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     Detainees at Guantanamo claimed that two new policies there placed an undue burden on their ability to meet with their attorneys. The policies related to where they were allowed to meet with lawyers, while the second involved the thoroughness of the search they had to submit to before attorney visits. A federal appeals court upheld both policies as reasonable and related to legitimate security concerns. "Tenuous" evidence of an improper motive to obstruct access to lawyers could not overcome the legitimate rational connection between the thorough searches and the security needs of the facility, and holding all meetings between detainees and their visitors, including lawyers, at a special camp away from the housing camps, was reasonable, as fewer guards were then needed. Hatim v. Obama, #13-5218, 2014 U.S. App. Lexis 14759 (D.C. Cir.).

Electronic Control Weapons: Dart Mode

    A Vietnam veteran who suffers from posttraumatic stress, chronic back pain, and pain in his knees was arrested for delivering a controlled substance; he was taken to a county detention facility. He claimed to have told personnel there about all of his medical problems, but they said he told them only of his back pain. When he complained later about pain, demanding to be taken to a hospital, he allegedly kicked out and hit a correctional officer. He was told he had to get up from his bunk or a Taser would be used on him. He stated that he could not do so because of his pain. A Taser was fired at him in the dart mode and activated twice. The second time, he claimed, he accidently kicked the officer. A federal appeals court found that the first use of the Taser was reasonable, based on the fact that the officer could have believed that the detainee's kick was intentional, but as to the second use of the Taser, a jury could find that the detainee was then nonviolent and that an objectively reasonable officer would not use a Taser to induce compliance at that point, as such methods "cannot be used as a first resort to induce compliance of a nonviolent inmate in routine circumstances." This, the appeals court held, was clearly established law at the time of the incident, so qualified immunity did not apply. The appeals court also upheld the trial court's denial of qualified immunity on a failure to intervene claim concerning another officer who was present. Smith v. Conway County, #13-3095, 2014 U.S. App. Lexis 13516 (8th Cir.).

Employment Issues

    A county was not entitled to summary judgment on male deputies' federal and state sex discrimination challenge to a policy barring them from supervising female inmates in jails. The county failed to show that there was no genuine issue of material fact as to whether it was entitled to a "bona fide occupational qualification" (BFOQ) defense to the sex discrimination claim. The BFOQ defense could not be established merely by deferring to the sheriff's judgment. There were also factual issues as to whether the sheriff arrived at the policy by engaging in a reasoned decision-making policy, as well as whether the policy legitimately furthered important underlying interests, such as protecting the safety of female inmates. Ambat v. City & Cnty. of San Francisco, #11-16746, 2014 U.S. App. Lexis 12512 (9th Cir.).

Medical Care

     A prisoner submitted a number of requests for healthcare for his bloodshot left eye, but was allegedly released on parole without receiving treatment. Upon release, he underwent laser surgery for glaucoma in his right eye, but continued to have problems with his left eye. When he was reincarcerated, he made several more attempts to receive treatment, and finally underwent surgery to remove part of his left eye's ciliary body three years later. In his lawsuit claiming deliberate indifference to his glaucoma condition, the trial court denied repeated requests for an appointed lawyer, finding that his claims were not meritorious or overly complex. A federal appeals court found that this denial of appointed counsel was an abuse of discretion and that this abuse impacted on the prisoner's ability to develop and litigate his claim. DeWitt v. Corizon, Inc., #13-2930, 2014 U.S. App. Lexis 14236 (7th Cir.).

Medical Care: Mental Health

     A prisoner who engaged in suicide attempts, fighting, and other disruptive activities allegedly suffered from significant mental illness. Prison officials repeatedly subjected him to observation placements and Behavioral Action Plans (BAPs). Summary judgment for the defendants on claims for deliberate indifference to serious medical needs was upheld, but the appeals court found that the prisoner had raised genuine issues of disputed material fact as to whether the imposition of the BAP imposed an atypical and significant hardship compared to the ordinary incidents of prison life, without appropriate notice and an opportunity to be heard, in violation of due process. There was also a genuine issue as to whether the BAP imposed conditions of confinement denying him the "minimal civilized measures of life's necessities." Townsend v. Cooper, #12-3620, 2014 U.S. App. Lexis 13776 (7th Cir.).

