Protecting Your Staff and Your Agency From Criminal and Civil Liability Claims JAIL LIABILITY-Policy Implementation Legal & Liability Risk Management Institute Kentucky Association of Counties

What are the liabilities of a Jail Operation? State = Criminal and Civil Federal = Criminal and Civil Administrative/Media Scrutiny Civil Actions – Intentional Torts some by there very

nature are likely to be subject of Law Suits. Ex. Assault, Battery, intentional infliction of emotional distress and False Imprisonment. Criminal Actions Mirror above.

Civil-Federal 42 U.S.C.A. § 1983 Permits individuals to hold government employees

and, in some cases, their employers accountable for violation of rights secured by the U.S. Constitution.

Person must act under Color of law Money Damages or Injunctive Relief Attorneys fees

©2011 LLRMI/Jack Ryan

©2011 LLRMI/Jack Ryan

©2011 LLRMI/Jack Ryan

©2011 LLRMI/Jack Ryan

Conduct/ Varying Duties Negligence: The failure to exercise that degree of

care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care. For example, Colorado Dept. of Corrections ignored

repeated warnings that paying inmates vastly different wages based on the state they hailed from rather than their actual work assignments, refusing to hear inmates’ grievances, and feeding inmates skimpy portions of lousy food would lead to a riot.

Conduct/ Varying Duties Reasonableness: The manner in which a

reasonable person of the same experience would act when faced with similar circumstances. Example:

Conduct/ Varying Duties Shocks Conscience: Shocks the conscience

is a phrase used as a legal standard in the United States and Canada. Intent to Cause Harm-Decision in emergency

conditions Deliberate Indifference-Know about a problem

and take no steps to correct

ADA The Americans with Disabilities Act of 1990.

(ADA) is the short title of United States (Pub.L. 101-336, 104 Stat. 327, enacted July 26, 1990), codified at 42 U.S.C. § 12101 et seq.

The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability.

It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

Summary Judgment Summary judgment is a judgment made by the court

prior to a verdict because no material issue of fact exists and one party or the other is entitled to a judgment as a matter of law.

In other words there is no violation of the Constitution even under the facts as alleged by the person bringing the lawsuit.

Qualified Immunity Qualified immunity protects public officials from being sued

for damages unless they violated “clearly established” law of which a reasonable official in his/ her position would have known.

The basic question- Has a court of the jurisdiction where the event occurred addressed this issue before so as to put the officer on notice that conduct was wrong; or

Is it obviously something that would be wrong

Hope v. Pelzer Prisoner hitched to hitching post twice Second time for 8 hours in 90 degree heat One drink of water-no bathroom breaks Don’t need a case of material similarity for

correctional officers to know this was wrong.

Deliberate Indifference Deliberate indifference occurs when a

professional knows of and disregards an excessive risk to an inmate’s health or safety. Example: Smith v. Wade (1983) an inmate was

harassed, beaten and sexually assaulted by his cell mates. He brought a section 1983 action against a prison guard, asserting that the guard knew or should have known.

Litigation Strategy As supervisors and command personnel where does

duty rest? On the agency. What is better for officer?

No Agency intervention. Sympathetic Officer that jury identifies with.

Deep Pockets Organization. Trainers and Policy Makers sometimes respond out

of loyalty to officer rather than agency and hurt both in doing so.

Generally Accepted Practices What are they? Legal mandates

Federal law Jail Standards

American Correctional Association Common Practice/Trends

Taser use What is everyone doing?

Pepper spray

Policy and Procedure Based on Professional Thinking and Law

Training Policies must be trained

Supervision Catch an officer doing something right

Performance Management Commitment to selection followed by Performance Evaluation

Review and Revision Constant review of what is happening within the agency.

Legal Counsel and Updates

Weak Link but essential

12 High Risk Critical Tasks Prisoner Intake Safety Emergency Procedures On-Going Medical/ Psychological Services Classification Continuous Throughout Incarceration Searches/ Contraband Control Prisoner Transport Sexual Harassment/Sexual Misconduct Rape/ Sexual Assault Use of Force Prisoner Grievances/Rights Internal Affairs Nutrition and Special Dietary Needs

Prisoner Intake Intake screening Fingerprinting Validating warrants Validating identification Health assessment Drug screening

Classification At intake And Throughout

Fairley v. City of Long Beach, 281 F.3d 913 (9th Cir. 2002) Officers informed booking sergeant that

Fairley was a twin. Fairley protested that the warrant was for his brother.

