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P r i s o n B r e a k Correctional Liability Update August 2015 Susan E.

Coleman has 20 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 35 civil jury trials throughout California. email: scoleman@bwslaw.

2831 Burke, Williams & Sorensen, LLP offers the expertise, depth, breadth, and quality service you need in the area of Correctional Litigation through the specialized knowledge of our featured

Coleman Everyone knows that a Miranda warning must be given in a custodial setting when a suspect is being interviewed about a crime, or else the statements made during the interview will likely be

1 P r i s o n B r e a k Correctional Liability Update August 2015 Susan E. Coleman is a partner at the law firm of Burke, Williams & Sorensen, where she specializes in law enforcement defense, including correctional litigation. Ms. Coleman has 20 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 35 civil jury trials throughout California. scoleman@bwslaw.com direct: Burke, Williams & Sorensen, LLP offers the expertise, depth, breadth, and quality service you need in the area of Correctional Litigation through the specialized knowledge of our featured attorneys. Evaluating the Voluntariness of a Confession: Reyes v. Lewis By Susan E. Coleman Everyone knows that a Miranda warning must be given in a custodial setting when a suspect is being interviewed about a crime, or else the statements made during the interview will likely be excluded. Most officers have a Miranda advisement card in their pockets, and/or make a practice of having the suspect initial the advisements including the right to remain silent, the fact that a statement can and will be used against the suspect, and the right to counsel. Most statements provided post- Miranda are considered to be voluntary, unless there is strong evidence of coercion. The Ninth Circuit recently clarified that even when a Miranda warning is given, the subsequent statements may be involuntary and thus excluded when the suspect was already interviewed at length prior to administering Miranda. In the case of Adrian Reyes v. Warden Lewis, decided on November 19, 2015, the Ninth Circuit held the confession of Reyes although given after a Miranda warning -- was inadmissible. Adrian Reyes was a 15 year-old gang member questioned at the police station regarding a drive-by shooting. Reyes was not accompanied by any adult, and he was questioned by two homicide detectives at the station without Miranda warnings. During the two-hour interview, Reyes was told he had been identified as being in the car, which was not the case. The next morning, the detectives took Reyes to the sheriff s department for a polygraph test, without an adult present. Reyes was told he had failed the polygraph exam (it is not known whether this is accurate). During an interview after the polygraph, Reyes admitted involvement in the shooting and provided incriminating details. Reyes was then driven to the police department, where he was told the detectives needed to clarify some things, and then he was given a Miranda warning. Following the advisement, Reyes was again interviewed by the detectives, and Reyes repeated his confession. At trial, Reyes was convicted of first-degree murder with gang and firearm enhancements. On appeal, the Court of Appeal affirmed the conviction, holding that Reyes confession following the Miranda advisement was voluntary and admissible. The Ninth Circuit disagreed, holding that the voluntariness of the in-custody statements under the Fourth and Fourteenth Amendments is not the sole test. Instead, because the two-step interrogation technique is designed to render Miranda warnings ineffective by waiting to administer them after the suspect has already confessed, even the otherwise voluntary postwarning confession must be excluded. The Court noted that curative measures could have been taken to ensure that Reyes genuinely understood the Miranda warnings, but here Reyes did not appear to understand them. Further, the Court stated that relevant factors could be considered in determining whether the statement was voluntary or coercive, such as the timing, setting, and completeness of the prewarning interrogation, the continuity of police personnel, and the overlapping content of the pre- and postwarning statements. August 2015 Prison Break Page 1

com direct: 213.236.2805 What does this mean for a prison or jail s investigative unit, confronted with an inmate suspected of a crime?

