P r i s o n B r e a k

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Coleman has 18 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 30 civil jury trials throughout California. email: scoleman@bwslaw.

1 P r i s o n B r e a k Correctional Liability Update October 2013 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 18 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 30 civil jury trials throughout California. scoleman@bwslaw.com direct: What if the Glove Doesn t Fit? An Analysis of Demonstrations in Court By Susan E. Coleman In the O.J. Simpson criminal prosecution, Simpson was asked by Deputy DA Chris Darden to try on a bloody Isotoner glove found at the scene of the double homicide. After he first put on a latex glove, Simpson then struggled to fit on the glove, making it seem that the glove (size XL) did not fit him. In his closing argument, defense attorney Jimmy Cochran famously quipped, If it doesn t fit, you must acquit. As this example shows, it s never a good idea to try a demonstration in court when the results are uncertain. If the demonstration does not go smoothly or as expected, it may backfire. Conversely, if an opposing party is asked to do a demonstration, it may unintentionally go well [from his or her perspective] and enhance the credibility of the witness, such as occurred in the O.J. Simpson trial. Demonstrations are generally within the discretion of the trial court to allow, so long as they help the jury to grasp a concept they may not readily understand. Medical witnesses and economists are often permitted to draw diagrams or calculations to explain their conclusions. However, if a demonstration is too dissimilar, such as asking one officer to demonstrate something that occurred in a rapidly evolving use of force incident involving multiple officers, it might be misleading and should be denied. For example, in Espinoza v. Dunn, the Ninth Circuit found that the district court committed reversible error when it allowed the judge s law clerk to simulate an incident in which the defense argued that the plaintiff had banged her head against the car s rear window, but instructed the law clerk not to engage in any kicking or thrashing, although there was testimony this was what the plaintiff was doing. The Ninth Circuit thus found that the demonstration conditions were too dissimilar compared to the actual conditions, thus creating a risk that the demonstration was seriously misleading. 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. Generally, the courts find explanations of a technique sufficient in lieu of courtroom demonstrations, particularly when the opposing party asks for the demonstration. In Piper v. Kramer, the Ninth Circuit found the district court s exclusion of a demonstration was reasonable when Officer Kramer was permitted to describe in detail his method for conducting a pat-down search. Demonstrations may also take more time than explanations, and be somewhat disruptive in the courtroom. However, if the technique demonstrated is reasonably simple, or requires only one person to fairly demonstrate it, the courts may allow it as a means to test the truthfulness of the witness or to explain the technique. For example, courts have allowed a witness to demonstrate how he drew his gun with his right hand; how a suspect was handcuffed; and how to apply a kneeling wristlock. Any differences between the courtroom demonstration and actual conditions may be addressed during testimony, those minor differences affect the weight of the evidence rather than its admissibility. October 2013 Prison Break Page 1

Additionally, it is risky to ask an opposing party to demonstrate something in court, without knowing in advance how it will appear.

2 In court, if you seek to have a witness or party demonstrate a technique or even draw a diagram, it should be practiced several times in advance. If a demonstration looks awkward in front of the jury, it may lead to doubts about the witness s credibility. Additionally, it is risky to ask an opposing party to demonstrate something in court, without knowing in advance how it will appear. A demonstration can be either very convincing or devastating at trial; the problem is that unless the results are assured, and consistent with your goals, a potentially risky demonstration is better avoided. In this situation, the motto better safe than sorry is advisable. Martin Kosla is a senior associate who practiced for 4 years in Australia before moving to California in Martin has been defending law enforcement in civil rights cases since He served in the Royal Australian Artillery before becoming an attorney, and has black belts in karate and taekwondo. mkosla@bwslaw.com direct: C is for Cookie and Convict Too By Martin Kosla What do O.J. Simpson and the Cookie Monster have in common? Let s see. Two things really. They both started their acting careers in the 1970s and they both love oatmeal cookies. Indeed, last month, the former football player and actor was caught stealing more than a dozen oatmeal cookies from his prison s cafeteria at Lovelock Correctional Center in Nevada. Simpson, now 66, was once a successful NFL player and was the first player to rush for more than 2,000 yards in a season. He later became an actor, appearing in various television shows and movies such as The Naked Gun trilogy. In 1995, Simpson was acquitted of the double homicide of his ex-wife, Nicole Simpson, and her friend, Ronald Goldman. In 2007, Simpson was arrested in Las Vegas and charged with numerous felonies, including armed robbery and kidnapping in relation to the armed theft of sports memorabilia. He was convicted and sentenced to 33 years of imprisonment. Recently, the Nevada Parole Board granted Simpson parole on some charges related to the robbery, but ordered that he remain incarcerated for the next four years on the remaining charges. According to an inside source, a correctional officer noticed Simpson hiding something under his prison clothes as he walked back to his cell after lunch. When they stopped and quizzed him, Simpson revealed a stash of more than a dozen oatmeal cookies. Initially, Simpson s fellow prisoners thought he had smuggled in a cell phone or some other contraband. However, when the guard started pulling cookies out of O.J. s shirt, the other inmates started laughing so hard they nearly fell over, the inside source told The National Enquirer. Apparently, the cookies were confiscated but Simpson was only given a warning and was not written up. The inside source said that the cookie stealing incident left Simpson quite embarrassed. Rightfully so. While C is for Cookie, Simpson should have learned his lesson about theft by now. October 2013 Prison Break Page 2

