August 2017 Jail and Prisoner Law Bulletin

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The Biometric, Psychological and Legal Aspects of Lethal and

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Jail and Prisoner Law Bulletin
A civil liability law publication for officers, jails, detention centers and prisons
ISSN 0739-0998 - Cite this issue as: 2017 JB August
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CONTENTS

Digest Topics
False Imprisonment

Prison and Jail Conditions: General

Prisoner Assault: By Inmate (2 cases)

Prisoner Death/Injury (2 cases)

Religion

Sex Offenders

Sexual Assault (2 cases)

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Resources

Cross_References

AELE Seminars:

Public Safety Discipline and Internal Investigations

Oct. 2-5, 2017– Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues

Jan. 22-25, 2018 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,

Investigation and Adjudication of the Use of Force

Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Click here for further information about all AELE Seminars.

MONTHLY CASE DIGEST

Some of the case digests do not have a link to the full opinion.

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False Imprisonment

Former detainees in a county jail filed a class action claiming that practices of the city, the county, and the sheriff’s department caused them to be detained for unreasonably long periods of time while awaiting release. The trial court erred in denying certification of a subclass, based on the sheriff's policy or custom of allowing jail staff to hold inmates for up to 72 hours before releasing them, due to its perception that the 48-hour rule in McLaughlin would create different burdens and challenges among the potential subclass members. The trial court believed that detentions of less than 48 hours would be presumptively reasonable, and those that extended beyond 48 hours would be presumptively unreasonable, subjecting class members to different burdens of proof. The court erred in applying the 48-hour presumption in the context of a class composed of persons for whom legal authority for detention has ceased, whether by acquittal, release on bond, completion of the sentence, or otherwise. Driver v. Marion County Sheriff’s Dept., #16-4239, 859 F.3d 489 (7th Cir. 2017).

Prison and Jail Conditions: General

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

After the terrorist attacks on September 11, 2001, the U.S. government detained hundreds of illegal aliens, pending a determination of their possible connection to terrorist activity. The plaintiffs, six men of Arab or South Asian descent who were among the detainees and were subsequently removed from the country, filed a proposed class action lawsuit against federal executive officials and wardens, seeking damages, and claiming that their “harsh pretrial conditions” were punitive, violated the Fourth and Fifth Amendments, and were based on race, religion, or national origin. They also asserted that the defendant wardens allowed guards to abuse them. The U.S. Supreme Court has rejected all these claims.

In 42 U.S.C. 1983, Congress provided a damages remedy for plaintiffs whose constitutional rights were violated by state officials. There was no corresponding remedy for constitutional violations by federal agents. In 1971, the U.S. Supreme Court recognized (in Bivens v. Six Unknown Fed. Narcotics Agents, #301, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619) an implied damages action for violations of the Fourth Amendment’s prohibition against unreasonable searches and seizures by federal agents. The Court later allowed Bivens-type remedies in Fifth Amendment gender-discrimination and Eighth Amendment Cruel and Unusual Punishments cases. Bivens, however, will not be further extended to a new context if there are “special factors counseling hesitation in the absence of affirmative action by Congress.”

To avoid interference with sensitive Executive Branch functions or any inquiry into national-security issues, the Court ruled, a Bivens remedy should not be extended to the claims concerning confinement conditions. With respect to the wardens, Congress did not provide a damages remedy against federal jailers in the Prison Litigation Reform Act 15 years after the U.S. Supreme Court’s expressed caution about extending Bivens. Qualified immunity bars the claims of conspiracy to violate civil rights under 42 U.S.C. 1985(3). Reasonable officials in the defendants’ positions would not have known with sufficient certainty that section 1985(3) prohibited their joint consultations and the resulting policies. There was no clearly established law on the issue of whether agents of the same executive department are distinct enough to “conspire” within the meaning of the statute. Ziglar v. Abbasi, #15-1358, 198 L. Ed. 2d 290, 2017 U.S. Lexis 3874.

Prisoner Assault: By Inmate

The wife of a detainee could not prevail in her lawsuit against a county arising out of the death of her husband from a punch in the face while in a holding room at the county jail, because her only evidence of an alleged custom of excessive force against inmates consisted of her husband’s death, the punching officer’s employee history, and a Department of Justice report regarding conditions in the jail. She failed to demonstrate a persistent, widespread practice of officials concerning such assaults by prisoners that was so common and well-settled as to constitute a custom that fairly represented municipal policy. She also failed to produce competent summary judgment evidence of the county's failure to train regarding responses to assaults by inmates and medical aid following a response incident. Hicks-Fields v. Pool, #16-20003, 2017 U.S. App. Lexis 11339 (5th Cir.).

A former detainee at a detention center claimed that a former correctional officer violated his rights by failing to protect him from a violent attack by another prisoner. A federal appeals court held that the trial court did not abuse its discretion by failing to admit evidence regarding the officer's resignation from the center in lieu of accepting termination of his employment. The officer resigned after he was accused of passing a cigarette to an inmate in violation of institutional policy, which appeared to have little relevance to the issues in the immediate case. The plaintiff did not identify a permissible purpose for the resignation evidence under Federal Rule of Evidence 404(b). Judgment for the defendant was affirmed. Glaze v. Childs, #15-2271, 2017 U.S. App. Lexis 11386 (8th Cir.).

Prisoner Death/Injury

A detainee was taken from the county jail to a federal courthouse for his arraignment. Once there, U.S. Marshals escorted him to an interview room to meet with his lawyer. They inspected that room weekly. On the detainee’s side of the room, there is a metal stool attached to the wall by a swing-arm. According to the plaintiff, when he sat on the stool it “broke,” causing him to fall and strike his head. He allegedly saw that bolts were missing. A nurse examined him and noted that his speech was slurred. She had him taken to the emergency room. He was treated for a stroke and continues to suffer adverse effects.

