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1 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 litigation. Ms. Coleman has 21 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: Unlocking the Rules on Cell Phone Searches By Susan E. Coleman Recently, the FBI has had skirmishes with Apple over the encryption of the iphone belonging to the one of the perpetrators of the mass shooting in San Bernardino at the Inland Regional Center. The court issued an order for Apple to unencrypt the phone, revealing its data to law enforcement; however, the battle is not yet over. Not surprisingly, like the standards for evaluating use of force, the standards to justify examination of a cell phone s contents vary depending on whether the phone s owner is a regular citizen, an arrestee, or a convicted felon. And these standards have been a moving target, with privacy rules for cell phones tightening up via the courts and the Legislature. Of these categories, a citizen has the most protection under the law. A search warrant supported by probable cause, specifically identifying what is being sought in texts, s, or social media, is required to obtain and review the citizen s cell phone. The same standard applied to citizens now also applies to arrestees. While police and jailers used to be able to examine arrestee s cell phones, incident to their arrest, this is no longer permitted. In June 2014, the Supreme Court unanimously held that a search warrant is required to search a cell phone belonging to an arrestee. The Court noted, The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Fortunately, when a person has been arrested, typically there is ample time to obtain a search warrant. But the warrant must be specific in identifying the information and/or data requested and not just seek evidence of criminal activity. What about parolees and probationers? For probationers, this search cannot include cell phones unless it is specifically listed as a condition of probation. In United States v. Lara, the Ninth Circuit decided earlier this month that a probationer had heightened privacy interests in his cell phone and that the phone could not be searched without a warrant after he missed a probation meeting because no condition of his probation implicated the phone. Lara did not have a condition of probation allowing review of his cell phone data. The court noted that a probationer, on probation supervised by the county, has more privacy interests than a parolee, on parole supervised by the State. Presumably this distinction exists because traditionally county jails were reserved for persons convicted of misdemeanors (a sentence of up to one year) and state prisons were exclusively for felons (sentences of one year or more). This distinction is no longer accurate, at least in California, after realignment. The court also noted that Lara was not convicted of a particularly serious crime and he had only missed one meeting with his probation officer, as opposed to being suspected in a current crime. Lara s probation officer noted that Lara had been convicted of a drug crime and cell phones are often used by drug traffickers to arrange sales. However, the court found that this justification could be used for March 2016 Prison Break Page 1

2 nearly any criminal activity, in that any crime involving more than one person might prompt texts, phone calls, s, or searches of various topics. It is not clear whether U.S. v. Lara would limit searches of parolees phones, but doubtless their attorneys would use the same rationale and balancing test to argue that a specific condition of parole is required if a warrantless search of the phone is to be permitted. 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 What about convicted felons, residing in state prison (and county jail too after realignment)? Their privacy interests are the lowest of these categories given their conviction and incarceration for serious crimes. Further, possession of a cell phone is not allowed under title 15 regulations and any phones found are seized as illicit contraband. Because of these factors, state prisons have been free to search cell phones they find in cells or other common areas, with no warrant requirement. While county jails and other law enforcement holding cells may be restricted by a recent bill, there are some exceptions for state prisons. On October 8, 2015, Governor Brown signed into effect the California Electronic Communications Privacy Act (Penal Code 1546 et seq), designed to strengthen electronic privacy against law enforcement access to data. In simple terms, the bill means that a warrant is generally required for law enforcement to obtain data and metadata. Fortunately, there is an exception to this provision applicable to state prisons. Under Penal Code (c)(7), if the phone is seized from an inmate s possession or an area of the CDCR where inmates have access and the phone does not belong to a visitor, then prison officials may access electronic information on the phone by physically reviewing it or by electronic means. (Of course, if they can unlock it, and many inmates delete their texts and photos after receipt/sending.) As new types of technology develop each day, it is likely that these rules will continue to change. It is important for law enforcement officials to know what the requirements are to do searches in order to ensure that evidence that can be crucial for investigations is properly obtained and not suppressed. 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: Put it in Writing: The Importance of Documentation in the Correctional Setting By Kristina Doan Gruenberg Correctional staff members know that it is a mandatory part of their job duties to report incidents whether it is a use of force incident or an inmate s violation of the rules. However, what many people forget is how crucial these documents can end up being for litigation. Here are some tips and examples demonstrating the significance of documenting incidents, both big and small. Details, details, details: It is best to put as much detail in reports as possible early on because memories often fade. Further, the more descriptive the report, the more helpful it can be later. For example, in a use of force lawsuit, a judge and jury will evaluate the following factors to determine if an officer s use of force was unconstitutional: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; March 2016 Prison Break Page 2

