Post on 25-May-2015
transcript
ADDRESSING ADDRESSING LIABILITY AND RISK LIABILITY AND RISK IN CORRECTIONAL IN CORRECTIONAL
INSTITUTIONSINSTITUTIONS
June 29, 2011 Meeting
LeadershipLeadership
Decision Making
RiskManagement
GOALSGOALS
How do you make a How do you make a decision?decision?
DECISION MAKINGDECISION MAKING
FactsAlternativesRisks
The consequences
LEADERSHIPLEADERSHIP
• What is your definition of a leader?
• What is your department’s definition of leadership?
• What are the duties and responsibilities of a leader?
RISK MANAGEMENTRISK MANAGEMENT
Who is the facility’s Who is the facility’s risk manager?risk manager?
WHO GETS SUED?WHO GETS SUED?• Officer (conduct)
• Supervisors and Administrators (failure to do something)
• Agency (deep pockets)
LEVELS OF LIABILITYLEVELS OF LIABILITYCivil Actions
•Intentional torts•Negligence Actions•Violations of Civil Rights (42 U.S.C. § 1983)
Civil Rights of Institutionalized
Persons Act (CRIPA)•42 U.S.C. § 1997a
Criminal Actions•State criminal actions•Depravation of Rights Under Color of Law (18 U.S.C. § 242)•Deliberate Indifference
COST/BENEFIT COST/BENEFIT ANALYSISANALYSISHigh Frequency Low Frequency
High Risk
Low Risk
Adapted from Gordon Graham, Graham Research Consultants
SAFETY AND SAFETY AND SECURITYSECURITY
• Staff
• Inmates
• General Public
SAFETY AND SAFETY AND SECURITYSECURITY
• Staff
• Inmates
• General Public
• Training• Documentation• Supervision• Use of Force
SAFETY AND SAFETY AND SECURITY: STAFFSECURITY: STAFF
• Growing area of litigation
• Standard: deliberate indifference to the inmates’ constitutional rights
TrainingDocumentationSupervision
SAFETY AND SAFETY AND SECURITY: STAFFSECURITY: STAFF
• Be proactive!
• Training: implement policies and procedures
• Documentation: if it is not documented, it did not happen!
• Supervision: performance management
TrainingDocumentationSupervision
SAFETY AND SAFETY AND SECURITY: STAFFSECURITY: STAFF
• Supervisor Liability: Shaw v. Stroudo Actual or constructive knowledge of
subordinate’s conduct;o Supervisor’s response was “so inadequate” to
show deliberate indifference; ando An link between supervisor’s inaction and
injury to plaintiff.
SAFETY AND SAFETY AND SECURITY: STAFFSECURITY: STAFF
• Use of Forceo Sentenced Prisoner• Cruel and unusual punishment standard (8th
Amendment)o Free Citizens• Reasonableness standard (4th Amendment)
o Pre-trial Detainees• Depends on the court• 9th Circuit: reasonableness standard (4th
Amendment)
SAFETY AND SAFETY AND SECURITYSECURITY
• Staff
• Inmates
• General Public
• Classification• Duty to Protect from
Assault• Medical• Suicide• Nutrition
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Classificationo Must protect a
prisoner’s safetyo But it is a violation of
prisoner’s rights to do this through use of a discriminatory scheme of classification
o Strict scrutiny standard
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Classificationo GLBTQI Inmateso Raceo Gang Affiliationo Juvenile
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Duty to Protect from Assaultso Government actors have a duty to protect
prisonerso Deliberate indifference standard• Possibly no liability if the officer responded
to the situation in a reasonable manner
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Medical Careo Plaintiff must show
acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs
o Standard: cruel and unusual punishment
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Medical Careo Obtain medical
evaluation of prisoner whenever possible
o But, having an inmate evaluated by a medical professional may not be enough if there is other deliberate indifference.
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Medical Careo Delay in medical
treatment, causing a more serious injury/illness
o Medicationo Failure to Follow
Doctor’s Orderso Dental Needs
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES• Suicide
o What is the degree of liability for the jail when the detained individuals’ injury is self inflicted?• Still have a duty to protect prisoner
o Standard: deliberate indifference to the need for suicide prevention
1. Whether officers knew that the detained individual was a suicide risk; and
2. The steps taken by the department to reduce the risk of custodial suicide
SAFETY AND SAFETY AND SECURITY: INMATESSECURITY: INMATES
• Nutritiono Prison officials are
obligated to provide inmates with nutritionally adequate meals on a regular basis
o Not doing this = Serious deprivation (and liability)
SAFETY AND SAFETY AND SECURITYSECURITY
• Staff
• Inmates
• General Public
• Mistakes will be magnified
• Public Relations• Good will
MISCELLANEOUS MISCELLANEOUS PRISONER RIGHTSPRISONER RIGHTS
• Identity Verification• Strip Searches• Religious
Accommodations• Grievance Process
IDENTITY IDENTITY VERIFICATIONVERIFICATION
• Cannot rely on the arresting agency’s identification of an individual. o Jail must have own
policies, procedures, and practices to identify the arrestee
o Due process violation
STRIP SEARCHESSTRIP SEARCHES• Preliminary Matters
o Considered intrusive and subject to 4th Amendment Protections
o Discussing searches for institutional security (not evidence)
o Governed by 9th Circuit case law• There have been no cases involving the rules on
strip searches decided by the U.S. Supreme Court
• 9th Circuit is relatively restrictive on this issue
STRIP SEARCHESSTRIP SEARCHES• Justification to Perform
o May not be done automatically during the booking process
o Must have individualized reasonable suspicion to believe the particular suspect is concealing weapons or contraband
• Manner must be reasonable• Viewing of prisoner during clothing change or
showering = strip searcho Without individualized reasonable suspicion,
this is a violation of the 4th Amendment
RELIGIOUS RELIGIOUS ACCOMMODATIONSACCOMMODATIONS
• Accommodations requested: o Dietary requestso Religious itemso Religious serviceso Religious texts
• Also, 1st and 14th Amendment Claims
RELIGIOUS RELIGIOUS ACCOMMODATIONSACCOMMODATIONS
• Religious Land Use of Institutionalized Persons Act (RLUIPA)o Governs jails and
prisons that accept federal prisoners
o Provides protections for religious rights unless strict scrutiny standard met
GRIEVANCE GRIEVANCE PROCESSPROCESS
• “No action shall be brought with respect to prison conditions under §1983 or any other federal law by prisoner unless all administrative remedies available are exhausted.” 42 U.S.C. 1997e(a)o This means that prisoner must “properly” exhaust
his/her remedies through a grievance process before filing suit in federal court
o The proper standard only applies to those who are prisoners when they file suit
o Grievance must give enough information to alert the prison to the problem and facilitate its resolution
EMPLOYMENT EMPLOYMENT ISSUESISSUES
• Human resources• Fair Labor Standards
Act (FLSA)• Work conditions,
hours, wages• TRAINING!
BUILDING YOUR BUILDING YOUR DEFENSEDEFENSE
Before IncidentIncident
Post Incident
CONCLUSIONCONCLUSION
CONCLUSIONCONCLUSION
Contact InformationContact Information
Rachel_Heintz@tempe.gov
Extern to the Police Legal Advisor, City of Tempe