the city limited contact between male and female jailers in order to minimize the possibility of sexual miscon*239duct.7 The jail is located on the first floor of the police department, in the patrol division area, and a patrol duty sergeant would periodically check on jail personnel. More than one hundred uniformed police officers in the building had unlimited access to the jail at all times.
There is no jury question as to whether the failure to have additional staffing amounts to deliberate indifference. The city took numerous precautions to safeguard the safety of female detainees, including the requirements of the General Order and the extensive background checks of the jailers. See Rhyne, 973 F.2d at 393 (finding that the existence of a policy — albeit an inadequate one — demonstrated that the municipality was not indifferent, in the literal sense of the word). A patrol sergeant was assigned to monitor the jail and would periodically stop by to check on jail personnel.
In summary, Craig’s testimony does not establish that the city policymakers faced an obvious risk and were consciously indifferent to it. At most, the evidence could be construed to show that the jail might have been better managed, or even that Giacomozzi was not prescient in failing to consider the risk that well-trained jailers would, without warning, assault a female detainee.
II.
Even assuming that the “reasonable relationship” test should apply to this case, there is no jury question as to whether the city’s custom was reasonably related to a legitimate government interest. I find the majority’s conclusions surprising; the opinion can be supported only by misunderstanding the summary judgment evidence and by failing to apply the deference that Wolfish demands.
The reasonable relationship test is a highly deferential test that, as the majority acknowledges, should be no different, in result, from the deliberate indifference standard. As this court has explained,
The “reasonably related to a valid penological [interest] standard” never purported to allow recovery for mere negligence. To the contrary, this test is deferential to jail rulemaking; it is in essence a rational basis test of the validity of jail rules. That is, asking whether a rule is reasonably related to a legitimate governmental objective is much like asking whether a legislative enactment has any rational basis, except in the context of jail administration the legislative purpose is a given — typically a penological or administrative purpose. Violation of the Bell test requires acts or omissions not too distant from a standard of arbitrary and capricious conduct.
Hare, 74 F.3d at 646.8 In Wolfish, the Court articulated the deference courts must accord prison officials:
“The problems that arise in the day-to-day operations of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve *240internal order and discipline and to maintain institutional security. ‘Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters’ ”
441 U.S. at 547-48, 99 S.Ct. at 1878-79 (citations omitted); see also Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227, 3231-32, 82 L.Ed.2d 438 (1983) (reaffirming the deferential standard of Wolfish).
When applying the Wolfish test, we must take, as a given, that the city’s policy is based on a penological purpose and must ask whether the policy at issue is reasonably related to that end. Hare, 74 F.3d at 646. In this case, the question is whether the city’s policies are reasonably related to the goal of providing a safe detention center for female detainees. In other words, do the alleged deficiencies with the city’s policies prove that those policies were arbitrary and capricious?
The custom at issue is broader than that which the majority describes. The majority is correct that it is a custom to have four guards — two of whom are women — and to split their duties into four shifts over a twenty-four-hour period. The policy also includes provisions to protect female detainees from some types of sexual molestation. Additionally, the city requires substantial background cheeks of its applicants.
The plaintiff has failed to show the existence of facts demonstrating that the city’s custom was arbitrary and capricious. The city took precautions to protect the safety of female inmates and made a decision to staff its jails based on limited financial resources. There is no evidence demonstrating that, objectively, such a policy generally would fail to protect pretrial detainees. In fact, the evidence demonstrated that for ten years, the city had not received any complaints of sexual assaults. The city’s choice may not have been perfect, but it was not unconstitutional. See Wolfish, 441 U.S. at 542 n. 25, 99 S.Ct. at 1876 n. 25 (“Governmental action does not have to be the only alternative or even the best alternative for it to be reasonable, to say nothing of constitutional.”).
“Courts must be mindful that these injuries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Id. at 539, 99 S.Ct. at 1874. I respectfully dissent.
Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.ORDER
July 17, 1996
BY THE COURT:
A majority of the judges in active service having determined, on the court’s own motion, to rehear this case en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk -will specify a briefing schedule for the filing of supplemental briefs.
. Hare, 74 F.3d at 645 ("Asking about the rationality of the relationship between an official’s episodic acts or omissions and a legitimate governmental objective begs the underlying question whether that official had the requisite mental state to establish his liability as a perpetrator of the particular act or omission, not as a dispenser of intended conditions or restrictions.”).
