Addressing Liability and Risk in Correctional Institutions

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


• 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


• Be proactive!

• Training: implement policies and procedures

• Documentation: if it is not documented, it did not happen!

• Supervision: performance management

TrainingDocumentationSupervision


• 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.


• 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)


• 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


• Classificationo GLBTQI Inmateso Raceo Gang Affiliationo Juvenile


• 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


• Medical Careo Plaintiff must show

acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs

o Standard: cruel and unusual punishment


• 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.


• 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


• Nutritiono Prison officials are

obligated to provide inmates with nutritionally adequate meals on a regular basis

o Not doing this = Serious deprivation (and liability)


• 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

[email protected]

Extern to the Police Legal Advisor, City of Tempe

Education

Addressing Liability and Risk in Correctional Institutions