Booking was completed w/out fingerprinting, but on physical description alone.

IA investigation-All policies complied with.

Baker v. McCollan 443 U.S. 137 Continued Protests Prolonged incarceration May lead to liability.

Safety Emergency Procedures Fire planning session including evacuation. Fire drills. Fire safety inspections

Safety Emergency Procedures Each jail should also have written policies and

procedures for emergency situations including: Escape Hostage taking Riot Food poisoning Civil disturbance in the community Natural disaster Suicide Other death and disorder Mass evacuation disaster plan

Key Control and Escape

Cameras

Social Networking Another Area to Consider…

©2011 LLRMI/Jack Ryan

Indiana Trooper-Facebook

Infectious diseases Challenges to the implementation of standard and transmission-based precautions in jails and prisons.

Handwashing Many areas in which clinical care is provided

lack hand washing stations. Soap and soap dispensers are valuable

commodities and may be stolen by inmates. Alcohol-based hand washes burn with a clear

flame and may raise concerns with custody staff.

PPE Custody employees routinely search inmates and conduct cell

searches, increasing the risk for sharps injuries and contact with blood and other

potentially infectious materials. Inmates may intentionally expose staff to blood and other

potentially infectious materials by either spitting or throwing fluids.

PPE is often stored in locked containers to prevent theft, limiting access.

Sharps To limit syringe diversion, puncture-resistant

leak-proof containers may not be available at the site where sharp instruments are used.

Use of sharps in nonclinical areas, such as housing units (e.g., cells and dormitories), increases the risk for injury.

Patient Care equipment Patient care equipment (e.g., stethoscopes,

blood pressure cuffs, and otoscopes) can be made into weapons or escape paraphernalia and, therefore, cannot be left in the rooms of inmates who are on contact precautions. These items can become contaminated and lead to transmission of pathogenic organisms.

Housing Most jails and prisons are overcrowded and

have an inadequate number of single cells that can be used for isolation, facilitating the transmission of contagious illnesses.

Large dormitories make it difficult to group inmates.

Prisoner Hygiene Many inmates do not have ready access to

soap and water. Shower access is often restricted. The number of toilets may be insufficient to

serve the population.

Laundry Clothing and linen is strictly rationed. Inmates who have

conditions that predispose to soiling clothing with blood and/or body fluids may not be able to secure additional clothing.

Inmates often wash their own clothes in buckets, sinks, or bags to ensure that they do not lose their clothes. This may remove dirt and odors, but it does not disinfect clothing.

Bleach is contraband and is not available to inmates

Housekeeping Most housecleaning is performed by

inadequately trained inmates who do not have access to effective cleaning supplies.

Housing areas and common areas (such as booking and bus screen areas, showers, toilets, day rooms, gymnasiums, weight equipment, and clinic waiting rooms) may be infrequently cleaned.

Transport and Restraint Inmates are often moved without informing clinical

services. Transportation vehicles may be inappropriate for

transmission-based precautions. Vehicles may not be routinely cleaned and can be a

source of transmission of contagious illnesses. Custody restraints are often reused without

disinfection.

Treatment Many facilities have lengthy delays for

inmates to see clinicians. Copayments discourage inmates from seeking

care and may lead to further transmission of contagious conditions.

Jail Suicides Key- Foreseeability ( look for signs ) Key- Training for Recognition Key- Prior Suicide Attempts - tracking Key- Facilities- design, suicide cell Attempts to Revive/Rescue ( duty )

Jail Suicides Identifying Propensity Steps taken for those Identified Maintaining Supervision/ 10 min checks Facility Continued Services - Do you pay inmates to watch a suicidal

detainee? Do you have cameras ?

Estelle v. Gamble, 429 U.S. 97 (1976) Inattention to the medical needs of inmates Gamble, an inmate of the Texas Department

of Corrections, was injured on November 9, 1973, while performing a prison work assignment. He instituted this civil rights action complaining of the treatment he received after the injury.

Standards of Care Sentenced Prisoners- 8th Amendment- Estelle Pre-Trial Detainees-14th Amendment- See- Powers v. County of Lorain, 2008 FED

App. 0047N (6th Cir. 2008)

Classification Continuous throughout Incarceration Classification and Inmate-on-inmate violence Segregation Inadequate supervision Training of detention officers

Farmer v. Brennan, 511 U.S. 825 (1994). Transsexual rape and beating Claim against jail officials Court applied a heightened standard Must have knowledge of Risk and Fail to Act

Searches/ Contraband Control Manner of search: Degree of privacy Searcher of same sex Hygienic conditions Physical contact Professional manner

New cases Florence v. Bd. Of Chosen Freeholders 3rd

Circ. Appealed to U.S. Supreme Court QUESTION PRESENTED: Whether the Fourth Amendment permits a jail

to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.