He sued the federal government under the Federal Tort Claims Act, 28 U.S.C. 2671, relying on the doctrine of res ipsa loquitur (it “speaks for itself”) to assert negligence by the government. The trial court rejected the theory, noting that the fall occurred at 11 a.m., so it was possible that others could have already damaged the seat or that he fell without the stool having malfunctioned. A federal appeals court reversed, reasoning that the fact that a detainee is left alone to confer with his lawyer did not defeat the notion that the room and its contents remained within the control of the government. The sort of malfunction that the plaintiff described is the kind of hazard that the government may be expected to guard against. Smith v. U.S., #16-4085, 2017 U.S. App. Lexis 11258 (7th Cir.).

Parents of a prisoner who died while on suicide watch after falling twice in his cell were awarded damages by a jury, including $1 million for wrongful death and lesser amounts for denial of adequate medical care and pain and suffering. Upholding the trial court’s denial of judgment as a matter of law for the defendants, a federal appeals court found the evidence sufficient to sustain the damage awards. It also ruled that the close-observation policy at the prison was ministerial and the corrections officers were not entitled to official immunity. The trial court did not clearly and prejudicially abuse its discretion by determining that evidence of what medical staff thought but did not disclose was irrelevant and, therefore, inadmissible under Fed. R. Evid. 401 and 402. Letterman v. Lammers, #16-1410, 2017 U.S. App. Lexis 11052 (8th Cir.).

Religion

The federal government imposed Special Administrative Measures (SAMs) on a prisoner limiting his communications with the outside world due to past terrorist activities and his connections with terrorist groups. One of the restrictions included a prohibition against participating in group prayer. The plaintiff challenged the legality of his numerous restrictions. He requested a declaratory judgment proclaiming that the government’s imposition and enforcement of the restrictions violated numerous constitutional provisions as well as the Religious Freedom and Restoration Act. He also sought an injunction ordering the government to permit his participation in group prayer.

The trial court dismissed his suit for failure to state a claim. While his case was on appeal, the government allowed plaintiff's SAMs to expire. But he was still prohibited from participating in group prayer due to the housing restrictions at the facility. A federal appeals court found that the government did not meet its burden to affirmatively demonstrate that continuing to deny plaintiff the right to freely exercise his religion once a week furthered a compelling governmental interest in the least restrictive manner. Ghailani v. Sessions, #15-1128, 2017 U.S. App. Lexis 10952 (10th Cir.).

Sex Offenders

North Carolina law prohibited as a felony offense any registered sex offender accessing “a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” Over 1,000 people were prosecuted under that law. A man registered as a sex offender was indicted after posting a statement on his personal Facebook profile about a positive traffic court experience, and state courts rejected his challenge to the law.

The U.S. Supreme Court reversed, holding that the statute impermissibly restricts lawful speech in violation of the First Amendment. Today, the Court reasoned, one of the most important places to exchange views is cyberspace, particularly social media. Even if the statute was content-neutral and subject to intermediate scrutiny, the provision was not “narrowly tailored to serve a significant governmental interest.” While social media will be exploited by criminals and sexual abuse of a child is a most serious crime, the Court agreed, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.”

The statute “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” The state did not establish that this “sweeping law” was necessary to keep convicted sex offenders away from vulnerable victims. Social media websites today are integral to the fabric of modern society and culture. The First Amendment does, however, permit a state to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often precedes a sexual crime, such as contacting a minor or using a website to gather information about a minor. Packingham v. North Carolina, #15-1194, 137 S. Ct. 1730 (2017).

Sexual Assault

A woman claimed that an officer at a county jail sexually assaulted her while he was detained there. A federal appeals court upheld summary judgment for the sheriff and the jail administrator, as the plaintiff did not show that they were deliberately indifferent to known or obvious risks associated with hiring officers to work at the jail, so they were entitled to qualified immunity. The defendants were also entitled to qualified immunity with respect to plaintiff's inadequate training and supervision claims. In this case, it was not clearly established at the time of the alleged misconduct that the county sheriff and the jail administrator needed to make significant changes to their training, supervision, and policies in response to an incident of sexual abuse. Rivera v. Bonner, #16-10675, 2017 U.S. App. Lexis 12081 (5th Cir.).

A federal jury awarded $6.7 million to a woman who claimed that she was repeatedly raped by a guard while she was being detained in a county jail. The guard was acting under his scope of employment when the sexual assaults occurred, the jury found, and therefore the county was liable for the damages amount. The jury also found there was "no legitimate government purpose" to shackle the woman during childbirth labor, delivering a child she was carrying before her incarceration, but jurors did not find she was injured and therefore awarded her no monetary damages on that claim. Jane Doe v. Cnty. of Milwaukee, #14-CV-200-JPS, U.S. Dist. Ct. (E.D. Wis. June 7, 2017), reported in the Washington Post (June 8, 2017).

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Resources

Drug Abuse: Drug Use, Dependence, and Abuse Among State Prisoners and Jail Inmates, 2007-2009, Bureau of Justice Statistics (NCJ 250546 June 27, 2017).

Prison Rape: PREA Data Collection Activities 2017, Bureau of Justice Statistics (NCJ 250752, June 30, 2017).

Reference:

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

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

AELE Seminars

Public Safety Discipline and Internal Investigations

Oct. 2-5, 2017– Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues