Addressing Liability and Risk in Correctional Institutions
Leadership, decision making, and risk management go hand in hand in operations.
Goals Protect your employees Protect your agency Already striving to accomplish these goals Today we will be discussing sources of liability and risk of the activities in daily jail operation. Specifically, we will discuss how decisions are made and what you can do to minimize and address sources of liability within your operations. Failure to address liability and risk issues potentially subjects the entire community to negative consequences. This diminishes the jail’s ability to achieve its mission.
How do you make a decision?
“ Usual crisis team” cartoon
Decisions - Decisions are made every day Any decisions can give rise to risk and liability - When making decisions, consider the following FART: Facts Alternatives Risks The consequences. - FART
“ Decision Making” Cartoon
Leadership - Especially important for implementation of policies, procedures, and practices. Ask : What is your definition of a leader? Ask : What is your department’s definition of leadership? Ask : What are some duties and responsibilities of a leader?
“ Don’t step in the leader-ship” Cartoon
“ Delegating decision-making” Cartoon
Ask : Who is the facility’s risk manager?
Who gets sued? - Officer will be sued Obvious - Supervisors and administrators may get sued if they failed to do something Examples: failure to train, failure to supervise - Agency will be sued The attorney will search past the incident and look for something that will make the agency liable Deep pockets
Civil Actions Intentional torts Assault, Battery, False Imprisonment, Invasion of Privacy, Fraud, etc. An intentional tort is any deliberate interference with a legally recognized interest. Intentional because the person interfering with a legally recognized interest acts: with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Negligence actions Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. Violations of Civil Rights Personal liberties that belong to an individual, owing to his or her status as a citizen or resident of a particular country or community Civil Rights of Institutionalized Persons Act (CRIPA) - CRIPA gives the Attorney General the authority to investigate institutional conditions and file lawsuits to remedy a pattern or practice of unlawful conditions. Criminal Actions State criminal actions Assault, battery, etc. Depravation of rights under the color of law Excessive force, sexual assault, false arrests and fabrication of evidence, deprivation of property, failure to keep from harm Acts carried out by government officials operating both within and beyond the limits of their lawful authority. “ Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency. Deliberate indifference Intentional disregard or criminal recklessness
Cost/Benefit Analysis in Decision Making Risk is inevitable. Be proactive to tackle the risks associated with jail operation. Must: - Continually assess risks associated with jail operation Determine which risks are most important to manage Plot activities based on their risk level and frequency Assists in determining where to focus resources - Implement strategies to control the risks Evaluate the effect of these efforts and make adjustments as needed
( click ) Three areas of concern: Safety and security of staff, inmates, and the general public - These are the areas where risk and liability can be greatest ( click ) To minimize risk and liability, there must be policies, procedures, and practice or customs within the organization - Only works if these are actually followed. ( click ) When any of these fail, liability arises.
“ Time Difference” Cartoon
( Overview ) Safety and Security: Staff Training Documentation Supervision Use of Force
Safety and Security: Staff - Suits based on the failure to train, document, and supervise are included in a growing area of litigation that jails are more and more frequently seeing. - Liability arises in civil rights cases from a failure to train employees that shows a deliberate indifference to inmates’ constitutional rights City of Canton v. Harris , 489 U.S. 378 § 1983 case
Safety and Security: Staff Most Important way to tackle this: Be proactive! Training Identify necessary areas (some present themselves) Do not miss an opportunity to turn a situation into a training opportunity Develop policies and procedures that anticipate foreseeable field incidents that LEOs can reasonably be expected to encounter Training should include hypothetical situations so officers get used to implementing the procedures Documentation Document and correct actions Failure to correct employees actions can be used to show deliberate indifference If it is not documented, it did not happen! Supervision No requirement of affirmative encouragement Only requires failing to adequately guard against injuries through training and supervision Performance Management Regular performance evaluations Discipline is not proactive Constantly review internal and external information
Safety and Security: Staff Supervisor Liabilty - Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994): Supervisor Liability - Supervisory officials may be held liable for the constitutional injuries inflicted by their subordinates - Court pinpoints those individuals in the decision making chain whose deliberate indifference permitted the conduct to continue unchecked - “(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff; - (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,’ and - (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.”