3 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: 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 Smile, You re on Candid Holding Cell Camera By Kristina Doan Gruenberg In 2008, police responded to a car accident in San Francisco and arrested the driver, Cassandra Nickerson, after she failed field sobriety tests and preliminary blood alcohol screening tests. At the police station, an officer conducted a breathalyzer test and placed her in a holding cell. Inside the six foot by three foot holding cell was a toilet, which Nickerson used. The toilet was clearly visible through a glass window in the cell s door, and Nickerson admitted that she was apprehensive someone might see her while walking by. Approximately 2 hours after her arrest, Nickerson was released and driven home. She was later charged with three counts related to driving under the influence. While Nickerson s attorney was conducting discovery regarding the breathalyzer test, he was given a copy of the surveillance video, which included footage of Nickerson using the toilet. Nickerson stated that she did not know there was a motion-sensitive surveillance camera recording her while she was in the cell. There was no sign in the cell warning individuals that they were being recorded and the camera was not readily visible. Nickerson filed a motion to dismiss all charges against her on the grounds that videotaping shocks the conscience and warranted dismissal under Rochin v. California, 342 U.S. 165 (1952), a Supreme Court case which held that outrageous government conduct could necessitate dismissal of criminal charges. The Magistrate Judge granted the motion on the grounds that the government did not provide any justification for the recording, and he found that the violation of Nickerson s privacy shocked the conscience. Thus, the charges against Nickerson were dismissed. The Magistrate s opinion was subsequently reversed by the District Court. The District Court reinstated the DUI charges against Nickerson, and she was found guilty at a bench trial. The Ninth Circuit affirmed the District Court s decision. The Ninth Circuit found that criminal charges can only be dismissed if the government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed. For example, if coercive techniques were used during an interrogation. Here, Nickerson could not show that there was a connection between videotaping her using the bathroom and securing her indictment or conviction. Interestingly, the Ninth Circuit did not directly address in this case whether Nickerson had a right to privacy in the holding cell, or whether the government had violated those rights. This has become an issue in the courts, as individuals have increasingly been filing lawsuits against police stations for recording them in holding cells (and perhaps also to get their convictions overturned). For example, in Puyallup, Washington, twelve people sued the city for violation of privacy for recording them in their holding cells using the toilet and undressing. It appears that the Ninth Circuit may recognize that recording individuals in holding cells would not be a violation of their Fourth Amendment Rights. In their memorandum opinion, the Court recognized that other police stations across the country have written standards and use motion-sensitive video cameras for several valuable purposes. These include for medical and security concerns, such as if a detainee attempts suicide, if a physical altercation occurs between detainees, or if a detainee becomes progressively more intoxicated or October 2013 Prison Break Page 3

sick in the holding cell and needs medical attention.