2 Kristina Doan Gruenberg is an associate at Burke. Prior to joining the firm, she served as a judicial law clerk in the District of Columbia, handling civil and criminal cases, including many inmate complaints. kgruenberg@bwslaw.com direct: What does this mean for a prison or jail s investigative unit, confronted with an inmate suspected of a crime? In a nutshell, if there is to be any questioning done prior to the Miranda advisement, it should be relatively brief in order to avoid invalidation of any confession obtained after a Miranda warning. Valley Fever Litigation Update By Kristina Doan Gruenberg Most people who live in the Central Valley know about Coccidioidomycosis, better known as Valley Fever, a fungal infection commonly seen in the desert regions of the southwestern United States. (See also our November 2012 Prison Break Article about Valley Fever.) Many people are also now aware that hundreds of inmates have filed lawsuits related to Valley Fever, under various theories all across the state. Although the media often reports the filing of these lawsuits, most news outlets fail to follow-up and report that defendants have been able to successfully defend against many of these lawsuits. Here are some recent Valley Fever successes that our firm has achieved or helped achieve. Aluya v. MTC, Sutton v. MTC, and Hammond v. MTC: These three related lawsuits were filed in the Eastern District of California. Plaintiffs alleged that they contracted Valley Fever at Taft Correctional Institution, a federal prison operated by Management and Training Corporation (MTC). Plaintiffs filed suit for negligence and premises liability, alleging that MTC failed to make Taft a safe place to house inmates. Specifically, Plaintiffs alleged that MTC failed to implement environmental measures such as wetting down dirt, plating grass, and paving concrete, and failed to warn inmates about the dangers of Valley Fever. We filed a motion for summary judgment on behalf of MTC, which was granted by the District Court Judge Ishii on July 13, The Court ruled there is no consensus that any environmental mitigation measures Plaintiffs argue should have been implemented are effective in combating Valley Fever. The Court also noted that the incidence rates of Valley Fever were not higher in the prison population than in the surrounding community, and therefore MTC did not violate any duty of care. Corey Lamar Smith, et al. v. Schwarzenegger, et al.: This lawsuit, filed in the Eastern District of California, is a consolidated complaint of 158 current or former inmates who were incarcerated at Pleasant Valley State Prison or Avenal State Prison. Plaintiffs claim they contracted Valley Fever while in CDCR s custody and brought Eighth Amendment deliberate indifference and negligence claims against several prison officials. Our office, along with the Deputy Attorney General s office, filed motions to dismiss the consolidated complaint. On May 20, 2015, Magistrate Judge Boone issued findings and recommendations granting Defendants Motions to Dismiss based on qualified immunity. The Magistrate held that it was not clearly established as to whether housing inmates in prisons in areas endemic for Valley Fever, a naturally occurring soil-borne fungus, violates the Eighth Amendment. The Magistrate found that Valley Fever is a condition that society chooses to tolerate, as over a million individuals in the San Joaquin Valley live with Valley Fever every day. He therefore found that Defendants would not be on notice that they were allegedly violating any inmates rights by not transferring them to other prisons. August 2015 Prison Break Page 2

Burke's Correctional Litigation Team routinely deals with the following issues: First Amendment Fourth Amendment claims of unlawful search and seizure Eighth Amendment excessive force and deliberate

3 Currently the findings and recommendations are pending before the District Court Judge. Walker v. Andrews, et al.: This lawsuit was brought by an inmate in Kern County Superior Court claiming that he contracted Valley Fever while at Taft Correctional Institution when it was operated by the GEO Group. Burke's Correctional Litigation Team routinely deals with the following issues: First Amendment Fourth Amendment claims of unlawful search and seizure Eighth Amendment excessive force and deliberate indifference to safety or medical needs Fourteenth Amendment due process Religious claims under the First Amendment and RLUIPA Section 1983 claims of all types Bivens claims Torts including negligence, wrongful death, assault and battery, conversion, Bane and Unruh Act claims Class action litigation Parole and probation issues Employment issues Nathan A. Oyster is a partner at Burke, with 12 years litigation experience. His practice is focused on defending law enforcement officers in civil rights litigation, including officer-involved shootings and other use of force cases. Nathan has tried 7 cases to verdict, including 5 jury trials noyster@bwslaw.com direct: Our office filed a Motion for Judgment on the Pleadings, pointing out that this was Plaintiff s third attempt to bring the same lawsuit, which he had previously brought in federal court. The Motion pointed out that the federal lawsuits had already been dismissed based on prison officials showing that their actions did not fall below the standard of care, and that Plaintiff should not get a third bite at the apple. The Court granted the motion in its entirety, dismissing Plaintiff s lawsuit. This case demonstrates the importance of checking to see whether an inmate has previously tried to bring a Valley Fever case, as many inmates are attempting to jump onto the Valley Fever bandwagon and re-file previous cases. If the inmate has attempted to file a lawsuit before and it was litigated, the lawsuit can be dismissed on legal grounds. Conclusion: Although it may seem like the Valley Fever lawsuits are endless, there are several defenses that prison officials can successfully assert. In addition to the defenses noted above, many Valley Fever lawsuits are also barred by the statute of limitations. Failure to exhaust administrative remedies, and/or failure to file government tort claim acts are also common defenses that can be asserted by government entities who are sued for Valley Fever. It also appears that the tides are turning and the courts are recognizing that Valley Fever is a naturally occurring condition endemic to a whole region of the United States, not just the prisons. Even with studies and consultation with experts, there was not a clear solution regarding potential remediation measures. For example, setting aside issues of the drought, it is not clear that watering the ground helps keep the cocci spores from disseminating, versus causing the spores to flourish and later proliferate. Therefore, the courts are holding that prison officials cannot and should not be held legally responsible. Emerging Trends in Law Enforcement Litigation By Nathan Oyster In the past ten years, law enforcement litigation in California has seen a number of trends. There has been a large increase in both verdict size and in the likelihood of a plaintiff s verdict in officer-involved shooting cases and wrongful death claims. Spurred by this potential increase in profitability, and the recovery of attorney s fees in section 1983 cases, some of the leading personal injury attorneys in the state have crossedover and tried their hand at civil rights litigation. Some have achieved success, while others have realized the difficulty in expanding into a new practice area. Reflecting on the last decade of this industry highlights three trends that we expect to emerge in law enforcement litigation over the next decade. In 2025, when we look back again, the nature of law enforcement litigation in California will not be the same. August 2015 Prison Break Page 3