Use of Force - Sentenced prisoner Standard: Cruel and Unusual Punishment (8 th Amendment) Requires malicious or sadistic use of force Pierce v. Multnomah County, Or., 76 F.3d 1032, 1042 (9 th Cir. 1996). Excludes de minimis uses of physical force (in risk assessment, this means a level of risk that is too low to be concerned with) Free Citizens - Reasonableness standard that is used for force usage on free citizens (under the 4 th Amendment) - Pre-trial detainees - Some courts apply the reasonableness standard; some apply the cruel and unusual punishment standard - 9 th Circuit applies the reasonableness standard Cotton v. County of Santa Barbara , 286 Fed. Appx. 402 (9 th Cir. 2009) No requirement that prisoner suffer injuries in order to prevail
( Overview ) Safety and Security: Inmates Classification Duty to protect from assault Medical Suicide Nutrition
Discriminatory Classification Scheme Must protect a prisoner’s personal safety under the 8 th Amendment Farmer v. Brennan , 511 U.S. 825 (1994) Using a discriminatory scheme of classification to do this violates a prisoner’s constitutional rights Cases are subject to a strict scrutiny standard Action must be justified by a compelling government interest (necessary or crucial) Must be narrowly tailored to achieve that interest And must be the least restrictive means for achieving that interest
Classification Con’t Gay, Lesbian, Bisexual, Transgender, Questioning, Intersexed (GLBTQI) Inmates Very broad topic area, but some problem areas to be aware of: Jail housing that is either unsafe or overly isolating Disrespectful forms of address in the jail Failure to provide appropriate access to hormone therapy and adequate medical and mental healthcare Many institutions are implementing polices and procedures to address these problem areas Recognizing and preventing harassing behavior toward transgender people Addressing inmates in a manner appropriate to their gender identity Adopting written housing policy to address classification issues Providing hormone therapy - See Model Protocols on the Treatment of Transgender Persons by San Francisco County Jail at www.transgenderlaw.org/resources/sfprisonguidelines.doc Race Under the equal protection clause, all racial classifications are “immediately suspect” Must survive strict scrutiny analysis Gang Affiliation Johnson v. California , 543 U.S. 499 (2005) Unwritten policy of racial classification for segregation to help prevent gang violence Strict scrutiny standard of review rather than “reasonably related to legitimate penological interest” standard governed inmate's equal-protection challenge Corrections officials had to demonstrate that policy, assertedly adopted to prevent violence caused by racial gangs, was narrowly tailored to address necessities of prison security and discipline. But also must not be deliberately indifferent to risks that would place safety of inmate in jeopardy See Luna v. Thurien & Sacramento County , 129 Fed. Appx. 381 (9 th Cir. 2005) Officer alleged to have deliberately released inmates into an area where a member of the rival gang was showering, which provoked a fight and provided amusement for jail officials. Officer her was indifferent to the risk of serious harm to the detainee Juveniles Per AZ law (A.R.S. § 8-305), if housed with adult offenders, juveniles shall be kept in a physically separate section from any adult charged or convicted of a criminal offense and no sight or sound contact between the juvenile and any charged or convicted adults is allowed.