Although pretrial detainees have more legal rights than inmates do in prison, because they have not yet been convicted, it is hopeful that the courts addressing these lawsuits recognize that there

4 sick in the holding cell and needs medical attention. The cameras also serve to deter abusive police conduct because, if police officers are aware that the cells are being monitored, they are less likely to commit physically abusive acts towards detainees, the Ninth Circuit wrote. Moreover, because the Ninth Circuit pointed out that Nickerson could be seen through the glass door, there is an implication that she did not have an expectation of privacy in any event. Although pretrial detainees have more legal rights than inmates do in prison, because they have not yet been convicted, it is hopeful that the courts addressing these lawsuits recognize that there should only be a limited expectation of privacy in holding cells (if any), and that video surveillance cameras can promote safety and security of both the detainees and law enforcement staff. Mitch Wrosch is an associate at Burke. He has four years of specialized experience in correctional litigation, with four civil jury trials. mwrosch@bwslaw.com direct: Trends in Exhaustion of Administrative Remedies: When Simply Processing an Appeal is Held to Violate an Inmate s Rights By Mitch Wrosch As discussed in previous editions of Prison Break, Congress has enacted numerous constraints in order to stem the tide of frivolous inmate lawsuits in federal court. One of these measures is the Prison Litigation Reform Act s requirement of exhaustion of the facility s administrative remedies before filing a lawsuit in court. Until recently, staff tasked with reviewing and processing grievances enjoyed a certain level of immunity for their actions, which are mostly procedural. But recent decisions from California district courts have eroded the legal protection that was once afforded to these individuals, and threatens to create an entirely new class of individuals for inmates to sue. The Ninth Circuit, among others, has always held that there is no constitutional right to file grievances, under any circumstance. This means that an inmate s inability to submit a grievance, for whatever reason, is not a violation of the inmate s constitutional rights. The Eighth Circuit, taking it a step further, has determined that inmates do not have a right to a particular response to a grievance, and that actions taken in reviewing appeals cannot serve as the basis for liability under section In light of this line of reasoning from both the Eighth and Ninth Circuits, it is surprising to find that various district courts are now finding that staff involved in the review and processing of inmate grievances can be held liable for contributing to a constitutional violation. Interestingly, this reasoning appears to be based on a Seventh Circuit case where the Court expressly held that staff who review appeals neither cause nor contribute to a constitutional violation. In George v. Smith, 507 F. 3d 605, (7th Cir. 2007), the Seventh Circuit stated that: [Inmate] George s argument on the merits is that anyone who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution himself. That proposition would not help him if it were correct, for he has lost on all of his underlying constitutional theories. But it is not correct. Only persons who cause or participate in the violations are responsible. October 2013 Prison Break Page 4

At Burke, the broad range of our areas of expertise mirrors California's own vitality, with respected, proven practices in: Education Law Labor & Employment Litigation Public Law Real Estate &

It concluded with an analogy which, when analyzed in the converse, is the source of the recent decisions that hold staff liable for reviewing grievances.

5 At Burke, the broad range of our areas of expertise mirrors California's own vitality, with respected, proven practices in: Education Law Labor & Employment Litigation Public Law Real Estate & Business Law The Court then stated, unambiguously, that ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. It concluded with an analogy which, when analyzed in the converse, is the source of the recent decisions that hold staff liable for reviewing grievances. There, the Court stated that A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not. District courts within the Ninth Circuit have seized upon this analogy to equate staff who review and process appeals with supervisors who could have intervened to prevent a violation, but failed to do so, and have imposed liability based upon that faulty reasoning. For example, a recent decision from the Eastern District cited the above analogy in George, and then held that, but if there is an ongoing constitutional violation and the appeals coordinator had the authority and opportunity to prevent the ongoing violation, a plaintiff may be able to establish liability by alleging that the appeals coordinator knew about the impending violation and failed to prevent it. This logic runs afoul of the Court s ruling in George, which rejected the theory that simply knowing about a constitutional violation is the same as violating the constitution. One can imagine a scenario where an appeals coordinator could be found to have participated in the ongoing constitutional violation, such as a medical appeals coordinator who denies a sick inmate s request for urgent medical care. However, these cases are few and far between. The most likely result of this trend is that appeals coordinators may now be held liable for failing to grant inmate requests for things which they have no authority to grant. For instance, if an inmate requests a religious diet that is not offered by the CDCR, the appeals coordinator can be found to have contributed to the potential violation of the inmate s First Amendment rights, even though s/he cannot possibly provide the inmate with the relief he seeks. Unfortunately, this appears to be the inevitable outcome of recent holdings that appeals coordinators can be found to have participated in the constitutional violation based on knowledge. Ulysses Aguayo is an associate at Burke, Williams & Sorensen, where he works in correctional litigation and law enforcement defense. He graduated from Loyola Law School in spring Prior to joining Burke, he served as a judicial extern to the Honorable S. James Otero, of the Central District of California. uaguayo@bwslaw.com direct: Condoms Vetoed for State Prisoners By Ulysses Aguayo Last year, in our December 2012 newsletter, we published an article about the pros and cons of providing inmates access to condoms. On the one hand, providing condoms to inmates can drastically reduce the transmission of sexually transmitted diseases, Hepatitis C, and HIV. On the other hand, inmates are prohibited from sexual conduct (except during authorized conjugal visits), and providing inmates with condoms would effectively sanction their conduct. Some have also argued that giving inmates condoms would provide them with another handy container for drugs, and one that can be secreted in body cavities. The article also discussed numerous statistical findings associated with inmate healthcare, which illuminated the potential for significant savings to the State, such as: inmates are 5 times more likely to develop bloodborne infectious diseases and sexually transmitted infections; the average cost of caring for an inmate with AIDS is $105,000 per year; and each condom costs.22 cents total for materials, packaging, and distribution. A condom distribution pilot program implemented by San Francisco County Jail ( SFCJ ) found that: inmates more likely to engage in sexual relations with each other (and thus those more likely October 2013 Prison Break Page 5