4 Increase in Use of Force and Failure to Protect Lawsuits in County Jails Realignment and other legislation within California has reduced the number of convicted prisoners in County jails. A decade ago, some County jails had roughly a split of pretrial detainees and convicted prisoners within their custody. Now those numbers are roughly or in favor of pretrial detainees. They are also housing longer-term prisoners, with sentences up to four years. At Burke, the broad range of our areas of expertise mirrors California's own vitality, with respected, proven practices in: Construction Law Education Law Environmental, Land Use, and Natural Resources Labor & Employment Litigation Public Law Real Estate & Business Law Law Enforcement Defense Inmates who would have been lower-risk convicted prisoners in a County jail are no longer in custody. On a per-inmate basis, the inmates who remain in the County jails are more dangerous, charged with more severe crimes, and more likely to have an extensive criminal history. The shift towards pretrial detainees creates numerous logistical challenges for County facilities, as jails are required to account for the frequent court appearances of pretrial detainees. This shift in the composition of a jail s inmates will result in an increase in use of force and failure to protect cases within the County jail systems in the state. Increased Use of Data During Litigation to Analyze Monell Claims and Officer Performance Since the summer 2014 protests in Ferguson, Missouri, media coverage of law enforcement in the United States has been intense and unrelenting. Online and print media outlets, such as the Washington Post and FiveThirtyEight.com, have begun looking at the statistics (or lack thereof) documenting law enforcement use of force. The consensus among serious number-crunchers is that the data currently collected by the federal government on law enforcement use of force is essentially worthless. A number of private citizens and online groups have begun collating data on the use of force, including the Washington Post s effort to track every single fatal police shooting in the U.S. over the course of a single year. If you know where to look, data can be found that analyzes every law enforcement agency s per capita shooting rate and the percentage of shootings that result in a fatality. Over the next 10 years, the quality of this data will grow. Attorneys on the plaintiff s side can be expected to use this data against public entities in support of Monell claims, arguing that an agency with a higher than average rate of police shootings has a custom of using unreasonable force against citizens. Public entities and their lawyers need to be prepared to interpret this data themselves and offer arguments placing the statistics into context. Additionally, agencies with lower than average rates of shootings or other uses of force can potentially use the data to oppose Monell claims. Body Camera Footage Will Be Standard In 2025, nearly every law enforcement interaction with a citizen, pretrial detainee, or prisoner that is the subject of civil rights litigation will be captured on video. While there will be cases in which the video evidence unequivocally supports one side or the other, a healthy percentage of cases will hinge upon an interpretation of what the video evidence shows. Over time, the quality of the body camera footage should improve. As officers realize the importance of the footage, an officer backing up a colleague will improve their body positioning, which will lead to an increase in the quality of the cinematography of what is captured. August 2015 Prison Break Page 4

5 These are just some of the trends that may occur over the next decade over civil rights litigation in California. Only time will tell any additional trends and shifts in public perception that may occur. In the past year or two, public attitudes toward law enforcement have undergone a negative shift; however, hopefully this trend can be reversed. We'd Appreciate Your Feedback! If you would like to see any specific topics addressed in future issues, please let us know. Also, if you know other people who would be interested in reading this newsletter, let us know and we'll add them to the distribution list! Law Offices Throughout California 444 South Flower Street, Suite 2400 Los Angeles, CA August 2015 Prison Break Page 5

P r i s o n B r e a k

P r i s o n B r e a k Correctional Liability Update December 2013 Susan E. Coleman is a partner at the law firm of Burke, Williams & Sorensen, where she specializes in law enforcement defense, including