Many suits that allege improper classification involve inmate-on-inmate assaults Duty to Protect From Assaults Government actors have a duty to protect prisoners from assault Violation of this duty is shown through a deliberate indifference to conditions that pose a substantial risk of serious harm to inmates Deliberate Indifference: More than negligence Knew of risk but failed to take any steps to protect - But possibly no liability if an officer responded to the situation in a reasonable manner See Edmonds v. Walker , 2009 U.S. App. Lexis 5962 (7 th Cir. 2009) – could not locate
Medical Care Generally will be a § 1983 actions dealing with a failure to provide for medical needs of the inmate Standard Plaintiff must show acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs 8 th Amendment standards concerning cruel and unusual punishment City of Revere v. Mass General Hospital , 463 U.S. 239 (1983) Generally, it will be difficult for plaintiffs to meet the standard of deliberate indifference to serious medical needs Estelle v. Gamble , 429 U.S. 97 (1976) But remember: due process places an affirmative obligation on the police to protect a citizen based on the fact the citizen is in custody
Medical Care Con’t - Obtain medical evaluation of prisoner whenever possible in an attempt to limit liability - But, per 9 th circuit case law ( Long v. County of Los Angeles , 442 F.3d 1178 (9 th Cir. 2006)), even where trained professionals are involved, a plaintiff is not foreclosed from raising a genuine issue of triable fact regarding municipal liability when evidence is presented which shows that the municipalities failure to train employees amounts to deliberate indifference
Medical Care Con’t Possible causes of action: Delay in Medical Treatment Delay More serious injury or illness = liability Failure to medicate Prewtt v. Roos , 160 Fed. Appx. 609 (9 th Cir. 2005) As a result of the defendant’s interference/failure to follow plaintiff’s medical treatment, plaintiff’s pain was exacerbated This interference violated plaintiff’s constitutional rights Jail/Officer Failure to Follow Doctor’s Orders Webb v. Douglas County , 224 Fed. Appx. 647 (9 th Cir. 2007) Prison official acts with deliberate indifference when ignoring the instructions of prisoner’s treating physician or surgeon, including failing to call the Doctor and dispensing of unprescribed medicine Dental Needs Meeks v. Allison , 290 Fed. Appx. 4 (9 th Cir. 2008) Corrections and jail officials, including heal service professionals, cannot be deliberately indifferent to the dental needs of a prisoner where the need is serious in nature
Suicide - What is the degree of liability when the detained individual’s injury is self inflicted? - Constitutional duty to protect individuals when they are involuntarily detained - Courts have required a deliberate indifference to the need for suicide prevention in order to make a constitutional claim by a detainee Whether LE knew or had reason to know that the detained individual was a suicide risk Must be foreseeable (risk known) Examples Detainee suicide threats Detainee previously attempted suicide while in LE custody Whether the decedent showed a strong likelihood that he/she would attempt to take his/her own life 2. Steps taken by department to reduce the risk of custodial suicide Essentially asks “did jail officials respond reasonably?” Training in suicide prevention Physical structure of cells Sometimes considered: steps taken to rescue an individual who has attempted to commit suicide in custody P roactive Steps: Examine the physical structure of the cell Document suicide attempts so that officers can check for past attempts at intake Suicide prevention training (including the factors that might indicate a propensity to commit suicide)
Nutrition - Under the 8 th Amendment, prison officials are obligated to provide inmates with nutritionally adequate means on a regular basis - Foster v. Runnels , 554 F.3d 807 (9 th Cir. 2008) - Repeated and unjustified failure to provide adequate sustenance on a daily basis amounts to a serious depravation (and liability)
Safety and Security: General Public - Some case law The infrequency of situations that involve the general public are offset by the tremendous exposure, loss of public relations, and loss of good will News article regarding jail safety and security breaches
( Overview ) Miscellaneous Prisoner Rights Identity Verification Strip Searches Religious Accommodations Grievance Process
Identity Verification Must have a policy and procedure in place for verifying the identification of an arrestee Alvarado v. Bratten , 299 Fed. Appx. 740 (9 th Cir. 2008) Individual arrested and held on warrants that were actually for arrestee’s twin brother Suit against both LAPD and the jail Court rejected the defense that the jail was entitled to rely on the identification by the police Due Process violation (14 th Amendment)
Strip Searches - Considered intrusive and subject to 4 th Amendment protections Two Types: Searches for evidence (usually not done in jails, but upon arrest) Searches for institutional security – will be discussing today Governed by 9 th Circuit case law No cases on strip search rules have been decided by the US Supreme Court 9 th Circuit is relatively restrictive regarding strip search rules compared to other circuits