3 (4) the extent of threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of a forceful response. 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. Especially for evaluating factor #4 the extent of the threat reasonably perceived by the officer a report can convey what the officer sees and why he or she might have felt threatened. Was the inmate moving? How quickly? Did he say anything? Did his muscles tense up? How loudly was the inmate yelling? It is also important to describe the setting. Were there other inmates around who could have posed a threat, to escalate the situation? Was the incident in a confined space? Did the lighting make it difficult to see what was going on? If an officer misses a crucial fact, such as a verbal threat made by an inmate, a jury will be more skeptical if the officer testifies to that fact but it is missing in his or her incident report. That is also why if an officer later remembers something, he or she should file a supplemental report if possible. There s nothing too small: Report writing can often seem tedious, especially when an incident may seem inconsequential. As an example, staff might have to give out an informational or counseling chrono if an inmate is abusing the mail system. This may seem like nothing compared to an inmate attacking staff or hiding contraband. However, documenting all rules violations are important, and could come in handy in the future. In one case, an inmate claimed that an officer was writing him unwarranted Rules Violation Reports for using indigent envelopes. The inmate claimed that this was retaliation for him writing books about the correctional system, and that indigent envelopes don t necessitate a Rules Violation Report. However, the inmate s central file had numerous counseling chronos warning the inmate that if he continued to improperly use indigent envelopes, he would be subject to further discipline. This helped the officer being sued to show that his actions served a legitimate penological purpose which is a factor considered in retaliation claims. There s nothing too embarrassing: Finally, it might be tempting to avoid writing a report if the incident is embarrassing to the staff member. Yet, this could protect both the staff member and the institution from liability in the future. One inmate sued a staff member alleging that she sexually abused him. However, the inmate had a history of pursuing other staff members. Once this inmate used his contraband phone to find his prison psychologist s home address and wrote her a love letter, telling her how smitten he was with her and how beautiful she was. While this might have been embarrassing to the prison psychologist to report, it was helpful that she reported and documented this right away. This report helped discredit the inmate and showed that he was the one who was actively soliciting relationships with staff members, and not vice versa. March 2016 Prison Break Page 3

4 Christopher T. Kim is an associate at Burke, Williams & Sorensen. He has 4 years of litigation experience and his practice is focused on defending public entities and their law enforcement officers in civil rights litigation. ckim@bwslaw.com direct: Taking the Deposition of an Out-of-State Witness By Christopher T. Kim During discovery in a state court case, you identify a key witness who you want to depose. As you investigate background information on the witness, you discover that the witness lives outside of California. What can you do? Can you issue a California subpoena to the witness and expect the witness will show up to the deposition? Do you need to seek a court order from the judge in your case? Do you need to hire local counsel in the state that the witness lives in? These are common questions that arise when trying to figure out how to obtain the deposition of an out-of-state witness. Because California s subpoena power is limited to the state s geographic boundaries, and since state court rules for civil procedure are not uniform and each state has its own procedure for issuing and enforcing a subpoena for cases pending outside that state, securing the deposition of an out-of-state witness can be a challenging task. Fortunately, the trend among the states is towards adopting the Uniform Interstate Depositions and Discovery Act (UIDDA), which was endorsed by the National Conference of Commissioners on Uniform State Laws in The UIDDA sets forth an efficient and straightforward procedure for litigants to depose out-of-state individuals. Most states, including California, Colorado, Arizona, Nevada, Utah, Virginia, and New Mexico, have adopted the UIDDA, either in whole or in part. Under the UIDDA, to request a subpoena for discovery in support of a case pending in another state, a party must submit (1) a subpoena request (usually a standard court form) attaching the foreign subpoena (from the state where the case is pending), and (2) a subpoena prepared according to the procedures of the discovery state (where the witness lives) incorporating the terms of the foreign subpoena. The clerk of the court or a judge for the discovery state issues the subpoena which then must be served in accordance with the discovery state s law. While most states have adopted the UIDDA or a version similar to it, several states still have not. In those states, you must carefully review the state and local rules to determine what procedures are required to properly obtain an out-of-state witness deposition. Some states require only a notice of deposition or a commission from the state where the litigation is pending. Other states may require an application or motion to be filed in the discovery state s court before the subpoena can issue. Here are some general tips to help you get started on figuring out what you need to do to properly secure the deposition of an out-of-state witness: Confirm the witness exact location: You need to first figure out what state the witness lives in as well as the specific county the witness lives in. The county information is important because this will tell you which state court has jurisdiction over the witness. This information will guide you to which state and local rules you need to review. Review the State and Local Rules: Once you have figured out the exact location of the witness, you should review the state-specific statute or rule of civil procedure addressing the requirements for out-ofstate depositions. Some courts have a section on their website dedicated to out-of-state depositions. March 2016 Prison Break Page 4