Prisoner Assault: By Inmates

     A prisoner who was attacked by fellow inmates three times over approximately 118 months claimed that prison officials violated his Eighth Amendment rights by failing to protect him against these assaults. The appeals court noted, however, that the defendant officials had offered to put the plaintiff into protective custody, an offer he declined, and when they nevertheless placed him in protective custody anyway, he asked to be returned to the general population, repeatedly insisting that there was no problem. Based on these facts, the plaintiff failed to show the deliberate indifference to a known risk of harm needed for a constitutional violation, or even negligence, for that matter. Walls v. Tadman, #13-2262, 2014 U.S. App. Lexis 15284 (8th Cir.).

Prisoner Assault: By Officers

     The widow of a detainee at a county jail claimed that officers used excessive force while extracting him from his cell, which resulted in his asphyxiation and death, and that some defendants acted with deliberate indifference to his medical needs during the incident. The appeals court, overturning summary judgment for the defendants, found that there were genuine issues of material fact from which a jury could conclude that excessive force was used. Further proceedings were needed to consider whether individual defendants should face trial on either direct liability for use of force or on a bystander liability theory. The appeals court upheld summary judgment for the individual defendants on the claim concerning deliberate indifference to serious medical needs and for the municipality on an inadequate training claim. Kitchen v. Dallas County Texas, #13-10545 2014 U.S. App. Lexis 13699 (5th Cir.).

     A prisoner's claim that a deputy slammed him, while handcuffed and restrained, headfirst into a concrete wall, if true, was sufficient to allow a reasonable jury to conclude that the deputy inflicted serious pain upon him with sadistic and malicious intent. Any reasonable jail employee would know that the conduct claimed violated the Eighth Amendment, so qualified immunity was not appropriate. A videotape of the incident did not contradict the prisoner's allegations. Cordell v. McKinney, #13-4203, 2014 U.S. App. Lexis 13500, 2014 Fed. App. 155P (6th Cir.).

Prisoner Death/Injury

     A detainee in custody awaiting a probable cause determination was rapidly tapered off his psychotropic medication at a jail. He complained of seizure-like symptoms and was placed in an isolated cell for seven hours, after which he was found dead. The plaintiff's lawyer argued, correctly, that the correct standard for jury instructions in the lawsuit was objective reasonableness not the deliberate indifference standard that had been used by both parties in the case pleadings, summary judgment briefing, subsequent appeal, and remand pretrial preparations. The trial court barred the plaintiff's attorney from arguing this because of tardiness in raising the issue. The federal appeals court reversed, stating that the delay in asserting the correct standard was "puzzling," but that the trial court had failed to show how the defendants would suffer any prejudice because of the delay. King v. Kramer, #13-2379, 2014 U.S. App. Lexis 13252 (7th Cir.).

Religion

****Editor's Case Alert****

     A prisoner who was a practicing Muslim claimed that officials unconstitutionally burdened his religious exercise when they ordered him to produce a urine sample within a three hour time frame when he was fasting to observe Ramadan. The appeals court found that this gave him a choice of either providing the urine sample by drinking water, thus breaking his fast, or facing disciplinary sanctions, and that this substantially burdened his First Amendment exercise of religion. His claim for damages was allowed to proceed, but his claim for injunctive relief was moot because the relevant directive had been changed. Holland v. Goord, #13-2694, 2014 U.S. App. Lexis 13142 (2nd Cir.).

•Return to the Contents menu.

     Jail Conditions: Report of U.S. Attorney's Office for the Southern District of New York into the treatment of adolescent male inmates between the ages of 16 and 18 at the jails on Rikers Island (Aug. 4, 2014).

     Mental Illness: Encountering Mentally Ill People and Potential Liability under the ADA, by Michael J. Oh, Police Chief (Jul. 2014).

     Terrorism: Illusion of Justice Human Rights Abuses in US Terrorism Prosecutions, Human Rights Watch (July 21, 2014). The 214-page report examines 27 federal terrorism cases from initiation of the investigations to sentencing and post-conviction conditions of confinement. It documents the significant human cost of certain counterterrorism practices, such as overly aggressive sting operations and unnecessarily restrictive conditions of confinement.

     Prisoner Deaths: Excited Delirium and the Dual Response: Preventing In-Custody Deaths, by Brian Roach, Kelsey Echols, and Aaron Burnett, .FBI Law Enforcement Bulletin (Jul. 2014).

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.

     • AELE's list of recently-noted jail and prisoner law resources.