Justification to Perform Strip Searches - Strip searches may not be done automatically during the booking process Must have individualized reasonable suspicion to believe the particular suspect is concealing weapons or contraband for every strip search Way v. Ventura County , 445 F.3d 1157 (9 th Cir. 2006) Things insufficient for search justification: General institutional security concerns alone (even when suspect is placed with other prisoners in a common area or common population) A charge of misdemeanor being under the influence of drugs (per CL) Self Surrenders in the 9 th Circuit Self surrender status is not enough for RS to justify a strip search Doe v. Balaam , 494 F. Supp.2d 1173 (Dist. of Nevada 2007) The county's policy of strip searching all arrestees who self-surrendered to county jail, absent reasonable suspicion that any arrestee was smuggling contraband, was unreasonable, and thus amounted to deliberate indifference to arrestees' Fourth Amendment rights. Manner must be reasonable to meet the Constitutional standards E xamples: Use of searcher of same sex Done in sanitary conditions Done without physical contact Done with a degree of privacy Strip Search Substitute/Subterfuge The viewing by personnel of a prisoner during change from street clothes to jail clothes or during the process of showering without having the individualized RS required for a strip search Consider the current policies of the intake process and determine if customs/practices allow for viewing of the naked body Proactive step: maintain a level of security without showing the person’s whole body through half doors
Religious Accommodations - Generally include issues re: meals, religious materials or institution workshops Types of claims: Berry v. Waushara Co. Jail , 2008 WL 4821310 (E. Dist. Wis. 2008) Dietary requests Religious items Religious services Religious texts 1 st and 14 th Amendment Claims
Religious Accommodations Con’t Claims may arise under the Religious Land Use of Institutionalized Persons Act (RLUIPA) Governs Jails and prisons that accept federal prisoners RLUIPA provides for protections of religious rights unless the jail/prison can establish a compelling state interest in the denial and the matter of denial is the lease restrictive means possible to meet the compelling state interest
Grievance Process - Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e(a) - No action shall be brought with respect to prison conditions under section 1983 or any other federal law by prisoner unless all administrative remedies available are exhausted - Foundation case interpreting the exhaustion requirement: Woodford v. Ngo , 548 U.S. 81 (2006) - Exhausting all remedies means that the prison properly exhausted his/her remedies through the grievance process - But “only those individuals who are prisoners at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. § 1997e(a)” in the 9 th circuit. Talamantes v. Leyva , 575 F.3d 1021, 1024 (9 th Cir. 2009). - This is the majority view in regard to this issue. Griffen v. Arpaio , 557 F.3d 1117 (9 th Cir. 2009) Factual specificity required for grievance filing - Need information that will alert the prison to a problem and facilitate its resolution - Enough information to allow prison officials to take appropriate responsive measures
Employment Issues Human Resources - Issues involving employees create another possibility for risk and liability - § 23-403. Employer's duties per statute: - Employment comes with a place of employment that is free from recognized hazards that are causing or likely to cause death or serious physical harm - Comply with occupational safety and health standards and state law - But, a condition or practice common within an industry is only deemed a recognized hazard when a standard or regulation concerning the condition or practice has been developed - Basically, if there is an industry standard or practice developed to minimize risk of death or injury, you should implement it to keep your employees safe (and reduce agency liability) Fair Labor Standards Act (FLSA) - The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. - Must comply with the FLSA and State Law - Hours and Wages: Overtime Example - Options employers have for employee overtime pay: - 1.5 times the regular rate of pay or 1.5 hours of compensatory time off for each hour worked (A.R.S. § 23-392) Work Conditions, Hours, Wages Important to monitor to avoid liability Work Conditions: significant risk and opportunity for liability Safety: Correctional officers and jailers have one of the highest rates of nonfatal on-the-job injuries. Even first-line supervisors/managers of correctional officers also face the risk of work-related injury. Sexual harassment Between employees Between employees and detainees Training! Cannot stress the importance of training! Not only a way to reduce risk and liability, but also to increase employee safety See generally: Bureau of Labor Statistics, http://www.bls.gov/oco/ocos156.htm
Building your Defense Before incident Incident Post Incident
Conclusion Policies, procedures, practice/custom Extremely important to have Must continually monitor Ever evolving when new risks and/or liabilities are identified
Conclusion To implement your policies and procedures, and to assure practice and custom are in line with the policy and procedure, you must: TRAIN TRAIN TRAIN Additionally, document! If it is not documented, it did not happen!
ADDRESSING LIABILITY AND RISK IN CORRECTIONAL INSTITUTIONS June 29, 2011 Meeting