5 Call the clerk: Many times the state and local rules will be written in legalese and difficult to understand. Speaking with the clerk or court staff will oftentimes help you better understand what exactly you need to do to obtain the out-of-state deposition. Sometimes jumping through these hoops may not be necessary if the out-of-state witness is friendly. If you have a good rapport with the out-of-state witness or you know the out-of-state witness is not adverse to your case, it may be worthwhile to ask the out-of-state witness to consent to a deposition. But, this option should be used in select circumstances only. If the witness later changes his or her mind and decides not to show up, you will have no means to enforce the deposition since it was based on consent and not a subpoena. Furthermore, you may even be responsible for opposing counsel s costs if they traveled out-of-state to only find that the witness decided not to show up. Arranging and taking the deposition of an out-of-state witness in a state court case can be a daunting task at first, but following the simple steps above can facilitate the overall process. Mitch Wrosch is a partner at Burke. He has four years of specialized experience in correctional litigation, with four civil jury trials and two evidentiary hearings. mwrosch@bwslaw.com direct: Enjoy it While it Lasts Federal Courts See Rate Decrease in Prisoner Lawsuits By Mitchell A. Wrosch On March 16, 2016, the Daily Journal reported that federal court filings were down in The article, citing a report by the Administrative Office of the U.S. Courts, shows a reduction in most federal court filings, including appeals, civil and criminal cases, and bankruptcy matters. The article noted that among the largest drop in federal court filings were prisoner filings, which, according to the article, fell for the first time since The decrease was substantial, with over 8,500 filings less than in The numbers were down in almost every prisoner case category, including writs of habeas, death penalty, civil rights, and motions to vacate sentences. A related article in the Washington Times reports that the number of federal lawsuits brought by Idaho inmates is dropping (Idaho is in the Ninth Circuit along with California). Interestingly, the decrease in Idaho has been attributed to the parole of prolific jail house lawyers, prisoners lack of library access, and delayed mail service due to lockdowns. Both articles attribute the reduction in prisoner lawsuits to pre-filing procedural rules and hurdles, such as the administrative exhaustion requirement of the Prison Litigation Reform Act, and the attorney s fees portion of the Act limiting recovery. Both of these provisions were implemented to reduce frivolous inmate lawsuits. However, it seems unlikely that the decrease is actually the result of the PLRA. Courts have steadily chipped away at the exhaustion requirement in order to allow inmate lawsuits to proceed on the merits. The Ninth Circuit has nearly allowed exceptions to swallow the rule, allowing inmate suits to proceed if they claim the appeal was obstructed, and delaying motions regarding exhaustion to the summary judgment stage instead of resolution earlier in the case. As for the attorney fee provision, although this may potentially be responsible for reducing the number of frivolous lawsuits, it is hard to believe it has had any effect on high profile cases, cases with severe March 2016 Prison Break Page 5

6 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 Torts Real Estate & Business Law Law Enforcement Defense damages, wrongful death claims, or class action lawsuits. While the PLRA limits attorneys fees to 150% of the verdict, this may not substantially limit recovery if the award is substantial. Cases that are settled also are not subject to limitation of any fees incorporated into the settlement. Further, if the person is not in prison at the time he sues, even if the incident at issue occurred in prison, the PLRA does not limit his fees. Thus, wrongful death suits that follow after an inmate homicide, suicide, or alleged fatal lack of medical care, are not subject to the PLRA limitation. In California, it seems more likely that a decreased prisoner population post-realignment would be the cause of reduced filings. While many argue that this only shifted the prisoners to the counties, several voter Propositions have also resulted in reduced sentences and the release of many prisoners. It is also possible that prisoners have shifted their litigation to state courts, as these articles did not track state court litigation. In any event, whatever has caused the decrease in federal court filings should be celebrated. For years, our federal courts have been overburdened with prisoner lawsuits. Many of the lawsuits, if not the majority, are frivolous, and waste the courts limited resources. 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 March 2016 Prison Break Page 6