to spread HIV) were the primary users of the condoms; sexual activity had not increased; new contraband had not been developed by the introduction of condoms; custody operations were not impeded; and

SFCJ s observations were mirrored by similar condom distribution pilot programs implemented by the California Men s Facility in Vacaville and the California State Prison Solano.

Under AB-999, the CDCR would develop a 5-year plan to expand the availability of condoms in all California prisons. Notably, AB-999 did not require the CDCR to foot the bill.

6 to spread HIV) were the primary users of the condoms; sexual activity had not increased; new contraband had not been developed by the introduction of condoms; custody operations were not impeded; and staff generally accepted implementation of the program. SFCJ s observations were mirrored by similar condom distribution pilot programs implemented by the California Men s Facility in Vacaville and the California State Prison Solano. Shortly after our article was published, Assemblyman Rob Bonta (D- Oakland) introduced AB-999, also known as the Prisoner Protections for Family and Community Health Act. Under AB-999, the CDCR would develop a 5-year plan to expand the availability of condoms in all California prisons. Notably, AB-999 did not require the CDCR to foot the bill. Instead, all non-administrative costs, including dispensers and condoms, would be paid for or provided through donations. According to Senator Rod Wright (D-Los Angeles) who carried the bill in the Senate, AB-999 addressed public safety issues and created a potential way for the State to save money since, if [] inmates get sick while they re in prison, that costs you a condom is cheaper than treating disease after they get it. On September 10, 2013, the State legislature passed AB-999, leaving the bill s fate in the hands of Governor Brown. Governor Brown vetoed AB-999 on October 13, In a short veto message, the Governor stated, [t]he Department currently allows family visitors to bring condoms for the purpose of the family overnight visitation program. While expansion of the program may be warranted, the Department should evaluate and implement this expansion carefully and within its existing authority. Governor Brown s veto did not sit well with some. For instance, the president of the Aids Health Foundation ( AHF ), Michael Weinstein, expressed his extreme[] disappointment that Governor Brown vetoed AB-999, stating that the bill was a fairly prudent health measure intended to protect inmates as well as their post-incarceration partners often, wives and girlfriends from possible transmission of HIV and other STDs. Also, Assemblyman Rob Bonta responded to Governor Brown s veto message, stating that AB-999 was not intended to address family visits: with enormous respect to the Governor, that s not the issue [s]ex in prisons is happening. It's illegal, technically, but it is happening. The issue of family visits is just not the issue. Nevertheless, Governor Brown s message from the veto is clear: the State will not be compelled to make condoms available to inmates. 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 October 2013 Prison Break Page 6

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 March 2016 Susan E. Coleman is a partner at the law firm of Burke, Williams & Sorensen, where she specializes in law enforcement defense, including correctional