©Jack Ryan/LLRMI 2011

Held: Strip Search Anyone Entering General

Population But-minor offenders who can be segregated-

not without reasonable suspicion-concurrence- 2 votes of 5

State law

Prisoner Transport Inmates should be escorted to a with prior

notification of any special needs requirements.

Inmates should be transported safely and in a timely manner for medical, mental health, and dental appointments both inside and outside the jail.

Prisoner Transport Inmates should be in proper restraints. The proper amount of staff members should be

assigned to transport an inmate based upon their security risk level.

The transportation vehicle should be well maintained and operated efficiently.

Inmates should be kept away from all weapons. Inmates should be searched before and after.

Use of Force In many of the more egregious uses of force,

where significant injury occurs, litigation has discovered real management flaws in the areas of policy, training, monitoring, and incident review.

Use of Force Inmates should be free from: Sadistic and malicious behavior Excessive use of force Embarrassment and/ or harassment

Cruel and Unusual Punishment

Hudson v. McMillian, 503 U.S. 1 (1992) Even a minor use of force that is not for the

purpose of maintaining order and discipline and is not in good faith may constitute a constitutional violation

Prisoner assaulted while shackled but no significant injury.

Use of Force/8th Considerations… 1. What was the need for force? 2. Proportionality-How much force was used in

relation to the need? 3. What was the extent of the injury? (Note-

Hudson v. McMillian) Note: Courts tend to apply the 8th Amendment

standards to pre-trial detainees.

Riots Whitley v. Albers-Guard being held hostage-a

prisoner who is trying to aid officials is shot. Questions: 1. Was there a malicious and sadistic infliction

of pain or was action taken in good faith to maintain or restore order?

Use of Force Issues (TASER) Research Force Continuum (Right with Pepper-Spray) Pepper Spray-combustibility Accidents Abuses Elevation/Topography Restraint ( no taser while restrained ) Multiple Hits ( not the best practice )

Use of Force Restraint of Prisoners Excited Delirium Positional Asphyxia

Use of Force Do not remain on top of subject after the subject has been

restrained. Turn the subject on side or in an upright position of comfort. Maintain constant observation. Render first-aid immediately if physical distress is detected at

the level for which officer has been trained and call for emergency services.

Always notify booking/detention officers of violent struggle any use of force involving pepper-spray; lateral vascular neck restraints; or maximal restraint techniques.

Use of Force: Hog Tie “Officers may not apply this technique when an

individual’s diminished capacity is apparent. The diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual’s health or well-being.”

Danley v. Allen, 540 F.3d 1298 (2008) Prisoner acting up-sprayed with one short

burst (3-5 Second Blast) Placed in cell and not allowed to

decontaminate Failure to allow decontamination after he

calmed down was a failure to temper the force

Buckley v. Haddock 11th 2008 Man on ground-handcuffed and crying-

mental crisis-tase to move (11th states this is okay )

Prisoner Grievances/ Rights Inmate Rights: Telephone use Public defender coordination Professional and Personal visits Correspondence/ Mail Requests Library Services (Law Library) Programs Grievances

Prisoner Grievances/ Rights Access to courts and counsel Access to the outside Access to due process Access to medical care Access to records Freedom of religious beliefs and speech Freedom from discrimination Protection and freedom from corporal punishment Freedom from harassing searches and seizures Freedom from cruel and unusual punishment

Prisoner Grievances/ Rights The Grievance Process: An inmate who feels that a violation of policy or

procedure has occurred; a violation of civil, constitutional, or statutory rights is alleged; or that criminal or prohibited acts have been committed by an employee or volunteer, may request a grievance form from an officer.

Internal Affairs Investigation quickly Photos Thorough, accurate, timely Objective Discipline

Nutrition and Special Dietary Needs The jail should provide inmates with

nutritious meals prepared in a sanitary manner.

There should be daily and quarterly meal evaluations by a Food Service Manager.

Nutrition and Special Dietary Needs Vegetarian diets Religious diets Medical diets Holiday menus Special occasion menus

Nutrition and Special Dietary Needs Food Inventory Food Storage Daily sanitation and cleanliness inspections Temperature controls Health department inspections Safety inspections and training