. See, e.g. Murphy v. Walker, 51 F.3d 714 (7th Cir.1995) (treating shackling and revocation of telephone, television, and cigarette privileges as a condition of confinement); Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315 (1st Cir.1995) (treating disciplinary segregation and denial of telephone and visitation privileges as a condition of confinement); United States v. Millan, 4 F.3d 1038 (2d Cir.1993) (treating length of pre-trial detention as a condition of confinement), cert. denied, — U.S. -, 114 S.Ct. 1375, 128 L.Ed.2d 51, and cert. denied, - U.S. -, 114 S.Ct. 1386, 128 L.Ed.2d 60 (1994); Hause v. Vaught, 993 F.2d 1079 (4th Cir.1993) (treating restriction on mail privileges as a condition of confinement), cert. denied, - U.S. -, 114 S.Ct. 702, 126 L.Ed.2d 668 (1994); Brogsdale v. Barry, 926 F.2d 1184 (D.C.Cir.1991) (treating overcrowding as a condition of confinement); Lyons v. Powell, 838 F.2d 28 (1st Cir.1988) (treating 22-23 hour confinement and placement of mattress on the floor as a condition of confinement); Fredericks v. Huggins, 711 F.2d 31 (4th Cir.1983) (treating policy of refusing detainees access to drugs for rehabilitation as a condition of confinement); Lareau v. Manson, 651 F.2d 96 (2d Cir.1981) (treating overcrowding as a condition of confinement).
. I pause to point out that Hare dealt with the question of when a detainee’s constitutional rights have been violated. As the court pointed out, determining the existence of a constitutional violation is only the first step in determining municipal liability for that violation. Hare, 74 F.3d at 649 n. 4.
In the case of an omission or episodic act, the existence of a constitutional violation would be determined by the subjective deliberate indifference standard. Municipal liability for that violation would be determined under the objective deliberate indifference standard.
We separate the two issues: the existence of a constitutional violation simpliciter and a municipality’s liability for that violation. Different versions of the deliberate indifference test govern the two inquiries. Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights.
Id.
If a non-policymaker imposed a condition of confinement on a detainee, see, e.g., Bryer v. Creati, 915 F.2d 1556 (1st Cir.1990) (unpublished) (applying condition-of-confinement analysis where a police officer left open a window during freezing weather), the reasonable relationship test would be used to determine whether the detainee's constitutional rights had been violated. To determine municipal liability for the violation, the objective deliberate indifference test would be used, because a policymaker did not promulgate a policy of imposing that condition of confinement.
The majority has assumed that when a policymaker creates the condition of confinement, the standards for determining the underlying constitutional violation and municipal liability are the same. Because I disagree with the majority that this is a case about conditions of confinement, I do not address that contention. See generally Roman v. Jeffes, 904 F.2d 192, 197-98 (3d Cir.1990) (applying the reasonable relationship test to determine whether a policy of limiting a detainee to one bag of possessions during a transfer violated his constitutional rights, but applying the objective deliberate indifference standard to determine whether the municipality was liable for promulgating the rule).
. Even if the district court relied on an incorrect legal standard, the plaintiff has waived any challenge to that error. The district court granted summary judgment under the deliberate indifference standard, and plaintiff has not challenged the use of that standard. Instead, she has consistently argued that there is a material fact issue on the question of deliberate indifference.
The majority's reliance on Hare is misplaced. The reasonable relationship test predated Hare. If the plaintiff believed that the district court applied the wrong standard, she should have raised that argument on appeal. That the en banc court limited the applicability of the reasonable relationship test hardly justifies an exception to the waiver rule. The plaintiff was on notice that the reasonable relationship test existed, and she has not argued that it should apply to this case.
. There is no evidence that Chief Giacomozzi has ever had any complaints of sexual assault by a jailer or any related type of complaint prior to the incident at issue here.
. The City subjected Moore, the perpetrator of this incident, to a background investigation, medical examination and polygraph test as a condition of his employment. In addition, Moore had been previously employed as a commissioned police officer, without incident, for four years prior to his employment with the jail. He was trained in the official policies of jail management by experienced jailers.
. General Order MSC-1-78 ("the General Order”), which regulates the management of the city jail, prohibits male personnel from frisking or conducting a pat-down search of a female prisoner. It also requires that a female be searched by female personnel. Moreover, anytime a prisoner is released from her cell for any reason, the General Order requires that she be searched upon release from and return to the cell. Finally, the policy allows for additional staffing by commissioned officers of the police department when the holding facility's population is large or if a difficult prisoner is in custody.
The majority claims that the staffing policy made it inevitable that the General Order would be disregarded. I find nothing in the record to support such a conclusion or inference. The majority bases its conclusion on the fact that the four jailers could not possibly follow the General Order. What the majority fails to consider is that the jail is located where the jailers could easily call for a uniformed officer to assist them when a female detainee is hooked and searched.
. See also Wolfish, 441 U.S. at 542, 99 S.Ct. at 1875 (citing rational basis cases to support the use of a reasonable relationship test); id. at 586, 99 S.Ct. at 1898 (Stevens J., dissenting) ("In short, a careful reading of the Court's opinion reveals that it has attenuated the detainee’s constitutional protection against punishment into nothing more than a prohibition against irrational classifications or barbaric treatment. Having recognized in theory that the source of that protection is the Due Process Clause, the Court has in practice defined its scope in the far more permissive terms of equal protection and Eighth Amendment analysis.”).